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. . '^ •>.•*. *k.«

' Documents

OF THE

Canadian Constitution

1759-1915

'»

SBLECTBD AND BDITBD ^ \

BY

W. P. M. KENNEDY, M.A.,

(Department of Modem History, University of Toronto),

AUTHOR OF "UFB OF PARKBR";
STUDIES IN TUDOR HISTORY " BTC^ ETC

Ml

TORONTO
OXFORD UNIVERSITY PRESS

AND AT
LONDON, NBW YORK, MBLBOURNB, BOMBAY

AND MADRAS

MCMXVIII

\V.V^.

;1^'

COPYRIGHT, CANADA, 1918,

By

OXFORD UNIVERSITY PRESS.

To

G. M. WRONG

Professor of Modem History in the University

of Toronto,

AS
A TOKBN OF FRIENDSHIP AND ESTBBM.

3R.?6(7

PREFACE

My primary object in publishing this collection of documents
has been to provide students of Canadian Constitutional develop-
ment in the Department of Modem History, University of To-
ronto, with a handy and convenient volume. I have not therefore
thought it necessary to edit the documents in close detail. The
notes which I have provided are meant to encourage work rather
than to give full information. Nor have I written a long historical
introduction. The history of the Canadian Constitution can be
divided into six well defined periods. I have arranged the docu-
ments selected for each of these periods in chronological order so
that the student can easily follow the development which they
suggest, and I have linked up each section with introductory notes
in which I attempt to sum up, briefly and in broad generalization,
the history to which the documents afford illustrations. With the
growing interest, however, in Constitutional history, especially
within the British Empire, I venture to hope that the volume may
prove useful to a wider circle of readers than those for whom it
has primarily been compiled.

If such a volume as this needs a defence, necessity and experi-
ence must bear the burden of it. Many of the well-known volumes
of documents — e.g., by Messrs. Shortt and Doughty, Professors
Egerton and Grant, and Mr. W. Houston — ^are out of print, and
even had they been accessible, none of them fulfilled exactly what
experience had taught me was necessary — a single volume in which
acts of parliament, ordinances, proclamations and such dry-as-dust
material would be vitalized by being brought into touch with let-
ters, speeches and contemporary illustrations. These are of the
greatest help in making dull documents live, and in giving that
contemporary outlook which is the hardest thing for beginners in
history to acguire. Experience has guided me, too, not only in
compiling the book, but in selecting the documents. To the skilled
stadent of the subject my selections may appear arbitrary; but I
have tried to include no document which has not proved its value
in actual teaching, and I have excluded many which, whatever
their intrinsic importance, have not satisfied that test. The test
itself is, I feel, arbitrary ; but when a selection had to be made, it
served a practical and useful purpose. I have omitted any selec-
tbns from Lord Durham's Report, which must be read as a whole
hjr all students of the Canadian Constitution, and selections from
it would be superfluous. I have also excluded any select cases
illustrating the workings of the British North America Act of
1867. The cases are too numerous and too confusing for selec-

tions in a volume such as this. In the final section of the book
I have given references which will facilitate their study.

With regard to the text, I have as a general rule strictly ad-
hered to the sources given at the head of each document. I have
also purposely referred to Christie's History of Lower Canada as
a source, because the reference will help the student. As far as
possible, however, I have collated documents taken from Christie
with official copies. On the whole, Christie gives an accurate text.

I should like to acknowledge my thanks to the Dominion
Archivists, to Professors Egerton and Grant, and Mr. W. Houston,
whose work in the same field has made mine all the more easy.
I owe much to the kindness of officials in the various libraries
where I have worked, especially to those of the Legislative Library,
Toronto. The Librarian of that Library has gone to the trouble
of having most of the parliamentary papers relating to Canada
bound together under 'years. These he has called Imperial Blue
Books Relating to Canada, Under that title I refer to documents
which will also be found in the British Parliamentary Papers.
This admirable arrangement has saved me hours of work. The
dedication feebly acknowledges a friendship which lies deeper
than common work in a common subject would suggest.

University of Toronto,
1st February, 1918.

CONTENTS

FIRST PERIOD
1759-1763

Introductory Note to the Period ....
I. Articles of the Capitulation of Quebec, 1759
II. Articles of the Capitulation of Montreal, 1760
III. Treaty of Paris, February 10, 1763 ....
IV. The Royal Proclamation of October 7, 1763

3

5

6

14

18

SECOND PERIOD
1763-1774

Introductory Note to the Period 25

V. Instructions to Governor Murray, Dec. 7, 1763 ... 27

VI. Ordinance Establishing Civil Courts, 1764 .... 37

This Ordinance was issued by Governor Murray to
regulate and establish the administration of justice in
the Province.

VII. Murray to the Lords of Trade, October 29, 1764 . . 40

Murray complains of the British in Canada and praises
the Canadians. He looks for further privileges for
the latter. He hopes the Ordinance (No. VI) will be
approved, as he considers it necessary to prevent emi-
gration.

VIII. Petition of the Quebec Traders to the King, 1764 . . 41

The Petitioners outline their settlement and progress,
even under military rule which they endured, hoping
for civil administration. Murray's rule is objected to
as vexatious and partial; complaints are made that he
is negligent in his religious duties. His recall is asked
for, and a new and more sympathetic Governor re-
quested. A House of Assembly is also petitioned for
in which the British alone should sit.

IX. Ordinance of November 6, 1764 43

This Ordinance aimed at quieting the uneasiness of
the Canadians in connexion with security in their
property.

X. Report of the Attorney General and the Solicitor General
of England regarding the Civil Government of Quebec,
1766 44

The Report claims that much disorder has been caused
by the failure to provide for the use of the French
language and for the employment of Canadian judges
and advocates; by the fact that the Canadians feared
that a strict interpretation of the Royal Proclamation
(No. IV) was imminent. The provision of Canadian
jurors had, however, removed many misunderstand-
ings. Further changes, however, in the judicature are
advised. Recommendations are given: to follow in civil
cases French custom, and in criminal cases English
criminal law.

Contents,

Page

XI. Ordinance of 1766 48

This amends and amplifies No. VI.

XII. Mas^res' Considerations on the Expediency of an Act

of Parliament for the Province of Quebec, 1766 . . 49

Parliament and not the King must settle Canadian
questions. The whole legal system needs careful con-
sideration. A House of Assembly is not now expedient
— reasons are given; but if it is to be established,
Parliament and not the King must be responsible.

XIII. Commission to Chief Justice William Hey, 1766 . . . 53

XIV. Remonstrance of the Members of Council to Carleton
October 13, 1766 55

Five members of the Council blame the Governor for
his methods in consulting only a part of the Council
and in connexion with appointments to the Council.

XV. Carleton's reply to No. XIV, October, 1766 .... 55

The Governor curtly dismisses the complaint. He will
take advice when and where he can best get it, and
will act on his own best judgment.

XVI. Carleton to Shelburne, December 24, 1767 .... 56

Complains of the legal system erected by No. VI. Its
continuance will produce discontent.

XVII. Hillsborough to Carleton, March 6, 1768 57

Hillsborough gives his interpretation of The Royal
Proclamation of 1763 (No. IV). With regard to
property, there was no intention of overturning the
laws and customs of Canada. Remedial instructions
are promised.

XVIII. Mas^res' Report to Hillsborough, 1769 57

Reports that Governor Carleton recommends the con-
tinuance of English criminal law and the revival of
the whole body of French civil law in use before the
conquest.

XIX. Maseres' Criticism of No. XVIII, 1769 58

Disapproves of the revival of the whole body of
French civil law. Elaborate reasons are given. He
recommends a code of laws for Quebec in which
French and English civil and criminal laws should be
judiciously included after careful selection. If inex-
pedient, let English criminal law continue, and let the
French law relating to tenures, etc., be revived.

XX. Carleton to Hillsborough, March 28, 1770 .... 61
Encloses No. XXI. and justifies it.

XXI. Ordinance for Improving the Administration of Justice,

1770 63

An elaborate ordinance by means of which Carleton
vainly hoped that some of the corruptions of the legal
system would be improved.

XXII. Case of the British Merchants Trading to Quebec, 1774. 72

A detailed elaboration of the principles underlying
No. VIII. Petitioners rely on documents to prove
their case. They fear the revocation of the Royal
Proclamation (No. IV.), etc. They have built up

Contents. xi

Page

their trade and business on the presumption of English
law being in use and maintained. They dread the
revival of the French code. They defend the morality
of introducing and maintaining the English system,
especially in relation to trade, contracts, trial by jury,
habeas corpus. Prosperity has followed the methods
already employed. No objections to French law in
relation to landed property. House of Assembly re-
quested. Complaints made against the erection of a
Legislative Council as outlined in the proposed Quebec
Act. Sufficient Protestant landholders now in the
Province to form a House of Assembly. Objections
to the admission of Rom^n Catholics to the Council,
which, if it must be constituted, must be made inde-
pendent of the Governor, its continuance limited to a
certain time, and its numbers fixed. Payment for
Councillors suggested.

XXni. Lord Mansfield's Judgment in Campbell v. Hall, 1774 . 79

Discusses inter alia (a) the general position of a con-
quered country in relation to law, (b) the Proclama-
tion of 1763 (No. IV.).

XXIV. Debates in the British Parliament on the Quebec Act,

1774 . .' 86

XXV. The Quebec Act, (14 George III, c. 83.), 1774 ... 132

XXVL The Quebec Revenue Act, (14 George III, c. 88), 1774 . 136
Provides for the raising of a provincial revenue.

XXVII. Address from the (General Congress to the Inhabitants

of Quebec, October 26, 1774 139

The revolting Southern Colonies invite the Canadians
to make common cause with them.

THIRD PERIOD
1774-1791

Introductory Note to the Period 147

XXVIII. The Quebec Revenue Act (15 George III. c. 40), 1775 . 149
This Act "amends and explains" No. XXVI.

XXIX. Instructions to Governor Carleton, 1775 150

XXX. Ordinance for Establishing Civil Courts, February 25,

1777 158

This document, with the two following, represents
Carleton's scheme for legal administration.

XXXI. Ordinance to Regulate Procedure in Civil Courts, Feb-
ruary 25, 1777 160

XXXII. Ordinance for Establishing Criminal Courts, March 4, ^/
1777 ^J^i

XXXIII._ Colonial Tax Repeal Act (18 George III. c. 12), 1778 . 165

ICXXIV. iJaldimand to Germain, October 25, 1780 166

Haldimand considers that the sentiments of the major-
ity in the Province should prevail, and that the Quebec
Act saved the Province from becoming one of the
United States.

xii Contents.

Page
XXXV. Treaty of Paris. 1783 167

XXXVI. Haldimand to Lord North. November 6. 1783 .. . 170
Hears rumours that the "ancient subjects" intend to
plead the arrival of the Loyalists in the Province as a
strong support to their claim for a House of Assem-
bly. Habeas Corpus to be put on a secure and clear-
cut foundation.

XXXVn. Postmaster^eneral Finlay to Sir Evan Nepean. October

22, 1784 170

A House of Assembly not understood by the gener-
ality of the Canadians. Education very backward. A
foundation must be laid by education. It is therefore
necessary to establish free parochial schools, and to
disseminate information about the functions of repre-
sentative institutions before constituting them in the
Province. ^Habeas Corpus and juries discussed.

XXXVIII. Petition for a House of Assembly, 1784 172

From the British and some of the Canadians. The old
claims are set forth, but. in addition, a detailed plan of
a new written constitution is outlined.

XXXIX. Plan for a House of Assembly. 1784 175

This plan is supplementary to No. XXXVIII.

XL. Objections to a House of Assembly, &c.. 1784 . . .176
A reply, section by section, on the part of the major-
ity of Canadians, to No. XXXVIII.

XLI. Address from Roman Catholic Subjects to the King. 1784. 178
Further reply to No. XXXVIII. Inter alia, priests
are needed and education is suffering. Permission is
asked to bring priests from Europe. An Assembly
feared as a method of taxation. Delay is asked at any
rate, until the people have been canvassed.

XLII. Instructions to Lord Dorchester. 1786 180

XLIII. Finlay to Nepean. February 13. 1787 185

Difficulties in the legal world still continue. A new
nomenclature growing up^^new Canadians and old
Canadians" — very pleasing to the noblesse. Is it wise
to perpetuate French ideas, etc.? Is not the experi-
ence of the lukewarmness of the habitans in the Revo-
lutionary War a warning?

XLIV. Ordinance re Proceedings in Civil Courts. April 30, 1787. 186

XLV. Ordinance re Criminal Courts, April 30, 1787 ... 188
This is an amendment to No. XXXII.

XLVI. Debate on Adam Lymbumer's Evidence before the

House of Commons. 1788 189

. XLVII. Sydney to Dorchester, September 3, 1788 191

Parliament cannot postpone the discussion and settle-
ment of Canadian questions any longer. Will Dor-
chester therefore send as full an account of them as
possible, and such as may be laid before Parlismeffti
Particular attention in this account must be laid on an
Assembly, taxation, trial by jury. It is proposed to
divide the Province. Will an Assembly be imme-
diately necessary in the new district settled by the
Loyalists?

Contents. xiii

Page

XLVIII. Dorchester to Sydney, November 8, 1788 193

Reply to No. XLVII. Statistics of population. The
commercial element is chiefly responsible for the de-
mand for an Assembly. The habitans are incapable
of forming an opinion; clergymen are neutral; the
noblesse are opposed. Taxation is feared above all;
but the dangers of an Assembly among an uneducated
and simple people are not overlooked. Dorchester is
opposed to a division of the Province at present, gives
his reasons; but should Parliament decide on it, he
encloses a description of a proposed boundary line.

XLIX. Finlay to Nepean, February 9, 1789 195

Discusses further an Assembly. Growing demand for
popular power to tax as a "spur to trade," and as
"England holds her colonies for the sole purpose of
extending her commerce." He believes any form of
government will satisfy the Canadians, provided taxa-
tion and religion are left alone.

L. Grenville to Dorchester, October 20, 1789 .... 196

A private dispatch supplementing No. LI. Concessions
are proposed. He thinks it wise to give them when
they will be considered favours, rather than to wait
till they may be extorted. Dorchester's opinion is
asked on the entire proposals, especially in connexion
with Crown Reserves.

LI. Grenville to Dorchester, October 20, 1789 197

Encloses first draft of the Constitutional Act of 1791.
Plan is "to assimilate the constitution to that of Great
Britain/' and to divide the Province. Boundaries are
a delicate question. United States must not be irri-
tated. The constitution and composition of the new
Legislative and Executive Councils and House of
Assembly discussed. Hereditary Legislative Council
proposed through a Provincial Baronetage.

LII. Dorchester to Grenville, February 8, 1790 201

Acknowledges No. LI. Returns draft of Act with his
suggestions inserted. Objects to an hereditary Legis-
lative Council. Discusses, as requested, the structure
of the proposed new constitution. Encloses an im-
portant letter from Chief Justice Smith, together with
the Chief Justice's proposed additions to the new
Bill (Nos. LIII. & LIV.).

LIII. Chief Justice Smith to Dorchester, February S, 1790 . 203

Outlines his personal experience in the Southern Colo-
nies. Attributes the Revolution to the fact that they
had "outgrown their constitution." Seeks to avoid a
similar evil in the remaining British Colonies in Amer-
ica, and sends his proposals which he thinks would
prevent it.

LIV. Proposed Additions to the New Canada Bill, 1790 . .205

Chief Justice Smith's outline for a "General Govern-
ment" for all British North America— a federal plan.

LV. The Constitutional Act (31, George III. c. 31), 1791 . 207

xiv Contents.

FOURTH PERIOD
1791-1840

Page
Introductory Note to the Period 223

LVI. Act Introducing English Civil Law into Upper Canada,

1792 227

LVII. Act Establishing Trial by Jury in Upper Canada, 1792 . 228

LVI II. Act for Appointing Town-Officers in Upper Canada,

1793 229

LIX. Extracts from Rules of House of Assembly, Lower

Canada, 1793 232

These Rules deal with the questions of language and
supply.

LX. Dorchester's Suggestions for the Government of Canada,

February 19, 1793 233

The establishment of a "General Government" for all
British North America.

LXI. Dundas to Dorchester, July 17, 1793 234

Impossibility of carrying out at present the sugges-
tions of No. LX.

LXII. Simcoc to Portland, December 21, 1794 234

Is about to appoint County Lieutenants in imitation
of England and to incorporate certain towns. En-
closes copy of his proposed letter to the new Lieuten-
ants.

LXII I. Simcoe to Lieutenants of Counties, 1794 236

Enclosure referred to in No.- LXII.

LXIV. Portland to Simcoe, May 20, 1795 237

Disapproves of both schemes outlined in No. LXII.
The despatch is an interesting official comment on
colonial government.

LXV. Milnes to Portland, November 1, 1800 238

Finds the Executive in the Province very weak.
Clerical influence too powerful to admit of an in-
crease of the Crown's. Recommends that the clergy
take out licences from the Government, as intended
by the Royal Instructions. The disbanding of the
militia an unfortunate necessity. Necessity of settling
Protestants on the waste lands and of increasing the
Roman Catholic Bishop's salary in ocder to secure
him more closely to the Crown. The defects of the
Assembly outlined. Education and the Protestant re-
ligion need attention.

LXVI. Portland to Milnes, January 6, 1801 244

Reply to No. LXV. Impossible to reform the social
conditions due to the original settlement of the coun-
try. Agrees that the clergy should be brought under
the control of the Governor by issuing the intended
licences to them. Approves of a reorganization of
the militia, but with some weeks' annual training.

Contents. xv

Page

LXVII. Observations on the Government of Lower Canada by

John Black, October 9, 1806 246

These "Observations" by a resident in Lower Canada
amplify Milnes' letter of November 1, 1800 (No.
LXV.). Recommends the reuniting of the Provinces.

LXVIII. Ryland's Observations on the Political State of Lower

Canada, 1806 248

Foretells sedition in the House of Assembly. Advises
increasing the numbers of the Legislative Council,
the appointment of men trained in England to the
Bench, and the passing of an Imperial Act authorizing
the provision of a member of the House of Assembly
for every new county or district settled by the Govern-
ment with a sufficient number of English settlers.

LXIX. Craig to Castlereagh, August 5, 1806 250

The majority of the House of Assembly affects to *^
believe that there is a Ministry in Lower Canada and
that it is responsible to the Hk>use of Assembly.

LXX. Craig to Castlereagh, June 5, 1809 250

House of Assembly has been discussing the exclusion
of the judges and has expelled a member on account
of being a Jew. Has dissolved the House.

LXXL Castlereagh to Craig, September 7, 1809 254

Official reply to No. LXX. Reluctantly approves of
Craig's measures ; advises moderation in language and
method.

LXXII. Castlereagh to Craig, September 7, 1809 254

A personal reply to No. LXX. Discusses Craijg^s
actions in a friendly way and advises more caution
and tact if he is to maintain the dignity of his office.
There is no opposition on the part of the British
Government to a measure excluding the Judges from
Assembly.

LXXIIL Craig to Liverpool, May 1, 1810 256

A long despatch covering the whole problem of Lower
Canadian conditions as they appeared to the Governor.
The vast majority of the people are French in sym-
pathies; the Catholic Bishop's appointment not m ac-
cordance with law ; his patronage completely in his
own hands; the clergy have no direct communication
with the Governor; they are undoubtedly attached to
France on account of Napoleon's Concordat; the
Legislative Council one of the most respectable things
in the Province ; outside his duty to question the wis-
dom of a House of Assembly, but within it to criticise ;
it is composed of ignorant and illiterate men who are
dominated by a clever faction which permits of no
governmental influences; Napoleon's successes have
turned their heads, and they are avowedly preparing
to bring Lower Canada under his dominion ; this idea
is unfortunately becoming popular; the faction in the
House of Assembly hold the ignorant electors in the
hollow of their hand, and the latter now look on "La
Qnmbre" as the real Government ; the newspaper Le
Canadien vilifies the officials ; "La Nation Canadienne"

xvi Contents.

Page

is the general idea of the Province in the popular
mind, which is now turned, as never since the con-
quest, to France for aid; growing objections to the
settlements in "The Townships" as detrimental to the
unity of "La Nation Canadjenne." Craig advises the
suspension of the Constitution, so serious is the out-
look. He does not favour reuniting ihe Provinces,
which would only be "a heterogeneous mixture of
opposing principles." Perhaps a redistribution of
seats, some increase in the franchise and a good quali-
fication for membership of the Assembly would be, in
the crisis, more immediately practicable, and the
Bishop must be brought under the clear law. Mr.
Ryland, his Secretary, is going to England to urge the
seriousness of the situation and to promote his sugges-
tions.

LXXIV. Observations of Chief Justice Sewell on the Union of

the Provinces, 1810 267

Assigns the difficulties of Government in Lower Can-
ada chiefly to 'the preponderance of French ideas and
to the weakness of the Executive. The whole policy
of the British Government has been to perpetuate the
differences of religion, laws and language, which are
the great connecting links between a Government and
its subjects. The resuk has been to keep the people
French and to accentuate the antipathy between them
and the English. The Canadian population must be
"overwhelmed and sunk" by English Protestants — i.e.
settlers from the United States, of whose capacities
for becoming loyal subjects he has no fear. The
United States never liked a nation of Frenchmen to
their north and the introduction of such settlers would
tend to satisfy iheir ideas and to promote commercial
activities. At any rate, they would be of English
descent and the risk in attempting to assimilate them
would not be as great as the present risks in Lower
Canada. All tenures ought to be changed into free
and common soccage. No hopes of counteracting
French ideas can be entertained from an ignorant,
priest-guided Assembly. The future may contain a
better system, but the needs are immediate. For these
needs an "incorporate union" of the two Provinces
seems advisable. It would increase the English in the
Assembly, and the number of members from Lower
Canada might be reduced, and thus the influence of
^ the clergy diminished. Commerce would increase, and

inter-provincial jealousies tend to disappear. The
Governor must exercise ecclesiastical patronage in
Roman Catholic parishes. Reasons given for the legal-
ity of such an exercise. Education must be rescued
from clerical influences and placed under the Govern-
ment, and the public press must be regulated and
controlled.

LXXV. Ryland to Craig, August 23, 1810 272

Has interviewed the Cabinet and instructed their >
ignorance of Canadian affairs. Advised strongly
against any policy of conciliation. H^s seen many
merchants who trade to Canada and influenced them

Contents. xvii

Page

to draw up a memorial (No. LXXVI.) supporting
Craig's regime.

LXXVI. Memorial from Brkish Merchants to Liverpool, 1810 . 275
See No. LXXV. An inspired support of Craig's
methods in Canada.

LXXVIL Ryland to Craig. September 11, 1810 276

Has had an interview with Liverpool, who explained
that it would be impolitic at present to attempt to
repeal or change the Constitutional Act of 1791. Has
shewn him the despatch about to be sent (No.
LXXVIIL), and has asked him to outline later some
"points" on which changes can be made without re-
course to the Imperial Parliament (cf. No. LXXIX.).

UXVIII. Liverpool to Craig, September 12, 1810 276

Fears thait even Craig's accounts of Canadian affairs
would not influence Parliament to amend the Con-
stitutional Act of 1791. At any rate the attempt would
be impolitic. (Conciliation is oflficially advised on all
points ; but on its failure, the Assembly's usurpations,
if any, must be resisted. "In Canada the Executive
(k)vemment is in no way dependent on the Assembly."
If the Assembly proves recalcitrant, let it be pro-
rogued or dissolv^, and the inconveniences will be
more detrimental to domestic government than to
commercial, foreign or military interests. At any rate,
the inconveniences will be its own creation. Proroga-
tion is the better method. It will defeat a factious
House and at the same time avoid the excitement of
elections.

LXXIX. Ryland to Peel, February 11, 1811 279

Outlines the progress of the Lower Canadian Assem-
bly's claims, and also the "points" referred to in No.
LXVIL

LXXX. An Act disqualifying Judges from Sitting in the House

of Assembly of Lower Canada, 1811 281

LXXXI. M^moire des Habitans du BasOanada, 1814 . . .282

A detailed statement of the case for the majority in
Lower Canada. It anticipates in some respects "The
Ninety-Two Resolutions" (No. CXIV.), and the de-
mand for "responsible Government."

LXXXII. Chief Justice Monk's "Remarks" on "M^moire" des

Habitans," 1814 287

A detailed reply to No. LXXXI. by Chief Justice
Monk of the ICin^s Bench, Montreal. "Responsible
Government" foreign to colonial administration.

LXXXIII. Brief Review of the State of Lower Canada by Ryland,

May, 1814 . 290

A long and unfavorable account of Prevost's r^ime.

LXXXIV. Legal Opinion on the Privileges Claimed by the House

of Assembly, December 50, 1815 297

LXXXV. Sherbrooke to Bathurst, July 15, 1816 300

Doubts the wisdom of restraining the Ck)vemor's dis-

xviii Contents.

Page

cretion with regard to the dissolutions of the House
of Assembly.

LXXXVI. Right of the House of Assembly to initiate all Money

^ills, 1818 301

A series of resolutions illustrating difficulties between
the Legislative Council and the House of Assembly of
Upper Canada in connexion with the initiation and
control of supply.

LXXXVn. Act respecting the Eligibility of Persons to be returned

to the House of Assembly of Upper Canada, 1818 . . 303

LXXXVni. Sherbrooke to Bathurst. March 14, 1822 306

Advises the union of the two Provinces, provided that
the popular House can be brought under effective con-
trol. The Upper Canadian House is now tractable,
but will it remain so with the constant influx of
settlers from the United States? Upper Canada is
generally irreligious or "sectary"; and there was in
that Province, during his regime, a bias towards the
American form of Government, — a bias which the
Government need never fear in Lower Canada, where
there is a rooted antipathy to it.

LXXXIX. Proposed Act of Union, 1822 307

An important factor in the rise of French Canadian
nationalism, as this proposed Act aimed at bringing
the Roman Catholic clergy under the control of the
Government and at abolishing the use of the French
language in parliamentary debates.

XC. Considerations on the Union of the Provinces by J. B.

Robinson, April 23, 1822 312

The reasons which led to the division of the Province
are not materially changed, so that their validity can
still be claimed for the continuance of the present
scheme ; no reasons, however, against union if for the
benefit of the colony and of England. Generally speak-
ing, he sees no reason for believing union necessary.
If the revenue disputes between the Provinces could
be settled by union, well and good; but he sees no
reason to believe that they could. Nor would a union
help the Government in its financial disputes with the
House of Assembly in Lower Canada. Even were the
members of the Upper Canadian House united with
those of Lower Canada, they would be only a minority,
and by no assurances a unanimous minority in uni-
form support of the Executive. A union might doubt-
lessly be beneficial for ultimate good, but the question
is a pressing practical one, and a union does not at
present seem to offer any hope for betterment.

XCI. Papineau to R. J. Wilmot, December 16, 1822 . . . 317
Union is detested by the French Canadians, whose
loyalty he defends.

XCII. Petition from Montreal for Union, December, 1822 . . 318

Proposal welcome, as petitioners are British in the
midst of a population still overwhelmingly "foreign,"
which controls the House of Assembly to the detri-

Contents. xix

Page

ment of "British" interests. Only a union can thwart
the growing arrogance of "La Nation Canadienne."
In addition, it alone can solve the problem of ingress
and egress into and from Upper Canada and the
revenue disputes. The Canada Trade Act unsatis-
factory. Emigration and settlement of British in
' Lower Canada are suffering.

XCIIL Petition in favour of the Union of the Provinces from

Merchants, etc., in the City and District of Quebec, 1822. 324

The petitioners rely on the revenue difficulties between
the Provinces and on the lack of proper facilities for
land registration to support their position.

XCIV. Petition from the Eastern Townships for Union, 1822 . 326

The petitioners emphasize their unrepresented state in
legislation, the injustice of French laws, the lack of
encouragement to British settlers. Only the desire
of the French Canadians to remain a separate nation
can in the final analysis be urged against union. Does
England desire this? Geography and commerce de-
mand union.

y
XCV. Minority Resolutions, Lower Canada Legislative Council,

in favour of Union, 1823 330

XCVL Petition from the Legislative Council of Lower Canada

against Union, 1823 331

XCVII. Resolutions of the House of Assembly of Lower Canada

against Union, 1823 332

XCVIIL Petition from French Canadians agftinst Union, 1823 . 332

Strongest objection is made to the drastic terms of
the proposed Act of Union (No. LXXXIX.).

XCIX. Petition from Kingston, etc., for Union 335

Approves of the proposed terms in the Act (No.
LXXXIX.). Commercial reasons are strong in sup-
port of union.

C. Petition from Wentworth against Union 336

Objects to the destruction of <he present Constitu-
tion, especially "without our consent or even our
knowledge, and without any misconduct on our part
amounting to a forfeiture." If the qualifications for
membership of the United Assembly are raised as
proposed, many counties will have no candidate to put
forward and will be represented by someone owning
waste land. Objects to permanent Civil List.

CI. Dalhousie's Speech proroguing the Legislature of Lower
Canada, March 9, 1824 338

Cannot accept the claim of the House of Assembly
to appropriate the whole revenue of the Province.

CII. Bathurst to Burton, June 4, 1825 . 339

The Crown can never consent to compromise the
"permanent revenue" by placing it under the control
of the Assembly.

XX Contents,

CIII. Resolutions of the Assembly of Lower Canada, 1826 . 3

The Resolutions are selected to illustrated the House's
oi^>osition "to the exclusive application of any part
of the public revenue to particular services" without
its consent. "To the Legislature alone appertains the
right of distributing all monies levied in the Colo-
nies."

CIV. Dattiousie's Speech proroguing the Legislature of Lower
^ Canada, 1827 3^

"I have seen in this session a positive assumption of
executive authority instead of that of legislative,
which last is alone your share in the constitution of
the state."

\

CV. Colonial Secretary Huskisson's Speech on Canadian
Affairs, 1828 ' 34

CVL Report of the Select Committee on the Government of

Canada, 1828 34

The future platform of Lower Canadian Reformers.
No definite means proposed for carrying out reforms.

CVIL Neilson's Resolutions, House of Assembly, Lower Can-
ada, 1828 35

The earliest public reception in Lower Canada of No.
CVL

CVIII. Constitutional Act Amendment Act (11 George IV and 1

William IV. c. 53), 1830 35^

Making provisions for naturalized persons sitting in
House of Assembly of Lower Canada.

CIX. Petition from Lower Canadian Assembly 35^

Petitions for the redress of grievances in connexion
with waste lands, judiciary, appropriation of supply,
^ etc

ex. Canadian Revenue Control Act (1 & 2 William IV.
c. 23), 1831 . 356

Amends No. XXVI.

CXI. Petition from Lower Canadian Assembly, 1833 . . . 358

Petitions for the rcmodclKng of the Legislative Coun-
cil on an elective basis.

CXI I. Address of the Legislative Council of Lower Canada,

1833 362

A reply to CXI. The suggested alterations "would
bring into collision the people of Upper and Lower
Canada, and drench the country with blood."

^ CXI 1 1. Aylmer to House of Assembly of Lower Canada,

January 14, 1834 364

Communicates the official acknowledgment from the
Colonial Department of No. CXI. Colonial Depart-
ment resents suggested reform of the Legislative
Council, If any reforms are to be considered, the
. Colonial Department will suggest such to the Imperial
Government as may not be to the liking of the House
of Assembly.

Contents. xxi

Page

CXIV. The Ninety-Two Resohitions of 1834 366

The "Grand Remonstrance" of Papineau and his fol-
lowers. Qaims, inter alia^ the right of the Assembly
to control all expenditure; asks for an elected Legis-
lative Council; attacks the irresponsibility of the
Executive, nvost emphatically that controlled by Lord
Aylmer, whose impeachment is demanded; threatens
a breach of the relations with the Mother Country.

CXV. Declaration of the Constitutional Association of Quebec,

1834 388

A reply to No. CXIV. on the part of the Moderate
Reformers of Lower Canada. Extremes are rejected,
but an outline of reform is given which would include
better representation for the English speaking inhabit-
ants, a more efficient legal system and Executive
Council. Loyalty to British connexion emphasized.

CXVI. An Address by the Constitutionalists of Montreal to

Men of British or Irish Origin, 1834 392

An attempt to rally the Provinces of British North
America to at least the moral support of the Constitu-
tionalists in Lower Canada. A long account of griev-
ances under which the English speaking inhabitants
of that Province suffer. Colonial Office government
too subject to party fluctuations to command respect.

CXVII. Aberdeen to Aylmer, February 11, 1835 396

The Government has always been prepared to grant
fullest consideration to Canadian affairs. In further-
ance of this, they are sending Lord Gosford, etc., to
make as full investigation as possible. Aylmer is judi-
ciously praised.

\ CXVIIL Glenelg to Gosford, July 17, 1835 399

Long instructions embodying what was called the "full
platform of conctUatloo." The King is prepared to
surrender all his Cro WJi jre vrniMffjr , in r etu rn for a Civil
List ; the independence of the judges ; the continuance
6f existing pensions ; an independent management of
the waste lands. Tenures will be reformed at the
request of the Legislature of Lower Canada. X^^
question of an elerted .1 ,ftgislativir Qinndl SAXl only
be^' approactied with care. Little hope held out for
change. No opportunity for a public convention to
ascertain the mind of the people must be given. If any
changes in representation to the Assembly are neces-
sary they may come best from the Lower Canadian
Legislature. The recommendations of the Committee
of 1828 (No. CVL) are to form the foundation of
all changes.

CX IX. Glenelg to Head, Decembers, 1835 412

Official direction to Head as to his method of dealing
with the Seventh Report on Grievances of the Upper
Canadian Assembly.

CXX. Petitions from House of Assembly, Lower Canada, 1836. 421

Papineau's final position on the eve of the Rebellion.
The earliest reference in clear terms to a, responsible

\

xxii Contents.

Page
Exectttiye. Resents that the idea of an elected Legis-
lative Council should practically be closed by the In-
structions to Gosford. The Colonial Secretary cannot
dictate to the House of Assembly what it wiff discuss.
Cannot recede from previous petitions. Regrets that
Government should depend solely on a Colonial Min-
ister uninstructed in Canadian affairs and at such a
distance from them that he cannot obtain accurate
information.

CXXI. Resolutions of Lower Canadian Assembly, 1836 . . .425

Embody previous petitions. Inter alia, aim of reform
is "tq. render the Executive Council of Ihia-Eioxiiice
directly responsible to the representatives of the people
ill conformity with the principles and practice of the
British Constitution as they obtain in the TJnited
Kingdom."

\

CXXIL Address to the Inhabitants of British North America,

1836 427

This document belongs to the same family as Nos.
CXV. and CXVI. Traces the history of French
"aggression." Suggests the calling of a representative
congress of all the Br»tish North American Colonies
in order to present a united front Suggests and out-
lines those reforms which the British in Lower Canada
think necessary.

CXXIII. Glenelg to Gosford. June 7, 1836 431

Regrets that the Lower Canadian Assembly should
judge Gosford's Instructions (No. CXVIII.) from
garbled extracts. Orders Gosford to communicate to
the Assembly a complete copy of them.

'^ CXXIV. The Ten Resolutions of 1837 434

Passed in the Imperial Parliament as an outcome of
Gosford's reports on Canadian affairs, (titer alia, the
Legislative Council of Lower Canada cannot be made
elective; but it may be made more emcient and popu-
lar; it cannot, however, be made subject to the respon-
sibility^dtuiamled "by the Assembly.

CXXV. Gosford's Speech to the Lower Canadian Legislature,

August, 1837 436

Submits an outline of The Ten Resolutions, (No.
CXXIV.).

. CJCXXVI. Address of Lower Canadian Assembly, August, 1837 . 438

The Reply to No, CXXV. The "lie direct" to the
"unbridled and uncontrolled sway of the Colonial Min-
isters in Downing Street." Challenges the position
and legality of the Commission on whose recom-
mendations The Ten Resolutions (No. CXXIV.) were
passed. The policy can only retain Lower Canada by
"physical and material force." To the request for
supplies the Assembly "would riot Xjit justiHe'd in
placing in the hands of hostile powers the means of
aggravating and perpetuating evils." Confidence can
N only be re-established by an elective Council and re-
\ sponsible government

Contents. xxiii

Page

CXXVII. Address from Montreal Constitutional Association to

the Sister Provinces, December 13, 1837 442

This document belongs to the same family as No.
CXXIL, etc. Lays all trouble at the door of the ipior-
ant and the easily led peasantry. The struggle is en-
tirely racial.

CXXVIII. An Act to make Temporary Provision for the Govern-^ •
ment of Lower Canada (1 & 2 Victoria, c. 9), February
10, 1838 445

CXXIX. Report of the Select Committee of Upper Canadian
Assembly on the State of the Provinces, February 8,
1838 448

Suggests a Legislative Union, on a federal basis, of all
the North American Colonies, and a declaration in
due and solemn form of the Queen's sovereignty over
them; the changing of the title "Governor" to that of
"Viceroy," and the holding of the ofiicf by one of the
Royal Dukes. Discusses the idea of the union of the
Provinces. Only the favour given to such a proposal
by the British in Lower Canada warrants the con-
sideration of a suggestion unpalatable to Upper Can-
ada. If union be the Imperial project, it can only be
accepted by ensuring British ascendancy in both
branches of the Legislature. Montreal ought to be
annexed to Upper Canada. It is palpably unjust to
leave that Province without a port. Suggests the
representation of the American Colonies in the Im-
perial Parliament Criticises severely the Colonial
Office and suggests a permanent board in London for
Colonial affairs with representatives from the Colo-
nies.

CXXX. Durham to Glenelg, August 9, 1838 455

Discusses the racial animosities in Lower Canada, the
attitude of the United States to the Province; the
sympathies of the Americans. Analyses the state of
mind of the British in Lower Canada.

CXXXL The Indemnity Act (1 & 2 Victoria, c. 112). 1838 . .463

CXXXII. Durham to Glenelg, October 16, 1838 464

His resignation. Considers possible effects of it.

CXXXIII. Durham to Glenelg, October 20, 1838 466

The British are angry at the wavering Imperial policy.
Sir John Colborne now supreme, as a military and not
a civil government seems unfortunately to be the
necessity of the future. Growing danger of separation
from the Mother Country, at any rate of further
bloodshed.

CXXXIV. Durham to Glenelg, November 10, 1838 469

Growing belief in Upper Canada in the iadiffercncft of
the ImperlaT Government has produced unwillingness
among the mflitia and volunteers to prepare for active
service.

VCXXXV. Report of the Committee of the Upper Canada Legis-
^ lative Council on Durham's Report, May 11, 1839 . . 470

Protests against Durham's suggestions for "respoo?-

xxiv Contents.

Page
sible government." A Colonial electorate too fickle,
individualistic and unstable for such a trust, however
i suited to other conditions. The dangers are -too great
to throw off active Imperial control. Durham is un-
reliable and inaccurate.

CXXXVI. Lord John Russell on Canadian Affairs, June, 1839 . . 478

Various complexities and possible complications ren-
der impossibte any grant of full responsible govern-
ment to the Canadas.

CXXXVII. Joseph Howe to Lord John Russell, September, 1839 . 480

This and the three following documents were ad-
dressed as open letters to Lord John Russell in reply
to his speech of June, 1839 (No. CXXXVL). Howe
agrees with Durham that the lack of "Responsible
Government" is the foundation cause of all the
troubles in the Colonies. Is the withholding of it due
•to a suspicion of Colonial loyalty? That loyalty will
bear full examination. Government by Executive
Councils as absurd and unjust as it is futile. Efforts
at reform only prove "the cure worse than the dis-
ease." No real remedy except Lord Durham's. The
dangers? None in reality. The result? The people
satisfied and happy. Does dependence in an Empire
imply a different form of constitutional government
than in England? If so, why, by what right, govern-
ment by a minority? Will a majority be more "dis-
loyal" governing themselves than when under the
irritation of minority rule? Is Her Majesty in mortal
terror because 4he majority of the citizens of London
govern the city? Does any one, except in a spirit of
humour, imagine the Lord Mayor declaring war on
Prance? Would we do it in Canada? Suppose we
did, you could easily check us.

CXXXVIII. Joseph Howe to Lord John Russell, September, 1839 . 487

Examines Russell's objections to Responsible Govern-
ment. The Governors could, under it, be made re-
sponsible to the Assembly, as the Ministers of the
Crown in England are held responsible. They would
be bound by the same limitations, and there would be
neither more nor less invasion of the sovereignty of the
Crown. Suppose they receive unconstitutional advice
from a Colonial Ministry — what then? May not this
equally occur in England? The irresponsibility of
Governors at present is humourously but trenchantly
analysed. Suppose a typical "Governor" made Mayor
of Liverpool, with all the present bag and baggage of
"instructions," "despatches," and all the present
method of government as known in the Colonies — "he
mu9t be an angel of light indeed, if we does not throw
the good city of Liverpool into confusion." What
answer to the "confusion"? The "Mayor" can blame
someone else — can throw the responsibility on the
"Colonial" Office. "No form of Government could
well be devised more ridiculous." The "Mayor's" offi-
cials— the "Executive" — are d fortiori more irrespon-
sible.

Contents. xxv

Page

CXXXIX. Joseph Howe to Lord John Russell, September, 1839 . 497

The questions involved are those of local government, "^
not of Imperial concern. Russell fears for foreign
affairs. Let his own words be the answer to his fears :
the Governor must stand by his duty to allow no inter-
ference (cf. No. CXXXVI.). A colony declare war?
Only conceivable by irresponsible madmen. Russell's
"imaginary" cases only fertile creations which Cana-
dians laugh at. Discusses trade and commerce and
shows that difiicultiesi if any, are as great under "irre-
sponsible" as "responsible" government.

CXL. Joseph Howe to Lord John Russell, September, 18J9 . 503

Russell may ask, and rightly ask, what is proposed as
reform. Howe^ jccpljes : he will leave to the Imperial
ParliamenTtbreign affai^rs ; control of naval and mili-
tary forces; the regulation ot colonial trade with the
Mother Country; that interference with the colonies
similar to that with any incorporate town in.Eog^nd
in ejitieuje cases. L^l^e *C6ioniaT Secretary's duties
. bi""xni1y "^watdiful supervision." Let him have no
right to meddle in any internal affairs. Let the Gov-
ernors, who are usually on their arrival like ignorant,
"overgrown school boys," find themselves surrounded
by "schoolmasters" who have the confidence of the
people, and not by those who only represent them-
selves, or a minority, or the whims of their Excel-
lencies' predecessors. The Governors could then "do
no wrong in any matter of which the Colonial Legis-
lature had the right to judge." Discusses the details
of reform by contrast with the evil ramifications of
the old system of government. Under "Responsible||l
Government" might not Papineau and Mackenzie hava
never existed as rebels; perhaps have developed inta
constructive statesmen?

CXLI. An Act Amending 1 & 2 Victoria, c. 9 (2 & 3 Victoria,

c. 53), 1839 514

CXLH. Lord John Russell to Poulett Thomson, September 7,

1839 516

Thomson is sent to Canada to learn the deliberate
wishes and to obtain the cooperation of the Provinces,
without which there can be no successful Canadian
settlement. The Government is strongly in favour of
the proposed union, and Thomson will endeavour to
obtain for its principles such an assent as will render
them acceptable. Suggestions are given as io methods :
he may appoint a Committee of authority from each
Province to frame articles of union, to be proposed
to the Upper Canadian Legislature; he may assemble
the latter and propose the appointment of Commis-
sioners to meet those from Lower Canada, and in the
event of hostility in the Assembly, he may dissolve
it and appeal to the people. This step, however, must
be 'taken with the gravest deliberation. Whatever the
the method, the Government will expect to receive a
detailed plan of union. If the proposal proves imprac-
ticable, an alternative is expected. "Impossible to re-
duce into the form of a positive enactment a con-
stitutional principle" of responsibility. "Xt-vnUbeyour

\

xxvi Contents,

Pasre

anxious endeavour to call to your councila and. to em-
^Itsy m Ihe public service those persons, who by their
position ami -character, have obflLined the general con-
; fid«a€« aa4 esteem of the tnhahltanis Of ite JPfovincc/*
Milkary affairs, emigratton and the land question
require serious attention. Municipal institutions de-
mand immediate and special consideration. In Upp«r
Canada, finances and the Clergy Reserves are pressing
questions. Her Majesty is determined to maintain
the connexion between the United Kingdom and thi»
American Colonies.

CXLIII. Lord John Russell to Poulett Thomson, October 14, 1839. 522

Must refuse any explanation of "ResppnsiblcJGovem-
iiient" whidi would nnply a surrender to the petitions
and addre^es. The imperial Parliament has already
expressed its opinion on the matter (No. CXXIV.).
There can be no proposals entertained on the subject.
Cabinet government impossible in a colony. Colonial
Councils cannot advise the Crown of England. Impos-
sible to reconcile the responsibility of the Govfnxor
to the Crown with a responsibHity on his part tP his
Council. Impossible also to define the power of the
Governor and the privileges of the Assembly. The
only rule is ''a wise moderation" by each.

CXLIV. Lord John Russell to Poulett Thomson, October 16, 1859. 524

The tenure of subordipate.. colonial offices during the
pleasure of the Crown has generally .cnmr to mean a
tenure during g60di)ehaviour. This must cease. Any
sufficient motive of public policy 'l^mSSnge .iu^the
persen^ of the Governor will in future be sufficient
reason forchanges^ tn officials. ' The judges are ex-
cepted. Pensions and indemnities may be necessary,
but the rule must be enforced as often as the public
good demands it.

CXLV. Poulett Thomson to Lord John Russell with the Address
and Resolutions from the Lower Canadian Special
Council in favour of Union, November 18, 18J9 . . 525

Special Council of Lower Canada adopts plan for
union. There is naturally much diversity of opinion
owing to the Rebellions, but almost everyone sees the
necessity for change.

CXLVI. Poulett Thomson to a Friend, November 20 and Decem-
ber 8, 1839 528

Describes his successes, in favour of the union, in
Lower Canada. Has fears for a similar result in
Upper Canada — the country of factions, where the
"Constitutional party is as bad or worse than the
other, in spite of all their professions of loyalty." The
finances, the House of Assembly — in fact, everything
in Upper Canada — in a chaotic state.

CXLVI I. Poulett Thomson to the Legislature of Upper Canada,

December 7, 1839 529

Outlines the Government's plans for union. Delay in
proposal not due to wavering, but to a desire to con-
sult the Upper Canadian Legislature in order that the
union may be as just as possible. Thomson asks the

Contents, xxvii

I » V . Page

Legislature to assent to certain terms in the proposed
union: (a) equal representation for each Province in
the new united House of Assembly, (b) the granting
of a civil list, (c) the charging of the public debt of
Upper Canada for works of a general nature on the
joint revenue of the united Province.

CXLVTII. Poulctt Thomson to a Friend, December 12, 1839 . . 532

Explains what he meaiis bv "responsible Government."
I'he uovemor cannot be responsible to ah Executive
holdtng the confidence of the Hlouse of Assembly.
The Governor is not a Sovereign ; he is a Minister of
the Crown responsible to the Home Government, and
therefore "cannot be under the control of men in the
colony."

CXLIX. Resolutions of the Legislative Council of Upper Canada,

December 14, 1839 532

Embody Thomson's requests as outlined in No.
CXLVIL

CL. Resolutions of the House of Assembly of Upper Canada,
December 23, 1839 533

Embody Thomson's requests as outlined in No.
CXLVIL

CLL Address of House of Assembly of Upper Canada, Janu-
ary 13, 1840 534

"Some suggestions" (according to Thomson) from
the Assembly, which they hope will be carried out in
the Act of Union.

CLIL Poulett Thomson to House of Assembly of Upper

Canada, January 14, 1840 536

Impossible to lav before the^ lilQusc HusaelTs des-
patches""o"n^ "Responsible Government"; quotes, how-
ever. No. CXLTT as to the advice on which he acts.

CLIIL The Act of Union (3 & 4 Victoria, c, 35). 1840 ... 536

CLIV. Poulett Thomson to Russell, September 16, 1840 . . 551

Regrets that Act of Union has no provisions for
municipal institutions. Municipal institutions are the
very training needed in Canada — ^without them, higher
government cannot succeed. Is inclined to defer pro-
claiming the Union, until Parliament has reconsidered
this question. The consequences of such an action,
however, too doubtful. If the Queen desires, he will
persist in his work and propose a comprehensive muni-
cipal scheme in the opening session of the new Legis-
lature.

CLV. Russell to Sydenham, October 25, 1840 554

Reply to No. CLIV. Regrets Sydenham's disappoint-
ment over the omission of legislative provision for
local government in the Act of Union, especially as
he shares in it It is a Canadian matter, however,
and the Canadian people will doubtless provide for
such a useful system.

xxviii Contents.

Page

CLVI. Sydenham to a Friend, 1840 (?) 555

Expresses more emphatically his fear that it was a
fatal mistake for the Imperial Parliament not To set
up a good municipal system. Without it the jobbery
and corruption of this Government must go on, and
the Canadian Legislature spend its time inefficiently
on petty local details. A system of local government
far more important than even the Legislative Union.

FIFTH PERIOD
1840-1867

Introductory Note to the Period 559

CLVI I. Sydenham's Speech to Canadian Legislature, 1841 . .561

Draws attention, inter alia, to the necessity for the
development of the resources of the Province by a
well-considered plan of public works ; to the need for
encouraging and carefully controlling emigration; to
the pressing call for a good system of municipal insti-
tutions, and of provincial education. Promises
imperial aid in substantial loans.

CLVIII. Sydenham to his Brother. August 28, 1841 .... 563

Triumphant announcement of his having carried,
word for word, his own Municipal District Bill for
Upper Canada — "the Bill, the whole Bill, and nothing
but the Bill."

^ CLIX. Resolutions of the Legislative Assembly of Canada, 1841. 564

Resolutions (generally assigned to Sydenham's pen)
which were carried as am^idments to proposals in
which "Cabinet responsibility'* in local matters was laid
down. Sydenham's Resolutions only go as far as the
advice given him by Russell and communicated to the
Assembly (see Nos. CXLII. and CLIL).

CLX. Metcalfe to Stanley, August 5, 1843 565

Fails to understand Sydenham's .system of (cavern-
menT,"'"t)liTpas it is apparently working, out* it sdll
mean cabmet and party government. Can this be
reconciled with the position of the Governor in a
colony? He fails to see how the problem can be
solved, but fears that it is too late to withdraw the
system which has been set up as a deduction from
Sydenham's plan. Whether it was his own or not, he
cannot say. For himself^ he finds it impossible to
submit to the dictates of "garty government" in a
dependency of the Crown.

CLXI. Earl Grey to Lieut.-Gov. Harvey, November 3, 1846 . 570

Outlines 'the status of the Legislative and Executive
Councils. Appointments to the former should be made
to make it "fairly represent the opinion of the major-
ity of the intelligent members of the community." If,
however, it does not harmonize, what course is open?
Two considerations are clear : firstly, the Legislative
Coundl cannot be allowed permanently to obstruct
measures called for by public opinion and sent j:^ by

Contents. xxix

Page

the Assembly; secondly, that it is ^a grave evil to
a|i|iuiilL liew* members fo tRe CoiinciT in order to csrrry
stfch* iueasnres» As such a method may involve too wMe
possibilities of inrriraie ia future difficulties of a sim-
ilar nature. How can the problem be solved? It is to
be understood that only "dear and obvious necessity/'
— "practical inconvenience must have actually arisen
and to a serious extent" — ^will justify the appointment
of additional members. Such urgent necessity will
not excite indignation, and it is likely that the CTouncil
will yield to circumstances demanded by popular
opinion and prevent the adoption of such a drastic
measure, ^'^h ^eyard f^ »hi> Fv^q^fivn rnnnrjl^ when
they cannot govern, application must be made to the
opposite party. ^Hie Governor must make k clear that,
while he can never assent to the abuse of the royal
authority for party as opposed to public objects^ he is
willing to work with any party that can command
pubtfc confidence^ as the Governmen't of the British
Provinces cannot be carried on "in opposition to the
opinion of the. inhabitants,".

CLXII. Earl Grey fo Lieut-Go v. Harvey, March 31, 1847 . . 573

Outlines the British system of government and points
out the difference between "political" and "official"
. appointments. He sees no reason^ — ^but rather wel-
comes the ideaj^why Coloaial Govcsamc&t sbanid- not
f(jndw'lhe British »yaHm, A careful criticism is given
of the possibilities of carrying it into effect, but it is
pointed out that few appointments at present should be
of a "political" nature, involving changes with the
change of pubHc opinion, and that the vast number of
smaller appointments should be of an official kind,
^during gpod behaviour" ; thus the danger of dislocation
in administration will be lessened — a danger not to be
minimized in a small community which has just gained
"responsible government" Outlines a scheme for the
"political" appointments, ancTarsoTays Tt down that
"pernraneiH officials'* must not be members of either
House of the Legislature. Toliticar appointments
wfll carry with them seats in tTJe/ExeCPlive "Council.
With fhese coni§fWferanofis* m-miiid, "Ifiat system of
Parliamcntery • Go vei'iimetit which has long prevailed
in the Mothtcr Country** can be immediately adopted.

CLXIII. Elgin to Earl Grey, 1847 577

Outlines his conception of the position of the Gov-
ernor under the newly introduced system of respon-
sible cabinet government : frank and unreserved con-
stitutional support to his ministers, but never conceal-
ing from them that nothing will prevent him from
working cordially with their opponents, if forced upon
him.

CLXIV. Elgin to Lady Elgin, 1847 579

Lord Durham's vindication will be the fair working
out of his system of Government in Canada.

CLXV. Elgin to Earl Grey, April 30, 1849 579

A detailed account of the riots at Montreal and the
public excitement following on Elgin's signing the

XXX Contents,

Page
Rebellion Losses' Bill. Elgin defends JbiisL action as
] entirely constitutional and eyposps t^fl. fjfe^^"^"'^^*' o^

! thrt^iiiis made Jbiy a "British", minority, tolitp tKe sole
• loyaHsls"rii the rrovince.

CLXVI. Elgin to Earl Grey, March 23, 1850 583

C»ticisesRusseirs speech of Feb* 8r 1850, jn irfijch he
anticipateigl ^Lnlomal .^inacpcogence.

^ Pleads for a

fioETer conception of the Colonies. "You must allow
them to believe that, without severing the bonds which
unite them to Great Britain, they may attain the degree
of perfection and of social and political development
to which organized communities of freemen have a
right to aspire." Russell's opinion will only add sup-
port to the annexationists; will grieve the loyal and
well affected such as Baldwin ; and will hurt the Pro-
vince financially and economically.

CLXVI I. Elgin to Earl Grey, November 1, 1850 586

Contrasts American and British forms of government.

CLXVin. Elgin to Earl Grey, December 17, 1850 587

An expansion of the ideas which run through No.
CLXVIL A defence of limited monarchy against
republicanism.

CLXIX. Elgin to Gumming Bruce, September, 1852 .... 589

Responsible Cabinet Government can flourish in the
Dominions. "This faith I have imparted." The de-
pendencies cannot be governed "on the antiquated
bureaucratic principle, by means of rescripts from
Downing Street." "I have always said to my advisers,
'While* you continue my advisers, you shall enjoy my
unreserved confidence, and en revanche you shall be
responsible for all acts of Government.' "

CLXX. Elgin to the Duke of Newcastle, February 18, 1853 . . 590

The prerogative of the Crown should be employed as
a means of attaching the outlying parts of the Empire
to the throne. Imperial honours should emanate
directly from the Crown, not on the recommendation
of the local Executives, and they should only be
bestowed on "eminent persons who are no longer
actively engaged in political life."

CLXXI. Elgin to the Duke of Newcastle, March 26, 1853 . . 590

To the argument that, by a severance of the con-
nexion, British statesmen will be relieved of an oner-
ous responsibility for colonial acts of which they can-
not otherwise rid themselves, Elgin replies that the
true answer is to throw "the whole weight of respon-
sibility on those who exercise the real power."

CLXXII. Elgin to Sir George Grey, December 18, 1854 . . . 591

Outlines his conception of the functions of a Gov-
ernor.

CLXXIII. The Union Act Amendment Act (11 & 12 Victoria,

c. 56), 1848 591

Repeals section 35 of the Act of Union (No. CLIII.),

Contents. xxxi

Page

which provided for the sole use of English as the
official language.

CLXXIV. The Union Act Amendment Act (17 & 18 Victoria,

c. 118), 1854 592

Gives Legislature of Canada power to alter the con-
stitution of the Lc^slative Council and repeals Sec-
tions 26 and 42 of the Act of Union (No. CTLIII.).

CLXXV. The Union Act Amendment Act (22 & 23 Victoria.

c. 10), 1856 594

Gives Legislature of Canada power to make laws
regulating the appointment of a Speaker of the Legis-
lative Council.

CLXXVI. Colonial Habeas Corpus Act (25 & 26 Victoria, c. 20).

1862 595

Writ of Habeas Corpus not to issue into any colony
or foreign dependency of the Crown having courts
authorized to grant the same.

CLXXVII. Colonial Laws Validity Act (28 & 29 Victoria, c. 63),

1865 595

An Act to remove doubts as to the validity of Colonial
laws. A Colonial law cannot be repugnant to the
laws of England: the meaning of "repugnancy" is
embodied in this Act.

CLXXVI II. Debates in the Canadian Parliament on Confederation,

1865 597

CLXXIX. British North America Act (30& 31 Victoria, c. 3), 1867. $65

SIXTH PERIOD
1867-1915

Introductory Note to the Period 687

CLXXX. The Manitoba Act (33 Victoria, c. 3, Dominion Statute),

1870 689

CLXXXI. The British North America Act (34 & 35 Victoria,

c. 28), 1871 694

Parliament of Canada may establish new Provinces
and provide for the constitution thereof; may alter
the limits of Provinces, with the consent of their
Legislatures; may legislate for any territory not in-
cluded in a Province. Limits power of Canadian
Parliament to legislate for an established Province.
Confirms Acts of the Canadian Parliament for the
temporary C^ovemment of Rupert's Land and North
Western Territory and No. CLXXX.

CLXXXII. Parliament of Canada Act (38 & 39 Victoria, c. 38), 1875. 695

Repeals Section 18 of B. N. A. Act, 1867 (No.
GLXXIX.), with regard to the privileges of the Cana-
dian Parliament, provides a new section defining those
privileges, etc.

CLXXXIIL Letters Patent Constituting the Office of Governor

General of the Dominion of Canada, 1878 .... 696

xxxii Contents.

Page

CLXXXIV. Instructions to the Governor General of the Dominion

of Canada, 1878 698

CLXXXV. The British North America Act, (49 & SO Victoria,

c. 35), 1886 699

Parliament of Canada may provide for Parliamentary
representation for any territories which form part of
the Dominion, but are not included in any of its Pro-
vinces.

CLXXXVI. The Alberta Act, (4 & 5 Edward VII, c. 3, Dominion

Statute). 1905 700

CLXXXVII. The British North America Act (7 Edward VII, c. 11),

1907 704

Makes further provision with respect to the sums to
be paid by Canada to the several Provinces of the
Dominion.

CLXXXVIII. The British North America Act (5 & 6 George V, c 45),

1915 706

Alters the constitution of the Senate, and provides
that a Province shall always be entitled to a number
of Members not less than the number of Senators
representing such Province.

FIRST PERIOD
1759-1763 •

1759-1763
FIRST PERIOD

After the capitulations of Quebec and Montreal, military rule
prevailed, modified by the Articles of Capitulation (see Nos. I and
II), which were confirmed at the conclusion of the war by the
Treaty of Paris, February 10, 1763 (see No. III). In the follow-
ing October a Royal Proclamation was issued as a preliminary for
the introduction of civil administration (see No. IV). The policy
outlmed is tentative and led to severe disputes duting the Second
Period.

According to the judgment of Lord Chief Justice Mansfield in
Campbell v. Hall (see No. XXIII), this Proclamation was the
Constitution of Canada until the Quebec Act of 1774, by which it
was annulled.

DOCUMENTS OF THE CANADIAN

CONSTITUTION
1759-1915

I

ARTICLES OF THE CAPITULATION OF QUEBEC, 1755^

[Trans.: Shortt and Doughty, Constitutional DocumentSt Canadian

Archives, 1907.]

Demanded by Mr. de Ramsay, the King's Lieutenant, commanding the
high and low Towns of Quebec, Chief of the military order of St. Lewis,
to His Excellency the General of the troops of His Britannic Majesty.—
**The capitulation demanded on the part of the enemy, and granted by their
''Excellencies Admiral Saunders and General Townshend, etc., etc., is in
"manner and form hereafter expressed."

I

Mr. de Ramsay demands the honours of war for his garrison, and that
it shall be sent back to the army in safety, and by the shortest route, with
anns, baggage, six pieces of brass cannon, two mortars or howitzers, and
twelve rounds for each of them: — "The garrison of the town, composed of
"Land forces, marines and sailors, shall march out with their arms and bag-
"gage, drums beating, matches lighted, with two pieces of french cannon,
"and twelve rounds for each piece ; and shall be embarked as conveniently
'*as possible, to be sent to the first port in France."

II
That the inhabitants shall be preserved in the possession of their
houses, goods, effects, and privileges: — "Granted, upon their laying down
"their arms."

Ill
That the inhabitants shall not be accountable for having carried arms
ia the defence of the town, for as much as they were compelled to it, and
that the inhabitants of the colonies, of both crowns, equally serve as militia.
—"Granted."

IV
That the effects of the absent officers and citizens shall not be touched.
-"Granted."

V
That the inhabitants shall not be removed, nor obliged to quit their
houses, until their condition shall be settled by their Britsftmic, and most
Christian, Majesties.— "Granted."

VI

That the exercise of the Catholic, Apostolic, and Roman religion shall

be maintained; and that safeguards shall be granted to the houses of the

clergy, and to the monasteries, particularly to his Lordship the Bishop of

Quebec, who, animated with zeal for religion, and charity for the people

- . .* JUs and the following docnment represent the French terms of surrender to the
ontMh. The first part of each section in each document is the French stipulation; the
Igvtm inrerted commas in each section of each document is the British comment. The
wcutenta as printed represent the actual contracts of surrender, after which *'the rule
£ ™^_^^<<v" be^n in Canada and continued till the conclusion of the Seven Years'
War, when the civil administration began.

/

y • . • . •

Consfiiuiiondl Documents of Canada. [1759-1763

of his diocese, desires to reside in it constantly, to exercisei freely and with
that decency which his character and the sacred offices of the Roman
religion require, his episcopal authority in the town of Quebec, whenever
he shall think proper, until the possession of Canada shall be decided by
a treaty between their most Christian and Britannic Majesties. — "The free
exercise of the roman religion is granted, likewise safeguards to all
"religious persons, as well as to the Bishop, who shall be at liberty to come
"and exercise, freely and with decency, the functions of his office, whenever
"he shall think proper, until the possession of Canada shall have been de-
"cided between their Britannic and most Christian Majesties."

VII

That the artillery and warlike stores shall be faithfully given up, and
that an inventory of them shall be made out. — "Granted."

VIII

That the sick and wounded, the commissaries. Chaplains, Physicians,
Surgeons, Apothecaries, and other people employed in the service of the
hospitals, shall be treated comformably to the cartel of the 6th of February,
1759, settled between their most Christian and Britannic Majesties. —
"Granted."

IX

That before delivering up the gate and the entrance of the town to the
English troops, their General will be pleased to send some soldiers to be
posted as safeguards upon the churches, convents, and principal habita-
tions.— ^**Granted."

X

That the King's Lieutenant, commanding in Quebec, shall be permitted
lo send information to the Marquis de Vaudxeuil, Governor-General, of the
reduction of the place, as also that the General may send advice thereof to
the french Ministry. — ^"Granted."

XI

That the present capitulation shall be executed according to its form
and tenour, without being subject, to non-execution under pretence of
reprisals, or for the non-execution of any preceding capitulations. —
"Granted."

Duplicates hereof taken and executed by, and between us, at the camp
before Quebec, this 18th day of September, 1759.

Charles Saunders,
George Townshend,
De Ramsay.

II
ARTICLES OF THE CAPITULATION OF MONTREAL, 1760

[Trans. : Shortt and Doughty.]

Between their Excellencies Major-General Amherst, Commander-in-
Chief of His Britannic Majesty's troops and forces in North America, on
the one part, and the Marquis de Vaudreuil, etc. Governor and Lieutenant-
General for the King in Canada, on the other.

article I

Twenty- four hours after the signing of the present capitulation, the
British General shall cause the troops of His Britannic Majesty to take
possession of the gates of the town of Montr^: and the Briti^ garrison
shall not enter the place till after the French troops shall have evacuated
it. — 'The whole garrison of Montreal must lay down their arms, and shall
''not serve during the present war. Immediately after the signing of the
"present capitulation, the King's troops shall take possession of the gates,
and shall post the guards necessary to preserve good order in the town."

1759-1763] ConsHiuiional Documents of Canada. 7

ARTICLE n

The troops tad the militia, who are in garrison in the town of Mont-
real, shaU go oat by the gate of Quebec, with all the honours of war, six
pieces of cannon and one mortar, which shall be put on board the vessel
where tiie Marquis de Vaudreuil shall embark, with ten rounds for each
piece ; and the same ^all be granted to the garrison of the Three Rivers.
as to the honours of war. — ^''Referred to the next article."

AKTICLB m

The troops and militia, who are in garrison in the Fort of Jacques
Cartier, and in the Island of St Helen, and other forts, shall be treated in
the same manner, and shall have the same honours ; and these troops shall
go to Mcmtreal, or the Three Rivers or Quebec ; to be there embarked for
the first sea port in France, by the shortest way. The troops, who are in
our posts, situated on our frontiers^ on the side of Acadia, at Detroit,
Michilimaquinac, and other posts, shall enjoy the same honours, and be
treated in the same manner. — "All these troops are not to serve during the
"present war, and shall likewise lay down their arms ; the rest is granted."

AsncLB IV
The militia, after evacuating the above towns, forts and posts, shall
return to their habitations, without being molested on any pretence what-
ever, on account of their having carried arms. — ''Granted."

ARTICLB V

The troops, who keep the field, shall raise their camp, drums beating,
with their arms, baggage and artillery, to join the garrison of Montresu,
and shall be treated in every respect the same. — "These troops, as well as
**the others, must lay down their armsw"

AKTICLB VI

The subjects of His Britannic Majesty, and of his most Christian
Majesty, soldiers, militia or seamen, who shall have deserted or left the
service of their Sovereign, and carried arms in North America, shall be,
on both sides, pardoned for their crime ; thev shall be respectively returned
to their country ; if not, each shall remain where he is without bemg sought
after or molested. — ^"Refused."

ARTICLE vn

The magazines, the artillery, firelocks, sabres, ammunition of war, and,
in general, everything that belongs to his most Christian Majesty, as well
as in the towns of Montreal and Three Rivers, as in the forts and post
mentioned in the Third Article, shall be delivered up, according to exact
inventories, to the commissaries who shall be appointed to receive the same
in the name of His Britannic Majesty. Duplicates of the said inventories
thall be given to the Marquis de Vaudreuil — "This is everything that can
Ik asked on this article."

ARTICLE Vm

The officers, soldiers, militia, seamen, and even the Indians, detained
on account of their wounds or sickness, as well as in the hospital, as in
private houses, shall enjoy the privileges of the cartel, and be treated
accordingly. — "The sick and wounded shall be treated the same as our own
■people?^

ARTICLE IX

The British General shall engage to send back, to their own homes,
Ae Indians and Moraignans, who make part of his armies, immediately
after the signing of the present capitulation, and, in the meantime, the
l>etter to prevent all disorders on the part of those who may not be gone
sway, the said General shall give safeguards to such persons as shall desire
them, as well in the town as in the country. — ^"The first part refused."
TTierc never have been any cruelties committed by the Indians of our
"army: and good order shall be preserved."

ARTICLE X

His Britannic Majesty's General shall be answerable for all disorders
on the part of his troops, and shall oblige them to pay the damages they

8 Constitutional Documents of Canada. [1759-1763

may do, as well in the towns as in the country. — ^"Answered by the preced-
"ing article."

ARTICLE XI

The British General shall not oblige the Marquis de Vaudreuil to leave

the town of Montreal before and no person shall be

quartered in his. house till he is gone. The Gievalier de Levis, Commander
of the land forces and colony troops, the Engineers, Officers of the Artil-
lery, and Commissary of War, shall also remain at Montreal till the said
day, and shall keep their lodgings. The same shall be observed with regard
to M. Bigot, Intendant, the Commissaries of Marines and writers, whom
the said M. Bigot shall have occasion for, and no person shall be lodged
at the Intendant's house before he shall take his departure. — *The Marquis
"de Vaudreuil, and all these gentlemen, shall be masters of their houses,
"and shall embark, when the King's ship shall be ready to sail for Europe ;
"and all possible conveniences shall be g^ranted them."

ARTICLE xn
The most convenient vessel that can be found shall be appointed to
carry the Marquis de Vaudreuil, M. de Rigaud, the Governor of Montreal,
and the suite of this General, by the straitest passage to the first sea port
in France; and every necessary accommodation shall be made for them.
This vessel shall be properly victualled at the expence of His Britannic
Majesty: and the Marquis de Vaudreuil shall take with him his papers,
without their being examined, and his equipages, plate, baggage, and also
those of his retinue. — ^"Granted, except the achives which shall be necessary
"for the Government of the country."

ARTICLE xin

If before, or after, the embarkation of the Marquis de Vaudreuil, news
of peace should arrive, and, that by treaty, Canada should remain to his
most Christian Majesty, the Marquis de Vaudreuil shall return to Quebec
or Montreal; everything shall return to its former state under the
Dominion of his most Christian Majesty, and the present capitulation shall
become null and of no effect. — "Whatever the King may have done, on this
"subject, shall be obeyed."

ARTICLE XIV

Two ships will be appointed to carry to France, le Chevalier de Levis,
the principal officers, and the staff of the land forces, the engineers, officers
of artillery, and their domestics. These vessels shall likewise be victualled
and the necessary accommodation provided in them. The said officers shall
take with them their papers, without being examined, and also, their equip-
ages and baggage. Such of the said officers as shall be married shall have
liberty to take with them their wives and children, who shall also be vie*
tualled. — "Granted, except that the Marquis de Vaudreuil and all the
"officers, of whatever rank they may be, shall faithfully deliver to us all the
"charts and plans of the country."

ARTICLE XV

A vessel shall also be appointed for the passage of Mr. Bigot, the
Intendant, with his suite; in which vessel the proper accommodation shall
be made for him^ and the persons he shall take with him : he shall likewise
embark with him his papers, which shall not be examined: his equipages,
plate, baggage and those of his suite: this vessel shall be victualled as
before mentioned. — "Granted, with the same reserve as in the preceding
"article."

ARTICLE XVI

The British General shall also order the necessary and most convenient
vessels to carry to France M. de Longueuil, Governor of Trois Rivieres,
the staff of the colony, and the commissary of the Marine; they shall
embark therein their families, servants, baggage and equipages, and they
shall be propertly victualled, during the passage, at the expense of His
Britannic Majesty. — "Granted."

1759-1763] Constitutional Documents of Canada. 9

ARTICLE XVn

The officers and soldiers, as well as of the land forces, as of the colony,
and also the marine officers and seamen, who are in the colony, shall be
likewise embarked for France, and sufficient and convenient vessels shall
be appointed for them. The land and sea officers who shall be mar-
ried, shall take with them their families, and all of them shall have liberty
to embark their servants and baggage. As to the soldiers and seamen,
those who are married shall take with them their wives and children, and
ail of them shall embark their haversacks and baggage ; these vessels shaJl
be properly and sufficiently victualled at the expense of His Britannic
Majesty.— "Granted."

ARTICLE XVin

The officers, soldiers and the followers of the troops, who shall have
their baggage in the fields, may send for it before they depart, without any
hindrance or molestation. — "Granted."

ARTICLE XIX

An hospital ship shall be provided by the British General, for such of
the wounded and sick officers, soldiers and seamen as shall be in a condition
to be carried to France, and shall likewise be victualled at the expense of,
His Britannic Majesty. It shall be the same with regard to the other
wounded and sick officers, soldiers and sailors, as soon as they shall be
recovered. They shall have liberty to carry with them their wives, children,
servants and baggage; and the said soldiers and sailors shall not be
solicited nor forced to enter into the service of His Britannic Majesty. —
"Granted."

ARTICLE XX

A Commissary and one of the King's Writers shall be left to take care
of the hospitals, and whatever may relate to the service of his most Chris-
tian Majesty.— "Granted."

ARTICLE XXI

The British General shall also provide ships for carrying to France the
officers of the supreme council, of justice, police, admiralty, and all other
officers, having commissions or brevets from his most Christian Majesty,
for them, their families, servants and equipages, as well as for the other
officers : and they shall likewise be victualled at the expense of His Britan-
nic Majesty. They shall, however, be at liberty to stay in the colony, if
they think proper to settle their affairs, or to withdraw to France whenever
they think fit — "Granted; but if they have papers relating to the Govern-
"ment of the country, they are to be delivered up to us."

ARTICLE XXII

If there are any military officers, whose affairs should require their
presence in the colony till the next year, they shall have liberty to stay in
it after having obtained the permission of the Marquis de Vaudreuil for
that purpose, and without being reputed prisoners of war. — "All those
Vhose private affairs shall require their stay in the country, and who shall
liave the Marquis de Vaudreuil's leave for so doing, shall be allowed to
''remain till their affairs are settled."

ARTICLE xxin
The commissary for the King's provisions shall be at liberty to stay
in Canada till next year, in order to be enabled to answer the debts he has
contracted in the colony, on account of what he has furnished; but, if he
should prefer to go to France this year, he shall be obliged to leave, till
next year, a person to transact his business. This private person shall
preserve, and have liberty to carry off, all his papers, without being in-
spected. His clerks shall have leave to stay in the colony or go to France ;
and in this last case, a passage and subsistence shall be allowed them on
board the ships of His Britannic Majesty, for them, their families, and
their baggage. — "Granted."

ARTICLE XXIV

The provisions and other kind of stores, which shall be found in the
magazines of the commissary, as well in the towns of Montreal, and of

10 Constitutional Documents of Canada. [1759-1763

the Three Riveri, as in the countr>» shall be preserved to him, the said
provisions belonging to him, and not to the King ; and he shall be at liberty
to sell them to the French and English. — "Everything that is actuallv in the
"magazines, destined for the use of the troops, is to be delivered to the
"British commissary, for the King's forces.'*

ARTICXE XXV

A passage to France shall likewise be granted, on board of His Britan-
nic Majesty's ships, as well as victuals to such officers of the India company
as shall be willing to go thither, and they shall take with them their fam-
ilies, servants and baggage. The chief agent of the said company, in case
he should chuse to go to France, shall be allowed to leave such person as
he shall think proper till next year, to settle the affairs of the said company,
and to recover such sums as are due to them. The said chief agent shadl
keep possession of all the papers belonging to the said company, and they
shall not be liable to inspection. — "Granted."

ASTICXE XXVI

The said company shall be maintained in the property of the Ecarla-
tines and Castors, which they may have in the town of Montreal ; they shall
not be touched under any pretence whatever, and the necessary licenses
shall be given to the Chief Agent, to send this year his Castors to France,
on board His Britannic Majesty's ships, paying the freight on the same
footing as the British would pay it. — "Granted, with regard to what may
"belong to the company, or to private persons; but if his most Christian
"Majesty has any share in it, that must become the property of the King."

ARTICLE XXVn

The free exercise of the Catholic, Apostolic, and Roman religion, shall
y subsist entire, in such manner that all the states and the people of the
towns and countries, places and distant posts, shall continue to assemble
in the churches, and to frequent the sacraments as heretofore, without
being molested in any manner, directly or indirectly. These people shall
be obliged, by the English Government, to pay their priests the tithes, and
all the taxes they were used to pay under the Government of his most
Christian Majesty. — "Granted, as to the free exercise of their religion; the
"obligation of paying the tithes to the priests will depend on the King's
"pleasure."

ASTICXE xxvin

The Chapter, Priests, Curates and Missionaries shall continue, with
an entire liberty, their exercise and functions of cures, in the parishes of
the towns and countries. — "Granted."

ARTICLE XXIX

The Grand Vicars, named by the Chapter to administer to the diocese
during the vacancy of the Episcopal See, shall have liberty to dwell in the
towns or country parishes, as they shall think proper. They shall at all
times be free to visit the different parishes of the Diocese with the ordinary
ceremonies, and exercise all the jurisdiction they exercised under the
French Dominion. They shall enjoy the same rights in case of the death
of the future Bishop, of which mention will be made in the following
article. — "Granted, except what regards the following article."

ARTICLE XXX

If by the treaty of peace, Canada should remain in the power of His
Britannic Majesty, his most Christian Majesty shall continue to name the
Bishop of the colony, who shall always be of the Roman communion, and
under whose authority the people shall exercise the Roman religion. —
"Refused."

ARTICLE XXXI

The Bishop shall, in case of need, establish new parishes, and provide
for the rebuilding of his Cathedral and his Episcopal palace; and, in the
meantime, he shall have the liberty to dwell in the towns or parishes, as he
shall judge proper. He shall be at liberty to visit his Diocese with die

1759-1763] Constitutional Documents of Canada. 11

ordinary ceremonies, and exercise all the jurisdiction which his predecessor
exercised under the French Dominion, save that an oath of fidelity, or a
promise to do nothing contrary to His Britannic Majesty's service, may
be required of him. — "This article is comprised under the foregoing."

ARTICLE XXXn

The communities of nuns shall be preserved in their constitutions and
privileges ; the^ shall continue to observe their rules, they shall be exempted
from lodging any military, and it shall be forbid to molest them in tiieir
religious exercises, or to enter their monasteries: safe-guards shall even
be given tiiem, if they desire them. — "Granted."

ARTICLE XXXIU

The preceeding article shall likewise be executed, with regard to the
communities of Jesuits and Recollects and of the house of the priests of
St. Sulpice at Montreal; these last, and the Jesuits, shall preserve their
light to nominate to certain curacies and missions, as heretofore. — ^"Refused
"till the King's pleasure be known."

ARTICLE XXXIV

All the communities, and all the priests, shall preserve their move-
ables, the property and revenues of the Seignories and other estates, which
they possess in the colony, of what nature soever they be; and the same
estates shall be preserved in their privileges, rights, honours, and exemp-
tions.— "Granted."

ARTICLE XXXV

If the Canons, Priests, Missionaries, the Priests of the seminary of
the foreign Missions, and of St. Sulpice, as well as the Jesuits, and the
Recollects, chuse to go to France, a passage shall be granted Uiem in His
Britannic Majesty's ships, and they shall have leave to sell, in whole, or in
part, the estates and moveables which they possess in the colonies, either
to the French or to the English, without the least hindrance or obstacle
from the British Government. They may take with them, or send to
France, the produce of what nature soever it be, of the said goods sold,
paying the freight as mentioned in the XXVIth article; and such of the
said Priests, who chuse to go this year, shall be victualled during the pas-
sage, at the expense of His Britannic Majesty; and they shall take with
them their baggage. — "They shall be masters to dispose of their estates and
"to send the produce thereof, as well as their persons, and all that belongs
"to them, to France."

ARTICLE XXXVI

If by the treaty of peace, Canada remains to His Britannic Majesty,
all the French, Canadians, Acadians, merchants and other persons who
chuse to retire to France, shall have leave to do so from the British
General, who shall procure them a passage : and nevertheless, if, from this
time to that decision, any French or Canadian merchants or other persons,
shall desire to go to France, they shall likewise have leave from the British
General. Both the one and the other shall take with them their families,
servants, baggage. — "Granted."

ARTICLE XXXVII

The Lords of Manors, the Military and Civil officers, the Canadians as
well in the towns as in the country, the French settled, or trading, in the
whole extent of the colony of Canada, and all other persons whatsoever,
shall preserve the entire peaceable property and possession of the goods,
noble and ignoble, moveable and immoveable, merchandises, furs and other
e£Fects, even their ships; they shall not be touched, nor the least damage
done to them, on any pretence whatever. They shall have liberty to keep,
let or sell them, as well to the French as to the British ; to take away the
produce of them in bills of exchange, furs, specie or other returns, when-
ever they shall judge proper to go to France, paying their freight, as in the
XXVIth article. They shall also have the furs which are in the posts
above, and which belong to them, and may be on the way to Montreal ; and,
for this purpose, they shall have leave to send, this year, or the next, canoes

i

12 Constitutional Documents of Canada. [1759-1763

fitted out, to fetch such of the said furs as shall have remained in those
posts. — "Granted, as in the XXVIth article."

ARTICLE XXXVIII

All the people who have left Acadia, and who shall be found in Canada,
including the frontiers of Canada on the side of Acadia, shall have the
same treatment as the Canadians, and shall enjoy the same privileges. —
"The King is to dispose of his ancient subjects: in the meantime, they
"shall enjoy the same privileges as the Canadians."

ARTICLE XXXIX

None of the Canadians, Acadians or French, who are now in Canada,
and on the frontiers of the colony, on the side of Acadia, Detroit, Michilli-
maquinac, and other places and posts of the countries above, the married
and unmarried soldiers, remaining in Canada, shall be carried or trans-
ported into the British colonies, or to Great Britain, and they shall i\ot be
troubled for having carried arms. — "Granted, except with regard to the
"Acadians."

ARTICLE XL

The savages or Indian allies of his most Christian Majesty, shall be
maintained in the lands they inhabit, if they chuse to remain there; they
shall not be molested on any pretence whatsoever, for having carried arms,
and served his most Christian Majesty; they shall have, as well as the
French, liberty of religion, and shall keep their missionaries. The actual
Vicars General, and the Bishop, when the Episcopal See shall be filled,
shall have leave to send to them new missionaries when they shall judge it
necessary. — "Granted, except the last article, which has been already re-
"fused."

ARTICLE XLI

The French, Canadians, and Acadians, of what state and condition
soever, who shall remain in the colony, shall not be forced to take arms
against his most Christian Majesty, or his Allies, directly or indirectly, on
any occasion whatsoever; the British Government shall only require of
them an exact neutrality. — "They become subjects of the King.'

tt

ARTICLE XLII

The French and Canadians shall continue to be governed according to
the custom of Paris, and the laws and usages established for this country,
and they shall not be subject to any other imposts than those which were
established under the French Dominions. — "Answered by the preceding
"articles, and particularly by the last."

ARTICLE XLni

The papers of the Government shall remain, without exception, in the
power of the Marquis de Vaudreuil and shall go to France with him.
These papers shall not be examined on any pretence whatsoever. — "Granted,
"with the reserve already made."

ARTICLE XLIV

The papers of the Intendancy, of the offices of Comptroller of the
Marine, of the ancient and new treasurers of the King's magazines, of the
offices of the revenues and forges of St. Maurice, shall remain in the power
of M. Bigot, the Intendant ; and they shall be embarked for France in the
same vessel with him ; these papers shall not be examined. — "The same as
"in this article."

ARTICLE XLV

The Registers, and other papers of the Supreme Council of Quebec,
of the Pr^vote, and Admiralty of the said city; those of the Royal Juris-
dictions of Trois Rivieres and of Montreal ; those of the Seignorial Juris-
dictions of the colony; the minutes of the Acts of the Notaries of the
towns and of tibe countries ; and in general, the acts, and other papers, that
may serve to prove the estates and fortunes of the citizens, shall remain in
the colony, in the rolls of the jurisdictions on which these papers depend.
—"Granted."

1759-1763] Constitutional Documents of Canada. 13

ARTICLE XLVI

The inhabitants and merchants shall enjoy all the privileges of tradci
tmder the same favours and conditions granted to the subjects of His
Britaumic Majesty, as well as in the countries above, as the interior of the
colony. — ^"Granted."

AXTICLE XLVn

The negroes and i>anis of both sexes shall remain, in their quality of
slares, in the possession of the French and Canadians to whom they be-
bng; they shall be at liberty to keep them in their service in the colony,
or to sell them ; and they may also continue to bring them up in the Roman
religion. — "Granted, except those who shall have been made prisoners."

ARTICXE XLVni

The Marquis de Vaudreuil, the General and Staff Officers of the land
forces, the Governors and Staff Officers of the different places of the colony,
the Military and Civil Officers, and all other persons who shall leave ^e
colony, or who are already absent, shall have leave to name and appoint
attomies to act for them, and in their name in the administration of their
effects, moveable and immoveable, until the peace; and, if, by the treaty
between the two crowns, Canada does not return under the French
dominions, these officers, or other persons, or attornies for them, shall have
leave to sell their manors, houses, and other estates, their moveables and
effects, etc, to carry away or send to France, the produce thereof, either
in bills of exchange, specie, furs or other returns, as is mentioned in the
XXVIIth Article.— "Granted."

AXTICLE XUX

The inhabitants and other persons, who shall have suffered any damage
in their goods, moveable or immoveable, which remained at Quebec, under
the faith of the capitulation of that city, may make their representations
to the British Government, who shall render them due justice against the
person to whom it shall belong. — "Granted."

ARTICLE L, AND LAST

The present capitulation shall be inviolably executed in all its articles,
and bona fide, on both sides, notwithstanding any infraction, and any other
pretence, with regard to the preceding capitulations, and without making
use of reprisals. — "Granted."

Postscript

article li
The British General shall engage, in case any Indians remain after the
surrender of this town, to prevent their coming into the towns, and that
they do not, in any manner, insult the subjects of his most Christian
Majesty. — ^"Care shall be taken that the Indians do not insult any of the
''subjects of his most Christian Majesty."

ARTICLE Ln

The troops and other subjects of his most Christian Majesty, who are
to go to France, shall be embarked, at latest, fifteen days after the signing
of the present capitulation. — "Answered by the Xlth Article."

ARTICLE LIU

The troops and other subjects of his most Christian Majesty, who are
to go to France, shall remain lodged and encamped in the town of Mont-
real, and other posts which they now occupy, till they shall be embarked
for their departure; passports, however, shall be granted to those who
shall want them, for the different places of the colony to take care of their
affairs.— "Granted."

ARTICLE UV

All the officers and soldiers of the troops in the service of France, who
are prisoners in New England : and who were taken in Canada, shall be
sent back, as soon as possible, to France, where their ransom or exchange
shall be treated of, agreeable to the cartel ; and if any of these officers have
affairs in Canada, they shall have leave to come there. — "Granted."

14 Constitutional Documents of Canada. [1759-1763

ARTICLE LV

As to the officers of the Militia, the Militia, and the Acadians, who are
prisoners in New England, they shall be sent back to their countries.
Done at Montreal, the 8th of September, 1760.

**Vaudreuil."

Granted, except what regards the Acadians. Done in the camp before
Montreal, the 8th September, 1760.

*7effery Amherst"

III
TREATY OF PARIS, FEBRUARY 10, 1763*

[Trans. : Shortt and Doughty.]

The definitive Treaty of Peace and Friendship between His Britannick
Majesty, the Most Christian King, and the King of Spain. Concluded at
Paris the 10th day of February, 1763. To which the King of Portuga'
acceded on the same day.

Article 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-established between their Britannick, Most Christian, Catholick, and
Most Faithful Majesties, and between their heirs and successors, kingdoms,
dominions, provinces, countries, subjects, and vassals, of what qusutty or
condition soever they be, without exception of places or of persons: So
that the high contracting parties shall give the greatest attention to o^ain-
tain between themselves and their said dominions and subjects this recipro-
cal friendship and correspondence, without permitting, on either side, any
kind of hostilities, by sea or by land, to be committed from henceforth,
for any cause, or under any pretence whatsoever, and every thing shall be
carefully avoided which might hereafter prejudice the union happily re-
established, applying themselves, on the contrary, on every occasion, to
procure for each other whatever may contribute to their mutual glory,
interests, and advantages, without giving any assistance or protection,
directly or indirectly, to those who would cause any prejudice to either of
the high contracting parties: there shall be a general oblivion of every
thing that may have been done or committed before or since the com-
mencement of the war which is just ended.

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 Croi^^ns
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 11th
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 die best
form, as well as all the general, which subsisted between the high contract-
ing parties before the war, as if they were inserted here worn 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 from 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 sufiFer any privilege,

'Only those articles of the Treaty have been printed which are essential to C«iim>
dian history.

1759-1763] Constitutional Documents of Canada. 15

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 have formed to Nova Scotia or Acadia in
all its parts, and guaranties the whole of it, and with all its dependencies,
to the King of Great Britain : Moreover, his Most Christian Majesty cedes
and guaranties to his said Britannick Majesty, in full right, Ouiada, with
an its dependencies, as well as the island of Cape Breton, and all the other
islands and coasts in the gulph and river of St Lawrence, and in general,
every thing that depends on the said countries, lands, islands, and coasts,
with tfie sovereignty, property, possession, and all rights acquired by treaty,
or odierwise* which the Most Christian King and the Crown of France
have had till now over the said countries, lands, islands, places, coasts, and
dieir inhabitants, so that the Most Christian King cedes and makes over
the whole to the said King, and the Crown of Great Britain, and that in
the noost ample manner and form, without restriction, and without any
liberty to depart from the said cession and ^aranty under any pretence,
or to disturb Great Britain in the possessions above mentioned. His^
Britannick Majesty, on his side, agrees to grant the liberty of the Catholick I
religion to the inhabitants of Canada : he will, in consequence, give the most
precise and most effectual orders, that his new Roman Catholick 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 Britannick
Majesty farther 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 the subjects of His Britannick Majesty, and bring
away their effects as well as their persons, without being restramed in their
cnugration, 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 ratification of the present treaty.

V. The subjects of France shall have the liberty of fishing and drying
CO a part of the coasts of the Island of Newfoundland, such as it is speci-
fied 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 Britannick 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 die 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 the Most , Christian King shall not be permitted
to exercise the said fishery but at the distance of fifteen leagues from the
coasts of the island of Cape Breton ; and the fishery on the coasts of Nova
Scotia or Acadia, and every where 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
Macquelon, in full right, to his Most Christian Majesty, to serve as a
iheher to the French fishermen; and his said Most Christian Majesty
engages not to fortify the said islands; to erect no buildings upon them
but merely for the oonveniency of the fishery; and to keep upon them a
gnard of fifty men only for the police.

Vn. In order to re-establish peace on solid and durable foundations,
and to remove forever 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 Britannick
Majesty and diose of his Most Christian Majes^ in that part of the
world, shall be fixed irrevocably by a line drawn along the middle of the

f

16 Constitutional Documents of Canada. [1759-1763

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
Potchartrain to the sea; and for this purpose^ the Most Giristian King
cedes in full right, and guaranties to His Bntannick Majesty the river
and port of the Mobile, and every thin^ 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 expressly
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 farther 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 favour of the
inhabitants of Canada, shall also take place with regard to the inhabitants
of the countries ceded by this article.

VIII. The King of Great Britain shall restore to France the islands
of Gaudaloupe, of Mariegalante, of Desirade, of Martinico, and of Belle-
isle; and the fortresses of these islands shall be restored in the same con-
dition they were in when they were conquered by the British arms, provided
that His Britannick Majesty's subjects, who shall have settled in the said
islands, or those who shall have any commercial affairs to settle there or tn
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 : and for this
purpose, the term of eighteen months is allowed to His Britannick
Majesty^s subjects, to be computed from the day of the exchange of the
ratifications of the present treaty ; but, as the liberty granted to His Britan-
nick Majesty's subjects, to bring away their persons and their effects, in
vessels of their nation, may be liable to abuses if precautions were not taken
to prevent them; it has been expressly agreed between his Britannick
Majesty and his Most Christian Majesty, that the number of English ves-
sels which have leave to go to the said islands and places restored to
France, shall be limited, as well as the number of tons of each one; that
they shall go in ballast ; shall set sail at a fixed time ; and shall make one
voyage only ; all the effects belonging to the English being to be embarked
at the same time. It has been farther agreed, that his Most Christian
Majesty shall cause the necessary passports to be given to the said vessels;
that, for the greater security, it shall be allowed to place two French clerks
or guards in each of the said vessels, which shall be visited in the landing
places and ports of the said islands and places restored to France, and that
the merchandize which shall be found therein shall be confiscated.

IX. The Most Christian King cedes and guaranties to his Britannick
Majesty, in full right, the islands of Grenada, and the Grenadines, with the
same stipulations in favour of the inhabitants of this colony, inserted in
the IVth article for those of Canada: And the partition of the islands
called neutral, is agreed and fixed, so that those of St. Vincent, Dominico,
and Tobago shall remain in full right to Great Britain, and that of Sl
Lucia shall be delivered to France, to enjoy the same likewise in full right,
and the high contracting parties guaranty the partition so stipulated.

XVII. His Britannick Majesty shall cause to be demolished all the
fortifications which his subjects shall have erected in the bay of Honduras,
and other places of the territory of Spain in that part of die world, four
months after the ratification of the present treaty: and his Catholick
men, to be disturbed or molested under any pretence whatsoever in the said
Majesty shall not permit his Britannick Majesty's subjects, or their work-

1759-1763] Constitutional Documents of Canada. 17

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 necessary for them, for their fam-
ilies, and for their effects: and his Catholick 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 Catholick Majesty desists, as well for himself as for his
successors, from all pretension which he may have formed in favour of the
Gnipuscoans, and oUier 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 terri-
tory which he has conquered in the island of Cuba, with the fortress of the
Havannah ; 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 Britannick Majesty's arms, provided that his Britannick 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, 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
bfcing restrained on account of their religion, or under any other pretence
whatsoever, except that of debts or of criminal prosecutions : And for this
purpose, the term of eighteen months is allowed to his Britannick Majesty's
sut^jects, to be computed from the day of the exchange of the ratifications of
l^^resent treaty: but as the liberty granted to his Britannick Majesty's
streets, to bring away their persons and their effects, in vessels of their
uatioa, may be liable to abuses if precautions were not taken to prevent
them; it has been expressly agreed between his Britannick Majesty and his
Catholick Majesty, that the number of English vessels which shall have
leave to go to the said island restored to Spain shall be limited, as well as
die number of tons of each one ; that they shall go in ballast ; shall set sail

at a fixed time ; and shall make one voyage only ; all the effects belonging
to the English being to be embarked at the same time : it has been farther
agreed, that his Catholick Majesty shall cause the necessary passports to be
given to the said vessels ; that for the greater security, it shall be allowed to
place two Spanish clerks or guards in oach of the said vessels, which shall be
visited in the landing places and ports of the said island restored to Spain,
and that the merchandize which shall be found therein shall be confiscated.

XX. In consequence of the restitution stipulated in the preceding
article, his Catholick Majesty cedes and guaranties, in full right, to his
Britannic Majesty, Florida, with Fort St. Augustin, and the Bay of Pensa-
cola, as well as all that Spain possesses on the continent of North America,
to the 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 sove-
r^:nty, property, possession, and all rights, acquired by treaties or other-
vise, which the Catholick King and the Crown of Spain have had till now
over the said countries, lands, places, and their inhabitants; so that the
Catholick 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 Britannick Majesty agrees, on his side, to grant to the inhabitants of
the countries above ceded, the liberty of the Catholick religion : he will,
consequently, give the most express and the most effectual orders that his
new Roman Oitholic 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 Britannick Majesty farther agrees, that the Spanish
inhabitants, or others who had been subjects of the Catholick King in the
said countries, may retire, with all safety and freedom, wherever they
think proper ; and may sell their estates, provided it be to his Britannick
Majesty's subjects, and bring away their effects, as well as their persons,
wiAout bdng restrained in their emigration, under any pretence whatso-

B

18 Constitutional Documents of Canada. [1759-1763

ever, except that of debts, or of criminal prosecutions: the term limited
for this emigration being fixed to the space of eighteen months, to be com-
puted from the day of the exchange of the ratifications of the present
treaty. It is moreover stipulated, that his Catholick Majesty shall have
power to cause all the effects that may belong to him, to be brought away,

whether it be artillery or other things.

4> 4( * * * *

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 bond fidct

delivered, or furnished at the same time, if possible, that possession is

t^dcen, or, at latest, four months after the exchange of the ratifications of

the present treaty, in whatever places the said papers or documents may

be found.

******

IV

THE ROYAL PROCLAMATION, 7 OCTOBER, 1763

[Trans. : Shortt and Doughty.]
George R.

WHEREAS WE have taken into Our Royal Consideration the exten*
sive and valuable Acquisitions in America, secured to our Crown by the
late Definitive Trea^ of Peace concluded at Paris, the 10th day of Febru-
ary last; and being desirous that all Our loving Subjects, as well o#^our
Kingdom as of our Colonies in America, may avail themselves wif ^^U
convenient Speed, of the great Benefits and Advantages which must a^^ue
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, Pour
distinct and separate Governments, styled and called by the names ot
Quebec, East Florida, West Florida and Grenada, and limited and bounded
as follows, viz.:

First — ^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 Nipis-
sim ; from whence the said Line, crossing the River St. Lawrence, and the
Lake Champlain, in 45. Degrees of Nortii Latitude, passes along the Hi^rh
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 Gulph 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 of St John.

Secondly — The Government of East Florida, bounded to the Wcsbwrard
by the Gulph of Mexico and the Apalachicola River, to the Northward bj
a Line drawn from that part of the said River where the Chatahouchee slikj
Flint Rivers meet, to the source of St Mary's River, and by the course oi
the said River to the Atlantic Ocean ; and to the Eastward and South^r&rc
by the Atlantic Ocean and the Gulph of Florida, including all islaxid^
within Six Leagues of the Sea Coast

Thirdly — ^The Government of West Florida, bounded^ to the South^va.r4
by the Gufph of Mexico, including all Islands within Six Leagues of tfi*
Coast, from the River Apalachicola to Lake Pontchartrain ; to the West
ward by the said Lake, the Lake Maurepas, and the River Mississippi ; t*
the Northward by a Line drawn due East from that part of the H^ive
Mississippi which lies in 31 Degrees North Latitude, to the River ApalsLelii
cola or Chatahouchee; and to the Eastward by the said River.

1759-1763] Constitutional Documents of Canada. 19

Fourthly— The Government of Grenada, comprehending the Island of
that name, together with the Grenadines, and the Islands of Dominico,
St Vincent's, and Tobago.

And to the end tliat the open and free Fishery of our Subjects may be
extended to and carried on upon the 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 the Hudson Streights,
together with the Islands of Anticosti and Madelaine, and all other smaller
Islands lying upon the said Coast, under the care and Inspection of our
Governor of Newfoundland.

We have also, with the advice of our Privy Council, thought fit to
annex the Islands of St. John's and Cape Breton, or Isle Royale, with the
lesser Islands adjacent diereto, 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 Alata-
maha ajid 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 the Liberties 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 Governments are
constituted, given express Power and Direction to our Governors of our
Said Colonies respectively, that so soon as the state and circumstances of
the said Colonies will admit thereof, they shall, with the Advice and Con-
sent 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 those Colonies and Provinces in America which are
under our immediate Government; and We have also given Power to the
said Governors, with the consent of our Said Councils, and the Representa-
tives of tht People, so to be summoned as aforesaid, to make, constitute,
and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare
and ^ood 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 mean time, and until such Assemblies can be called as aforesaid,
aH Persons Inhabiting in or resorting to our Said Colonies may confide
in our Royal Protection for the Enjoyment of the Benefit of the Laws of
our Realm of England ;/fOr which PtliiKise We have given Power under
our Great Seal to the Governors of our said Colonies respectivelv to erect anr
constitute, with the Advice of our said Councils respectively, Courts of
Judicature and public Justice within our said Colonies for hearing and
determining all Causes, as well Criminal as Civil, according to Law an<
Equity, and as near as may be agreeable to the Laws of England, with
Liberty to all Persons who may think themselves aggrieved by the Sen-
tcDoes of such Courts, in all Civil Cases, to appeal, under the usual Limita-
tions and Restrictions, to Us in our Privy Council.*

We have also thought fit, with the advice of our Privy Council as
aforesaid, to give unto the Governors and Councils of our said Three new
Colonies, upon the Continent full Power and Authority to settle and agree
widi the Inhabitants of our said new Colonies or with any other Persons
who shall resort thereto, for such Lands, Tenements and Hereditaments,
as are now or hereafter 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 Acloiowledgments, as have been ap-
pointed and settled in our other Colonies, and under 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 Royal
Sense and approbation of the Conduct and bravery of the Officers and

*For m coBtemporary comment on Uiia lection, tee below No. XVII.

/

20 Constitutional Documents of Canada. [1759-1763

Soldiers of our Armies, and to reward the same, We do hereby command
and impower our, Governors of our said Three new Colonies, and all other
our Governors of our several Provinces on the Continent of North Amer-
ica, to grant without Fee or Reward, to such reduced Officers as have
served in North America during the late War, and to such Private Soldiers
as have been or shall be disbanded in America, and are actually residing
there, and shall personally apply for the same, the following Quantities of
Lands, subject, at the Expiration of Ten Years ,to the same Quit-Rents, as
other Lands are subject to in the Province within which they are granted,
as also subject to the same Conditions of Cultivation and Improvement,
viz.:

To every Person having the Rank of a Field Officer 5,000 Acres

To every Captain 3,000 Acres

To every Subaltern or Staff Officer 2,000 Acres

To every Non-Commission Officer 200 Acres

To every Private Man SO Acres

We do likewise authorize and require the Governors 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 Louisbourg and
Quebec in the late War, and who shall personally apply to our respective
Governors for such* Grants.

And whereas it is just and reasonable, and essential to our Interests,
and the Security of our Colonies, that the several Nations or Tribes of
Indians with whom We are connected, and who live under our Protection,
should not be molested or disturbed in the Possession of such Parts of our
Dominions and Territories as, not having been ced6d to or purchased by
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 Pleasure, that no Governor or Comander in Chief in any
of our Colonies of Quebec, 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 in any of our other Colonies or Plantations in America do pre-
sume for the present, and until our further Pleasure be known, to grant
Warrants of Survey, or pass Patents for any Lands beyond the Heads or
Sources of any of the Rivers which fall into the Atlantic Ocean from the
West and North West, or upon any Lands whatever, which, not havini;
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 Lands and Territories
not included within the Limits of Our said Three new Governments, or
within the Limits of the Territory granted to the Hudson's Bay Company,
as also all the Lands and Territories lying to the Westward of the Sources
of the Rivers which fall into the Sea from the West and North West a.s
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 especisil
leave and Licence for that purpose first obtained.

And, We do further strictly enjoin and require all Persons whatever
who have either wilfully or inadvertently seated themselves 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 sudi
settlements.

And whereas great Frauds and Abuses have been committed in pur-

1759-1763] Constitutional Documents of Canada, 21

chasing Lands of the Indians to the great Prejudice of our Interests and
to the great 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
G>uncily strictly enjoin and require, that no private Person do presume to
make any Purchase 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 anv 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 shall lie; and in case
they shall lie within the limits of any Proprietary Grovemment, they shall
be purchased only for the Use and in the name of such Proprietaries, con-
formable 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 with 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 the 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 by our Commissaries to be appointed for this Purpose, to
direct and appoint for the Benefit of the said Trade :

And we do hereby authorize, enjoin, and require the Governors and
Commsuiders in Chief of all our Colonies respectively, as well those under
Our immediate Government as those under the Government and Direction
of Proprietaries, to grant such Licences without Fee or Reward, taking
especial 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 stand-
ing charged with Treason, Misprisions of Treason, Murders, or other
Fdonies 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 stand accused, in order to
take their Trial for the same.

Given at our Court at St. James*, the 7th Day of October, 1763, in the
Third Year of our Reign.

C»D SAVE THB KING ^

SECOND PERIOD
1763-1774

\

> 1

I

SECOND PERIOD
1763-1774

During the Second Period the government was carried on by
a loose interpretation of the Proclamation of 1763 and by various
instructions given to the Governors. Of the latter I have only
printed those which are of importance. The constitutional arrange-
ment, pending the giving of representative institutions, was almost
simiJar to that in a "Crown Colony."

From the very beginning of this period difficulties began. The
presence of British settlers in Canada alien to the Canadians in
race, speech and religion, complicated the situation. They took
up a position of superiority which irritated Governors Murray and
Carieton. Their demands for a strict interpretation of the Pro-
clamation of 1763 in connexion with law and justice, and for a
House of Assembly in which the Canadians should not be repre-
sented, fill the documents of the period. In this section I have
printed documents which illustrate various attempts (i) to inter-
pret the Proclamation of 1763 (ii) to obtain a House of Assembly ;
and I have added (iii) several despatches which throw light on the
chaotic state of the administration of law, and on the general
difficulties with which the officials met in carrying on the
government. Out of these difficulties came efforts to improve
conditions. Ordinances and various reports to the British Gov-
ernment which I have selected illustrate these efforts. The period
closes with the debates on the Quebec Act, which received the
royal assent on June 22, 1774. From these debates liberal selec-
tions have been made, as they are invaluable in studying this
period

1763-1774] Constitutional Documents of Canada. 27

INSTRUCTIONS TO GOVERNOR MURRAY, 7 DECEMBER, 1763*

[Trans. : Shortt and Doughty.]
Geoise R.

Instructions to Our Trusty and Wellbeloved James Murray, Esq., Our
Captain General and Governor in Chief in and over our Province

(LS.) of Quebec in America, and of all our Territories dependent there-
upon. Given at Our Court of St James's the seventh Day of
E^ember, 1763, in the Fourth Year of Our Reign.

1. With these Our Instructions You will receive Our Commission
under Our Great Seal of Great Britain, constituting You Our Captain
General and Governor in Chief in and over Our Province of Quebec in
America, bounded on the Labrador Coast by the River St John, and from
thence by a Line drawn from the Head of ^at River through the Lake St
John to the South End of the Lake Nipissin; 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
Chaleurs and the Coast of the Gulph 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 of
St John : You are therefore to take upon You the Execution of the Office
and Trust We have reposed in You, and the Administration of Govern-
ment, and to do and execute all Things in due manner that shall belong to
your Command, according to the several Powers and Authorities of Our
said Commission under Our Great Seal of Great Britain, and these Our
Instrtictions to You, or according to such further Powers and Instructions
as shall at any Time her^fter be granted or appointed You under Our
Signet and Sign Manual, or by Our Order in Our Privy Council.

2. And You are, with all due Solemnity, to cause Our said Commis-
sion to be published at Quebec, whidi We do appoint to be the Place of
yotir Residence and the principal Seat of Government, in the Districts of
Montreal and Trois Rivieres, and in such other parts of your Government
as You shall think necessary and expedient, as soon as possible; which
being done. You are in the next place to nominate and establish a Council
for Our said Province, to assist You in the Administration of Government,
which Council is, for the present, to be composed of the Persons, Whom

We have appointed to be p^^ t ieutgnant fw^vArtiorc nf Mnt^lr^al anA TfO**

Rivieres^Oiir Oi^^f Justice fiT ' ■"- ""^^ rr^''^*"r,fi, ^nrt th** ^"TTCY"'' ^^n-
eral <^f Ami» t tigfrAtrSt \^ Atriegra f/ir the Northera District, ancITMit
Qthpr P^roTi^Q »Q ho r^ncAn i^^^tM^ ffom amougst the most considerable
of the Inhabitants of, or 'Persons of Property in Our said Province; which
Persons so nominated and appointed by You as aforesaid, (Five of which
We do hereby appoint to be a Quorum) , are to be Our Council for Our said
Province, and to have and enjoy all the Powers, Privilege and Authority
usually exercised and enjoyed by the Members of Our Councils in Our other
Plantations, and also such others as are contained in Our said Conunission
i^der Our Great Seal of Great Britain, and in these Our Instructions to
You ; and they shall meet together at such Time or Times, Place or Places,
as You, in your Discretion, shall think necessary and expedient: It is
nevertheless Our Will and Pleasure, that the said Chief Justice, or Sur-
veyor General of Our Customs, shall not be capable of taking the Admin-

'Hnrray's Commission as Civil GoT«raor was dated 21 November, 1763. He did
not take up his new position, however, till August, 1764. Doubtless this delay
«K to the proTisions of the fourth section of the Peace of Paris (a>v*)*

28 Constitutional Documents of Canada. [1763-1774

istration of the Government upon the Death or Absence of You Our
Governor, or the Commander in Chief for the Time Being.

3. And You are forthwith to call Our said Council together, or such
of them as can be conveniently assembly , and to cause Our said Commis-
sion to You to be read at such Meeting ; which being done, You shall ^en
take yourself, and also administer to Our Lieutenant Governors respec-
tively, and to the Members of Our said Council, the Oaths mentioned in an
Act, passed in the first Year of the Reign of His Majesty King George the
First, intituled, "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 to make and subscribe, and cause them to make and subscribe, the
Declaration mentioned in an Act of Parliament made in the Twoity fifth
Year of the Reign of King Charles the Second, intituled, "An Act for pre-
"venting Dangers which may happen from Popish Recusants.'' And You
and every one of Them are likewise to take an Oath for the due Execution
of your and their Places and Trusts, with regard to your and their equal
and impartial Administration of Justice; — and You are also to take the
Oath required by an Act passed in the seventh and eighth Years of the
Reign of King William the Third to be taken by Governors of Plantations,
to do their utmost that the Laws relating to the Plantations be observed.

4. And You are forthwith to transmit unto Our Commissioners for
Trade and Plantations, in order to be laid before Us for Our Approbation
or Disallowance, the Names of the Members of the Council so to be ap-
pointed by You, as aforesaid; as also a list of the Names and Characters
of Eight other Persons in Our said Province, whom You judge properly
qualified to serve in that Station; to the End that, if any of the Persons
appointed by You, as aforesaid, shall not be approved and confirmed by
Us, under Our Signet and Sign Manual, the Place or Places of such Per-
sons so disapproved may be forthwith supplied from the said List, or
otherwise, as We shall think fit

9. You are forthwith to communicate such and so many of these Our
Instructions to Our said Council, wherein their Advice and Consent are
mentioned to be requisite; as likewise all such others, from time to time,
as You shall find convenient for Our Service to be imparted to them.

10. You are to permit the Members of Our said Council to have and
enjoy Freedom of Debate and Vote, in all affairs of public Concern that
may be debated in Council.

11. And whereas it is directed, by Our Commission to You under
Our great Seal, that so soon as the Situation and Circumstances of Our
said Province will admit thereof, you shall, with the Advice of Our Coun-
cil, summon and call a General Assembly of the Freeholders in Our said
Province ; You are therefore, as soon as the more pressing Affairs of Gov-
ernment will allow to give all possible attention to the carrying tiiis impor-
tant Object into Execution : But, as it may be impracticable for the present
to form such an Establishment, You are in the mean time to make such
Rules and Regulations, by the Advice of Our said Council, as shall appear
to be necessary for the Peace, Order and good Government of Our said
Province, taking Care that nothing be passed or done, that shall any
ways tend to enect the Life, Limb or Liberty of the Subject, or to the
imposing any Duties or Taxes : and that all such Rules and Regfulations be
transmitted to Us, by the first Opportunity after they are passed and made,
for Our Approbation or Disallowance. And it is Our Will and Pleasure,
that when an Assembly shall have been summoned and met, in such man-
ner as You, in your Discretion, shall think most proper, or as shall be
hereafter directed and appointed, the following Regulations be carefully
observed in the framing and passing all such Laws, Statutes and Ordin-
ances as are to be passed by You, witii the Advice and Consent of Our said
Council and Assembly; viz.:

That the Style of Enacting the said Laws, Statutes and Ordinances be
by the Governor, Council and Assembly and no other; —

1763-1774] Constitutional Documents of Canada. 29

That each different Matter be provided for by a di£Ferent Law, without
including in one and the same Act such Things as have no proper Relation
to each other ; —

That no Clause be inserted in any Act or Ordinance ,which shall be
foreign to what the Title of it imports; and that no perpetual Clause be
part of any temporary Law; —

That no Law or Ordinance whatever be suspended, altered, continued,
revived or repealed by general Words ; but that the Title and Date of such
Law or Ordinance be particularly mentioned in the enacting part; —

That no Law or Ordinance, respecting private Property, be passed
without a Qause suspending its Execution, until Our Royal Will and
Pleasure is known; nor without a saving of the Right of Us, Our Heirs
and Successors, and of all Bodies politic and corporate, and of all other
Persons, except such as are mentioned in the said Law or Ordinance, and
those claiming by, from, and under them ; and before such Law or Ordin-
ance is passed, Proof must be made before You, in Council, and entered
in the Council Books, that public Notification was made of the Party's
Intention to apply for such Act in the several Parish Churches, where the
Lands in Question lie, for three Sundays at least successively before any
iuch Law or Ordinance shall be proposed; and You are to transmit, and
annex to the said Law, or Ordin^ce, a Certificate under your hand, that
the same passed through all the Forms abovementioned ; —

That in all Laws or Ordinances for levying Money, or imposing Fines.
Forfeitures or Penalties, express mention be made, that the same is granted
or reserved to Us, our Heirs and Successors, for the public Uses of the said
Province, and the Support of the Government thereof, as by the said Law,
or Ordinance shall be directed; and that a Clause be inserted, declaring,
that the Money arising by the Operation of the said Law, or Ordinance
shall be accounted for unto Us in this Kingdom, and to Our Commissioners
of Our Treasury, or Our High Treasurer for the time being, and audited
by Our Auditor General of Our Plantations, or his Deputy ; —

That all such Laws, Statutes, and Ordinances be transmitted by You
within three Months after their passing, or sooner, if Opportunity offers,
to Our Commissioners for Trade and Plantations: that they be fairly
abstracted in the Margents, and accompanied with very full and particular
Observations upon eadi of them, that is to say, whether the same is intro-
ductive of a new Law, declaratory of a former Law, or does repeal a Law
then before in being; and You are also to transmit, in the fullest manner
the Reasons and Occasion for enacting such Laws, or Ordinances, together
with fair Copies of the Journals of the Proceedings of the Council and
Assembly, which You are to require from the Qerks of the said Council
and Assembly.

12. And to the end that nothing may be passed or done to the Preju-
dice of the true Interests of this Our Kingdom, the just Rights of Us, Our
Heirs and Successors, or the Property of Our Subjects; it is Our express
Will and Measure, that no Law whatever, which shall in any^ wise tend to
affect the Commerce or Shipping of this Kingdom, or which shall any
ways relate to the Rights and Prerogative of Our Crown, or the Property
of Our Subjects, or which shall be of an unusual or extraordinary Nature,
be finally ratified and assented to by You, until You shall have first trajis-
mitted a Draught of such Law, and shall have received Our Directions
thereupon, unless You take care, that a Clause be inserted, suspending and
deferring the Execution thereof, until Our Pleasure is known concerning
the same.

13. And whereas Laws have formerly been enacted in several of Our
Plantations in America for so short a Time, that Our Royal Assent or
Refusal thereof could not be had before the Time, for which such Laws
were enacted, did expire ; You shall not give your Assent to any Law, that
shall be enacted for a less Time than two Years, except in Cases of immin-
ent Necessity, or immediate temporary Expediency; and You shall not
re-enact any Law, to which Oir Assent shall have been once refused, with-
out express Leave for that purpose first obtained from Us, upon a full

30 Constitutional Documents of Canada. [1763-1774

Representation by You to be made to Our Commissioners for Trade and
Plantations, in order to be laid before Us, of the Reasons and Necessity
for passing such Law ; nor give your Assent to any Law for repealing any
other Law, which shall have passed in your Government, and shall have
received Our Royal Approbation, unless You take care that there be a
Qause inserted therein, suspending and deferring the Execution thereof,
until Our Pleasure shall be known concerning the same.

15. And whereas the Members of several Assemblies in the Plantations
have frequently assumed to themselves Privileges no ways belonging to
them, especially of being protected from Suits at Law during the Term
they remain of the Assembly, to the great Prejudice of their Creditors and
the Obstruction of Justice ; and some Assemblies have presumed to adjourn
themselves at Pleasure, without leave from Our Governor first obtained;
and Others have taken upon them the sole framing of Money Bills, refusing
to let the Council alter or amend the same; all which practices are very
detrimental to Our Prerogative; If therefore You find, that the Members
of the Assembly of Our Province of Quebec insist upon any of the said
Privileges, You are to signify to them that it is Our express Will and
Pleasure, that You do not allow any Protection to any Member of the
Council or Assembly, further than in their Persons, and that only during
the Sitting of the Assembly; and that You do not allow them to adjourn
themselves otherwise than de die in diem, except Sundays and Holy-days,
without Leave from You, or the Commander in Chief for the time being,
first obtained; It is also Our further Pleasure, that the Council have the
lik^- Power of framing Money Bills as the Assembly.

16. And whereas by Our aforesaid Commission under Our Great Seal
q/ Great Britain, You are authorized and impowered, with the Advice and

msent of our Council, to constitute and appoint Courts of Judicature and
fustice; it is therefore our Will and Pleasure, that You do, as soon as
Possible, apply your Attention to these great and important Objects; and
^hat, in forming the necessary Establishments for this purpose. You do

msider what has taken place in this respect in Our other Colonies in
Lmerica, more particularly in Our Colony of Nova Scotia.

17. And whereas it is for the Ease, Satisfaction and Benefit of all
lur Subjects, that Appeals should be allowed, in all Civil Causes, from the

Courts in Our Plantations; it is therefore Our Will and Pleasure, that,
when the several Courts and Offices necessary for the Administration of
Justice shall have been settled, appointed and confirmed, in consequence
of the Power vested in You by Our Commission under Our Great Seal and
by these Our Instructions, You do, as near as different Circumstances will
admit, conform yourself to the Regulations prescribed in the Instructions
given to Our Governor of Nova Scotia in respect to such Appeals, Copies
of which Instructions^ are hereunto annexed. '

18. You are, with the Advice and consent of Our Council in the
Province under your Government, to take especial Care to regulate all
Salaries and Fees belonging to Places, or paid upon Emergencies, that they
may be within the Bounds of Moderation,* and that no Exaction be made
on any Occasion whatsoever, as also that tables of all Fees be publickly
hung up in all Places where such Fees are to be paid; and You are to
transmit Copies of all such Tables of Fees to Our Commissioners for
Trade and Plantations, in order to be laid before Us.

20. You shall not appoint any Person to be a Judge or Justice of the
Peace, without the Advice and Consent of the Majority of the Members of
Our Council, present in Council; nor shall You execute yourself, or by
Deputy, any of the said Offices ; and it is Our further Will and Pleasure,
that all Commissions, to be granted by You, to any Person or Persons to
be Judges or Justices of the Peace, or other necessary Officers, be granted
during Pleasure only.

21. You shall not displace any of the Judges, Justices of Peace, or

'Murray's successor, Sir Guy Carleton* introduced a scheme in 1770 which was
intended to regulate fees, about which many complaints were made. (See Not. XX,
XXI). The new scheme was not entirely successful.

1

\

1763-1774] Constitutional Documents of Canada. 31

other Officers or Ministers, without ^ood and sufficient Cause which You
shall signify in the fullest and most distinct manner to Our Commissioners
for Trade ahd Plantations, in order to be laid before Us, by the first
Opportunity after such Removals.

22. And whereas frequent Complaints have heretofore been made
of great Delays and undue Proceedings in the Courts of Justice in several
of Our Plantations, whereby many of Our good Subjects have very much
suffered; and it being of the greatest Importance to Our Service, and to
the Welfare of Our Plantations, that Justice be everywhere speedily and
duly administered, and that all Disorders, Delays, and other undue Prac-
tices in the Administration thereof j be effectually prevented; We do par-
ticularly require You to take especial Care, that in all Courts, where You
are authorized to preside. Justice be impartially administered ; and that in
all other Courts, established within Our said Province, all Judges, and
other Persons therein concerned, do likewise perform their several Duties
without any Delay or Partiality.

23. You are to tsdce Care, that all Writs be issued in Our Name
throug^hout the Province under 3rour Government

24. Whereas there are several Offices in Our Plantations granted
under the Great Seal of Great Britain, and Our Service may be very much
prejudiced by reason of the Absence of the Patentees, and by their appoint-
ing Deputies not fit to officiate in their Stead ; You are therefore to inspect
such of the said Offices as are in the Province under your Government, and
to enquire into the Capacity and behaviour of the Persons exercising them,
and to report thereupon, to Our Commissioners for Trade and Plantations,
what you think fit to be done or altered in relation thereunto ; and you are,
upon the Misbehaviour of any of the said Patentees or their Deputies, to
suspend them from the Execution of their Office, till You shall have repre-
sented the whole Matter unto Us, and received Our Directions therein ; and
in case of the Death of any such Deputy, it is Our express Will and Pleas-
ure, that You take Care that the Person appointed to execute the Place,
until the Patentee can be informed thereof, and appoint another Deputy,
do give sufficient Security to the Patentee, or, in case of Suspension, to
the Person suspended, to be answerable to him for the Profits accruing
during such Interval by Death, or during Such Suspension, in case We
shall think fit to restore the Person Suspended to his Place again. It is
nevertheless Our Will and Pleasure, that the Person executing the Place
during such Interval by Death or Suspension, shall, for his Encouragement,
receive the same Profits as the Person dead, or suspended did receive;
And it is Our further Will and Pleasure, that, in case of a Suspension of a
Patentee, the Person appointed by you to exercise the Office during such
Suspension, shall receive a Moiety of the Profits which would otherwise
become due to such Patentee, giving Security to such Patentee to be
answerable to him for the other Moiety, in case We shall think fit to restore
him to his Office again ; And it is Our further Will and Pleasure, that You
do countenance and give all due Encouragement to all Our Patent Officers
in the Enjoyment of their legal and accustomed Fees, Rights, Privileges
and Emoluments, according to the true Intent and Meaning of their
Patents.

28. And whereas We have stipulated, by the late Definitive Treaty
of Peace concluded at Paris the 10th Day of February, 1763, to grant the
Liberty of the Calholick Religion to the Inhabitants of Canada, and that
We will consequently give the most precise and most effectual Orders, that
Our new Roman Catholick Subjects in that Province may profess the Wor-
ship of their Religion, according to the Rites of the Romish Church, as far
as the Laws of Great Britain permit; It is therefore Our Will and Pleas-
ure, that you do, in all things n^rding the said Inhabitants, conform with
great Exactness to the Stipulations of the said Treaty in this respect

29. You are, as soon as possible, to summon the Inhabitants to meet
together, at such Time or Times, Place or Places, as you shall find most
convenient, in order to take the Oath of Allegiance, and make and sub-
scribe the Declaration of Abjuration mentioned in the aforesaid Act passed

32 Constitutional Documents of Canada, [1763-1774

in the first Year of the Reign of King George the First, 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; which Oath shall be administered to them by
such Person or Persons as you shall commissionate for such Purpose ; and
in case any of the said French Inhabitants shall refuse to take the said
Oath, and make and subscribe the Declaration of Abjuration, as aforesaid,
You are to cause them forthwith to depart out of Our said Government

50. And it is Our further Will and Pleasure, that all such Inhabitants,
professing the Religion of the Romish Church, do, at all such Meetings, or
at such other Time or Times as You shall think proper, and in the Manner
you shall think least alarming and inconvenient to the said Inhabitants,
deliver in upon Oath an exact Account of all Arms and Ammunition, of
every Sort in their actual Possession, and so, from time to time, of what
they shall receive into their Possession, as aforesaid.

31. You are as soon as possible to transmit to Us, by Our Commis-
sioners for Trade and Plantations, an exact and particular Account of the
Nature and Constitution of the several Religious Communities of the
Romish Church, their Rights, Qaims, Privileges and Property, and also the
Number, Situation and Revenue of the several Churches heretofore estab-
lished in Our said Province, together with the Number of Priests or
'Curates officiating in such Churches.

32. You are not to admit of any Ecclesiastical Jurisdiction of the See
»f Rome, or any other foreign Ecclesiastical Jurisdiction whatsoever in the
^rovince under your Government*.

33. And to the End that the Church of England may be established
^both in Principles and Practice, and that the said Inhabitants may by De-
grees be induced to embrace the Protestant Religion, and dieir Children
be brought up in the Principles of it; We do hereby declare it to be Our
Intention, when the said Province shall have been accurately surveyed, and
divided into Townships, Districts, Precincts or Parishes, in such manner
as shall be hereinafter directed, all possible Encouragement shall be given
to the erecting Protestant Schools in the said Districts, Townships and
Precincts, by settling, appointing and alloting proper Quanties of Land for
that Purpose, and also for a Glebe and Maintenance for a Protestant Min-
ister and Protestant School Masters; and you are to consider and report
to Us, bv Our Commissioners for Trade and Plantations, by what other
Means the Protestant Religion may be promoted, established and encour-
aged in Our Province under your Government

34. And You are to take especial Care, that God Almighty be devoutly
and duly served throughout your Government, the Book of Common
Prayer, as by Law established, read each Sunday and Holyday, and the
blessed Sacrament administered according to the Rites of the Church of
England.

35. You are not to prefer any Protestant Minister to any Ecclesias-
tical Benefice in the Province under your Government, without a Certificate
from the Right Reverend Father in God the Lord Bishop of London', of
his being comformable to the Doctrine and Discipline of the Church of
England, and of a good Life and Conversation; And if any Person here-
after preferred to a Benefice shall appear to you to give Scandal, either
by his Doctrine or Manners, you are to use the best Means for his Removal.

36. You are to give Orders forthwith, that every Orthodox Minister
within your Government be one of the Vestry in his respective Parish ; and
that no Vestry be held without him, except in case of Sickness, or, after
Notice of a Vestry summoned, he omit to come.

37. And to the End that the Ecclesiastical Jur^diction of the Lord

'For the historr of the earlj ecclesiastical government of the Roman Catholic
Church in British Canada, see Gosselin, L'Egtise du Canada apr^s la ConquSte (Que-
bec, 1916).

'For the history of the Church of England in Canada, see C. H. Mockrid«e, The
Bishops of the ChurcK of England in Canada and Newfoundland (1896).

1763-1774] Constitutional Documents of Canada, 33

Bishop of London may take place in Our Province under your Govern-
ment, as far as conveniently may be, We do think fit, that You give all
Countenance and Encouragement to the Exercise of the same, excepting
only the Collating to Benefices, granting Licences for Marriage, and Pro-
bates of Wills, which We have reserved to You, Our Governor, and to the
Commander in Chief of Our said Province for the Time being.

38. And We do further direct, that no Schoolmaster who shall arrive
in Our said Province from this Kingdoni, be henceforward permitted to
keep School, without the Licence of die said Lord Bishop of London ; and
that no other Person now there, or that shall come from other Parts, shall
be admitted to keep School in your Government, without your Licence first
obtained.

39. And You are to take especial Care, that a Table of Marriages,
established by the Canons of the Church of England, be hung up in all
Places of publick Worship, according to the Rites of the Church of
England.

4L And whereas it is stipulated by the aforesaid Treaty concluded
at Paris the 10th Day of February, 1763, that the French Inhabitants, or
Others, who have been Subjects of the Most Christian King in Canada,
may retire with all Freedom and Safety wherever they shall think proper,
and may sell their Estates, provided it be to Our 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 crim-
inal Prosecution, and that the Time limited for the Emigration shall be
fixed to the Space of Eighteen Months, to be computed from the Day of
the Exchange of the Ratifications of the Treaty ; You are therefore in all
things to conform yourself to this Stipulation, and to take care, that such
of the French Inhabitants as intend to remove within the Time limited'
be not obstructed or impeded, provided they do not sell their Estates to
Others than His Majesty's Subjects, and that, so long as they remain under
vour Government, they do in all things conform thereto in like manner as
Our other Subjects.

42. And it is Our further Will and Pleasure, that all and every the
French Inhabitants in Our said Province, who are now possessed of Lands
within the said Province, in Virtue of Grants or Concessions made before
the signing of the Preliminary Articles of Peace on the third Day of No-
vember, 1/62; do within such limited Time as You in your Discretion shall
think fit, register the several Grants or other Deeds or Titles, by which
they hold or claim such Lands, in the Secretary's Office ; which said Grants,
Deeds or other Titles, shall be entered at large in the said Office, so that
the particular Quantity of Land, it's Site and Extent, the Conditions upon
which it is granted, either as to Rents, Services, or Cultivation, may appear
fully and at length.

43. And in case it shall appear, upon a strict and accurate Examina-
tion of the said Grants and Title Deeds, to be taken in such manner as
You shall think proper, that any of the Grantees, or Persons claiming
Lands under such Grants and Title Deeds, are in possession of more Land
than is contained within such Grants or other Concessions; or that the
Terms and Conditions, upon which the Lands were granted, have not been
complied with, agrreeable to what is stipulated in such Grants or Conces-
sions ; It is Our Will and Pleasure, that you forthwith represent the same
to Us, by Our Commissioners for Trade and Plantations, to the End that
you may receive such Directions thereupon, as the Nature and Circum-
stances of the Case shall appear to require.

61. And you are to inform yourself with the greatest Exactness of
the Number, Nature and Disposition of the several Bodies or Tribes of
Indians, of the manner of their Lives, and the Rules and Constitutions, by
which they are governed or regulated. And You are upon no Account to
molest or disturb them in the Possession of such Parts of the said Prov-

*For a discussion of the numbers who emigrAted, see Munro, Tht Seigniorial
System in Canada. ^

34 Constitutional Documents of Canada, [1763-1774

ince, as they at present occupy or possess ; but to use the best means You
can for concilating their AfiFections, and uniting them to our Government,
reporting to Us by Our G>mmissioners for Trade and Plantations, what-
ever Information you can collect with respect to these People, and the
whole of your Proceedings with them.

6Z, Whereas We have, by Our Proclamation dated the seventh day
of October in the Third year of Our Reign, strictly forbid, on pain of Our
Displeasure, all Our Subjects from making any Purchases or Settlements
whatever, or taking Possession of any of the Lands reserved to the several
Nations of Indians, with whom We are connected, and who live under Our
Protection, without Our especial Leave for that Purpose first obtained ; It
is Our express Will and Pleasure, that you take the most effectual Care
that Our Royal Directions herein be punctually complied with, and that
the Trade with such of the said Indians as depend upon your Government
be carried on in the Manner, and under the Regulations prescribed in Our
said Proclamation.

63. You are to use your best Endeavours in improving the Trade of
those Parts, by settling such Orders and Regulations therein, with the
Advice of Our said Council, as may be most acceptable to the Generality
of the Inhabitants. And it is Our Express Will and Pleasure, that you do
not, upon any Pretence whatever, upon pain of Our highest Displeasure,
give your Assent to any Law or Laws for setting up any Manufactures and
carrying on any Trades, which are hurtful and prejudicial to this Kingdom ;
and that You do use your utmost Endeavours to discourage, discountenance
and restrain any Attempts which may be made to set up such Manufactures,
or establish any such Trades.

64. Whereas by the 5th and 6th Articles of the Treaty of Peace and
Neutrality in America, concluded between England and France the 6th-16
Day of November, 1686, the Subjects and Inhabitants of each Kingdom
are prohibited to trade and fish in all Places possessed, or which shall be
possessed by the other in America; and if any Ships shall be found trad-
ing contrary to the said Treaty, upon due Proof- the said Ships shall be
confiscated; but in case the Subjects of either King shall be forced by
Stress of Weather, Enemies, or odier Necessity into the Ports of the other
in America, they shall be treated with Humanity and Kindness, and may
provide themselves with Victuals, and other Things necessary for their
Sustoiance, and the Reparation of their ships, at reasonable Rates; pro-
vided they do not break bulk, nor carry any Goods out of their Sh2k>s, ex-
posing them for Sale, nor receive any Merchandize on board, under Penalty
of Confiscation of Ship and Goods ; It is therefore Our Will and Pleasure,
that You signify to Our Subjects under your Government the Purport and
Intent of the abovesaid two Articles; and that you take particular Care,
that none of the French Subjects be allowed to trade from their said
Settlements to the Province under your Government, or to fish upon the
Coast thereof.

65. And it is Our Will and Pleasure, that You do not Dispose of any
Forfeitures or Escheats to any Person, until the Sheriff, or other proper
Officer, have made Enquiry, by a Jury upon their Oaths, into the true
Value thereof, nor until you have transmitted to Our Commissioners of
Our Treasury, and to Our Commissioners for Trade and Plantations, a par-
ticular Account of such Forfeitures and Escheats, and the Value thereof.
And you are to take Care, that the Produce of such Forfeitures and Es-
cheats, in case We shall think proper to give You Directions to dispose of
the same, be duly paid to Our Treasurer or Receiver General of Our said
Province, and a full Account transmitted to Our Commissioners of Our
Treasury, or Our High Treasurer for the Time being, and to Our Com-
missioners for Trade and Plantations, with the Names of the Persons to
whom disposed.

68. Whereas great Inconveniences have happened heretofore by Mer-
chant Ships and other Vessels in the Plantations wearing the Colours borne
by Our Ships of War, under Pretence of Commissions granted to them by
the Governors of the said Plantations, and, by trading under those Colours,

1763-1774] Constitutional Documents of Canada. 35

not only amongst Our own Subjects, but also those of other Princes and
States, and committing divers Irregularitys, they may very much dishonour
Our Service; For preventing thereof You are to oblige the G>mmanders
of all such Ships, to which you shall grant Commissions, to wear no other
Colours than such as are described in an Order of Council of the seventh
of Janiiary, 1730, in relation to Colours to be worn by all Ships and Ves-
sels, except Our Ships of War.

69. And whereas there have been great Irre^laritys in the manner of
granting Commissions in the Plantations to private Ships of War, You
are to govern yourself, whenever there shall be Occasion, according to the
Commissions and Instructions granted in this Kingdom; But you are not
to grant Commissions of Marque or Reprizal against any JPrince or State, or
their Subjects, in Amity with Us, to any Person whatsoever, without Our
special Command.

70. Whereas We have been informed that, during time of War, Our
Enemies have frequently got Intelligence of the State of Our Plantations
by Letters from private Persons to their correspondents in Great Britain,
taken on board Sl^ips coming from the Plantations, which has been of
dangerous Consequence; Our Will and Pleasure therefore is, that you
signify to all Merchants, Planters and Others, that they be very cautious,
in time of War, whenever that shall happen, in giving any Accounts by
Letters of the public State and Condition of Our Province under your
Government; And you are further to give Directions to all Masters of
Ships, or other Persons to whom you may entrust your Letters, that they
put such Letters into a Bag, with a sufficient weight to suit (?) the same
immediately in Case of imminent danger from the Enemy; And you are
also to let the Merchants and Planters know, how greatly it is for their
Interests that their Letters should not fall into the Hands of the Enemy,
and therefore they should give like Orders to Masters of Ships in relation
and therefore that they should give like Orders to Masters of Ships in rela-
tion to their Letters ; And you are to further advise all Masters of Ships,
that they do sink all Letters, in case of dangers, in the Manner before men-
tioned.

71. And whereas, in Time of War, the Merchants and Planters^ in
Our Plantations in America did correspond and trade with Our Enemies,
and carry Intelligence to them, to the great Prejudice and Hazard of Our
said Plantations; You are therefore by all possible Methods to endeavour
to hinder such Trade and Correspondence in Time of War.

72. And You are to report to Us, by Our Commissioners for Trade
and Plantations, —

What is the Nature of the Soil and Qimate of the Province under
your Government, If it di£Fers in these Circumstances from Our other
Korthem Colonies, in what that Difference consists? And what beneficial
Articles of Commerce the different Parts of it are capable of producing?

What Rivers there are, and of what Extent and Convenience to the
Planters?

What are the principal Harbours; how situated, and of what Extent;
and what is the Depth of Water, and Nature of the Anchorage in each of
them?

What Quantity of Land is now under actual Improvement and Settle-
ment? What are the chief Articles of Produce and Culture; the annual
Amount of the Quantity of each; and upon what Terms and Conditions
die Inhabitants hold their Lands, either of Cultivation, Rent, or Personal
Service?

What is the Quantity, Nature and Property of the Land uncultivated ;
how much of it is capable of Culture; and what part thereof is private
Property?

What is the Number of Inhabitants, Whites and Blacks, distinguishing
each? What Number of the Former is capable of bearing Arms, and what
Number of the Latter is annually necessary to be supped in proportion
to the Land cultivated?

What was the Nature, Form and Constitution of the Civil Govern-

36 Constitutional Documents of Canada, [1763-1774

ment; what Judicatures were there established, and under what Regula-
tions did the French Inhabitants carry on their Commerce?

73. You are from time to time to send unto Us, by Our Commis-
sioners for Trade and Plantations, as aforesaid, an Account of the In-
crease and Decrease of the Inhabitants, Whites and Blacks, and also an
Account of all Persons bom, christened and buried.

74. Whereas, it is absolutely necessaiy, that We be exactly informed
of the State of Defence of all Our Plantations in America, as well in rela-
tion to the Stores of War that are in each Plantation, as to the Forts and
Fortifications there; and what more may be necessary to be built for the
Defence and Security of the same ; You are as soon as possible to prepare
an Account thereof with relation to Our said Province in the most par-
ticular manner; And You are therein to express the present State of the
Arms, Ammunition and other Stores of War, belonging to the said Prov-
ince, either in public Magazines, or in the Hands of private Persons; to-
gether with the State of all Places, either already fortified, or that you judgre
necessary to be fortified for the Security of Our said Province ; And you are
to transmit the said Accounts to Our Commissioners for Trade and Plan-
tations, as also a Duplicate thereof to Our Master General or principal
Ofiicers of Our Ordnance ; Which Accounts are to express the Particulars
of Ordnance, Carriages, Balls, Powder, and other Sorts of Arms and Am-
munition in Our public Stores, and so from time to time of what shall be
salt you, or bought with the public Money, and to specify the Time of the
Disposal, and the Occasion thereof : And You are half yearly to transmit
a general Account of the State of the Fortifications and Warlike Stores,
specify'd in the manner above mentioned.

75. You are from time to time to give an Account, what strength
your Neighbours have by Sea and Land, and of ^e Condition of their
Plantations, and what Correspondence You keep with them.

76. And in case of any Distress of any other of Our Plantations, You
shall, upon Application of the respective Governors thereof unto you, assist
them with what Aid the Condition and Safety of Our Province under your
Government can spare.

77. If anything shall happen, *which may be of Advantage or Security
lo Our Province under your Government, which is not herein, or by your
Commission provided for, We do hereby allow unto you, with the Advice
and Consent of Our Council, to take Order for the present therein, giving
unto Our Commissioners for Trade and Plantations speedy Notice thereof,
in order to be laid before Us, that you may receive Our Ratification, if
We shall approve the same — ^provided always, that you do not, by Colour
of any Power or Authority hereby given you, commence or declare War
without Our Knowledge and particular Commands therein.

78. And whereas We have, by the second Article of these Our In-
structions to you, directed and appointed that your chief Residence shall
be at Quebec; you are nevertheless frequently to visit the other parts of
your Government, in order to inspect the Management of all public Affairs,
and thereby the better to take Care, that the Government be so adminis-
tered, that no disorderly Practices may grow up contrary to Our Service
and the Welfare of Our Subjects.

79. And whereas great Prejudice may happen to Our Service, and
the Security of the Province, by your Absence from those Parts, You are
not, upon any Pretence whatsoever, to come into Europe, without having
first obtained Leave for so doing from Us under Our Sign Manual and
Signet, or by Our Order in Our Privy Council ; Yet nevertheless in case
of Sickness, You may go to South Carolina, or any otheT of Our Southern
Plantations, and there stay for such Space as the Recovery of your Health
may absolutely require.

80. And whereas We have thought fit by Our Commission to direct,
that in case of your Death or Absence, and the Death or Absence of Our
Lieutenant Governors of Montreal and Trois Rivieres, and in case there
be at that time no Person within Our said Province, commissionated or
appointed by Us to be Commander in Chief, that the Eldest Councillor,

1763-1774] Constitutional Documents of Canada. 37

who shall be at the time of your Death or Absence, or at the Death or
Absence of Our Lieutenant Governors, as aforesaid, residing within Our
said Province under your Government, shall take upon him the Adminis-
tntioD of Government, and execute Our said Commission and Instruc-
tions, and the several Powers and Authorities therein directed: It is
nevertheless Our express Will and Pleasure, that in such case the said
President shall forbear to pass any Act or Acts, but what are immediately
necessary for the Peace and Welfare of the said Province, without Our
particular Order for that Purpose ; And that he shall not remove or suspend
any of the Members of Our Council, nor any Judges, Justices of the Peace,
or other Officers Civil or Military, without the Advice and Consent of at
least seven of the Members of Our said Council, nor even then without
good and sufficient Reasons for the same, which the said President is to
transmit, signed by himself and the rest of Our said Council, to Our Com-
missioners for Trade and Plantations, by the first Opportunity in order to
be laid before Us.

82. And You are upon all Occasions to send unto Olir Commissioners
for Trade and Plantations only, a particular Account of all your Proceed-
ings, and of the Condition of Affairs within your Government, in order to
be laid before Us ; provided nevertheless, whenever any Occurences shall
happen within your Government of such a Nature and Importance as may
require Our Immediate Directions by One of Our principal Secretaries of
State, and also upon all Occasions and in all Affairs wherein you may re-
ceive Our Orders by One of Our principal Secretaries of State, you shall
in all sudi Cases transmit to Our Secretary of State only an Account of
all such Occurences, and of your Proceedings relative to such Orders : —

G. R.

VI

ORDINANCE ESTABLISHING CIVIL COURTS, 1764'

[Trans. : Shortt and Doughty.] .

An ORDINANCE, for regrulating and establishing the Courts of Judica-
ture, Justices of the Peace, Quarter- Sessions, Bailiffs, and other
Matters relative to the Distribution of Justice in this Province.

Whereas it is highly expedient and necessary, for the well governing
of His Majest/s good Subjects of the Province of Quebec, and for the
speedy and impartial Distribution of Justice among the same, that proper
Courts of Judicature, with proper Powers and Authorities, and under pro-
per Regulations, should be established and appointed :

His Excellency the Governor, by and wiUi the Advice, Consent and
Assistance of His Majesty's Council, and by Virtue of the Power and
Authority to him given by His Majesty's Letters Patent, under the Great
Seal of Great-Britain, hath thought fit to Ordain and Declare ; and his
^id Excellency, by and with the Advice, Consent and Assistance afore-
said, Doth hereby Ordain and Declare,

That a Superior Court of Judicature, or Court of^King's Bench, be
tsUblished in this Province, to sit and hold Terms in the lown oi buebec,
twice in every Year, vis. : One to begin on the Twenty-first Day of Janu-
"0', called Hillary Term, the other on the Twenty-first Day of June,
ailed Trinity Term.

In this Court His Majesty's Chief -Justice presides, with Power and
Authority to hear and determine all criminal and civil Causes, agreeable
to Ae Laws of England, and to the Ordinances of this Province ; and from
this Court an Appeal lies to the Governor and Council, where the Matter
ffl Contest is above the Value of Three Hundred Pounds Sterling ; and
!rom the Governor and Council an Appeal lies to the King and Council,

^./'^la Ordinance was paBsed under the terms of the Proclamation of 1763 (No.
j.^ and of the Instructions to Murray (No. V). It was amended in 1766 (see No.

38 Constitutional Documents of Canada. [1763-1774

where the Matter in Contest is of the Value of Five Hundred Pounds
Sterling or upwards,

In all Tryals in this Court, all His Majesty's Subjects in this Colony
to be admitted on Juries without Distinction/

And His Majesty's Chief -Justice, once in every Year, to hold a Court
of Assize, and General Goal-Delivery, soon after Hillary Term, at the
Towns of Montreal and Trois-Rimires, for the more easy and convenient
Distribution of Justice to His Majesty's Subjects in those distant Parts of
the Province.

And whereas an inferior Court of Judicature, or Court of Common-
Pleas, is also thought necessary and convenient. It is further Ordained and
Declared, by the Authority aforesaid, That an inferior Court of Judicature
or Court of Common-Pleas, is hereby established, with Power and Au-
thority, to determine all Property above the Value of Ten Pounds, with a
Liberty of Appeal to either Party, to the Superior Court, or Court of
King's Bench, where the Matter in Contest is of the Value of Twenty
Pounds and upwards.

All Tryals in this Court to be by Juries, if demanded by either Party ;
and this Court to sit and hold two Terms in every Year at the Town of
Quebec, at the same Time with the Superior Court, or Court of King's
Bench. Where the Matter in Contest in this Court is above the Value of
Three Hundred Pounds Sterling, either Party may (if they shall think
proper) appeal to the Governor and Council immediately, and from the
Governor and Council an Appeal lies to the King and Council, where the
Matter in Contest is of the Value of Five Hundred Pounds sterling or
upwards.

The Judges in this Court are to determine agreeable to Equity, having
Regard nevertheless to the Laws of England, as far as the Circumstances
and present Situation of Things will admit, until such Time as proper
Ordinances for the Information of the People can be established by the
Governor and Council, agreeable to the Laws of England.

The French Laws and Customs to be allowed and admitted in all
Causes in this Court, between the Natives of this Province, where the
Cause of Action arose before the first Day of October, One Thousand
Seven Hundred and Sixty-Four.

The first Process of this Court to be an Attachment against the Body.

An Execution to go against the Body, Lands or Goods of the De-
fendant.

Canadian Advocats, Procters, &c., may practise in this Court.

And whereas it is thought highly necessary for the Ease, Convenience
and Happiness of all His Majesty's loving Subjects, That Justices of the
Peace should be appointed for the respective Districts of this Province,
with Power of determining Property of small Value in a summary way.
It is therefore further Ordained and Declared, by the Authority afore-
said, and full Power is hereby Given and Granted to any one of His
Majesty's Justices of the Peace, within their respective Districts, to hear
and finally determine in all Causes or Matters of Property, not exceeding
the Sum of Five Pounds current Money of Quebec, and to any two Jus-
tices of the Peace, within their respective Districts, to hear and finally
determine in all Causes or Matters of Property, not exceeding the Sum of
Ten Pounds said Currency, which Decisions being within, and not exceed-
ing the aforesaid Limitation, shall not be liable to an Appeal; and also
full Power is, by the Authority aforesaid, Given and Granted, to any three
of said Justices of the Peace to be a Quorum, with Power of holding^
Quarter-Sessions in their respective Districts every three Months, and
also to hear and determine all Causes and Matters of Property which shall
be above the Sum of Ten Pounds, and not exceeding Thirtyj!siMndj cur-
rent Money of Quebec, with Liberty of Appeal ttf eHherParty to the

^ Murray explained this clause to the British Governmeiit. He desired "all sub-
jects" to be eligible for jury-seryice, because (a) he did not consider it just to confine
such senrice to the minority of English-speaking subjects in Canada, and (b) because
he considered that if he did so many Canadians would emigrate. (See No. Vll.)

1763-1774] Constitutional Documents of Canada. 39

Saperior Court, or Court of King's-Bench : And it is hereby Ordered, That
the aforesaid Justices of the Peace do issue their Warrants, directed to
the Captains and other Officers of the Militia in this Province, to be by
them executed, until the Provost-Marshal, legally authorised by His Ma-
jesty, shall arrive, and other inferior Officers be appointed for that Pur-
pose; all Officers, Civil and Military, or other His Majesty's loving Sub-
jects, are hereby commanded and required to be aiding and assisting to the
said Justices and Officers of Militia in the due Execution of their
Duty. And it is further Ordered and Directed, by the Authority afore^
said. That two of the said Justices of the Peace do sit weekly in Rotation,
for the better Regulation of the Police, and other Matters and things in
the Towns of Quebec and Montreal, and that the Names of the Justices
who are to sit in each Week, be posted up on the Door of the Session-
House by the Clerk of the Peace, two Days before their respective Days
of Sitting, that all Persons may know to whom to apply for Redress.

And whereas there are not at present a sufficient Number of Protes-
tant Subjects, resident in the intended District of Trois-Rvvieres, qualified
to be Justices of the Peace, and to hold Quarter-Sessions, // is therefore
further Ordained and Declared, by the Authority aforesaid. That from
henceforth this Province shall be divided into two Districts, to be known
and called by the Names of Quebec and Montreal, for the Time being,
and until there may be a competent Number of Persons, settled at or near
Trois'Rtvieres, duly qualified to execute the Office of Justices of the Peace,
and the Power of holding such Quarter-Sessions above-mentioned, or until
His Majesty's Pleasure be known in that Behalf; and that the said two
Districts be divided and bounded by the River Godfroy on the South, and
the River St, Maurice on the North Side.

And whereas it is thought very expedient and necessary, for the
speedy and due Execution of the Laws, and for the Ease and Safety of
His Majesty's Subjects, That a sufficient Number of inferior Officers
should be appointed in every Parish throughtout this Province ; It is there'
fare Ordered, by the Authority aforesaid. That the Majority of the House-
holders, in each and every Parish, do, on the Twenty-fourth Day of June,
in every Year, elect and return to the Deputy-Secretary, within fourteen
Days after such Election, six good and sufficient Men to serve as Bailiffs
and Sub-Bailiffs in each Parish, out of which Number the King's Gov-
eniorj or Commander in Chief for the Time being, with the Consent of
the Council, is to nominate and appoint the Persons who are to act as
Bailiffs and Sub-Bailiffs in each Parish; and such Nomination or Ap-
pointment is to notified by the Deputy-Secretary to the respective Parishes
and also published in the QUEBEC-GAZETTE, some Time in the last
Week in August in every Year; and the said Bailiffs and Sub-Bailiffs, so
nominated as aforesaid, are to enter upon, and begin to execute their re-
spective Offices on the Twenty-ninth Day of September in every Year.

No Person to be elected a second Time to the same Office, except the
whole Parish has served round, or that those who have not, are laid aside
for some material Objection, which must be supported by Proof: But that
there may never be an entire Set of new Officers at one Time, but that
those who remain may be able to instruct those who enter into Office, one
of those Persons who served as Sub-Bailiffs in each Parish, to be elected
and nominated Bailiffs of said Parish the ensuing Year.

If a Bailiff dies in his Office, the Governor, or Commander in Chief,
will nominate one of those returned by said Parish to serve as Sub-Bailiffs
for the Remainder of the Year; and when a Sub-Bailiff happens to die in
Office, the Bailiffs' shall assemble the Parish upon the next publick Feast
Day insuing his Decease, who shall proceed to elect and return, as afore-
said, another Sub-Bailiff.

The Election of Bailiffs and Sub-Bailiffs for this present Year, to be
on the Twentieth Day of October; th^r Names to be returned immediately
after the Election : Their Nomination will be notified and Published by the
Deputy-Secretary as soon as may be, and they shall enter upon, and begin
to execute their respective Offices, on the first Day of December, but all

40 Constitutional Documents of Canada. [1763-1774

Elections, &c., after this Turn, shall be upon the Days and Times above-
mentioned and appointed for that Purpose.

The Bailiffs are to oversee the King's High-ways and the publick
Bridges, and see that the same are kept in good and sufficient Repair; to
arrest and apprehend all Criminals, against whom they shall have Writs
or Warrants, and to guard and conduct them through their respective
Parishes, and convey them to such Prisons or Places as the Writ or War-
rant shall direct: They are also to examine all Bodies that are exposed,
and on whom any Marks of Violence appear, in presence of five reputable
Householders of the same Parish, whom he is hereby impowered to sum-
mons to inspect the same, and report in Writing the State and Circum-
stances thereof to the next Magistrate that a further Examination may be
made therein if necessary; but this to be done only where the Coroner
cannot by any Possibility attend, which in this extensive Province may
frequently happen.

Where any Disputes happen concerning the Breaking or Repairing of
Fences, upon Complaint made to the Bailiff, he shall summons the Defend-
ant, who is to choose three indifferent Persons, and the Plaintiff three
more, and these six, the Bailiff presiding, to decide the Dispute; from
their Sentence either Party may appeal to the Quarter- Sessions ; the Per-
son found in Fault to pay One Shilling and no more, to the Person who
shall draw up the Decision.

These Bailiffs to be sworn into their Office by the next Justice of the
Peace, as soon as may be after their Nomination as aforesaid, and the
said Oath to be returned to the next Quarter-Sessions by such Justice.

GIVEN by His Excellency the Honorable JAM£S MURRAY, Esq,;
Captain-General and Governor in Chief of the Province of Quebec, and
Territories thereon depending in America, Vice Admiral of the same. Gov-
ernor of the Town of Quebec, Colonel-Commandant of the Second Bat-
talion of the Royal American Regiment, &c., &c. In Council, at Quebec,
the 17th of September, Anno, Domini, 1764, and in the Fourth Year of
the Reign of Our Sovereign Lord George the III, by the Grace of God of
Great-Britain, France and Ireland, KING, Defender of the Faith, &c», &c.

(Signed) Ja. Murray.
By Order of His Excellency in Council.

VII

GOVERNOR MURRAY TO THE LORDS OF TRADE'

[Trans.: Shortt and Doughty.]

Quebec, 29th Oct'r, 1764.
My Lords,

4c 4t 4t 4c 4c 4c

Little, very little, will content the New Subjects but nothing will sat-
isfy the Licentious Fanaticks Trading here, but the expulsion of the Ca-
nadians who are perhaps the bravest and the best race upon the Globe, a
Race, who cou'd they be indulged with a few priveledges which the Laws
of England deny to Roman Catholicks at home, wou'd soon get the better
of every National Antipathy to their Conquerors and become the most
faithful and most useful set of Men in this American Empire.

I flatter myself there will be some Remedy found out even in the
Laws for the Relief of this People, if so, I am positive the populer
clamours in England will not prevent the Humane Heart of the King
from following its own Dictates. I am confident too my Royal Master
will not blame the unanimous opinion of his Council here for the Ordon-

^This letter and the document which follows (No. VIII) are selected to illustrate
the difficulties which Murray had with the few hundred British traders settled in
Canada.

1763-1774] Constitutional Documents of Canada. 41

nance establishing the Courts of Justice, as nothing less cou'd be done to
prevent great numbers from emigrating directly, and certain I am, unless
the Canadians are admitted on Jurys, and are allowed Judges and Lawyers
who unders^md their Language his Majesty will lose the greatest part of
this Valuable people.

I have the Honor to be with the greatest truth and regard,

My Lords, Y'r Lordships' mo. Ob't, &c.,

(Signed) Ja. Murray.

VIII

PETITION OF THE QUEBEC TRADERS

[Trans.: Shortt and Doughty.]

To the King's Most Excellent Majesty

The Humble Petition of Your Majesty's most faithful and loyal Sub-
jects, British Merchants and Traders in behalf of themselves and their
fellow Subjects, Inhabitants of your Majesty's Province of Quebec
May it please Your Majesty.

Confident of Your Majesty's Paternal Care and Protection extended
even to the meanest and most distant of your Subjects, We humbly crave
your Majesty's Gracious Attention to our present Grievances and Dis-
tresses.

We presume to hope that your Majesty will be pleased to attribute
our approaching your Royal Throne with disagreeable Complaints, to the
Zeal and Attachment we have to your Majesty's Person and Government,
and for the Liberties and Priviledges with which your Majesty has in-
dulged all your Dutifull Subjects.

Our Settlement in this Country with respect to the greatest part of
us; takes it's date from the Surrender of the Colony to your Majestys
Anns; Since that Time we have much contributed to the advantage of
our Mother Country, by causing an additional Increase to her Manufac-
tures, and by a considerable Importation of them, diligently applied our-
selves to Investigate and promote the Commercial Interests of Uiis Prov-
ince and render it flourishing. *

To Military Government, however oppressive and severely felt, we
submitted without murmur, hoping Time with a Civil Establishment would
remedy this Evil.

With Peace we trusted to enjoy the Blessing of British Liberty, and
happily reap the fruits of our Industry: but we should now despair of
ever attaining those desirable ends, had we not your Majesty's experi-
enced Goodness to apply to.

The Ancient Inhabitants of the Country impoverished by the War,
had little left wherewith to purchase their common necessaries but a
Paper Currency of very doubtfull Value : The Indian War has suspended
our Inland Trade for two years past, and both these Causes united have
greatly injured our Commerce.

For the redress of which we repose wholly on your Majesty, not
doubting but the Wisdom of your Majesty's Councils will in due time put
the Paper Currency into a course of certain and r^^lar Payment, and the
Vigour of Your Majesty's Arms terminate that War by a peace advantage-
ous and durable.

We no less rely on your Majesty for the Redress of those Grievances
we suffer from the Measures of Government practised in this your Ma-
jst/s Province, which are

The Deprivation of the open Trade declared by your Majesty's most
gracious Proclamation, by the Appropriation of some of the most com-
modious Posts of the Resort of the Savages, under the Pretext of their
being your Majesty's private Domain.

42 Constitutionat Documents of Canada, [1763-1774

The Enacting Ordinances Vextatious, Oppressive, unconstitutional, in-
jurious to civil Liberty and the Protestant Cause.

Suppressing dutiful! and becoming Remonstrances of your Majesty's
Subjects against these Ordinances in Silence and Contempt.

The Governor instead of acting agreeable to that confidence reposed
in him by your Majesty, in giving a favorable Reception to those of your
Majesty's Subjects, who petition and apply to him on such important Oc-
casions as require it, doth frequently treat them with a Rage and Rude-
ness of Language and Demeanor, as dishonorable to the Trust he holds
of your Majesty as painful to those who suffer from it.

His further adding to this by most flagrant Partialities, by forment-
ing Parties and taking measures to keep your Majesty's old and new Sub-
jects divided from one another, by encouraging the latter to apply for
Judges of their own National Language.

His endeavouring to quash the Indictment against Qaude Panet (his
Agent in this Attempt who laboured to inflame the Minds of the People
against your Majesty's British Subjects) found by a very Worthy Grand
Inquest, and causing their other judicious and honest Presentments to be
answered from the Bench with a Contemptuous Ridicule.

This discountenancing the Protestant Religion by almost a Total Ne-
glect of Attendance upon the Service of the Church, leaving the Pro-
testants to this Day destitute of a place of Worship appropriated to them-
selves.

The Burthen of these Grievances from Government is so much the
more severely felt, because of the natural Poverty of the Country; the
Products of it been extemely unequal to support its Consumption of
Imports.

Hence our Trade is miserably confined and distressed, so that we lye
under the utmost Necessary of the Aids and Succours of Government, as
well from Our Mother Country as that of the Province, in the Place of
having to contend against Oppression and Restraint.

We could enumerate many more Sufferings which render the Lives
of your Majesty's Subjects, especially your Mayest/s loyal British Sub-
jects, in the Province so very unhappy that we must be under the Neces-
sity of removing from it, unless timely prevented by a Removal of the
present Governor.

Your Peitioners therefore most humbly pray your Majesty to take the
Premises into your gracious Consideration, and to appoint a Governor over
us, acquainted with other maxims of Government than Military only; And
for the better security of your Majesty's dutiful and loyal Subjects, in the
Possession and Continuance of their Rights and Liberties, we beg leave
also most humbly to petition that it may please your Majesty, to order a
House of Representatives to be chosen in this as in other your Majesty's
Provinces; there being a number more than Sufficient of Loyal and well
affected Protestants, exclusive of military Officers, to form a competent
and respectable House of Assembly; and your Majesty's new Subjects, if
your Majesty shall think fit, may be allowed to elect Protestants without
burdening them with such Oaths as in their present mode of thinking they
cannot conscientiously take.

We doubt not but the good effects of these measures will soon appear,
by the Province becoming flourishing and your Majesty's People in it
happy. And for Your Majesty and your Royal House your Petitioners as
in Duty bound shall ever pray, &c., &c.

(Signed by 21 traders.)

1763-1774] Constitutional Documents of Canada, 43

IX

ORDINANCE OF NOV. 6th, 1764

[Trans.: Shortt and Doughty.]

An ORDINANCE, for quieting People in their Possessions, and fix-
ing the Age of Maturity.

WHEREAS it api>ears right and necessary, to quiet the Minds of the
People, in Regard to their Possessions, and to remove every Doubt re-
specting the same, which may any ways tend to excite and encourage vex-
tatious Law-Suits; and until a Matter of so serious and complicated a
Nature, fraught with many and great Difficulties, can be seriously con-
sidered, and such Measures therein taken, as may appear the most likely
to promote the Welfare and Prosperity of the Province in General, His
Excllency, by and with the Advice and Consent of His Majesty's Council,
Doth hereby Ordain and Declare, That until the tenth day of August next,
the Tenures of Lands, in respect to such Grants as are prior to the Cession
thereof, by the Definitive Treaty of Peace,' signed at Paris the tenth day
of February, One Thousand Seven Hundred and Sixty-three, and the
Rights of Iniieritance, as practised before that Period, in such Lands or
Effects, of any Nature whatsoever, according to the Custom of this
Country, shall remain to all Intents and Purposes the same, unless they
shall be altered by some declared and positive Law; for which Purpose
the present Ordinance shall serve as a Guide and Direction in all such
Matters, to every Court of Record in this Province: Provided that noth-
ing in diis Ordinance contained shall extend, or be construed to extend
to the Prejudice of the Rights of the Crown, or to debar His Majesty,
His Heirs or Successors from obtaining, by due Course of Law, in any
of His Courts of Record in this Province, according to the Laws of Great-
Britain, any Lands or Tenements, which at any Time hereafter may be
found to be vested in His Majesty, his Heirs or Successors, and in the
Possession of any Grantee or Grantees, his, her, or their Assigns, or such
as claim under them, by Virtue of any sudi Grants as aforesaid, or under
Pretence thereof, or which hereafter may be found to have become for-
feited to His Majesty, by Breach of all or any of the Conditions in such
Grants respectively mentioned and contained.

And be it Ordained and Declared, by the Authority aforesaid. That
from and after the first Day of January, One Thousand Seven Hundred
and Sixty-five, every Person arrived at the Age of Twenty-one compleat
Years, shall be deemed for the future of full Age and Maturity agreeable
to the Laws of England, and shall be entituled to take full Possession from
that Time of every Estate or Right to him belonging; in Conquence
thereof to sue for the same, or bring to Account the Guardians, or other
Persons who may have been entrusted therewith.

GIVEN by His Excellency the Honorable JAMES MURRAY, Esq,;
Captain-General and Governor in Chief of the Province of Quebec, and
Territories thereon depending in America, Vice Admiral of the same.
Governor of the Town of Quebec, Colonel-Commandant of the Second
Battalion of the Royal American Regiment, &c., &c. In Council,, at Que
bee, the 6th Day of November, Anno, Domini, 1764, and in the Fifth Year
of the Reign of our Sovereign Lord George the III, by the Grace of God,
of Great-Britain, France and Ireland, KING, Defender of the Faith, &c.,
&c Ja. Murray.

44 Constitutional Documents of Canada. [1763-1774

X

REPORT OF ATTORNEY AND SOLICITOR GENERAL REGARD-
ING THE CIVIL GOVERNMENT OF QUEBEC, 1766*

[Trans.: Shortt and Doughty.]

To the Right honble the Lords of the

Committee of Council for Plantation affairs.

My Lords, — In humble obedience to your Order of the 19th of No-
vember last wherein it is recited, that His Majesty having been pleased,
to refer to your Lordships several memorials and Petitions from His Ma-
jesty's Subjects in Canada as well British as French, complaining of sev-
eral of the Ordinances and proceedings of the Governor and Council of
Quebec, and of the present ELstablishment of Courts of Judicature and
other Civil Constitutions; Your Lordships had on that Day, taken the
said paper into your Consideration, together with a Report made there-
upon by the Lords Commissioners for Trade and Plantations dated the
2d Sept. last and finding that the said Lords Commissioners had proposed
another System of Judicature to be substituted in lieu of that which is
now subsisting You thought it proper to Order, that the said Memorials,
Petitions and Reports (which were thereunto annexd) should be referred
to Us, to consider and report Our Opinion, and observations thereon, to-
gether with such alterations to be made in what is proposed in the said
Report of the Lords Commissioners for Trade and Plantations, and such
other regulations and propositions as we should think fitt to suggest for
the forming a proper plan of Civil Government for the said province of
Quebeck; and to that end we were directed to take into our Considera-
tion such parts of the annex't report of Governor Murray, upon the state
of the said province as relate to the Civil Government thereof whilst the
same was Annex'd to the Crown of France, And were also required to
send for Lewis Cramah6, Esq., Secretary to Governor Murray, and Fowler
Walker, Esq., Agent for the said Province of Quebec, who were Order'd
to attend us from time to time, to give us such further Lights and in-
formation as might be requisite for die purpose aforementioned.

We have perused the several papers referr*d to us, together with the
said two Reports and have also been attended by the Gentlemen named in
your Order; and upon the whole matter, beg leave humbly to submit to
your Lordships such Reflections as have occurred to us in the Course of
that imperfect Consideration, which we have been able at this Busy Sea-
son of the year to give to the Great subject of the Civil Govmment of
Quebec and the propositions made by the Lords Commissioners of Trade
and Plantations.

My Lords, it is evident that Two very principal sources of the Dis-
orders in the province have been. 1st The attempt to carry on tfie Ad-
ministration of Justice without the aid of the natives, not merely in new
forms, but totally in an unknown tongue, by which means the partys
Understood Nothing of what was pleaded or determined having neither Ca-
nadian Advocates or SoUicitors to Conduct their Causes, nor Canadian
jurors to give Verdicts, even in Causes between Canadians only. Nor
Judges Conversant in the French Language to declare the Law, and to
pronounce Judgment; This must cause the Real Mischiefs of Igirorance,
oppression and Corruption, or else what is almost equal in Government
to the mischiefs themselves, the suspicion and Imputation of them.

The second and great source of disorders was the Alarm taken at the
Construction put upon His Majesty's Proclamation of October 7th, 1763.
As if it were His Royal Intentions by his Judges and Officers in that
Country, at once to abolish all the usages and Custom^ of Canada, with

^This document is the first of a series of documents, official and otherwiae, which
throw light on the state of law in Canada during the period 1763-1774. (For others.
see Nos. XII, XVI, XVII, XVIII. XIX.)

1763-1774] Constitutional Documents of Canada. 45

the rough hand of a Conqueror rather than with the true Spirit of a Law-
ful Sovereign, and not so much to extend the protection and Benefit oi
His English Laws to His new subjects, by securing their Lives, Liberty's
and propertys with more certainty than in former times, as to impose new,
unnecessary and arbitrary Rules, especially in the Titles to Land, and in
the modes of Descent, Alienation and Settlement, which tend to confound
and subvert rights, instead of supporting them.

1st To the first of these Evils the Order made by vour Lordships on
the 15th of November last founded on the Report of the Lords G>mmis-
sioners of Trades and Plantations, requiring the Governor and Comman-
der in Chief of the province (by an additional Instruction) to Publish an
Ordinance^ for admitting Canadian Jurors, in the several cases therein
express'd, and for permitting Canadian, Advocates, Attorneys, and Proc-
tors, under proper regulations, provides an adequate Remedy.

2d To the Second Evil the Lords Commissioners of Trade and plan-
tations by their Report, have apply'd themselves with great Care, ability
and Judgement to suggest Remedys, by pointing out the defects in the
late Ordinance of Sepfr, 1764, and reforming the Constitution of Justice ;
We concur with their Lordships in the objections made to the Ordinance;
And upon the several articles of the Plan laid down in that report, the
following observations Occur to Us, both for the Comfirmation and Im-
provement of them.

1st The first Article proposes a Court of Chancery consisting of the
Gov'r and Council, who shall also be a Court of Appeals, from whom an
appeal will lie to the King in Council ; By this Article the Lords of Trade
very rightly mean to Invest the Gov'r and Council with Two different
Jurisdictions; The One as a Court of Equity, to give relief originally in
that Capacity the other as a Court of Errors, to review in the second
Instance the Judgments of the Court of Common Law, mentioned in the
next Article.

2d The Second Article proposes a Superior Court of Ordinary Juris-
diction, uniting all the proper powers in Criminal and Civil Cases and
matters of Revenue, in this Court, it is recommended that a Chief Jus-
tice should preside, Assisted by three puisne Judges; These are required
to be conversant in the French Language, and that one of them particu-
larly should be knowing in the French usages.

This proposition appears to us well conceiv'd, and we submit to your
Lordships, whether it may not be adviseable, that they should be instructed
to confer sometimes with the Canadian Lawyers most respected for Learn-
ing, Integrity and Conduct, who may prove of the greatest assistance to
English Judges. Competent Salarys for the Encouragement of Able and
Worthy men seem absolutely necessary in this Establishment, with a due
distinction between the Chief Justice and his Brethen. The new Judge of
Vice Admiralty for America has appointments of £800 per Annum.

3d The Third Article relates to Terms for the sitting of the Superior
Court at Quebec, either according to the terms appointed at Westminster,
or as may be more convenient. This matter must be accomodated to the
Seasons, Oimate and Convenience of the people in their Tillage and other
General emplojrments, therefore it seems proper to be left to the future
Judgement of the Gov'r, Chief Justice and Principal servants of the
Crown, entrusted with the Government of the province and ought to be
fix'd by Ordinance,

4tfi The Fourth Article proposes four Sessions of Assize, Oyer and
Terminer and Goal Delivery at Quebec, yirith like special Commissions,
once or oftener in the year at Trois Rivieres and Montreal. We submit
to your Lordships, that it may be unnecessary to lay down any particulat
Rules for holding foMr Sessions in the manner mentioned at Quebec; be-
cause all Civil and Criminal Causes arising in that District may be tried
at Bar in Term time, or (as the legal Expression is) in Bank by Order of
the Judges, or under the General powers of the Supreme Court, As to the

*See No. XI.

46 Constitutional Documents of Canada. [1763-1774

Circuit Courts to be held once, or perhaps twice in the year (which seems
better) at Trots Rivieres and Montreal. We think, that it may be proper
to require that the Judges shall continue in each of those places, at the
least, for a Certain Number of Days to give time and opportunity for the
resort of partys and the convenient dispatch of Business, in like manner
as was done by Henry the 8th in establishing the Courts of Great Sessions
for Wales, and by the Parliament in his late Majesty's Reign, when the
Circuit Courts were settled for Scotland.

5th The Fifth Article recommends the Distribution of the province
into three Countys or Districts, of which, Quebec, Montreal and Trois
Rivieres shall be the three Capital Towns, and that an Annual Sheriff shall
be named for each.

We are humbly of opinion that thb Distribution of the province is
more natural and convenient than the plan lately followed by the Gov-
ernor and Council, and it will be more agreeable to the People, as it is
conformable to their Antient Division of the Country. But considering
the difficulty of procuring English and protestant sheriffs, especially at
Trois Rivieres (where at present only Two persons who are half pay
Officers reside thus qualified) it may deserve consideration whether such
Sheriff should not serve longer than one year, till such time as the gradual
increase of Inhabitants may facilitate an Annual Rotation ; or whether the
Annual^ Sheriff of Quebec may not also serve that office for Trois Rivieres.
This will oblige him, to appoint two Deputys or under Sheriffs, that is one
for each District. And if this method be taken, the Sheriff may be made
an Annual Officer, because Quebec can afford sufficient number of propei
persons to supply the Rotation, and Montreal (it is agreed) Can do the
like.

6th The Sixth Article proposes to give the Justices of the Peace in the
three several Districts, at their Gicneral Quarter Sessions, Power to deter-
mine finally all causes not exceeding the value of Ten Pounds (the Title
to Lands not being in Question) with a Jury where it exceeds Five Pounds
and without one where it falls under that sum, it gives also to Two Jus-
tices in Petty Sessions, similar Authority in Similar cases, where the
value of the matter in dispute is not more than Forty Shillings. The
latter Authority appears to us well proposed; but we submit, whether it
may not be better to reserve the Jurisdiction in matters exceeding thai
value as far as Ten pounds to be determined in Quebec, By proceedmg in
nature of the Civil Bill in Ireland before the Judges of the Superior
Court, or by proceeding in nature of die summary Bench ; Actions at Bar-
badoes, and in like manner in the Circuit Courts at Trois Rivieres and
Montreal twice in the year; The value of Ten pounds is considerable in
such a Colony and the reputation of the Justices of Peace is, as yet scarce
enough established for such a Jurisdiction; Under this Article We beg
leave to suggest that in the Commission of the Peace for each District it
may be useful and popular and endear his Majesty's (jovemment to his
new Subjects; if one or Two Canadians should be appointed Justices,
with the others who are British, particularly if Protestants can be found fit
for that Office.

7th The seventh and last point mentioned in the Report of the Lords
of Trade, on whidi we shall observe, is that Article, wherein they pro-
pose, that in all cases where Rights and Claims are founded on events
prior to the Conquest of Canada the several Courts shall be Govem'd in
their proceedings, by French usages and customs which have heretofore
prevailed in respect to such properly.

This proposition is undoubtly right, as far as it goes, in respect of
Cases which happen'd, antecedent to the Conquest; but we b^ leave to
take occasion from hence, to enlarge a little on this subject of the Rule
of Judgment to be observed in the Courts of Quebec as it is of the greatest
moment to the honor and Justice of the Crown, and to the peace and pros-
perity of the Province.

There is not a Maxim of the Common Law more certain than that a
Conquered people retain their antient Customs till the Conqueror shall de-

1763-1774] ConsHtuHoncd Documents of Canada. 47

dare New Laws. To change at once the Laws and manners of a settled
G>tintry must be attended with hardship and Violence ; and therefore wise
G>nquerers having provided for the Security of their Dominion, proceed
gently and indulge tiieir Conquer'd subjects in all local Customs which are
in their own nature indifferent, and which have been received as rules of
property or have obtained the force of Laws. It is the more material that
this policy be persued in Canada; because it is a great and antient Colony
long settled and much Cultivated, by French Subjects, who now inhabit it
to die number of Eighty or one hundred thousand. Therefore we are
humbly of opinion, that the Judges to be employed by his Majesty in this
province will answer all the ends of their trust, both as to the King and
to the people, if their conduct in Judicature be modell'd by the following
General Rules.

1st First in all personal actions grounded upon Debts, promises, Con-
tracts and Agreements, whether of a Mercantile or other nature, and upon
wrongs proper to be compensated in damages, to reflect that the substan-
tial maxims of Law and Justice are every where the same. The modes oi
proceeding and Trial, and perhaps in some degree also the strict Rules of
Evidence may vary, but the Judges in the province of Quebec cannot ma-
terially err, either against the Laws of England, or the antient Customs
of Canada; if in such Cases they look to those substantial maxims.

2d Secondly in all suits or Actions relating to Titles of Land, the
Descent, Alienation, Settlements and incumbrances to Real property. We
are humbly of opinion, that it would be oppressive to disturb without much
and wise deliberation and the Aid of Laws hereafter to be enacted in the
province the local Customs and Usages now prevailing there ; to introduce
at one Stroke the English Law of Real Estates, with English modes of
Conveyancing Rules of Descent and Construction of Deeds, must occasion
infinite confusion and Injustice. British Subjects who purchase Lands
there, may and ought to conform to the fix'd local Rules of Property in
Canada, as they do in particular parts of the Realm, or in other Dominions
of the Crown. The English Judges sent from hence may soon instruct
themselves by the assistance of Canadian Lawyers and intelligent Persons
in such Rules, and may Judge by the Customs of Canada, as your Lord-
ships do in Causes from Jersey by the Custom of Normandy; It seems
reasonable also, that the rules for the Distribution of personal property
in Cases of Intestacy and the modes of assigning and Conveying. It should
be adhered too for the present

3d Thirdly in all suits entertained before the GoVr and Council, as a
Court of Chancery or Equity, it is obvious, that the General Rules of Law
and Justice must be the same as in the other Courts, according to the sub-
ject matter of the suit with this difference only, that the relief is more
oompleat and specific, and adapted to supply the Defects, or allay the Rigor
of those Rules.

4th Fourthly in Criminal Cases, whether they be Capital Offences or
Misdemeanors, it is highly fitting (as far as may be) that the Laws of
England be adapted in the Discription and Quality of the offence itself,
in the manner of proceeding to charge the party to Bail or detain him.
The Certainty, the Lenity of the English Administration of Justice and
the Benefits of this Constitution will be more peculiarly and essentially
feh by his Majesty's Canadian Subjects, in matters of Crown Law, which
touch the Life, Liberty and Property of the Subject, than in the conform-
ity of his Courts to the English Rules of Real and Personal Estates.

This Certainty and this Lenity are the Benefits intended by his Ma-
jesty's Royal proclamation, so far as concerns Judicature. These are
Irrevocably Granted and ought to be secured to his Canadian subjects, ac-
cording to his Royal Word. For this purpose it ma^ not be improper upon
the appointment of a new Gov'r with a new Commission revised and Q>n-
sider'd by your Lordships, to direct that Governor to publish an explana-
tory produnation in the Province, to quiet the minds of the People as to
the true meaning of the Royal proclamation of Ocf r, 1763, in Respect to

48 Constitutional Documents of Canada. [1763-1774

their local Customs and usages, more especially in Titles of Land and
Cases of Real Property.

Sth Fifthly in Rules of process and the Practice of the Courts, We
beg leave to suggest, that it may be expedient to order the new Chief Jus-
tice*, with the assistance of the other Judges, to be appointed and the At-
torney General* of Quebec to consider, and prepare a suitable Plan adapted
to the Jurisdiction of the different Courts, and the convenience of the
Suitors. The Forms of proceeding out to be simple easy and as summary
and expeditious as may consist with the advancement of right and the
protection of Innocence, useful hints may be taken not only from the su-
preme Courts of Westminster, but from the practice of the Courts in
Wales, and from many of the Colony s. Some time will be necessary, be-
fore such a plan can be framed and experience alone can perfect it. As
soon as they shall have prepared it, the Governor and Council may enact
it by an Ordinance and transmit the same in the accustomed manner, to
be laid before his Majesty for his Royal approbation.

All which is humbly submitted, &c.

C. YORKE.

Wm. De Grey.
April 14th, 1766.

XI

ORDINANCE OF 1766

[Trans.: Shortt and Doughty.]

An ORDINANCE, To alter and amend an Ordinance of His Excel
lency the Governor and His Majesty's Council of this Province, passed the
Seventeenth Day of September, 1764.

Whereas by an Ordinance of His Excellency the Governor and His
Majesty's Council of this Province, made and passed the Seventeenth Day
of September, 1764, Intitled, An Ordinance for regulating and establishing
the Courts of Judicature in this Province; His Majesty has most graciously
been pleased to signify His Royal Will and Pleasure therein, by an addi-
tional Instruction to His said Excellency the Governor, "That the Welfare
"and Happiness of His loving Subjects in this Province, which will ever be
"Objects of His Royal Care and Attention, do require that the said Ordin-
"ance should be altered and amended in several Provisions of it, which
"tend to restrain His Canadian Subjects in those Privileges they are in-
"tituled to enjoy in common with his natural bom Subjects:" And there-
fore it is His further Royal Will and Pleasure, That it should be declared,
And by His Honour the President of His Majesty's Council by & with the
Advice, Consent & Assistance of His Majesty's Council of this Pro-
vince, and by the Authority of the same. It is hereby Ordained and De-
clared. That all His Majesty's Subjects in the said Province of Quebec,
without Distinction, are intituled to be impannelled, and to sit and act as
Jurors, in all Causes civil and criminal cognizable by any of the Courts or
Judicatures within the said Province.

And for the more equal and impartial Distribution of Justice, Be it
further Ordained and Declared, by the Authority aforesaid, That in all
civil Causes or Actions between British bom Subjects and British bom
Subjects, the Juries in such Causes or Actions are to be composed of
British bom Subjects only; And that in all Causes or Actions between
Canadians and Canadians, the Juries are to be composed of Canadians
only; And that in all Causes or Actions between British born Subjects and
Canadians, the Juries are to be composed of an equal Number of each, if

' i.e. William Hey. For his commistion, see below. No. XIII.
* i.e. Francis Maseres, who was appointed Attorney-General for Quebec in March,
1766.

1763-1774] Constitutional Documents of Canada. 49

It be required by either of the Parties in any of the above mentioned
Instances.

And he it further Ordained and Declared, by the Authority aforesaid.
That His Majesty's Canadian Subjects shall and are hereby permitted and
allowed, to practise as Barristers, Advocates, Attomies and Proctors, in
all or any of the Courts within the said Province, under such Regulations
as shall be prescribed by the said Courts respectively for Persons in general
tinder those Descriptions.

And be it further Ordained and Declared, by the Authority aforesaid.
That this Ordinance shall continue in Force until His Majesty's Pleasure
be further known herein; and that so much of the said Ordinance of the
said Seventeenth of September, 1764, as is not hereby altered and changed,
shall and is hereby declared to be temporary only.

GIVEN by the Honorable PAULUS AEMILIUS IRVING, Esq.;
President of His Majesty*s Council, Commander in Chief of this Province,
and Lieutenant-Colonel of His Majesty^s Army, at the Castle of Saint
Lewis, in the City of Quebec, this \st Day of July, in the Sixth Year of
His Majesty s Reign, and in the Year of Our Lord One Thousand Seven
Hundred and Sixty-six.

P. Aemis. Irving.

XII

CONSIDERATIONS ON THE EXPEDIENCY OF PROCURING AN

ACT OF PARLIAMENT FOR THE SETTLEMENT OF THE

PROVINCE OF QUEBEC (BY BARON MASERES) ;

LONDON, PRINTED IN THE YEAR MDCCLXVI

[Trans.: Shortt and Doughty.]
♦ « ♦ « 4t «

Upon these reasons we may conclude^, that the exercise of the Catholic
religion cannot, consistently with the laws of Great Britain, be tolerated
in the province of Quebec.

Yet that it should be tolerated is surely very reasonable, and to be
wished by all lovers of peace and justice and liberty of conscience.

By what authority dien shall it be tolerated ? This is the only question
that remains. Shall the King alone undertake to tolerate it? Will it be
adviseable that he should exercise, though for so good an end, a power of
dispensing with the laws? Will it not give room to a thousand censures
and odious reflections and comparisons? The authority of Parliament
seems to be a much safer foundation to establish this measure upon, in a
manner which neither the new English inhabitants of the province can
Contest, nor the French Catholics suspect to be inadequate.

The next great difficulty that occurs, is the settlement of the laws,
Of which the province of Quebec is for the future to be governed. The
law upon this subject seems to be this; 1st, That the laws of the conquered
continue in force till the will of the conqueror is declared to the contrary ;
this follows from the necessity of the case, since otherwise the conquered
provinces would be governed by no laws at all. 2dly> That after the
declaration of the will of the conqueror, the conquered are to be governed
by such laws as the conqueror shall think fit to impose, whether those are
the old laws by which they have been governed before, or the laws by
which the conquerors are governed themselves, or partly one, and partly
the other, or a new set of laws different from both. 3dly, That by the
conqueror is to be understood the conquering nation, that is, in the present
case, the British nation ; that consequently by the will of the conqueror is
to be understood the will of the British nation, which in all matters relating

>MaMres argued that certain unrepealed SUtutea (e.g., The Elizabethan Act of
Svpremaey) complicated the religioua situation in Canada.

so Constitutional Documents of Canada. [1763-1774

to legislation is Expressed by the King and Parliament, as in all matters
relating to the executive power it is expressed by the King alone; that
therefore the Parliament only have a power to make laws for the province
of Quebec, or to introduce any part of the laws of Great Britain there, or
to delegate such a power of making or introducing laws to any other hands,
notwithstanding it may happen that in fact such a power may inadvertently
have been delegated to the governor and council of the province by a
private instruction of Uie King alone. For if the contrary doctrine were
true, that the King alone had the whole legislative power in the province of
Quebec, it would follow, that not only all the conquered -Canadians, but all
the new English settlers there, would become slaves or subjects to an abso-
lute and arbitrary government, the moment they set their foot there.

******

It is therefore to be wished, that an Act of Parliament might be ob-
tained that at once declared what laws should take place in the province of
Quebec, whether the laws of the conquered, or the laws of Great Britain,
or some of the laws of the conquered, and some of the laws of Great
Britain; Or whether any other laws should be introduced there, more
peculiarly fitted to the circumstances of the province; and if any, then what
laws should be so introduced : Or, if this detail be thought too troublesome
for the Parliament to enter upon, and their informations concerning the
state of the province should be deemed to be as yet too imperfect to enable
them to go through such a business with propriety, then it is to be wished
that an act of Parliament may be obtained, by which such a legislative
power of making laws and ordinances for the good government of the
province might be delegated to the governor and council, as has been
already exercised by them by virtue of an instruction from the King alone.
By such a delegated parliamentary authority, they may enquire into the
state of the Canadian laws and customs already in force there, and may
revise them and reduce them into writing, and enact such of them as shall
be found beneficial to the province, and fit to be continued ; and may intro-
duce such parts of the laws of England, as they shall think to be for the
advantage of the province ; and likewise as occasion offers, make such other
new laws and regulations as shall be necessary for the good government
of it : And in so doing they will have a due regard to the heads of advice
suggested by Mr. Attorney Yorke, and to such other intimations and in-
structions as the government shall think proper to communicate to them.
And lest this legislative power should be abused or injudiciously executed
by the governor and council, there might be a clause in the act of Parlia-
ment directing them to transmit these several laws and ordinances to the
King and Privy Council in England, to be by His Majesty in council
allowed or disallowed, as his Majesty shall see cause. Only they should be
in force till disallowed, and, if not disallowed within a certain time, as fot
instance two years, they should then be in force for ever, unless repealed
by act of Parliament. Laws and ordinances founded on such a parliamen-
tary authority will easily find obedience from the people, which it is to be
feared no others will; and the judges of the province will carry them into
execution with ten times as much spirit and confidence as if they were
doubtful of their legal validity.

Suppose a Criminal in Canada to be guilty of an offence that is capital
by the laws of England, but is not so by the laws of Canada that have
hitherto been received, (a supposition that is no way difficult, as the crim-
inal law of England abounds with capital offences), in what manner shall
such a man be punished, unless there is a parliamentary declaration deter-
mining^^ the punishment that shall •attend his crime? Could any lesser
authority warrant the infliction of death for such a crime? Or would any
judge chuse, though he should be sure of never being called to account
for it, to pass such a sentence without the highest authority? But if the
punishments of crimes be settled by autho^ty of Parliament, whether im-
mediately by the Parliament itself, or mediately by ordinances made by the
governor and council of the province, by virtue of a legislative authority

1763-1774] Constitutional Documents of Canada. 51

communicated to them by act of parliament, the judges will be under no
other difficulty what punishments to inflict upon the several criminals, that
come before them, than they are in Great Britain itself.

Some persons are of opinion, that the laws of Great Britain do at once
take place in a conquered province, without any authoritative introduction
of them, either by the King, or Parliament. But this opinion seems desti-
tute of fotmdation, and is sufficiently refuted by the advice of the learned
Mr. Yorke', His Majesty's attorney-general, who has advised that the
Canadians should be permitted to retain their own laws, relating to inherit-
ances and the alienation of their real estates, which would be impossible
without an act of Parliament for that purpose, if the whole System of the
laws of England did ipso facto become the law of the province upon its
beings conquered, or ceded to the Crown. Indeed, the whole system of the
laws of England, taken in the gross, and without a selection, would be by
no means a blessing to the Canadians. The game-laws, the poor-laws, the
fictions and subtleties in various sorts of actions and conveyances, the
niceties arising from the doctrine of uses, and the tedious and operose
instruments founded on them, would really be a great misfortune to them ;
and from their novelty and strangeness, would be thought to be a much
greater. This doctrine therefore of the instant validity of the whole mass
of the laws of England throughout the conquered Province cannot be true.
And if the whole system of those laws is not valid there, then certainly no
part of them can be so. For if they are, then who shall distinguish which
of them are valid there and which are not?

It may therefore be concluded, as at first, that none of the laws of
England are valid in the conquered province ipso facto by virtue of the
conquest ,or cession, without a positive introduction there by a sufficient
authority : and this sufficient authority seems, for the reasons already men-
tioned, to be only the Parliament of Great Britain.

* * 4t « « «

As to the erecting an assembly in that province, it is a measure which
probably will not for some years to come be found expedient. If an
assembly were now to be constituted, and the directions in the governor's
commission, above alluded to, were to be observed, by which none of the
members elected there are to be permitted to sit and vote in the assembly
till they have subscribed the declaration against Popery, it would amount
to an exclusion of all the Canadians, that is, of the bulk of the settled
inhabitants of the province — An assembly so constituted, might pretend to
be a representative of the people there, but in truth it would be a repre-
sentative of only the 600 new English settlers, and an instrument in their
hands of domineering over the 90,000 French. Can such an assembly be
thought just or expedient, or likely to produce harmony and friendship
between the two nations? Surely it must have a contrary effect.

On the other hand, it might be dangerous in these early days of their
submission, to admit the Canadians themselves to so great a degree of
power. Bigotted, as they are, to the Popish religion, unacquainted with,
and hitherto prejudiced against the laws and customs of England, they
would be very unlikely for some years to come, to promote such measures,
as should gradually introduce the Protestant religion, the use of the English
languagrc, of the spirit of the British laws. It is more probable they would
check all such endeavours, and quarrel with the governor and council, or
with the English members of the assembly, for promoting them. Add to
this, that they are almost universally ignorant of the English language, so
as to be absoliitely incapable of debating in it, and consequently must, if
such an assembly were erected, carry on the business of it in the jFrench
language, which would tend to perpetuate that language, and with it their
prejudices and affections to their former masters, and postpone to a very
dbtant time, perhaps for ever, that coalition of the two nations, or the
melting down the French nation into the English in point of language,
affections, religion, and laws, which is so much to be wished for, and which

' S«c No. X.

52 Constitutional Documents of Canada. [1763-1774

otherwise a generation or two may perhaps effect, if proper measures are
taken for that purpose. And further it may be observed, that the Cana-
dians themselves do not desire an assembly, but are contented to be pro-
tected in llie enjoyment of their religion, liberties, and properties, under
the administration of his Majesty's governor and council. If, to give a
proper stability to this mode of government, it is carried on by authority
of Parliament, and is properly superintended, as no doubt it will be, by the
wisdom of his Majesty's Privy-Council, they will think themselves ex-
tremely happy under it. The persons who most desire the immediate
constitution of an assembly, are some of the six hundred English adven-
turers, who probably are ambitious of displaying their parts and eloquence
in the characters of leading Assemblymen.

But if an assembly is to be constituted, even this too had better be
done by act of Parliament than by the King's single authority, as it is no
less than severing from the general body of his Majesty's dominions a
particular part of them, with respect to the purposes of making laws and
imposing taxes. Could the King, if he thought proper, and a particular
county of England was to desire it of him, sever that county from the rest
of England, and no longer summon any of its members to Parliament, but
instead thereof constitute a little Parliament in that County itself, that
should make laws and lay taxes for the inhabitants of that single county?
It is presumed that he could not: and the erecting an assembly in a con-
quered province is an act of much the same nature. It is true indeed, that
some of the American charters and assemblies owe their rise to this author-
ity: but this was in the reign of the Stuarts, who were fond of extending
their prerogative ; and, on account of the inconsiderableness of the colonies
at that time, these things were then unnoticed ; so that they do not prove the
strict legality of the practice. Since that time these charters have been put
in practice by the colonies, and acquiesced in by the mother-country, and
in some measure recognized in Parliament; and this usage, acquiescence
and recognition are in truth their best support.

But if an assembly is to be constituted, in which the Catholics or
Canadians are to be admitted, (as in justice and reason they ought to be,
if any assembly at all is to be erected), the authority of Parliament seems
to be still more necessary to give validity to such a measure.

For the reasons that have been just now mentioned, it seems evident,
that the measure of erecting an assembly in the province of Quebec is
somewhat premature. How soon it will become expedient and proper,
experience only can shew. But in the mean time, however short that time
may be, it seems necessary to have recourse to the authority of Parliament
for settling the government of the province, and removing tfie difficulties
that obstruct the settlement in the three great articles of Religion, Law
and Revenue. It is therefore the humble request of all the gentlemen who
have lately been appointed to the principal offices in the government of
Quebec, to his Majesty's Ministers of State, that they would use their
influence and endeavours to procure such an act of Parliament as they
shall upon the whole matter think to be necessary, to remove the difficulties
that have been stated, and to enable the said gentlemen to administer the
government of that province in their several departments, with security to
themselves, and advantage to the province.

1763-1774] Constitutional Documents of Canada. 53

XIII

COMMISSION OF THE CHIEF JUSTICE, 1766

[Trans.: Shortt and Doughty.]

GEORGE THE THIRD, by the Grace of God, of Great Britoin, France,
and Ireland, KING, Defender of the Faith, and so forth; To our
Trusty and well beloved WILLIAM HEY, Esquire, Greeting.

Know, ye, that we having taking into our Royal Consideration, Your
Loyalty, Integrity, and ability. Have, assigned. Constituted, and appointed,
AND WE, do hereby assign. Constitute, and appoint, you, the said CommlMion
WILLIAM HEY, our Chief Justice of, and in our Province of Quebec wiJ^lSc^/thc
America; To enquire by the Oaths of honest and lawful men of the Province of
province aforesaid, and by other lawful ways. Methods, and means, byQiiebec.
which you can or may the better Know, as well within liberties as without,
of whatsoever Treasons, misprisions of Treason, Insurrections, Rebellions,
Murders, Felonies, Homicides, Killings, Burglaries, Rapes of Women, Un-
lawful Congregations and Assemblies, words spoken, Misprisions, Confed-
eracies, False Allegations, Trespasses, Riots, Routs, Escapes, Contempts,
Falsities, Negligencies, Concealments, Maintenances, Oppressions, Cham- power to
porties, Deceits, and other Misdoings, Offences, and Injuries whatsoever, "Qw^'c of •!!
as also of the accessaries thereto within the province aforesaid, as well J^JJi^/'^d
within liberties as without, by whomsoever and howsoever had, done, per- other otfences;
petrated, or Committed, or which hereafter may happen to be done, per-
petrated or Committed, and by whom, to whom, when, where, and how,
aad of all other articles and Circumstances, the premises, or any of them, and the same
any wise Concerning : And the said treasons and other the premises to hear J> hear and
and determine, according to the law and Custom of that part of our King- JJJ^^^^q
dom of Great Britain called England, and of our said province of Quebec, the lawa of
ncreaf ter to be made. THEREFORE WE Command that, at such certain ^nglind and
days and places as you shall appoint. You make diligent inquiry of the^^^J^^^*^
premises; and all and singular the premises you hear and determine; and hereafter to
the same do and fulfil in form aforesaid, doing therein that which tol>«niade.
Jostice doth belong or appertain, according to the Law and Custom of that
part of our Kingdom of Great Britain called England, and of our said
province of Quebec hereafter to be made : Saving to us our Amerciaments
and other things thereby to us belonging ; for we will Command all and
every our Sheriffs or provost Marshal's of our province aforesaid ; That
at such certain days, and places as you our Chief Justice shall make known
to him, them, or any of them, they cause to come then and there before
yoQ such and so many honest and lawful men of our said province as well
vitfain liberties as without, by whom the Truth of the matter may be the
better Known and inquired of.

AND FURTHER, KNOW YE That we have assigned. Constituted, Power to
and appointed, and by these presents, do assign. Constitute and appoint delirer goals
you, the said WILLIAM HEY, our Goal of our Province aforesaid, of theg p.^°*"
prisoners therein hereafter to be to deliver. AND, therefore we Command confined.
Tou that, at such Certain days and places as you shall appoint, you come
to our Court-House of our said Province the Goal in our said province
9^ ^e prisoners hereafter therein to be to deliver, doing therein what to
justice doth, or may, belong or appertain, according to the Law and Custom
ot that part of our Kingdom of Great Britain called England, and of our
said province of Quebec hereafter to be made ; saving to us our amercia-
ments and other things thereby to us belonging : For we will Command all
>Qd every our Sheriffs and provost Marshals of our said Province of
Qaebec that, at such Certain days and places as you our Said Chief Justice
^1 xnsJce known to him, them, or any of them, they Cause to Come then
and there before you our said Chief Justice all the prisoners of the same
Goal and their attachments. _

AND FURTHER KNOW YE That we have assi^ed. Constituted, f„75J/j;5,*ij;
^ appointed, and by these presents, do assign. Constitute and appoint aii ciyil tuitt

54 Constitutional Documents of Canada. [1763-1774

•«d«ft»on«, YOU, the said WILLIAM HEY, Our Chief Justice of Our Supreme Court

personal "^or* ^^ Judicature of our said province of Quebec, to inquire by the oaths of

mixt, eitiier honest and lawful men of the province aforesaid, and by other la'wf ul ways,

^tween the methods and means, by which you can or may the better Know, as well

subjeciuor within Liberties as without, of all civil pleas, actions, and suits, as well

between real and personal, as mixed, between us and any of our Subjects, or be-

*"b^**^t.*"** tween party and party, by whomsoever had, brought, sued and Commenced,

subject. j^j^j q£ j^jj Q^hg,. articles and circumstances the premises, or any of them,

any wise Concerning: and the said pleas, actions, and suits, and every of

them, to hear and determine in manner and form aforesaid, doing therein

that which to Justice doth belong and appertain according to the Laws and

Customs of that part of our Kingdom of Great Britain Called England,

and the Laws, Ordinances, Rules, and Regulations of our said province of

Quebec, hereafter in that behalf to be Ordained and made. THEREFORE

WE Command you that, at such Certain Days and places, as you shall

appoint, you make diligent inquiry of the premises; and all and singular

the premises to hear and determine in manner and form aforesaid, doing

therein that which to justice doth belong or appertain according to the

Law and Custom of that part of our Kingdom of Great Britain Called

England, and the Laws, Ordinances, Rules, and Regulations, of our said

province of Quebec hereafter in that behalf to be made: FOR WE will

Command all and every Our Sheriffs or provost Marshal of our province

aforesaid that at such Days and places, as you our Said Chief Justice shall

make Known to him, them, or any of them, they Cause to Come then and

there before you, such and so many honest and lawful men of our said

province, as well within liberties as without, by Whom the truth of the

matter may be the better Known.

This Office to TO HAVE, HOLD, AND EXERCISE the said Office of our Chief

Jf'^^ld during Justice of and in our Said province of Quebec, for and during our Royal

pleasureand Will and pleasure and your Residence within our Said province ; Together

the Chief with all and Singular the Rights, profits, free priviledges, and Emoluments

Justice's fjsi- ^q ^he said Office belonging, in as full and ample manner as any other Chief

Provin^M. Justice of any of our provinces of America HATH heretofore held and

Elnjoyed, or of right ought to have, hold, or Enjoy, the same with full

power and authority to hold the Supreme Courts of Judicature at such

places and times as the same may or ought to be held within our said

province.

IN TESTIMONY whereof we have Caused these our Letters to be
made patent and the Great seal of our said province of Quebec, to be here-
unto Affixed, and to be entered on record in one of the Books of patents
in our Registers Office of Inrollments of the said Province WITNESS
Our Trusty and well beloved. The Honble. Guy Carleton, Esquire, Our
Lieutenant Governor and Commander in Chief in and over our said pro-
vince of Quebec and the Territories thereon depending in America, at our
Castle of Saint Lewis in our said City of Quebec, The Twenty-fifth Day ot
September in the Year of our Lord one Thousand seven hundred and sixty-
six, and in the Sixth Year of our Reign.

(Signed) Guy Carleton\

1 Murray was recalled to England in April, 1766, but he continued to hold his
office as Goyemor. Sir Guy Carleton was aopointed hit deputy on 7 April, 1766, with
the title Lieutenant-Goyernor. He acted under the Instructions giyen to Murray (No.
V) until he was appointed Goyemor in 1768, when he received a new set of Instruc-
tions addressed to himself. For his work in Canada, see A. G. Bradley, Life of Lord
Dorchester,

1763-1774] Constitutional Documents of Canada. 55

XIV
REMONSTRANCE OF MEMBERS OF COUNCIL TO CARLETON'

[Trans.: Shortt and Doughty.J

Quebec, Octor. 13th, 1766.

>ye, the underwritten Members of His Majesty's Council for the
Province of Quebec, think it our indispensible duty to communicate to you
our sense of the method lately adopted of calling together only a part of
the Council: The bad consequences which may arise from Practice are
many fold ; But as you are pleased to signifye to Us by Coll. Irving that it
was accident, & not Intention, it is needless for us to enumerate them.

We would be wanting to ourselves, & Others in the same Circumstances
if we did not remonstrate against an opinion lately insinuated, as if
Mandamus's from Brittain suspended Appointments to the Council made by
Govr. Murray. We apprehend his Commission & Instructions, by which
he was authorized to constitute a Council & to make choice of the Persons,
to be to all Intents, & purposes, a Mandamus to each of Us, provided His
Majesty did not disapprove of Us, when reported to Him by the Gov-
emour: The many Difficulties which for Two Years we had to encounter
in a new Establishment for a Province under very peculiar circumstances,
perhaps entitle us to some Reguard: At any Rate tho' His Majesty may
have an undoubted Right to encrease the number of his Council by granting
Mandamus's to whom He pleases, it is to be presumed that by so doing
there is no Intention to deprive Us either of our Right to Precedence, or
to a Seat in Council : A late event on the Departure of Govr. Murray is
a proof of the contrary.

If by the Constitution or Custom of the Colonys the number of the
Council is restricted, Mandamus's are in that Case to be regarded only as
an Order for the Admission of the Persons named therein. Provided there
is a Vacancy.

If the Deference which we feel for every Manifestation of the Will
of our Sovereign has prevented us from objecting to any person possessed
of a Mandamus from being sworn into the Council, We apprehend that if
the Council is at present, or hereafter may be restricted, The Councillor last
admitted is to be considered as the Supernumerary.

We have the honr. to be wth. the greatest respect Sr. yr. most obedt
hble. Servts.

(Signed) P. Aemis. Irving
War. Murray
Adam Mabane
Frs. Mounier
/ames Cuthbert.

XV
GOVERNOR CARLETON'S REPLY

[Trans.: Shortt and Doughty.]

October, 1766.
Gentlemen

As Lieutenant Colonel Irving has signified to you, that the Part of my
Conduct, you think worthy your Reprehension, happened by Accident, let
him explain to you his Reasons for so doing. He had no authority from

But that there may be no further Doubt, I hereby make known to you,
that I both have and will, on all Matters which do not require the Consent

* These two documents (Nos. XIV and XV) illustrate not only the difficultly
vhach met Carleton in his new work, but also something of his methods.

56 Constitutional Documents of Canada, [1763-1774

of Council, call together such G>uncellors as I shall think best qualified to
give me Information : and further, that I will ask the Advice and Opinion
of such Persons, tho' not of the Council as I shall find Men of good Sense,
Truth, Candor, and Impartial Justice; persons who prefer their Duty to
the King and the Tranquility of His Subjects to unjustifiable Attachments,
Party Zeal, and to all selfish mercenary views : After I have obtained such
Advice, I will still direct as to me shall seem best for His Majesty's Service,
and the Good of His Province Committed to my Care —

I further make Known to you, and for the first time I give an Opinion,
that for the present His Majesty's Council consists of twelve Members;
those named and appointed immediately by the King have the Preference,
next follow those appointed by Governor Murray till the Seats are all full :

You will be pleased to recollect. Gentlemen, that Mr. Stewart, tho'
sworn into Council after Mr. Mounier, has by Virtue of the King's imme-
diate Appointment constantly taken Place and Precedence of you all.

I must also remind you, that His Majesty's Service requires Trpo-
quility and Peace in His Province of Quebec, and that it is the indispensable
Duty of every good Subject, and of every honest Man, to promote so
desirable an End.

(Signed) Guy Carleton.

XVI

CARLETON TO SHELBURNE*
[Trans.: Shortt and Doughty.]

Quebec, 24th Deer., 1767.

My Lord,

******

This System of Laws' established Subordination, from the first to the
lowest, which preserved the internal Harmony, they enjoyed untill our
Arrival, and secured Obedience to the Supreme Seat of Government from
a very distant Province. All this Arrangement, in one Hour, We over-
turned, by the Ordinance of the Seventeenth of September One Thousand
seven hundred and sixty four, and Laws, ill adapted to the Genius of the
Canadians, to the Situation of the Province, and to the Interests of Great
Britain, unknown, and unpublished were introduced in their Stead ; A Sort
of Severity, if I remember right, never be*fore practiced by any Conqueror,
even where the people, without Capitulation, submitted to His Will and
Discretion.

How far this Change of Laws, which Deprives such Numbers of their
Honors, Privileges, Profits, and Property, is conformable to the Caputula-
tion of Montreal, and Treaty of Paris; How far this Ordinance, which
affects the Life, Limb, Liberty, and Property of the Subject, is within the
Limits of the Power, His Majesty has been pleased to Grant to the Gov-
ernor and Council; How far this Ordinance, which in a Summary Way,
Declares the Supreme Court of Judicature shall Judge all Cases Civil and
Criminal by Laws unknown and unpublished to the People, is agreeable
to the natural Rights of Mankind, I humbly submit ; This much is certain,
that it cannot long remain in Force without a General Confusion and

Discontent —

******

I am with much Respect and Esteem

Your Lordship's
Most Obedient

Humble Servant

Guy Carleton.

^ Wi^tam, Earl of Shelburne, was appointed Secretary of State for the Southern
Department on July 13, 1766.

* In the earlier part of this despatch, which is here omitted. Carleton described
the yariouB laws and customs which prevailed in Canada before tne British Conquest.

1763-1774] Constitutional Documents of Canada. 57

XVII

HILLSBOROUGH* TO CARLETON

[Trans.: Shortt and Doughty.]

Whitehall, March the 6th, 1768.

Sir,

* *****

I had the Honor to serve His Majesty at the Board of Trade, in the
year 1763, when His Ma'ty was pleased to publish His Royal Proclamation
relative to the new Colonies, and, whatever the legal sense conveyed by the
Words of that Proclamation may be, of which I pretend not to be a Judge,
I certainly know what was the Intention of those who drew the Proclama-
tion, having myself been concerned therein ; And I can take upon me to
averr, that it never entered into Our Idea to overturn the Laws and Cus-
toms of Canada, with regard to Property, but that Justice should be
administered agreably to them, according to the Modes of administering
Justice in the Courts or Judicature in this Kingdom, as is the Case in tlie
County of Kent, and many other parts of England, where Gavel-kind
Borough-English and several other particular customs prevail, altho' Justice
is administered therein according to the Laws of England.

It was most unforttmate for the Colony of Quebec, that weak, ignorant,
and interested Men, were sent over to carry the Proclamation into Execu-
tion, who expounded it in the most absurd Manner, oppressive and cruel
to the last Degree to the Subjects, and entirely contrary to the Royal
Intention. The Distance of the Colony, the Difficulties arising from many
Circumstances, tmnecessaiy for me to enumerate, and the Differences of
Opinion occasioned by various Causes, have prevented, as yet, the necessary
Measures from being taken, to correct this original and fatal Mistake ; But
I trust I shall soon be impowered to sijgnify His Majesty's Pleasure, to
you, to carry into Execution, such as will not only releive Hb Majesty's
new Subjects from the uncertain, and consequently unhappy Situation,
they are now in; but give them entire Satisfaction for the future, by
securing to them their Property upon a stable Foundation, and rendering
the Colony more flourishing and happy than it has ever been.

I am &c

Hillsborough.

XVIII

To the Earl of Hillsborough

A DRAUGHT* of An Intended Report of the Honourable the Governor
in Chief and the Council of the Province of Quebec to the King's most
Excellent Majesty in his Privy Council; concerning The State of the
Laws and the Administration of Justice in that Province.

[Trans.: Shortt and Doughty.]

His excellency has thought fit to mention only one method

of settling the taws of the province, which he strongly recommends to his
Majesty, as the only way of doing justice and giving satisfaction to the
Canadians, which is, to continue the laws of England with respect to crim-
inal matters, but to revive the whole body of the French laws that were in
use there before the conquest with respect to civil matters i . . . . ,

'Wills* Earl of Hillsborougli, was appointed first Secretary of State for the Colonies
on tiie creation of that Department in 1768.

' Francis Maseres drew tip a draft report on the state of law and justice in
Qoebecy wbich was handed over to Carleton on 27 February. 1769. Carleton did not
^prove of it and another report was drawn up containing nis own ideas, which are
tliosc of this document. The entire report has not. been found, and we are indebted
to a record by Maseres from which this extract has been tsken.

58 Constitutional Documents of Canada, [1763-1774

XIX

ATTORNEY GENERAL MASERES' CRITICISM OF GOVERNOR
CARLETON'S REPORT ON THE LAWS OF THE

PROVINCE, 1769

[Trans.: Shortt and Doughty.]
******

Your Majesty's attorney general of this province approves that part
of the foregoing report which gives an account of the constitution of the
government of this province during it's subjection to the French king, and
believes the said account to be true in most particulars; but he cannot
assent to that part of the said report which suggests to your Majesty the
expediency of reviving the whole of the French laws in civil matters, for
the following reasons.

In the first place, he thinks it will be a deviation from that plan of
conduct which your Majesty has hitherto thought fit to pursue with respect
to this province ever since the conquest of it by your Majesty's arms in
1760, which he conceives to have been, to endeavour to introduce the
English laws and the English manner of government into it, and thereby to
assimilate and associate this province to your Majesty's other colonies in
North America, and not to keep it distinct and separate from them in
religion, laws, and manners, to all future generations. He conceives that
if this latter system had been that which your Majesty had adopted, your
Majesty would have given orders to your general, Sir Jeffery Amherst, to
whom this province was surrendered, to keep up, from the first moment of
the conquest, all the courts of justice that were at that time in being in
the colony, and even the several officers that composed them, upon the
same footing on which they then subsisted. But as your Majesty's said
general did immediately suppress all the former jurisdictions, and erect
military councils in their stead, and in the articles of capitulation refused
to Promise the inhabitants of this province the continuance of the custom
of Paris, and the other ancient laws and usages by which they had been
governed, though requested in that behalf by the French general ; — ^and as
your Majesty did afterwards, in the fourth article of the definitive treaty
of peace in 1763, engage to indulge your new Canadian subjects even in the
delicate and important article of the free exercise of their religion, only
so far as the laws of England will permit; — and as your Majesty, by your
royal proclamation of the 7th of November*, 1763, did encourage your
British and other ancient subjects to go and settle in this and the other
new-erected governments, and did promise them, as excitement thereunto,
the immediate enjoyment of the benfit of the laws of England; — and as
your Majesty did afterwards, by your commission of vice admiral of this
province granted to General Murray, expressly introduce all the laws of
the English courts of admiralty into this province; and by your commission
to the same gentleman to be captain general and governour in chief of this
province, did direct him to summon an assembly of the freeholders and
planters in this province, and in conjunction with them to make laws and
ordinances not repugnant to the laws of England, by which it seems to be
pre-supposed that the laws of England were already introduced there ; and
did in other parts of the said commission allude to divers of the laws of
England as being already in force here, as particularly the laws relating
to the oaths of abjuration and supremacy, and the declaration against
transubstantiation — ^From these several exertions of your Majest/s royal
authority in favour of the laws of England, your Majesty's attorney general
of this province humbly collects it to have been your Majesty's gracious in-
tention to assimilate this province in religion, laws, and government to the
other dominions belonging to your Majesty's crown in North America; he
therefore conceives that the immediate revival of all the French law^ re-
lating to civil suits in this province, in the manner suggested in the fore-

*An error for "October." (See No. IV).

1763-1774] Constitutional Documents of Canada, 59

going report, will have at least the appearance of a deviation from the plan
of conduct which your Majesty has hitherto adopted, and of a step towards
a preference of the contrary system of keeping this province distinct from
and unconnected with, all your Majesty's other colonies in North America:
and this appearance he humbly conceives to be itself a considerable incon-
venience, and very fit to be avoided, unless very strong reasons of justice
or policy made such a measure necessary, which he does not conceive to be
the case ; for, on the contrary, he apprehends that the said total revival of
the custom of Paris, and all the other French laws relating to civil suits,
will be attended with the following additional inconveniencies.

In the first place, it will make it difficult for any of your Majesty's
English subjects to administer justice in Uiis province, as it will require
much labour and study, and a more than ordinary acquaintance with the
French language to attain a thorough knowledge of those laws.

In the next place, it will keep up in the minds of your Majesty's new
Canadian subjects the remembrance of their former government, which
will probably be accompanied with a desire to return to it When they
hear the custom of Paris, and the parliament of Paris, and its wise deci-
sions, continually appealed to as the measure of justice in this country,
they will be inclined to think that government to be best, under which those
wise laws could most ably be administered, which is that of the French
king; which, together with the continuance of their attachment to the
Popish religion, will keep them ever in a state of disaffection to your
Majesty's government, and in a disposition to shake it off on the first
opportunity that shall happen to be afforded them by any attempt of the
French king to recover this country by force of arms.

And in the third place, it will discourage your Majesty's British sub-
jects from coming to settle here when they see the country governed by a
set of laws, of which they have no knowledg[e, and against which they
entertain (though perhaps unjustly) strong prejudices.

Your Majesty's attorney general of this province is further of opinion,
that the body of your Majesty's new Canadian subjects are by no means
either so distressed or so discontented by the introduction of the English
laws into this province as they are represented in the foregoing report : at
least he has seen no proofs of either such great distress or high discontent.
What he has principally observed to be the subject of their complaints has
been, either the expence or the dilatoriness of our law-proceedings ; which
he therefore conceives stand in need of reformation : and he is of opinion,
that to establish three courts of general jurisdiction in all matters crimiiial
as well as civil in the province, to sit every week in the year (with a very
few exceptions) in the towns of Quebec, Three Rivers, and Montreal,
would be the most adequate remedy for these complaints.

And as to the substance of the laws which are to be hence forwards
admitted in this province, he conceives that the best way of all to settle
these would be to make a code of them, that should contain all the laws
of every kind, criminal as well as civil, that were intended to be of force
here, to the exclusion of all other laws, both French and English, that were
not inserted in the said code ; by which means all pretence would be taken
away both from the French and British inhabitants of this province for
complaining that they are governed by unknown laws. This he conceives to
be a work of difficulty indeed, but by no means impracticable; and he
apprehends that it would be a work of very great utility to the province,
even though it should be very imperfectly executed, and many important
articles should happen to be omitted in it; provided only that those things
that were inserted in it were useful and reasonable, and set forth in a clear
and proper manner : because he apprehends that the rules so inserted would
be sufficient to govern at least all the common cases that would happen in
the ordinary course of human affairs, such as descents in the right line,
the right of representation in grand-children whose parents are dead, the
dower of widows, the rents and services due to seigniors, the obligations
and duties due from them to their tenants, the seignior's right to the com-
mon mutation fines, his right of pre-emption of his tenant's land when the

58 Constitutional Documents of Canada, [1763-1774

XIX

ATTORNEY GENERAL MASERES' CRITICISM OF GOVERNOR
CARLETON'S REPORT ON THE LAWS OF THE

PROVINCE, 1769

[Trans.: Shortt and Doughty.]

* * * * 4^ *

Your Majesty's attorney general of this province approves that part
of the foregoing report which gives an account of the constitution of the
government of this province during it's subjection to the French king, and
believes the said account to be true in most particulars; but he cannot
assent to that part of the said report which suggests to your Majesty the
expediency of reviving the whole of the French laws in civil matters, for
the following reasons.

In the first place, he thinks it will be a deviation from that plan of
conduct which your Majesty has hitherto thought fit to pursue with respect
to this province ever since the conquest of it by your Majesty's arms in
1760, which he conceives to have been, to endeavour to introduce the
English laws and the English manner of government into it, and thereby to
assimilate and associate this province to your Majesty's other colonies in
North America, and not to keep it distinct and separate from them in
religion, laws, and manners, to all future generations. He conceives thai
if this latter system had been that which your Majesty had adopted, your
Majesty would have given orders to your general, Sir Jeffery Amherst, to
whom this province was surrendered, to keep up, from the first moment of
the conquest, all the courts of justice that were at that time in being in
the colony, and even the several officers that composed them, upon the
same footing on which they then subsisted. But as your Majesty's said
general did immediately suppress all the former jurisdictions, and erect
military councils in their stead, and in the articles of capitulation refused
to Protnise the inhabitants of this province the continuance of the custofn
of Paris, and the other ancient laws and usages by which they had been
governed^ though requested in that behalf by the French general ; — and as
your Majesty did afterwards, in the fourth article of the definitive treaty
of peace in 1763, engage to indulge your new Canadian subjects even in the
delicate and important article of the free exercise of their religion, only
so far as the laws of England tuill permit ;^^Lnd as your Majesty, by your
royal proclamation of the 7th of November*, 1763, did encourage your
British and other ancient subjects to go and settle in this and the other
new-erected governments, and did promise them, as excitement thereunto,
the immediate enjoyment of the ben fit of the laws of England; — and as
your Majesty did afterwards, by your commission of vice admiral of this
province granted to General Murray, expressly introduce all the laws of
the English courts of admiralty into this province; and by your commission
to the same gentleman to be captain general and govemour in chief of this
province, did direct him to summon an assembly of the freeholders and
planters in this province, and in conjunction with them to make laws and
ordinances not repugnant to the laws of England, by which it seems to be
pre-supposed that the laws of England were already introduced there; and
did in other parts of the said commission allude to divers of the laws of
England as being already in force here, as particularly the laws relating
to the oaths of abjuration and supremacy, and the declaration against
transubstantiation — ^From these several exertions of your Majest3r's royal
authority in favour of the laws of England, your Majesty's attorney general
of this province humbly collects it to have been your Majesty's gracious in-
tention to assimilate this province in religion, laws, and government to the
other dominions belonging to your Majesty's crown in North America; he
therefore conceives that the immediate revival of all the French laws re-
lating to civil suits in this province, in the manner suggested in the fore-

*An error for "October." (See No. IV).

1763-1774] Constitutional Documents of Canada, 59

going report, will have at least the appearance of a deviation from the plan
of conduct which your Majesty has hitherto adopted, and of a step towards
a preference of the contrary system of keeping this province distinct from
and unconnected with, all your Majesty's other colonies in North America:
and this appearance he humbly conceives to be itself a considerable incon-
venience, and very fit to be avoided, unless very strong reasons of justice
or policy made such a measure necessary, which he does not conceive to be
the case; for, on the contrary, he apprehends that the said total revival of
the custom of Paris, and all the other French laws relating to civil suits,
will be attended with the following additional inconveniencies.

In the first place, it will make it difficult for any of your Majesty's
English subjects to administer justice in this province, as it will require
much labour and study, and a more than ordinary acquaintance with the
French language to attain a thorough knowledge of those laws.

In the next place, it will keep up in the minds of your Majesty's new
Canadian subjects the remembrance of their former government, which
will probably be accompanied with a desire to return to it When they
hear the custom of Paris, and the parliament of Paris, and its wise deci-
sions, continually appealed to as the measure of justice in this country,
they will be inclined to think that government to be best, under which those
wise laws could most ably be administered, which is that of the French
king; which, together with the continuance of their attachment to the
Popish religion, will keep them ever in a state of disaffection to your
Majesty's government, and in a disposition to shake it off on the first
opportunity that shall happen to be afforded them by any attempt of the
French king to recover this country by force of arms.

And in the third place, it will discourage your Majesty's British sub-
jects from coming to settle here when they see the country governed by a
set of laws, of which they have no knowledge, and against which they
entertain (though perhaps unjustly) strong prejudices.

Your Majesty's attorney general of this province is further of opinion,
that the body of your Majesty's new Canadian subjects are by no means
either so distressed or so discontented by the introduction of the English
laws into this province as they are represented in the foregoing report: at
least he has seen no proofs of either such great distress or high discontent.
What he has principally observed to be the subject of their complaints has
been, either the expence or the dilatoriness of our law-proceedings ; which
he therefore conceives stand in need of reformation : and he is of opinion,
that to establish three courts of general jurisdiction in all matters criminal
as well as civil in the province, to sit every week in the year (with a very
few exceptions) in the towns of Quebec, Three Rivers, and Montreal,
would be the most adequate remedy for these complaints.

And as to the substance of the laws which are to be henceforwards
admitted in this province, he conceives that the best way of all to settle
these would be to make a code of them, that should contain all the laws
of every kind, criminal as well as civil, that were intended to be of force
here, to the exclusion of all other laws, both French and English, that were
not inserted in the said code ; by which means all pretence would be taken
away both from the French and British inhabitants of this province for
complaining that they are governed by unknown laws. This he conceives to
be a work of difficulty indeed, but by no means impracticable; and he
apprehends that it would be a work of very great utility to the province,
even though it should be very imperfectly executed, and many important
articles should happen to be omitted in it; provided only that those things
that were inserted in it were useful and reasonable, and set forth in a clear
and proper manner : because he apprehends that the rules so inserted would
be sufficient to govern at least all the common cases that would happen in
the ordinary course of human affairs, such as descents in the right line,
the right of representation in grand-children whose parents are dead, the
dower of widows, the rents and services due to seigniors, the obligations
and duties due from them to their tenants, the seignior's right to the com-
mon matation fines, his right of pre-emption of his tenant's land when the

60 ConstitutioncU Documents of Canada. [1763-1774

tenant is disposed to sell it, the rules of evidence in courts of justice, the
solemnities necessary to be observed to give validity to a deed or wilt, and
the like obvious and important matters; which would be sufficient to pre-
vent the province from falling into confusion. And as to the nicer cases
which might be omitted in such a code, they might afterwards be supplied
by particular ordinances passed from time to time for that purpose.

But if this measure of making such a code of laws should not be
thought adviseable, your Majesty's attorney general of this province is
humbly of opinion that it would be most expedient to let the English law
continue to subsist in this province as the general law of the province, and
to pass an ordinance to revive those of the former French laws which
relate to the tenure, inheritance, dower, alienation, and incumbrance of
landed property, and to the distribution of the effects of persons who die ^

intestate. His reasons for thinking that the French laws upon these heads
ought to be revived, are as follows.

These heads of law are three in number: First ,t^(Me relating to the
tenures of land in this province, or the mutual obligations subsisting be-
tween landlords and tenants with respect to them. Secondly, the taws
relating to the power and manner of aliening, mortgaging, and otherwise
incumbring landed property. And Thirdly, die laws relating to dower,
inheritance and the distribution of the effects of persons who die intestate.
And these several heads of law ought, as he humbly apprehends, to be
revived in this province upon separate and distinct grounds.

The laws of tenure, he conceives, ought to be considered as having
been already granted by your Majesty to your new Canadian subjects by
that article in the capitulation of 1760^, by which your Majesty's general
granted them the enjoyment of all their estates, both noble and ignoble,
and by the permission given them by your Majesty in the definitive treaty
of peace in 1763', to continue in the possession of them; these laws being
essentially necessary to such possesion and enjoyment. Such are the laws
relating to the quit-rents due by the freeholders, who hold by rent-service,
to the seigniors, the mutation-fines, the right of pre-emption, and the rights
of escheat in certain cases; alt which constitute the principal part of the
property of the seigniors.

But the laws relating to the power and manner of aliening, mortgaging,
and otherwise incumbring, landed property, are not, as he apprehends,
absolutely necessary to the enjoyment of the lands themselves, and there-
fore ought not to be reckoned quite so sacred and unchangeable as the
laws of tenure themselves. Yet he conceives them to be very nearly con-
nected with those taws, and almost dependant upon them, so that they
could not be changed in any considerable degree without diminishing the
value of the lands themselves, by means of the practical difficulties that
would occur in making use of the new modes of conveying land that would
be established in their stead; and therefore he thinks that they ought to
be continued. And further, he conceives it will be the more necessary to
revive or continue the French laws upon the subject, in order to prevent
the introduction of the English laws upon the same subject, namely, the
doctrine of estates-tail, the statute de donis^ the method of defeating that
statute by common recoveries, the doctrine of fines, the statute of uses,
and the doctrine of uses in general, and other nice doctrines relating to
real estates, which are full of so much subtlety, intricacy, and variety, that,
if they were to be introduced into this province, they would throw all the
inhabitants of it, without excepting even the English lawyers, into an
inextricable maze of confusion. For these reasons he apprehends that the
English laws upon this subject ought never to be introduced here; and
that the former laws of the province relating to it ought for the present
to be revived.

Lastly, as to the French laws concerning dower and the inheritance
of lands and the distribution of the goods of intestates, with respect to

* See No. II, CapitnUtions of Montreal. Article XXXVII.
> See No. Ill, Treaty of Paris, Article IV.

1763-1774] ConsiiMional Documents of Canada. 61

such marriages as have been contracted, and such deaths as have happened,
since the establishment of the civil government in this province, your
Majesty's attorney general of this province is humbly of opinion, that diose
laws ought not to be considered as necessary appendages to the property
of your Majesty's Canadian subjects in this province, and as having there-
fore been granted to them by implication in the articles of capitulation and
the definitive treaty of peace; because they do not affect the property, or
the rights, of the Canadians then in b^ing, to whom alone those grants
were made, but only guide and determine the course and devolution of that
property after their deaths among persons that were then unborn. This,
therefore, he conceives to be a matter upon which the authority of a legis-
lator may properly be exercised. And he further apprehends, that in some
time hence a change of the laws relating to these subjects, and especially
of those relating to dower and the inheritance of land, would be highly
beneficial to this province, the present excessive subdivision of the lands,
by repeated partitions of them amongst numerous families, being productive
of considerable inconveniencies. But this, he apprehends, need not be done
at present; and he conceives, that, if ever it should be thought adviseable
to do it, it ought to be done by a full and express declaration beforehand
of the time at which the proposed changes should take place, with a power
given to such persons as disliked them to prevent their taking place in their
respective families by express provisions and agreements to the contrary,
and should be accompanied with such temperaments and modifications as
should make the adopting them be in a manner the voluntary act of the
persons who were affected by them. But for the present he conceives it
might be better to postpone those important changes, and to revive the
ancient laws of this province concerning inheritance and dower, and the
distribution of intestates estates, as well as those relating to the tenures
of land and the power and manner of aliening and mortgaging and other-
wise incumbring it And this one ordinance, reviving the said ancient laws
1 elating to landed property and the distribution of the effects of persons
who die intestate, would, as he conceives, be sufficient to preserve the tran-
quillity of the province, and to give satisfaction to the bulk of the Cana-
dians: at least, he apprehends it would be enough to begin with: and if,
upon trial, it should be found necessary to revive some other of the French
laws that formerly subsisted in this province, it might be done by another
ordinance or two, that might be passed for that purpose, when the necessity
of them should become apparent By sudi an ordinance as is abovemen-
tioned passed at present, and by the establishment of an easy and cheap
method of administering justice in this province with sufficient expedition,
he conceives that the far greater part of your Majesty's Canadian subjects
would be contented. This therefore is what he humbly presumes to recom-
mend to your Majesty as the best method which he can suggest for the
settlement of the laws of this province, after the fullest consideration oi
this difficult and important subject.

Francis Maseres,

Attorney General.
Quebec, September Uth, 1769»

XX

CARLETON TO HILLSBOROUGH
[Trans.: Brymner, Canadian Archives Report (1890).]

Quebec, 28th March, 1770.
My Lord,

Herewith inclosed, I transmit to your Lordship an Ordinance*, just
published to correct the ill consequences of the clause therein repealed,
and to put an end to the improper and oppressive use made thereof in some

'This Ordinance (No. XXI) was an attempt to correct flagrant abuses in connexion
with the recoyery of debts. Carleton's letter sufficiently explains the crying eyils.

62 Constitutional Documents of Canada. [1763-1774

Parts of this Province, a measure become so necessary to the Ease and
Happiness of the People, and in the end to the King's Interests, that it
would have been highly injudicious to have either delayed or suspended
their Relief any longer.

Your Lordship has been already informed that the Protestants, who
have settled or rather sojourned here since the Conquest, are composed
only of Traders, disbanded Soldiers, and officers, the latter one or two
excepted, below the Rank of Captain; of those in the Commission of the
Peace, such as prospered in Busines, could not give up their Time to sit
as Judges, and when several from accidents and ill Judged undertakings,
became Bankrupts, they naturally sought to repair their broken Fortunes
at the expense of the People; Hence a variety of Schemes to increase the
Business and their own Emoluments, Bailiffs, of their own creation, mostly
French soldiers, either disbanded or Deserters, dispersed through the
Parishes with blank Citations, catching at every little Feud or Dissension
among the People, exciting them on to their Ruin, and in a manner forcing
them to litigate, what, if left to themselves, might have been easily accom-
modated, putting them to extravagant Costs for the Recovery of very small
sums, their Lands, at a time there is the greatest scarcity of money, and
consequently but few Purchasers, exposed to hasty sales for Payment of
the most trifling Debts, and the money arising from these sales consumed
in exhorbitant Fees, whils the Creditors reap little Benefit from the De-
struction of their unfortunate Debtors ; This, my Lord, is but a very faint
sketch of the Distresses of the Canadians, and the cause of much Reproach
to our national Justice, and the King's Government.

In my last Tour through the Gauntry, the outcry of the People was
general, the inclosed copy of a Letter I received, at my return to this
Place, from a very sensible old Captain of the Militia, is exactly the
Language of all I met in this Progress, and some recent instances could be
brought of their Resistance to Officers of Justice, acting illegally indeed,
a strong symptom among many others of their Patience being near ex-
hausted.

But among other Reasons, besides the foregoing, (which I am apt to
believe, your Lordship will, however, think fully sufficient) that might be
alleged for the Expediency of reducing the Justices of the Peace to nearly
the same Power, they have in England, and of rviving Part of the ancient
mode of administering Justice in this Province, there was one, which had
due weight, and that was the confusion arising from so many different
Jurisdictions, all acting upon different Ideas and Notions, to the great
Perplexity of the honest Part of His Majesty's new Subjects, and of which
the cunning and ill designing among them did not neglect to make their
advantage; and if your Lordship only considers, that the new Residents
here, since the Conquest came not only from all Parts of the King's exten-
sive Dominions, but from all Parts of the World beside, there is no great
Reason to wonder at that variety of sentiment in Regard to what is right
or wrong, and that in general being men of no great Learning, or extra-
ordinary abilities, they should conform their notions of Justice, to what
they had formerly seen practiced, rather than to the present circumstances
of things in this Province.

By the present Plan, it is intended, that the King's Judges, paid by the
Crown, may in future chiefly, if not altogether, take cognizance of matters
of Property, which of course, will produce a greater uniformity in the
Administration of Justice, and as these Gentlemen enjoy Salaries, it will
be more incumbent upon them, in point of Interest, as well as for their
Honor and Reputation, to give Satisfaction to the Publick, than it ever
can be upon those, who for their daily subsistence depend meerly upon the
Emolument of Office, which it will consequently ever be their Interest to
enhance.

1763-1774] Constitutional Documents of Canada, 63

XXI

AN ORDINANCE FOR THE MORE EFFECTUAL ADMINISTRA-
TION OF JUSTICE, AND FOR REGULATING THE
COURTS OF LAW IN THIS PROVINCE, 1770

[Trans.: Shortt and Doughty.]

Whereas it has been found by Experience, that the several Provisions
contained in an Ordinance, bearing Date the Seventeenth Day of September
One thousand, seven hundred and Sixty four, and intituled, amongst other
Things, "An Ordinance for regulating and establishing the Courts of
"Judicature", by virtue of which certain Powers and Authorities are given
to the Justices of the Peace for this Province, as well separately as collec-
tively, to hear and determine in matters of private Property between Party
and Party, instead of answering the good purposes for which they were
ordained, have become an intolerable Burthen to the Subject, and proved
the means of great Disquiet, Vexation, and Oppression.

It is therefore Ordained and declared, by His Excellency the Captain
General, and Governor in Chief of this Province, by and with the Advice
and Consent of the Council of the same. That from and after the day of
the Date of the Publication of this Ordinance, all Jurisdiction, Power and
Authority in Matters of Private Property, belonging to or exercised by any
Justice or Justices of the Peace for this Province, or any District, Part or
Member of the same, except Such as have already procured, or hereafter
may procure a Special Commission for that Purpose, under the Hand and
Seal of the Governor, or Commander in Chief for the Time being, shall
be clearly annulled, taken away, and determined ; and that from and after
the day of the Date of the Publication, aforesaid no Justice or Justices of
the Peace, except as before excepted, shall have any Power or Authority
to hear, examine or determine any Matter of Private Property between
Party and Party, or to make, pronounce, or deliver any Judgment, Sentence,
Order, and Decree, or to do any Judicial Act whatsoever touching the same.

And it is further Ordained and declared by the Authority aforesaid,
That from and after the Day of the Date of the Publication aforesaid, the
following Clauses or Parts of an Ordinance, bearing Date the Seventeenth
day of September One thousand, seven hundred and sixty-four, and in-
tituled, amongst other Things, "An Ordinance for regulating and establish-
"ing the Courts of Judicature" shall be repealed, and the same are hereby
repealed and absolutely revoked and made void; that is to say, "And
"Whereas it is thought highly necessary for the Ease, Convenience, and
"Happiness of all His Majesty's loving Subjects, that Justices of the Peace
"should be appointed for the respective Districts of this Province, with
"Power of determining Property of small Value in a summary way; it is
"therefore further ordained and declared by the Authority aforesaid, and
"full Power is hereby given and granted to any one of His Majesty's
"Justices of the Peace within their respective Districts, to hear and finally
"determine in all Causes or Matters of Property, not exceeding the Sum
"of Five Pounds Current Money of Quebec; and to any Two Justices of
"the Peace within their respective Districts, to hear and finally determine,
"in all Causes or Matters of Property not exceeding the Sum of Ten
"Pounds said Currency; which Decisions being within, and not exceeding
"the aforesaid Limitation, shall not be liable to an Appeal : And also full
"Power is by the Authority aforesaid given and granted to any Three of
"the said Justices of the Peace to be a Quorum, with Power of holding
"Quarter Sessions in their respective Districts every Three Months, and
"also to hear and determine all Causes and Matter of Property which shall
"be above the sum of Ten Pounds, and not exceeding Thirty Pounds,
"Current Money of Quebec, with Liberty of Appeal to cither Party to the
"Superior Court* ,or Court of King's Bench;" and all and every other
Ordinance or Ordinances, and all and every Article, Clause or Sentence,
in them and every of them, by which any Jurisdiction, Power, or Authority,

64 Constitutional Documents of Canada. [1763-1774

to hear and determine in Matters of Private Property between Party and
Party, is given, limited and Appointed to any Justice or Justices of the
Peace, for so much as concemeth the same, shall also be repealed, and the
same are hereby repealed, and absolutely revoked and made void.

And it is further ordained and Declared by the Audiority aforesaid.
That from and after the Day of the Date of the Publication aforesaid, if
any Justice or Justices of the Peace, or any other Person whatsoever,
shall offend or do anything contrary to the Purport, true Intent, and Mean-
ing of this Ordinance, he or they so offending, besides being liable to
answer the same in a Criminal way, Shall also forfeit and lose, unto the
Party grieved by any Thing so done, his, her, or their treble Damages,
which he, She, or they shall sustain and be put unto by means or Occasion
of any Thing so done as aforesaid ; the same to be recovered in any of the
Courts of Record in this Province, by Action of Debt, or in any other
way, and Manner, according to the known and Established Practice of the
Court in which such Action shall be brought.

Provided always. That nothing contained in this Ordinance shall ex-
tend, or be construed to extend, to take away, determine, or abridge any of
the Powers given and granted to any Justice or Justices of the Peace for
this Province, by Virtue of His Majesty's Commission of the Peace to
them directed, or to restrain or hinder them in the exercise of any other
Powers to them limited and appointed by any other Ordinance or Ordin-
ances, save and except such as relate to the Administration of Justice in
Matters of private Property, between Party and Party only: but such
Justice or Justices of the Peace i^ and are hereby further audiorized and
required to do and execute all and every matter or Thing to him or them
enjoined by Virtue of the said Commission of the Peace, and also to hear
and determine all Penalties and Forfeitures arising from the Breach of
any Ordinance or Ordinances, and to proceed therein in the same Manner
as he or they would have done if this Ordinance had not been made.

And provided also. That nothing herein contained shall extend, or be
construed to extend to reverse, alter, or suspend any Judgment or Judg-
ments already pronounced or given by any Justice or Justices of the Peace,
upon which no execution has yet been Awarded; or to supersede, vacate,
alter, or suspend any Writ or Writs of Execution already awarded, and
not yet returned ; but the said Justice or Justices of the Peace is and are
hereby further authorized and required to award Execution upon such
Judgments already pronounced and given, and the Provost Marshal is
hereby authorized and required to enforce the same, and also to proceed
upon such Writs of execution as are already awarded and not yet returned,
and to levy the Debt and Costs and make such Return to the Justice or
Justices awarding the same, as he would have done before the Publication
of this Ordinance.

And whereas the providing an Easy, plain, and summary Method of
proceeding for the Recovery of small Debts, with a due Regard at the same
Time to a certain Degree of Solemnity and Deliberation, which ought
ever to accompany the Administration of Public Justice, very much con-
tributes to promote Industry, and to support and Encourage useful Credit :

It is therefore ordained and declared by the Authority aforesaid, That
from and after the Day of the Date of the Publication aforesaid, all Man-
ner of Disputes and Differences between Party and Party for any Sum
not exceeding Twelve Pounds Currency of this Province, except as is here-
inafter excepted, shall be heard, tried, and adjudged before the Judges of
the Courts of Common Pleas for the Time being only, who are hereby
authorized and required to take Cognizance thereof, and the same to hear
adjudge and finally determine as to them shall seem just in Law and
Equity, any Ordinance or Ordinances, or any Gause, Matter or Thing in
them or any of them contained, to the contrary hereof in any wise not-
withstanding.

And whereas some Inconveniences have arisen from the present Prac-
tice of adjourning the Court of Common Pleas from Quebec to Montreal,
and from the want of a fixed, settled, and Established Court for the hear-

"^

1763-1774] Constitutional Documents of Canada, 65

mg and detennining all matters arising within the District of Montreal,
before Judges specially appointed for that District, and constantly residing
within the same;

It is further Ordained and Declared, by the Authority aforesaid^ That
from and after the Day of the Date of the Publication of this Ordinance,
the Court of Common Pleas, heretofore held by Adjournment at different
Days and Times in the Town of Montreal, and considered and taken to
be a Part or Member of the Court of Common Pleas established at Quebec,
shall be, and it is hereby constituted a Court of Record, with Original
Jurisdiction of its own, independent of, and no wise connected with the
Court of Common Pleas ests&lished at Quebec, whidi Court of Common
Pleas for the District of Montreal shall, for the future, be held before
Judges constantly residing within the said Town of Montreal, who shall
have the same Power and Authority, and the same is hereby given and
granted to them to hear and determine within the District of Montreal
and to award Execution, and to do and execute all and every Matter or
Thing touching the Administration of Justice, in as full and ample a
manner as is now or has at any Time been used, practised, or done by the
Court of Common Pleas established at Quebec, in and for the District of
Quebec: And that from and after the Day of the Date of the Publication
aforesaid the said Court of Common Pleas in the Town of Quebec, and the
said Court of Common Pleas in the Town of Montreal, shall be taken and
adjudged to have each their separate Jurisdictions, independent of and
unconnected with each other, that is to say, the said Court of Common
Pleas at Quebec, in and over all matters and Things arising within the
District of Quebec, and the Court of Common Pleas at Montreal in and
over all matters and Things arising within the District of Montreal.

Provided always, and it is hereby further Ordained and Declared by
the Authority aforesaid, that from and after the Day of the Date of the
Publication aforesaid, where any Person or Persons, against whom Judg-
ment shall be obtained in either of the said Courts of Common Pleas, shall
not have any Lands, Goods, or Effects, wherewith to satisfy the said Judg-
ment within the Jurisdiction of that Court wherein such Judgment shall
have been obtained, but such Person or Persons shall have Lands, Goods,
or Effects, within the Jurisdiction of the other Court of Common Pleas,
that then and in that Case it shall and may be lawful for the Judge or
Judges of the Court of the District in which such Judgment shall have
been obtained to award Execution to the Provost Marshal of the District
in which such Lands, Goods, or Effects shall be found, who shall, before
he proceeds to do anything therein, carry the said Writ of Execution to
(me of the Judges of die Court of the District in which such Lands, Goods,
or Effects shall be found, who is hereby authorized and required to endorse
the same; which Writ of Execution, being so indorsed as aforesaid, the
said Provost Marshal of the District in which such Lands, Goods, or
Effects shall be found, shall proceed to levy the Debt and Costs, and make
Return thereof, under his Hand and Seal to the Jud^e or Judges of the
Court from whence such Writ of Execution was origmally awarded ; and
sudi Writ of Execution together with the Return thereof, under the Hand
and Seal of the Provost Marshal subscribing the same, shall be by him
conveyed, so soon after the making and signing thereof, as conveniently
may be, to the Provost Marshal of the District from whence such Writ
was originally awarded, who is hereby authorized and required to deliver
the same into the Court of Common Pleas from whence such Writ was
originally awarded, on the First Court Day next after the coming of the
said Writ and Return into his Hands ; and the Judge or Judges of the said
Court of Common Pleas, by whom such Writ of Execution was originally
awardcMl, are hereby authorized and required to receive the same ; and the
same shall be as valid and effectual, to all Intents and Purposes, as if the
Provost Marshal making and subscribing the same had himself been
present, and delivered the same into the Court with his own Hands.

Provided, nevertheless. That the Provost Marshall executing the said
Writ, and making Return thereof as aforesaid, only shall be answerable

66 Constitutional Documents of Canada. [1763-1774

as well for the Truth of the said Return, as for any Misbehaviour, Oniis-
sion, or Neglect in the manner of executing the said Writ, or making
Return thereof before the Judge or Judges of the Court from whence such
Writ of execution was originally awarded, and not before the Judge or
Judges of the Court of the District to which he belongs : — ^And in case any
Person or persons against whom such Judgment as aforesaid shall be
obtained, not having any Lands, Goods, or Effects within the Province,
wherewith to satisfy the said Judgment, shall usually reside without the
Jurisdiction of the Court in which such Judgment shall be obtained, or
being, at the Time of obtaining the said Judgment, resident within the
same, shall alter his or their place of Residence, and withdraw his or their
Person, or Persons from the Jurisdiction of the Court in which such Judg-
ment shall have been obtained, it shall and may be lawful for the Judge
or Judges of the said Court in which such Judgment shall have been ob-
tained, in all cases where such Writ may legally issue, to award a Writ or
Writs of Capias ad Satisfaciendum to the Provost Marshal of the District
in which such Person or Persons shall reside or be found, which Writ or
Writs, being so indorsed as aforesaid, the said Provost Marshal of the
District in which such person or persons shall reside or be found, shall
proceed to execute the same, and to arrest the Body or Bodies of such
Person or Persons, and him or them to convey to the Common Gaol of the
District in which such Person or Persons shall be arrested, there to remain
till the Debt and Costs are paid, or he or they be otherwise delivered by
due Course of Law.

And in order to avoid the Delays and Inconveniences occasioned by
the present practice of holding the said Courts of Common Pleas at certain
fixed Times and Periods, according to the Directions of the aforesaid
Ordinance of September One thousand, seven hundred and sixty- four, and
to the Intent diat the Judges of the said Courts may be enabled to give
more speedy and effectual Relief in all Cases, as well where the matter
or Thing in Demand shall exceed the Sum of Twelve Pounds, and where
it falls short of or is equal to it; it is further Ordained and Declared by
the Authority aforesaid — That from and after the Day of the Date of the
Publication of this Ordinance, the said Courts of Common Pleas, as well
at Quebec, as at Montreal, shall be constantly open to the Suitor, and they
are hereby required to be kept open at all times throughout the Year,
except on Sundays, and at Seed Time, a Month at Harvest, and a Fort-
night at Christmas and Easter, and except during such Vacation as shall
be from Time to Time appointed by the Judges for making their respective
Circuits throughout the Province, Twice in every Year : and the Judges of
the said Courts are hereby authorized and required to issue their Process,
and to do and execute all and every other Matter or Thing touching the
Administration of Justice, without Regard to Terms or any stated Periods
of Time, as Limited and Appointed by the Ordinance of September, one
thousand seven hundred and sixty-four, or any other Ordinance, custom
or usage whatsoever, all and every of which Ordinance, or Ordinances, so
far as they relate to the Sitting of the said Courts, or prescribe any Limita-
tions of Time for that Purpose, are hereby annulled, revoked, and made
Void, in as full and ample a manner as if they were herein particularly
enumerated and set forth.

Provided always, and it is further Ordained and Declared by the
Authority aforesaid. That the Judges of the said Courts of Common Pleas,
as well in Quebec as in Montreal, shall appoint One Day in every week
(except Sunday, or in such Vacation as aforesaid) at their Discretion for
the hearing and determining all matters wherein the Cause of Action shall
exceed the Sum of Twelve Pounds, which Day shall be declared at the
rising of the Court on the Court day next preceding; and no Adjournment
of the Court shall be made for any longer time than One Week, upon any
Pretence or Ground whatsoever.

Provided also, That Friday in every week, except it be in such Vacation
as aforesaid, shall be always a Court Day, as well in the Town of Quebec
as Montreal, for the hearing and determining all Matters wherein the

1763-1774] Constitutional Documents of Canada. 67

Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid ;
on which Day one of the Judges of the said Courts of Common Pleas shall
attend, as well at Quebec as at Montreal, for the Dispatch of Business, who
is hereby authorized and required to proceed to hear and determine all
matters where the Cause of Action shall not exceed the Sum of Twdve
Pounds, in the Absence of the other Judge— such Judge being prevented
from attending by Sickness, or any other Lawful and reasonable Cause ot
Excuse; and every Judgment, sentence, Order or Decree, given, made or
pronounced, and every Writ of Execution awarded by such Judge, in
Matters where the Cause of Action shall not exceed the Sum of Twelve
Pounds as aforesaid, shall be in all Respects as binding and valid as if
both the Judges of the said Court had been present and concurred in
giving, making or pronouncing such Judgment, or in awarding such Writ
of Execution.

And, to the Intent that this Part of the Jurisdiction of the said Courts
of Common Pleas, which attaches upon matters where the Value of the
Thing in Demand does not exceed the Sum of Twelve Pounds, and the
manner and Form of proceeding therein may be clearly comprehended, so
as to enable the Party, either by himself or his Agent, to Prosecute his
own means of Redress with Dispatch, certainty, and Moderation in Point
of Expence; It is further Ordained and Declared by the Authority afore-
That from and after the Day of the Date of the Publication aforesaid, in
all Matters where the Cause of Action shall not exceed the Sum of Twelve
Pounds Currency, no Process whatsoever shall issue against any Defendant
or Defendants, until the Plaintiff or Plaintiffs, or his, her or their Agent
or Agents shall have first produced and left with, or being unable to write
or read, shall have first procured, from the Qerk of the Court in which
such Action is intended to be brought, who is hereby ordered and required
to ms^e out the same, a Declaration either in English or French Language,
according to the following Form.

Quebec ) Day of 177

) A.B.— Plaintiff

Montreal ) CD. — Defendant

The Plaintiff demands of the Defendant the Sum of
due to the Plaintiff from the Defendant, for

which Said Sum, though Often demanded, still remains due; therefore the
Plaintiff demands Judgment.

Which Declaration, being so produced to and left with, or so as aforesaid
made out by the Qerk of the Court in which such Action is intended to be
brought, shall be filed by the Said Clerk with the other Records of the
Court, and the said Clerk shall immediately make out an attested Copy
thereof, and upon the back of such Copy Indorse a Summons, to which
he shall procure the name of One of the Judges of the said Court to be set.
commanding the Defendant either to pay the Debt and Costs to the Plain-^
tiff, or else to appear upon some subsequent Court Day, according to the
Discretion of the Judge who signs the same. Regard being had to the
Distance of the Defendant's Place of Residence, and the means of Com-
munication therewith, which Summons shall be in the following Form.

To C. D. the Defendant in this Action.

You are hereby commanded and required to pay to the Plaintiff the
within named Sum of together with Costs, or else to

be and appear, either in Person, or by your Agent, before me at the Court
House of the Town of Quebec/Montreal, together with your Witnesses,
if any you have, on Day of on whidi Day the Mat-

ter of Complaint against you, as containod in the within Deckration, will
be heard and finally determined, otherwise Judgment will be given against
you, by Default in this Action.

E. F., Judge of the Court of Common Pleas.

And this Attested Copy of the Declaration, together with the Writ of
Summons, indorsed and signed as aforesaid (for all which the Clerk of

68 Constitutional Documents of Canada, [1763-1774

the said Court shall receive from the Plaintiff the Sum of Six Pence, and
no more, where the Original Declaration shall be produced and delivered
to him, and the Sum of one shilling, and no more where he shall make out
the Original Declaration himself, at the Request of the Party) shall be de-
livered to the Plaintiff or Plaintiffs, or his, her or their Agent or Agents,
who shall convey, or cause the same to be conveyed, to One of the Bailiffs
of the Parish in which such Defendant resides, who is hereby authorized
and required to serve the same upon the Defendant personally, if he can be
found, or otherwise upon his Wife, Son, Daughter, Servant, or some othet
grown Person, at his the said Defendant's Dwelling House, or usual Plac
of Abode, and at the same Time to shew him, her, or them the attested
Copy of the Declaration, together with the Writ of Summons annexed,
under the Hand of the Judge issuing the same, and to acquaint him, her
or them, with the Contents thereof, and to leave a Copy of the same at
the said House ; and the Bailiff serving such Process as aforesaid, is hereby
further authorized and required to attest the said Service at the Foot of
the said Writ of Summons, together with the Day and Time of serving
the same, according to the following Form:

I, G. H., Bailiff of the Parish of did on Da^ of

Personally serve the within-named Defendant with the Copy
of the Declaration, and Writ of Summons annexed, by shewing him the
same, and acquainting him with the Contents thereof, and by leaving a
Copy of the same at his House with the of the said

Defendant, such being of the age of or thereabouts.

And this Copy of the Declaration, with the Writ of Summons an-
nexed, and the Certificate of the Service so made by the Bailiff, shall be
delivered by him to the Plaintiff, if thereto personally required by the
Plaintiff hunself, who shall pay the Bailiff, for the Service and Attestation
as aforesaid, the Sum of one Shilling, and no more, which Sum of one
Shilling, together with the Charges of issuing and returning the said Pro-
cess, shall be allowed him in his Costs, in Case he shall obtain Judgment
against the said Defendant in the Action; but in case the said Plaintiff
shall not personally demand the Custody of the said Process, after such
Service and Attestation as aforesaid, that then the Bailiff so serving and
attesting the same shall forthwith return the same to the Court of Com-
mon Pleas from whence such Process issued, who shall direct the Costs
of returning the same, together with the Fee of one Shilling for the Ser-
vice and Attestation thereof, to be paid to the said Bailiff by the Defend-
ant, if he shall be condemned in the Suit, or by the Plaintiff, if he shall
discontinue^ the Action, or otherwise fail in the Proof of the Matter con-
tained in his Declaration.

And it is further ordained and Declared, by the Authority aforesaid.
That if any Defendant, after having been duly summoned as aforesaid,
shall refuse to pay the said Debt and Costs, and shall not appear, either
by himself or Agent, before the Court, at the Time and Place mentioned
in the said Writ of Summons, it shall and may be Lawful for the Judge
or Judges of the said Court, upon view of the Certificate of the said
Bailiff as aforesaid, or other due Proof of the Service of the said Writ
of Summons in Manner aforesaid, to hear the Cause on the Part of the
Plaintiff or Plaintiffs only and to make such Order, Decree, or Judgment,
and to award such reasonable Costs of Suit, as to him or them shall seem
most agreeable to Equity and good Conscience: And if upon the Day of
Return of such Writ, or on such other Day, as shall be specially ap-
pointed by the Court for the hearing of the Cause, the Defendant so sum-
moned as aforesaid shall appear, either by himself, or his Agent, and the
Plaintiff shall not appear, either by himself or his Agent, or appearing
shall not Prosecute, or Prosecuting shall fail in the Proof of the Matter
contained in his Declaration, that then upon due Proof that such Defend-
ant was served with such Process, it shall and may be Lawful for the
Judge or Judges of the said Court to dismiss the said Defendant, and
decree and award him such Costs as in his or their Discretion shall seem

1763-1774] Constitutional Documents of Canada. 69

meet, and to award Execution against the said Plaintiff for Recovery and
levying thereof, in the same manner as other Executions are hereby
directed to be awarded against the Defendant, where the Plaintiff shall
obtain Judgment in the Action.

Provided always, and it is hereby further Ordained and Declared by
the Authority aforesaid. That no Execution shall be awarded against any
Defendant until the next Court day after that on which Judgment shall
be given in the Cause, to the Intent that the Party may have time to sat-
isfy such Judgment by paying the Debt and Costs into the Hands of the
Plaintiff or Plaintiffs, or his, her, or their Agent, or to the Clerk of the
Court, who is hereby Authorized and required to receive the same for his,
her, or their Use, unless it shall be made appear to the Judge or Judges
pronouncing such Judgment that the Defendant or Defendants is or are
preparing to leave the District, or otherwise to defeat the Plaintiff of the
Effect of his, her, or their Judgment, in which case it shall and may be
Lawful for the Judge or Judges pronouncing the said Judgment to award
execution immediatdy; But in Default of such Payment as aforesaid, that
then it shall and may be Lawful for the Judge or Judges giving such
Judgment, on the Friday next ensuing the said Judgment, to award the
Execution under his or their Hand and Seal, directed to the Head Bailiff
of the Parish wherein the Defendant resides, or to some other discreet
Person dwelling in or near the said Parish, whom the Judge or Judges
shall think proper to name for that Purpose, and which he or they are
hereby authorized and impowered to do, commanding him to levy the Debt
and Costs, together with his Fees for levying and returning the said Writ
(which Fee shall be expressed in the Warrant of Execution) out of the
Goods and Chattels belonging to such Defendant only, with an Express
exception nevertheless therein contained to his, the Party's, Beasts of the
Plough, Implements of Husbandry, Tools of his Trade, and one Bed and
Bedding, unless the other Goods and Chattels of such Defendant or De*
fendants shall prove insufficient, in which case such Beasts of the Plough,
Implements of Husbandry, and Tools of his Trade, shall be sold, but not
the Bed and Bedding ; and the said Bailiff or other Person, to whom such
Writ of Execution shall be awarded as aforesaid, shall, before he pro-
ceeds to do any Thing therein, give Notice at the Church Door of the
Parish wherein such Writ is intended to be executed, immediately after
Divine Service, both Morning and Evening, on Two successive Sundays
next after the coming of the said Writ, of the Day and Time appointed
for the Sale of the Defendant's Goods, on which Day he shall proceed to
sell the same to the highest Bidder, and for the most Money he can get,
till he shall have raised sufficient to discharge the Whole of the said Writ
of Execution, after which, if any Goods remain in Execution, the same
shall be immediately restored to the Defendant; and in case the Defend-
ant or Defendants against whom such Writ of Execution as aforesaid
shall be awarded, shall not have Goods or Chattels sufficient to satisfy the
said Writ of Execution, either in the whole or in Part, that then the
Bailiff, or other Person as aforesaid authorized, shall enquire whether the
said Defendant or Defendants hath or have any Lands in his or their
Possession or Occupation, or in the Hands of any other Person in Trust
for him or them, lying within the Parish wherein such Defendant or De-
fendants shall reside, or elsewhere within the Jurisdiction of the Court
irom whence such Writ of Execution shall be awarded; and if the Bailiff,
or other Person so as aforesaid authorized, shall be fully informed and
satisfied that such Defendant or Defendants hath or have any Lands as
aforesaid, such Bailiff, or other Person so as aforesaid authorized, is
hereby required to make Return thereof upon the Back of the Writ, speci-
fying the extent and Quality of the same, and particularly if any Part
thereof be Land usually sowed with Com, or Meadow Land reserved for
Hay, and upon such Return it shall and may be Lawful for the Judge or
Judges of the Court from whence such Writ issued, to issue another Writ
to the Bailiff of the Parish in which such Lands lie, or to some other dis-
creet Person, residing in or near the same, commanding him to enter upon

70 Constitutional Documents of Canada, [1763-1774

such Arable or Meadow Land belonging to such Defendant or Defend-
ants, at the proper Season, immediately after the reaping or mowing the
same, and before any Part of the Produce thereof shall be removed and
carried off, and of such Produce, whether of Com or Hay, to set apart
so much as in his Discretion he shall think sufficient to discharge the
whole of the Writ so to him directed, and the same to sell upon the Land
for the most Money that he can get, leaving the overplus, if any there be,
upon the Land, for the use of the Defendant or Defendants.

And it is further Ordained and Declared by the Authority aforesaid,
that if any Defendant or Defendants, or any Person or Persons by his
or their Direction, after Notice to him or them of the coming of such
Bailiff or other Person as aforesaid upon the Land (which Notice he is
hereby required to give) shall make any Resistance, or prevent his com-
ing upon the Land to execute the Writ, or otherwise disturb him in the
execution of it, or shall remove or carry away all or any of the parcels
of Com or Hay, so as aforesaid set off, without having first satisfied the
Whole of the said Writ of Execution, he or they so offending shall pay
and forfeit, over and above the Sum so commanded to be levied, the Sum
of Ten Pounds Currency of this Province, to be recovered in a Summary
way, before one of the Judges of the Court issuing die said Writ of
Execution, by the Person against whom such Offence shall have been
committed, or any other Person who shall sue for the same.

Provided also, and it is hereby further Ordained and Declared, by
the Authority aforesaid, That it shall and may be Lawful for aiw Judge
or Judges issuing any Writ of Execution in Matters where the Cause of
Action shall not exceed the Sum of Twelve Pounds as aforesaid, upon
due Proof before him or them made of the distressed Circumstances of the
Defendant or Defendants in the Action to indorse upon the same his or
their Order to the Bailiff, or other Person as aforesaid, commanding him
to levy and raise the same by Installments, in such Proportions, and at
such Days and Times as to him or them shall seem meet

Provided nevertheless. That the whole of the Time so allowed, and
given, shall not exceed the Space of Three months from the day of the
Date of issuing such Writ of Execution ; and provided also, that if it shall
appear, upon due Proof thereof made before such Judge or Judges issuing
such Execution as aforesaid, that the Defendant or Defendants hath, or
have, at any Time after the Service of the Declaration and Writ of Sum-
mons as aforesaid, conveyed away oi^ secreted all or any Part of his or
their Goods, or Effects, in order to 'defeat the Plaintiff or Plaintiffs of
his, her, or their Demand, that then and in such Case it shall and may be
lawful to and for the said Judge or Judges immediately to award a Writ
of Execution against the Body or Bodies of the said Defendant or De-
fendants, directed to the Bailiff or other Person as aforesaid, command-
ing him to arrest the said Defendant or Defendants, and him or them to
convey to the Common Gaol of the District, there to remain till such Debt
and Costs be fully satisfied, or other Order be made by the said Court
for his or their Deliverance.

And whereas it may be of still further Utility and Convenience, and
the means of extending the Benefit of these R^^lations more generally
throughout the Province, to constitute and appoint other Jurisdictions, by
which Disputes of a still inferior Nature may be terminated, as well in
the Towns of Quebec and Montreal, as in other parts of the Province re-
mote from the Courts of Justice; It is further Ordained and Declared
by the Authority aforesaid, That it shall and may be lawful to and for
any Person or Persons as well within the Towns of Quebec and Montreal,
as in other remote Parts of the Province, being thereto specially appointed
by Commission under the Hand and Seal of the Governor, or Commander
in Chief for the Time being, to hear and determine, and also to award
Execution in all Causes where the matter in Question shall not exceed the
Sum of Three Pounds, Current money of this Province, so as the Title of
Lands be not drawn in Question in any such Proceedings, in as full and
ample manner as any Judge or Judges of either of the Courtu of Common

1763-1774] Constitutional Documents of Canada. 71

Pleas are hereby authorized and impowered to do in Matters where the
Cause of Action shall not exceed the Sum of Twelve Pounds as afore-
said, any Thing to the Contrary hereof in this Ordinance notwithstand-
ing; and the Person or Persons so as aforesaid appointed by Commis-
sion, as well in the Towns of Quebec and Montreal, as elsewhere within
the Province, are hereby authorized and commanded, in the Execution of
the Powers to them entrusted of hearing, determining, and awarding as
aforesaid, to keep and observe all the Rules, and Regulations herein pre-
scribed, limited, and directed, to the Judge or Judges of the Courts of
Conmion Pleas, in the Exercise of their Jurisdiction, in matters where
die Cause of Action shall not exceed the Sum of Twelve Pounds, and to
conform to the same, both in their Judgments and Process, as fully and
perfectly as if the same were herein particularly set forth at large and
enjoined; and all Bailiffs of Parishes, or other Persons to whom any
Writs of Summons, Warrants of Execution, or any other Process what-
soever, in matters where the Cause of Action shall not exceed the Sum
of Three Pounds as aforesaid, shall be directed by any Person or Persons
so appointed, as aforesaid, are hereby authorized and required to pay due
Obedience to the same, and cause the same to be executed, and Returns
thereof to be made to the Person or Persons so appointed, issuing the
same as they would do or make to any Judge or Judges, of the Courts
of Common Pleas, if such Process had issued from him or them; pro-
vided that Such Person or Persons as shall be appointed for this purpose
within the Towns of Quebec and Montreal shall not sit or hold any Court
for the hearing and determining Matters within their Jurisdiction on any
Friday, but on some other Day in every Week, according to their Discre-
tion other than Friday, or in such Vacation as aforesaid.

And whereas great and manifold Inconveniences and Losses have
arisen to the Proprietors of Real Estates in this Province, by having their
Houses and Lands taken in Execution and exposed to sale for the Pay-
ment of small Debts, and also from the hasty and informal method oi
setting the same to sale, even in cases where tiie extent of the Judgment
will admit of no other satisfaction ;

It is further Ordained and Declared by the Authority aforesaid, That
from and after the Day of the Date of the Publication of this Ordinance,
no Process whatsoever shall be awarded for the sale of any House or
Houses, Land or Lands, Tenement or Tenements, upon any Judgment or
Judgments, where the Original Cause of Action shall not exceed the Sum
of Twelve Pounds Current Mon^ of this Province; and that from and
after the Day of the Date of the Publication aforesaid, no Houses, Lands,
or Tenements, taken in Execution upon any Judgment or Judgments ob-
tained in His Majesty's Supreme Court of Judicature for this Province, or
upon any Judgment or Judgments obtained out of the Courts of Common
Pleas in Quebec or Montreal, shall be extended or sold by the Provost
Marshall, or any Person whatsoever, unless the Personal Property of the
Defendant or Defendants in the Action shall be found insufficient.

And it is further Ordained and Declared by the Authority aforesaid,
That upon the issuing of any Writ of Execution for the sale of any
Houses or Lands, or so soon after as may be, the Provost Marshal of the
District in which such Houses or Lands shall lie or be shall cause the
same to be advertized in the Quebec Gazette, both in English and French,
and therein set forth, as near as may be, the Quantity and Condition of
such Houses and Lands, together with the Terms and the Day of Sale,
which Day of sale shall not be till Six Months after such Publication, and
at the same Time, or so soon after as conveniently may be, he shall also
cause a true Copy of the said Advertisement, both in English and French
to be sent to the Head Bailiff of the Parish where such Houses or Lands
shall lie or be, who is hereby ordered and required to fix the same upon
the Door of such Parish Church, and to re-place the same, so often as it
shall be removed, defaced, or rendered illegible by Time or Accident, and
also to publish and declare the Contents thereof every Sunday at the Door
of the said Church immediately after Divince Service, both in the Mom*

72 Constitutional Documents of Canada. [1763-1774

ing and Afternoon, that the same may be fully known and understood by
die Inhabitants thereof, for which the said Bailiff shall receive, out of the
Produce arising from the Sale the Sum of One Spanish Dollar, to be paid
by the Provost Marshal and allowed in his Accounts.

Provided always, and it is hereby, and by the Authority aforesaid,
further Ordained and Declared, That from and after the Day of the Date
of the Publication aforesaid, all Houses and Lands against which any
Writ or Writs of Execution shall be awarded for the sale of the same,
shall be taken to be, and they are hereby and by the Authority aforesaid,
declared to be obliged and bound in Law to pay and satisfy all and every
Judgment or Judgments, which shall and may be obtained against the
Owner and Proprietors thereof, from the Day on which such Judgment
or Judgments shall be pronounced or given ; and that no Mortgage, Sale,
or Assignment, or any Deed of Conveyance, or any Disposition without
Deed whatsoever, howsoever, or to whomsoever, made after the Day on
which such Judgment or Judgments shall be pronounced or given as afore-
said, shall defeat, avoid, suspend, or delay the Force and Operation of
such Judgment or Judgments ; but all and every such Mortgage, Sale, As-
signment, Deed, and Disposition, shall be taken to be, and all and every
of them are and is hereby declared to be fraudulent, as against the said
Judgment, Creditor or Creditors, and to have no Validity, Power, Opera-
tion, or Effect whatsoever, to the Prejudice of such Judgment Creditor
or Creditors.

And lastly. It is further Ordained and Declared by the Authority
aforesaid; That all Judges and other Persons authorized to administei
Justice, issuing any Writ of Execution, as well where the Cause of Action
shall exceed the Sum of Twelve Pounds as aforesaid, as where it falls
short of, or is equal to that Sum, shall and they are hereby authorized
and required to mark upon such Writ of Execution the Day on which
Judgment was given in the Cause, and if Two or more Writs of Execution
shall be issued upon Judgmefit given the same day, against the same De<
fendant or Defendants, and so marked upon the Writs, such Execution
shall have the same Privilege, and be satisfied in the same Proportions,
and the Provost Marshal, Bailiff, or other Person, to whom such Writs of
Execution shall be Awarded, receiving the same, is hereby authorized and
commanded, after the sale of the whole of such Defendant or Defendants
Real and Personal Estate, where the Said Writs shall be awarded against
both, in case the same should not be sufficient to satisfy the whole of the
said Judgments, to pay over and divide the Neat Produce of such Sale or
Sales, after deducting his own Costs and Charges, amongst the several
Plaintiffs, in Proportion to the Amount of their respective Judgments.

(Signed) Guy Cakleton.

1 February, 1770.

XXII

CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC,

1774*

[Trans.: Shortt and Doughty.]

The Case of the British Merchants trading to Quebeck, and others of
his Majesty's natural-bom Subjects, who have been induced to venture
their Property in the said Province on the Faith of his Majesty's Proc-
lamation, and other Promises solemnly given.

The king's most excellent majesty was graciously pleased, by his royal
proclamation of the seventh of October, one thousand seven hundred and
sixty-three*, passed under the great seal of Great-Britain to invite his
loving subjects, as well of his kingdoms of Great-Britain and Ireland, as

^ ThtB document has been selected out a number, at it provides a good aummaty of
the case for the minority in Canada.

» See No. IV.

1763-1774] Constitutional Documents of Canada. 73

of his colonies in America, to resort to the said province of Quebeck, and
the other provinces then lately ceded to his majesty by the French king, in
order to avail themselves, with all convenient speed, of the great benefits
and advantages that must accrue therefrom to their commerce, manufac-
tures, and navigation ; and as an encouragement to them so to do, to pub-
lish and declare that his said majesty had, in the letters patent under the
great seal of Great-Britain, by which the new governments in the said
ceded cotmtries had been constituted, given express power and directions
to his govemours in the said new colonies, that so soon as the state and
circumstances of the said new colonies would admit thereof, they should
summon and call general assemblies within the said governments, in such
manner and form as is used and directed in those colonies and provinces
m America which were under his majesty's immediate government; and
that his majesty had also given powers to the said govemours, with the
consent of his majesty's councils of the said province, and the represen-
tatives of the people in the same, so to be summoned as aforesaid, to make,
constitute and ordain laws, statutes, and ordinances for the publick peace,
welfare, and good government of his majesty's 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 was pleased further to declare, that in the mean time, and
until such assemblies could be called as aforesaid, all persons inhabiting
tn, or resorting to, his majesty's said colonies might confide in his majesty's
royal protection for the enjoyment of the benefits of the laws of England;
and that for that purpose his majesty had given power, under the great
seal, to the govemours of his majesty's said new colonies, to erect and
constitute, with the advice of his majesty's councils of the said provinces
lespectively, courts of judicature and publick justice within the said col-
onies, for the hearing and determining all causes, as well criminal as civil,
according to law and equity and as near as may be, agreeably to the laws of
England.

And in pursuance of the said proclamation, and of the commission of
captain-general and govemour in chief of the said province of Quebeck,
granted to major-general Murray, in the following month of November,
one thousand seven hundred and sixty-three, and by him received and
published in the month of August of the following year, one thousand
seven hundred and sixty-four, the said major-general Murray did, with the
advice of his Majesty's council of the said province, make and publish an
ordinance' of the said province on the seventeenUi day of September, in
the same year, one thousand seven hundred and sixty-four, for erecting
and constituting courts of judicature; and by the said ordinance did erect
two principal courts of judicature, called the Courts of King's Bench, and
Common Pleas; and did by the said ordinance give power and authority
to the chief justice of the province, before whom the said court of King's
Bench was to be held, to hear and determine all criminal and civil causes,
agreeably to the laws of England, and the ordinances of the said province ;
and did likewise, by the said ordinance direct and command the judges
of the said second court, called the Court of Common Pleas, to determme
all matters brought before them agreeably to equity, having regard never-
theless to the laws of England, as far as the circumstances and then
present situation of things would admit, until such time as proper ordi-
nances for the information of the people could be published by the gov-
emour and council of the said province, agreeable to the laws of England.

And on the sixth day of Nevember, in the same year, one thousand
seven hundred and sixty- four, another provincial ordinance was published
by the said governour Murray, and his majesty's council of the said prov-
ince, for the sake of quieting the minds of his majesty's new Canadian
subjects, and removing the apprehensions occasioned by the said introduc-
tion of the laws of England into the said province, by which it was or-

' See No. VI.
» See No. IX.

74 Constitutional Documents of Canada. [1763-1774

dained and declared, that until the tenth day of August then next ensuing,
that is, in the year of our Lord one thousand seven hundred and sixty-
five, the tenures of the lands, in respect of such grants as were prior to
the cession of the said province, by the definitive treaty of peace signed
at Paris, on the tenth day of February, one thousand seven hundred and
sixty-three, and the rights of inheritance, as practised before that period,
in such lands or effects of any nature whatsoever, according to the cus-
tom of the said country, should remain to all intents and purposes the
same, unless they should be altered by some declared and positive law.

And the said two ordinances have been transmitted to his majesty,
and never disallowed by him, and are therefore generally understood by
his majesty's British subjects in the said province^ to have received the
sanction of his majesty's royal approbation; and m consequence of the
said two ordinances, together with the proclamation aforesaid of the
seventh of October, one thousand seven hundred and sixty-three, and the
two commissions of govemour in chief of the said province, granted suc-
cessively to major-general Murray and major-general Carleton, which
seem in every part of them to pre-suppose that the laws of England were
in force in the said province of Quebeck, being full of allusions and refer-
ences to those laws on a variety of different subjects, and do not contain
any intimation of a saving of any part of the laws and customs that pre-
vailed in the said province in the time of the French government, we the
British merchants trading to Quebeck, and all the ancient British subjects
residing in the said province have been made to understand and believe,
that the laws of England have been introduced into the said province, and
that they have had the sanction of his majesty's royal word, that they
should continue to be observed in the said province.

We cannot therefore but express our surprise and concern at hearing
that a bill^ is now brought into parliament, by which it is intended, that
the said royal proclamation of October, one thousand seven hundred and
sixty-three, and the commission under the authority whereof the govern-
ment of the said province is at present administered, and all the ordinances
of the said province, relative to the civil government and administration
of justice in the same, and all commissions to judges and other officers of
the same, should be revoked, annulled and made void.

We numbly beg leave to represent, that many of us have, through a
confidence in the said royal proclamation, and other instruments proceed-
ing from, and allowed by, his majesty's rojral authority, ventured to send
considerable quantities of merchandize into the said province, and to give
large credits to divers persons residing in the same, both of his majesty's
new Canadian subjects, and of his antient British subjects, who have,
through a like ^confidence in the said proclamation, resorted to, and set-
tled Uiemselves in, the said province. And that we have employed out
property and credit in this manner, in a firm belief, that we should have
the remedies allowed us by the laws of England for the security and re-
covery of it; and that if we had supposed the French laws, which pre-
vailed in the said province under the French government, to be still in
force there, or to be intended to be revived in the same, we would not
have had any commercial connections with the inhabitants of the said
province, either French or English. And therefore we beg leave to repre-
sent, that we think ourselves intitled, upon the mere grounds of justice,
(without desiring any favour to be shewn us on the account of our being
his majesty's antient, and faithful, and protestant subjects, that are at-
tached to his royal person and government by every tie of religion, in-
terest, and habitual duty and affection) to insist that, if it be resolved to
persist in this new measure of reviving all the former laws of Canada
concerning property and civil rights, and abolishing the laws of Engkmd
that have prevailed there in their stead since the establishment of the civil
government in one thousand seven hundred and sixty-four, the execution
thereof may at least be postponed until we shall have had sufficient time
to withdraw our effects from the said province, and obtain payment of

He. The Quebec Act (No. XXV).

1763-1774] Constitutional Documents of Canada. 75

the debts which are owing to us in the same, by the remedies and methods
of trial allowed and appointed by the laws of England in that behalf ;
through a reliance on which remedies and methods of trial we were in-
duced to venture our said effects there, and permit those debts to be con-
tracted. And this time, we humbly represent, cannot well be less than
three years.

We further be^ leave to represent, that we apprehend his majesty's
former conduct in mtroducing the laws of 'England into the said province
by his proclamation and other instruments aforesaid, to have been in no
wise unusual, or severe, or particularly harsh, with respect to his new
Canadian subjects, nor to have been unexpected by them, but to have been
the natural and known consequence of the conquest and cession of the
country to his majesty by the late peace, according to the policy of the
crown of Great-Britain on the occasion of similar conquests in former
times. And we particularly beg leave to observe, that the whole law of
England has been introduced into the kingdom of Ireland, in consequence
of the conquest of it by the arms of England, without any the least mix-
ture of the antient Irish laws, even upon the subjects of tenures and de-
scents of land; and no inconvenience has been found to follow from it;
but, on the contrary, the similitude of laws is at this day a strong ground
of union and mutual affection between the inhabitants of the two countries.
And the like has been done with respect to the principality of Wales; in
which the English law is the only law that has been allowed for more
than two hundred years past : and the like good effects have followed from
it And in the last century, upon the conquest of the province of New-
York, then called the New Netherlands, from the Dutch, the same policy
was observed, and the Dutch laws were totally abolished, and the Engli^
laws introduced in their stead, which have prevailed there ever since. And
yet, at that time, the Dutch settlers in that province were very numerous,
and from them much the greater part of tlie present inhabitants are de-
scended. And in conformity to these examples, we did conceive his most
gracious majesty to have intended to introduce the laws of England, by
his proclamation aforesaid, into the four new governments of Granada,
East Florida, West Florida, and Quebeck, instead of the French and
Spanish laws, which had prevailed therein under the former governments.
AJad we conceive this conduct of his most gracious majesty, to have been
no way derogatory to the articles of capitulation, granted to his Canadian
subjects by general Amherst, upon the surrender of the whole country to
his majes^s arms in September, one thousand seven hundred and sixty;
bttause, when the French general expressly demanded, in one of the
articles of capitulation*, "That the French and Canadians should continue
to be STOvemed according to the custom of Paris, and the laws and usages
established for that country, and that they should not be subject to any
other imposts than those that were established under the French domin-
ion;" the said general Amherst^ in his answer to the said demand, de-
clares, "That they become the king's subjects;" thereby avoiding to tie up
and preclude his late majesty, and his royal successors, from making such
dianges in the laws and taxes of the said province, as to his royal wisdom
should seem meet

We further beg leave to represent, that we are most especially anx-
ious for the preservation of those parts of the English law which relate
to matters of navigation, commerce, and personal contracts, and the me-
thod of determining disputes upon those subjects by the trial by jury, and
likewise for those parts of it which relate to actions for the reparation of
injuries received, such as actions of false imprisonment, and of slander,
and of assault, and whatever relates to the liberty of the person, and most
of all for the writ of habeas corpus, in cases of imprisonment; which we
take to be, in the strongest and most proper sense of the words, one of the
benefits of the laws of England, of which his majesty has promised us the
enjoyment by his proclamation above-mentioned, and which we apprehend

* Sec No. II, Sectiona 41 and 42.

76 Constitutional Documents of Canada, [1763-1774

to be a part of the (English system of jurisprudence, to which our new
Canadian fellow-subjects will not object

And we beg leave to represent, that the province of Quebeck has
thriven exceedingly, both in agriculture and trade, since the establishment
of the civil government of the province, and the introduction of the Eng-
lish laws into the same; having exported last year about three hundred
and fifty thousand bushels of com; whereas, in the time of the French
government, they exported none at all, and produced hardly enough for
their own subsistence.

And we further beg leave to represent, that much the greater part of
this trade is carried on by his majesty's old British subjects in the said
province; by which they may justly claim to themselves the merit of hav-
ing been the principal promoters of the late great improvement , of the
province.

And we further beg leave to represent, that we by no means object to
a revival or continuance of the former French laws concerning the tenures
of land, and the methods of alienating and conveying land, nor even con-
cerning the inheritance of land belonging to Canadians bom, or to be bom,
of marriages already contracted ; nor concerning dower, or the other civil
rights of either men or women resulting from the matrimonial contract,
so far as they relate to marriages already contracted. And we conceive
that the revival of the French laws in these particulars, with full powers
given to the Canadians of future times to continue them in their respec-
tive families at their pleasure by marriage-agreements, last wills, or deeds
in their lifetime, would be sufficient to give full satisfaction to the bulk
of his majesty's new Canadian subjects, and make them acquiesce very
chearfully in the general establishment of the laws of England, in con-
formity to his majesty's proclamation above-mentioned, upon all other
matters.

And we further beg leave to represent, that several of his majesty's
Old British subjects are possessed of a considerable quantity of landed
property in the said province, and that others of them are daily becoming
so : and hereupon we will venture to affirm, that sixteen of the seigniories
of that province, and some of them the most valuable ones in the country,
are in the hands of the said Old British subjects.

And we further beg leave to represent, that, in consequence of his
majesty's most gracious promise contained in his proclamation aforesaid,
that^ as soon as the situation and circumstances of the said province would
permit, an assembly of freeholders and planters of the same should be
called by his majesty's govemour thereof, which, in conjunction with the
said governour, and his majesty's council of the said province, should
have power to make laws and ordinances for the welfare and good gov-
ernment of the said province, we have constantly entertained hopes that
an assembly of the freeholders of the same would soon be established,
and that we should enjoy the benefits resulting from that free and equit-
able method of government in common with the inhabitants of the ad-
joining provinces of North- America.

And therefore we beg leave to represent, that we have been very
greatly alarmed by that part of the bill now before parliament, which
seems to cancel the said most gracious promise of our sovereign, and to
deprive us of all hopes of obtaining the establishment of a general as-
sembly of the freeholders of the said province, and to establish in the
stead thereof a very dijfferent mode of government in the said province,
by a legislative council, consisting of persons appointed by, and remove-
able at the pleasure of, the crown; more especially as the said new mode
of government, (which we presume nothing but some urgent and very
peculiar circumstances of necessity can be thought a sufficient reason for
adopting) is not limited in the said bill to continue tor only a certain
small number of years, after which they might hope to have an assembly
in the said province, agreeably to the said royal promise, but is established
in very general terms, Uiat remove that agreeable prospect out of their
sight

1763-1774] Constitutional Documents of Canada. 77

We furdier beg leave to represent, that we have hitherto been made
to understand, that the reason of the omission of his majesty's govemours
of the said province to call a general assembly of the freeholders of the
same, from the first establishment of the civil government thereof, in the
year one thousand seven hundred and sixty- four, to the present time, ac-
cording to the powers and directions given them by his majesty in that
behalf, in their commissions of captain-general and govemour in chief of
the said province, has been the difficulty of finding a sufficient number of
subjects of his majesty in the said province properly qualified, in all re-
spects, to be members of such assembly, according to the directions of
the said commissions, which required, that all persons who should become
members either of the said assembly of the freeholders of the said prov-
ince, or of his majesty's council of the same, should take the oath of ab-
jaration of the pope's power, and subscribe the declaration against tran-
substantiation, as well as take the oath of allegiance and the oath of ab-
juration of the pretender's right to the crown of these realms, before
they were admitted to sit and vote in such assembly and council. And
this objection, we beg leave to represent, is now thought, by persons well
acquainted with the said province, to be at an end, there being now a
sufficient number of freeholders in the said province to constitute a house
of assembly, willing and ready to take the said oaths and declaration; in
proof of which we beg leave to inform this honourable house, that a peti-
tion has been lately presented to his majesty from the British and pro-
testant inhabitants of the said province, signed by a great number of per-
sons of that description, requesting his majesty to summon and call such
a general assembly of the freeholders of the said province, and assuring
him that there are a sufficient number of persons in the said province
qualified according to the direction of his majesty's commission for that
purpose, and humbly representing to his majesty, that the situation and
drcmnstances of the said province are at present such, as not only render
the said measure of establishing a general assembly practicable, but like-
wise make it to be highly expedient for the regulation and improvement
of the said province.

And we beg leave further to represent, that if it be thought inex-
pedient otk the one hand to constitute a house of assembly, consisting of
Protestants only, agreeably to the directions of his majes^s commis-
sions before-mentioned, on account of the great superiority of the num-
bers of the Roman^Catholicks in the said province, who would thereby
be excluded from sitting in such assembly ; and, on the other hand, it be
thought dangerous to summon a general assembly into which the Roman-
Catholicks should be admitted indiscriminately with the protestants; and,
on account of this twofold difficulty, it be judged necessary to have re-
course to the new method of government above-mentioned, by investing a
council of persons nominated, and removoable at, the pleasure of the
crown, with a certain degree of legislative authority; we humbly hope
that die same reasons which make it be judged dangerous to admit the
Roman-Catholick inhabitants of the said province into a share of the
legislative autiiority by means of an open assembly of the same, will be
tlwught sufficient to exclude them from obtaining a share of tiie same
authority by an admission into this new legislative council; which, being
a single body invested with the power of making laws for the province,
will be of more weight and consequence in the same, than as assembly of
the freeholders would be, if the plan of government promised by his
nsajesty's proclamation and commissions above-mentioned, by a govemour,
council and assembly, had been pursued. And therefore we cannot but
express our concern to find, that in the bill now before parliaments there
is no provision that all, or even any of, the members of the said intended
council should of necessity be protestants, but that they may be all Roman-
Catholicks notwithstanding any thing contained in the same. And there
lore we most humbly and earnestly intreat this honourable house to take

* Th« Quebec Act (»ee No. XXV).

78 Constitutional Documents of Canada. [1763-1774

care that, if such a legislative council must be established in the said
province, in lieu of an assembly of the freeholders of the same, the mem-
bers tiiereof shall be all protestants ; or, if that be thought too much to
grant to them, that at least a majority of the members of the said council
should necessarily be protestants, and only a few of the most moderate
sort of Roman-Catholicks should be admitted into it, who should be re-
quired to take the oath of abjuration of the pope's authority, though not
to subscribe the declaration against transubstantiation ; which is a tem-
perament, whidi, as we conceive, might lead to good effects hereafter.

And we further b^ leave to represent both on our own account, and
In behalf of our friends and correspondents, the antient British inhabi-
tants now residing in the said province, that, if the said province must
be governed by a legislative council, nominated by his majesty, without
the concurrence of an assembly of the freeholders of the same, we humbly
hope that a clause will be inserted in the bill, to render the members of
the said council incapable of being either removed or suspended by his
majesty's jfovemour of the said province, and liable only to be removed
by his majesty himself, by his order in his privy council, (of whose wis-
dom and justice we can entertain no suspicion) to the end, that the said
counsellors may both act with a spirit of freedom and independence be*
coming their high offices of legislators of the said province, and be thought
to do so by the people of the same, instead of being considered as depend-
ent creatures and tools of the will and pleasure of the govemour for the
time being, as we conceive will be the case, if he shall be invested with a
power of removing or suspending them from their said offices at his dis-
cretion.

And we beg leave furdier to represent, that it is also our wish, if
such a legislative council shall be established in lieu of an assembly, that
the number of the members thereof may be fixed and certain, instead of
being liable to vary between the numbers of seventeen and twenty-three
persons, as is proposed in the present bill; and likewise, that the said
council may be made as numerous as conveniently may be, to the end, that
it may contain within it persons acquainted with every part of the prov-
ince, and the interests of the inhabitants residing in the same, and that
their acts and resolutions may be, for the most part, agreeable to the sen-
timents of the body of the people over whom they are to preside. And,
with respect to this point, we beg leave to represent, that it is the opinion
of some of the most judicious and respectable of our friends and corre-
spondents in the said province, that it would be easy to find thirty-one
piersons amongst the British and other protestant inhabitants of the said
province, capable of being useful members of such a council.

And we further beg leave to represent, that in case such a legislative
council should be established, it is our earnest desire that provision may
be made in the said bill, that a certain number of the members of the
same shall be necessary to transact business; without which it may hap-
pen, that a very small part of the whole body, as, for example, five or
six persons, shall occasionally exercise the great powers vested in the
whole, and make laws and ordinances that shall bind all the inhabitants
of the province; which, we humbly conceive, would be highly inexpedient
and unbecoming, and cause greait uneasiness in the said province. And
we are humbly of opinion, that the number thus made necessary to the
exercise of these high legislative powers, ought to be more than half the
whole number of the members of such council.

And we further beg leave to suggest it as our opinion concerning
this legislative council, tlmt it would be expedient that the members thereof
should receive some reasonable reward out of the publick revenue of the
province, for every attendance at the meetings of the said council on the
legislative business of the said province, sufficient, at least, to defray the
cxpences of travelling to the place where the said meetings shall be held,
and of residing there during the time of the said meetings; to the end,
that at all the meetings of the said council, there may be a very full at-
tendance of counsellors, who may concur in exercising the sai4 high au-

V

\

1763-1774] Consiiiuiional Documents of Canada. 79

thority; without which, the ordinances they shall pass will not he very
likely to obtain the reverence due to them from the people, nor meet with
a chearful obedience.

But above all, we beg leave to repeat our most earnest hopes and de-
sires, that the establishment of the said legislative council (if it shall be
resolved that such a one shall be established), may be only for a small
number of years, to the end, that, in case it shall hereafter appear to his
majesty, that the situation and circumstances of the said province will ad-
mit of the summoning a general assembly of the freeholders of the same,
we may at last re^p die benefit of his most gracious promise to us in his
proclamation and commissions above-mentioned, that we should be gov-
erned in the usual and approved method of his majesty's other colonies
in America, by a govemour, council, and assembly.

We therefore humbly hope, that the honourable house of commons
will take our case into consideration, and permit us to be heard by our
council at the bar of their house, to the several heads mentioned in this
state of it, and to such other parts of the bill now before them, as we
shall apprehend ourselves to be concerned in interest to object to, either
on our own account^ or in the behalf of our correspondents and friends,
the Old British subjects of the crown now residing in the said province.
And we have a firm reliance on the wisdom and justice of this honour-
able house, the representatives of die Commons of Great-Britain, for a
satisfactory determination upon all the matters contained in. this case,
and upon the otiier points which may be submitted to their consideration
by our counsel at their bar, and for the protection of our rights and lib-
erties, as British subjects, who have acted under the sanction of his ma-
jesty's royal proclamation above-mentioned.

XXIII

LORD MANSFIELD'S JUDGMENT IN CAMPBELL v. HALL, 1774'

[Trans.: Shortt and Doughty.]

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
GeoiKC III, A.D. 1774.

November 2S.

The unanimous judgment of the Court was this day g^ven by Lord
Mansfield, as follows:

This is an action brought by the plaintiff, Alexander Campbell, who is
a natural-bom 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 imposts, and of the action brought, of a duty of four
and a half per cent upon goods exported from the island of Grenada.
The action is to recover a sum of money, which was levied by the de-
fendant and paid by the plaintiff, as, for this duty 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 with-
out consideration, the duty for which he received it not having been im-
posed by lawful or sufficient authority to warrant the same.

And it is stated in the special verdict that the money is not paid over,

^Thia Judgment baa been printed in full because (a) it proTides contemporary
lc(a] ofriaion regarding die laws of a conquered countrr and (b; because it estaolishes
Ac le^ positxon of the Proclamation of 1763 (No. IV}.

80 ConsHtuHonal Documents of Canada, [1763-1774

but continues in the defendant's hands, by consent of the Attorney-
General, 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 1762; 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, par-
ticularly the fifth, which grants that Grenada should continue to be gov-
erned 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 Grenada
requiring that they, as also the religious orders of both sexes, should be
maintained in the property of their effects, moveable and immoveable, of
what nature soever, and diat they should be preserved in their privileges,
rights, honours, and exemptions, the answer is that the inhabitants, being
subjects of Great Britain, will enjoy their properties and the same privi-
leges as in the other His Majesty's Leeward Islands.

Then it states another article of the capitulation, 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 ad-
ministration of government should be paid out of the King's demesne: in
answer to which they are referred to the answer I have stated, as given
in the foregoing article; that is, being subjects they will be entitled in like
manner as the other His Majesty's subjects in the British Leeward Islands.
The next thing stated in the special verdict in the treaty of peace
signed on the 10^ of February, 1763; and it states the part of the treaty
of peace by which the island of Grenada is ceded, and other articles which
are not material.

The next material instrument which they state is a proclamation under
the Great Seal, bearing date the 7th of October, 1763, 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 pa-
"temal care for the liberties and rights of those who are, or shall be in-
"habitants thereof ; we have thought fit to publish and declare by this our
"proclamation, that we have by our letters patent under our Great Seal of
"Great Britain, whereby our said Governments are constituted, given ex-
"press power and direction to our governors of our said colonies respec-
tively, 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 government And
we have also given power to the said governors, with the advice and con-
"sent of our said council and assembly of representatives as aforesaid, to
"make, constitute, and ordain laws, statutes, and ordinances for the public
"peace, welfare and good government of our said colonies and the inhabi-
"tants 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 procla-
mation of the 26th of March, 1764, whereby the King recites, that he had
ordered a survey and division of die ceded islands, as an invitation to all
purchasers to come and purchase upon certain terms and conditions speci-
fied in that proclamation.

The next instrument stated in the verdict is the letters patent bear-
ing date the 9th of April, 1764. In these letters there is a commission ap-
pointing General Melville Governor of the island of Grenada, with power
to summon an assembly as soon as die situation and circumstances of the
island would admit; and to make laws in all the usual forms with refer-
ence to the manner of the other assemblies of the King's Provinces in
America.

The Governor arrived in Grenada on the 14th of December, 1764; be-
fore the end of 1765, the particnUr day not stated, an assembly actually

u
If
<*

41

1763-1774] Constitutional Documents of Canada. 81

met; but before the arrival of the Governor at Grenada, indeed, before
his Commission, and before his departure 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 sug^r 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 impost or customs of four and a half per cent, in
"species, 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 sue-
"cessors, for and upon all dead commodities of the growth or produce oi
"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 im-
"ported 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'';

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
substance 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 abro-
gate 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
of the 7th of October, 1763, the King by his prerogative could not have
imposed them; and (2) that, sdthough the King had sufficient authority
before the 7th of October, 1763, he had divested himself of that authority
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. The stating 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 arms becomes a dominion oi
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 conqueror's pro-
tection become subjects ; and are universally to be considered in that light,
not as enemies or aliens.

3. Articles of capitulation, upon which the country is surrendered
and treaties of peace by which it is ceded, are. sacred and inviolate, ac-
cording to their true intent and meaning.

4. The law and legislation of every dominion equally affects all per-
sons and property within the limits thereof, and is the true rule for the
decision 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, Minorca, the Isle of Man
or the Plantations, has no privilege distinct from the natives while he
continues there.

5. The laws of a conquered country continue in force until they are
altered by the conqueror. The justice and antiquity of this maxim are
mcontrovertible ; and the absurd exception as to pagans mentioned in

82 ConsHtutioncU Documents of Canada, [1763-1774

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 expressly provides and agrees that they shall continue to be
governed by their own laws, until his Majesty's pleasure Be further known.

6. If thb King has power (and when I say "the 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 subor-
dinate to his own authority as a part of the supreme legislature and par-
liament— ^he can make none which are contrary to fundamental principles
he cannot exempt an inhabitant from the laws of trade, or the authority
of Parliament, or give his privileges exclusive of his other subjects; and
so in many other instances that might be put.

The present Proclamation is an Act of thb 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 subor-
dinate to the constitution and parliament. It is left by the constitution
to the King's authority to grant or refuse a capitulation. If he refuses,
and puts the inhabitants to the sword, or exterminates them, all die 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 protection and grants them their property, he has
power to fix such terms and conditions as he thinks proper. He is en-
trusted with making peace at his discretion; and he may retain the con-
quest, 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 gov-
ernment of a conquered 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 L, 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 mis-
take. Whenever the first parliament was called in Ireland, that change
in their constitution was without an act of the parliament of England, and
therefore must have been derived from the King.

Mr. Barrington 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 preamble says, was then totally subdued; and, however for purposes
of policy he might think fit 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. There*

1763-1774] Constitutional Documents of Canada. 83

fore 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 ^e conquest of it, was governed by charters from tht
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 parliament,
that act would be extant, for tiiey 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 regulations
relative to each of the conquests which I have named; none making 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 constitu-
tion: for the inhabitants were summoned by writ to send burgesses to the
English i>arliament; and, as this was not by act of parliament, it must
have t>een by the sole act of the King.

Besides the garrison there are inhabitants, property, and trade 3l
Gibraltar ; the King, ever since that conquest, has from time 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 follow
a conquest by the King of England) the same argument applies here ; for
before the 7th of October, 1763, 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 Qiarles II. changed its constitution and poli
tical 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
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 re-
port of the arguments and resolutions of the judges in Calvin's case lays
it down as clear (and that strange extrajudicial opinion, as to a conquest
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, ^nd 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
hinuelf 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 king-
dom 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 property
authority on which to found a decision, yet I cite them; — ^not to estab-

84 ConstituHonal Documents of Canada, [1763-1774

lish so dear 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 conformable to these principles. In 1722, the assembly of Jamaica
refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir
Qement Wearg, what was 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 occasions, 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 Restoration; if any, they were very few. A gentleman 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 Jamaica; but there
were amongst the negroes. The King, I mean Charles the Second, after
the Restoration invited settlers by proclamation, promising them his pro-
tection. 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 immediately under the
King has arisen in the same manner; not by the grants, but by commis-
sions, 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 Kins
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. At-
torney-General.

A maxim of constitutional law, as declared by all the judges in Cal-
vin's case, and which two such men in modem 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
in 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 be-
fore the letters patent of the 20th of July, 1764, the King had precluded
himsdf 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 the proclamation of the 7th of
October, 1763. See what it is that the King there says, and with what
view he says 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 pa-
ternal care for the security^ of the 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 governments
are constituted, given express power and direction to our governors of our
said colonies respectively, that, so soon as the state and circumstances of
the said colonies will admit thereof, they shall, with the advice and con*
sent of the members of our council, summon and call general assemblies"
Cand 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 Grenada is one, "and of the people and inhabitants thereof, as
near as may be agreeable to the laws of England." With what view is

1763-1774] Constitutional Documents of Canada. 85

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 assembly 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 properties, and with a view to invite them to go and
settle there after this proclamation that assurred them of the constitution
ander 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 increase 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 Melville, to call an
assembly as soon as the state and circumstances of the island should ad-
mit— ^You wUl observe in the proclamation there is no legislature reserved
to be exercised by the King, or by the governor and council under his au-
thority, or in any other method or manner, until the assembly should be
called : the promise imports the contrary ; for whatever construction is to
be put upon it, (which perhaps it may be somewhat 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 jus-
tice; not an interposition of legislative authority between the time of the
promise and of calling the assembly. It does not lt>pear 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 notliing in the state
and circumstances of the island to prevent calling an assembly.

We therefore think that, by the two proclamations and &e commis-
sion to Governor Melville, the Kin^ had immediately and irrevocably
granted to all who were or should become inhabitants, or who had or
^otild have property, in the island of Grenada — in general to all whom
it might concern — that the subordinate legislation over the island should
be exercised by an assembly, with the consent of the governor and council,
m like manner as in the other provinces under the King.

Therefore, tiiough the right of the King to have levied taxes on a
conquered country, subject to him in right of his crown, was good, and
the duty reasonable, equitable, and expedient, and, according to tiie find-
ing of the verdict, paid in Barbadoes and all the other Leeward islands;
yet by the inadvertency of the King's servants in the order in which the
several instruments passed the office (for the patent of the 20th of July,
1764, for raising the impost stated, should have been first), the order is
inverted, and the last we think 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 Philip Yorke and Sir Clement Wearg, "by
die assembly of the island, or by an act of the Parliament of (jreat
Britain."

The consequence is, judgment must be given for the plaintiff.

86 Constitutional Documents of Canada. [1763-1774

XXIV

DEBATES IN THE BRITISH PARLIAMENT ON THE QUEBEC

ACT. 1774*

[Trans.: Wright, Cavendish's Debates on the Canada Bill (London, 1839].

Lord North, — ^The honourable gentleman next demands of us, will
you extend into those countries the free exercise of the Romish religion?
Upon my word, Sir, I do not see that this bill extends it further than the
ancient limits of Canada; but if it should do so, the country to which it
is extended is the habitation of bears and beavers; and all these regula-
tions, which only tend to protect the trader, as far as they can protect
him, undoubtedly cannot be considered oppressive to any of the inhabi-
tants in that part of the world ; who are very few, except about the coast,
and at present in a very disorderly and ungovernable condition. The gen-
eral purpose is undoubtedly to give a legislature to that country. It was
very much, I believe, the desire of every person, if it were possible, to
give it the best kind of legislature; but can a better legislature be given
than that of a governor and council? The honourable gentleman dislikes
the omitting the assembly ; but the assembly cannot be granted, seeing that
it must be composed of Canadian Roman Catholic subjects, otherwise it
would be oppressive. The bulk of the inhabitants are Roman Catholics,
and to subject them to an assembly composed of a few British subjects
would be a great hardship. Beings therefore, under the necessity of not
appointing an assembly, this is the only legislature you can give the Cana-
dians, and it is the one under which they live at present. The governor
and council really have been the legislature there ever since our conquest
of it, and it is now putf under some rejgfulation. Hitherto, France has con-
ducted the business — that is all the difference ; if we do nothing, it must
remain in the hands of the governor and council. The question is, whether,
so regulated, this is not better. All the other colonies have been governed
by a governor and council ; it is not, therefore, so totally anomalous. The
honourable gentleman objects to the want of a quorum. It is only givini^
full notice to all whose duty it is to attend, and when they do attend,
things are to be decided by the majority, as in all other assemblies.

Now, Sir, with regard to giving French law — if gentlemen will re-
member, the most material part of the criminal law is to be according to
English law. The civil law* of Canada certainly is to be the French law ;
but. Sir, I understand the establishing of these laws to be given as the
basis upon which the governor and legislative council are to set out. Sir,
you would not send die governor and council to choose their own con-
stitution— to choose their own laws entirely. You must tell them from
what laws they are to take their departure. It has been thought better
calculated to secure the happiness of Canadians, and more beneficial for
all who live in the country, that they should have the civil law' of Canada,
and not that of England. If the Canadian civil law is incompatible with
the present condition and wishes of the colony, the governor and council
will have power to alter it. But there must be a general basis ; there must
be a law established, ready to be amended and altered as occasions shall

* The Quebec Act was introduced in the House of Lords on May 2, 1774, by Lord
Dartmouth, President of the Board of Trade and Plantations.- It passed without oppo-
sition on May 17. In the House of Commons it was debated from May 26 tojune 13.
Durinff these debates several witnesses were examined, including Carleton, Chief Jiia-
tice iiey and Maseres, and some minor amendments were made.

The debate in the House of Commons was begun by Thomas Townshend (after-
wards Viscount Sydney)* who accused the Government of lukewarmness and delay in
relation to Canadian affairs. Lord North defended the measure through all its atacea

until it passed the House of Commons on June 13 by a majority of twenty •aix ia a
house of seventy-six. It was finally passed in the House of Lords on Junci 16, by a
majority of nineteen in a hotise of thirty-three, and received the Royal assent on

iune 22. Lord Chatham opposed the bill in a violent speech, of which only an outline
as been preserved. (See Chatham's Correspondence, IV, pp. 351 ff.)

*The Coutume de Paris codified in 1510 and introduced into Canada in 1664. A
detailed report on the civil law in force in French Canada was drawn up at Carleton's
request and published in London in 1772.

1763-1774] Constitutional Documents of Canada. 87

arise, and as the circumstances of the colony shall require. It has been
the opinion of very many able lawyers, that the best way to establish the
happiness of the inhabitants is to give them their own laws, as far as re-
lates to their own possessions. Their possessions were marked out to
them at the time of the treaty; to give them those possessions without
giving them laws to maintain those possessions, would not be very wise.
The French law may be worse than the English, but the particular por-
tions for which we have the highest value ourselves, are a part of our
political law, and a part of our criminal law. These may be acted on in
Canada, seeing that the criminal law has been submitted to for nine years,
and is, I dare say, approved of by the Canadians, because it is a more
rd&ned and a more merciful law than the law of France.

As to the free exercise of their religion, it likewise is no more than
what is confirmed to them by the treaty, as far as the laws of Great
Britain can confirm it. Now, there is no doubt that the laws of Grea^
Britain do permit the very full and free exercise of any religion, different
from that of the church of England, in any of the colonies. Our penal
laws do not extend to the colonies ; therefore, I apprehend, that we ought
not to extend them to Canada. Whether it is convenient to continue or
to abolish the bishop's jurisdiction, is another question. I cannot conceive
that his presence is essential to the free exercise of religion ; but I am sure
that no bishop will be there tmder papal authority, because he will see that
Great Britain will not permit any papal authority whatever in the country.
It is expressly forbidden in the Act of Supremacy.

I dare say, Sir, I have not given an answer to many of the questions
put to me by the honourable gentleman ; nor do I recollect whether I have
explained what I take to be the purpose of the present bill. It certainly
gives to the Canadians many of their laws and customs; which laws and
customs can be safely given to them. If alteration in those laws and cus-
toms should be deemed necessary, there is a legislature established, whidi
will be ready to make those alterations. In a general plan of government,
it is not possible to enter into a detail of what is proper, or what is im-
proper, in Canada : it must be left to the legislature on the spot to consider
all their wants and difficulties. The present bill will give laws, the principal
laws, from which the legislature ought to take their departure—criminal
law, civil law, political law. That is the purpose of the bilL It has appeared
to be the best plan that could at present be devised; and it requires and
deserves the immediate attention of the House. The honourable gentleman
asks, why, before it was introduced into the House of Lords immediately
after Easter, full notice was not given, that it would come down here?
Sir, we are not to blame for the omission : there is, however, abundance of
time to go through the bill, to correct, to approve, or to amend it. His
Majesty's message recommended Parliament to take up the subject: and as
soon as it was in a fit state to be laid before the other House, I am con-
fident the noble lord brought it forward.

Sir, the honourable gentleman proposes to limit the bill in point of
time. That will be a proposition for the committee to consider: it is not
now proper to be entertained. If you mean to have the bill exist even but
for a year, you will read it now a second time. The question of duration
is a question that will come on hereafter; it is not a proper one for the
present moment I own I shall not be for a limitation, and I shall be ready
to sabmit my reasons ; but if the committee should think proper to alter it,
I must acquiesce, rather than leave the Canadians without any legislature
at alL Better far to give them some legislature, than leave them for three
or four years in their present situation.

The honourable gentleman put a question to me concerning a revoca-
tion of the judges' commissions. Certainly, there can be no intention to
remove any of those officers who are now there. It is a happy circumstance
for this country, that gentlemen of their merit should have been willing
to go and establish themselves there. It is a happy circumstance for the
Canadians, that they are there established: but as the form of the courts
of justice is not agreeable to the practice in England, it must be altered;

88 Constitutional Documents of Canada, [1763-1774

which will make a revocation of their commissions necessary. I dare say.
and I am sure I hope, they will be given to the same individuals, who have
exercised their ^ functions so honestly. Nothing, I am confident, will stand
in the way of it, but the wishes of ^e gentlemen themselves. I have not
heard that any of them desire to quit their situations ; and it most assuredly
is neither the interest of his Majesty, nor that of his subjects, to desire
them to quit the posts they so honourably hold. ....

Mr. Dunning — Sir, the bill is as extensive as any bill that was ever
offered to the consideration of Parliament Its direct object is to take from
a large number of the King's subjects that constitution which was given
to them ten years ago; to take that constitution from them, and to give
them another in the place of it. Have, Sir, those subjects expressed a wish
to part with what has been given them? Have they expressed a wish to
have the one which is to be given in the place of it? I apprehend no such
wish has been communicated to this House ; and if any servant of govern-
ment in that country has sent home a representation to that effect, such
representation is equally unknown to me, and I apprehend to the rest of
the members of this House; but if any such representation is intended to
be made, I should wish this House to be acquainted with it . . .

However, let us see, Sir, what is the form of government, for the sake
of which this bill is to be supported. The form of government is this.
The Roman Catholic religion is established by law. All the arguments
urged by the noble lord, tending to shew that, de jure, the Roman Catholics
are entitled to a full toleration, I admit to be well founded in law; but
does that imply, that the same toleration should be given to them every
where? Upon the last part of the case, different gentlemen may entertain
different opinions. My opinion of toleration is, that nothing can be more
impolitic than to give establishment to that religion which is not the religion
of our own country. Among the circumstances that unite countries, or
divide countries, a difference in religion has ever been thought to be the
principal and leading one. The Catholic religion unites France, but divides
England. Without going further into the subject, it suffices for me to say,
that the religion of England seems to be preferable to the religion of
France, if your object is to make this an English colony. When one sees
that the Roman Catholic religion is established by law, and that the same
law does not establish the Protestant religion, the people are, of course,
at liberty to choose which they like. Permission is given to the governor,
to do what he will with the Protestant religion ; and this, to thos^ who are
gone there in pursuance of the proclamation, may givt encouragement;
but the bill gives them none. Are we, then to establish the Roman Catholic
religion, and tolerate the Protestant religion? I conceive so; for this dis-
tinction is founded in the terms of the bill.

The noble lord says, the free exercise of religion was promised by the
treaty of peace — was promised by the proclamation. Does the noble lord
say, that this bill gives them nothing more? If the noble lord will do me
the favour of casting his eye a little down the same page, he will see that
the clergy of .the Roman Catholic religion are reinstated in idl their accus-
tomed rights and dues. What, Sir, are those accustomed rights and dues?
I wish some gentleman would do the House the favour to inform them,
what is the extent of the rights and dues of the Roman Catholic clergy.
I take leave to suppose that, under the denomination of Catholic clergy, die
bishops' rights and dues are included. The noble lord says, there is no
papal jurisdiction. I wish to be told, what is the authority by which he
becomes a bishop? I know he becomes such by consecration in France;
but, in order to qualify him for this present office, the noble lord will be
so good as to tell us what the act appoints. We shall then be able to judge
how far he considers himself of papal constitution, or instituted by govern-
ment. Sure I am, if he is allowed to exercise this right, he will be found
to insist upon it

But, Sir. the religion of the country is only one of the various objects
which this bill professes to regulate and establish, throughout this vast
extent of territory. The bill provides, that the laws of Canada are to be

1763-1774] CansHtuHonal Documents of Canada. 89

in future the laws of the country. As the bill first stood in the other
House of Parliament, it was not expressed whether the laws were to be
those of Canada or England. The clause stood, with the omission of those
words; but Canada is now inserted, and all persons are henceforward to
be subject to that law. As to all their civil rights, the noble lord has in-
formed us, that the criminal law of England is to be preserved by this bill,
agreeably to ^e proclamation. But, Sir, is the criminal law alone that on
which we pride and value ourselves? Have we no civil law, on which we
pride and value > ourselves? Is there nothing at all in the constitution
of England worth priding and valuing ourselves upon, but the mode of
trying criminals? Is that the single circumstance that makes the Eng-
lish constitution valuable? This is new language to me. If that is the
idea of the noble lord, I wish him joy of it; but, to do him justice, I believe
he did not mean to be so understood, in the largeness of the phrase. Who-
ever may think the criminal laws are alone the valuable part of this con-
stitution, I beg leave to say, that the civil distribution of justice in this
country is, in my apprehension, its pride, its boast, and its glory ; and that
it is among the most valuable rights that any cotmtry can enjoy. To my
apprehension, the trial by jury is the best adapted for the investigation of
trutb — for the establishing of truth— for the distributing equal justice— of
any measure of which the annals of history have furnished us with any
intelligence. Young, Sir, as I am in my profession, I am old enough to
remember,— and it will for ever dwell in my recollection, unless driven out
by the principle which the noble lord has endeavoured to establish — I am
old enough to remember to have heard, that the institution of juries began
at a time, and was adapted to a state of things and persons, very different
from the present To find out the time, it is necessary to contrast it with
the trial by ordeal and the trial by battle. Will this earlier principle be
avowed now to be the principle of the King's lawyers in this House, or the
other House, or in any house?

.... This proposed constitution for Canada does this: it denies to
English subjects the English birthright, trial by jury. Sir, the most valu-
able of their civil rights is taken from them by this bill. The honourable
gentleman near me observes, that the Habeas Corpus is among those civil
rights. Is tiiat among the laws of Canada? — I do not know what they are.
I cannot put questions. I cannot see any man here who would be war-
ranted in giving me an answer, if I did ask questions about those unknown
laws of Canada. We know, however, so much of them as to know that
they are adopted from France. The Canadians brought them from France ;
and is it not among those laws, that the governor may issue a lettre de
cachet to send away whom he pleases, to shut up whom he pleases? I
know lettres de cachet are issued against persons not charged of any
crime; not even suspected of any: some reasons have, notwithstanding,
operated to make a man invisible for a time. This law of France I take
to be transplanted to Canada by this bill. By the laws of England, a man
may find his remedy: the laws of Habeas Corpus are among the laws of
England: they existed at common law: in some instances, £ey are made
more beneficial by the statute law. But when the laws of Canada are
looked to in order to furnish redress, the same laws will, of course, refuse
any redress. Is this a trifle, to leave the people of Canada in a situation,
which any man who hears me would shudder to be left in himself?
Wbetiier this legislative council has authority to add to the number of
those laws — whether those laws are the groundwork, as the noble lord
says, in conformity with which, according to the plan sent to them, this
legislative council is expected to make new laws, in the spirit and temper
of the old ones — I trust that those gentlemen who are now sending to
Canada, to a district of this immense extent, a constitution of this nature,
vOl not be found to furnish arguments in favour, either of abolishing the
trial t^ jary, or of establi^ing the laws of France.

I see also, that this country is hence forward to be governed by a
legislative council, consisting of seventeen at least, and not more than
twenty-tluree. The governor may make and unmake his creatures, as they

90 Constitutiofud Documents of Canada, [1763-1774

become fit tools for his purpose. They will therefore at all times, while in
their senses, be solicitous and anxious in endeavouring to guard against
incurring his displeasure. The minister has nothing to do but issue his
order: those individuals have nothing to do but obey. He will find the
inhabitants at his disposal; because the inhabitants who are at his disposal
are creatures of the minister. In my apprehension, Sir, if the King
remained the sole legislator of the country, the condition of it would be
better than when the governor is put in his place to exercise that power. —
(Here Mr. Dunning paused a long time.)

I should have been sorry to have forgotten the avowed purpose of
bring^g in this bill. It is no less than to exercise, by assuming, for the
purpose of exercising it, the dispensing power which, hitherto, is claimed
only by the great pontiff, the pope. We are to take his place; we are to
regulate, model, dispense with the King's conscience. The King, thirteen
years ago, give a constitution. The King, upon that occasion, gave encour-
agement to future settlers. Though the King is said to be the sole legis-
lator, it is a strange inconsistency, that he should be hampered by his own
legislation. Some doubts have arisen upon this part of the case, for want
of looking forward; and the consequence is, when any temporary incon-
venience arises, then a breach of the King's promise — a breach of the
King's compact, is talked of : but is it fit, is it decent, that the King's word
should be brought into question? But somebody else should dp it for him !
The Kin^ would be thought to act an unbecoming part if, in violation of
his promise, he were to take from them their former constitution, and give
them a different one; but it is proper enough for Parliament to do that I
Sir, how comes this to be so? Have gentlemen a precedent to produce, to
prove that it is proper for Parliament to do it, and not proper for the
King himself to do it? But is it not, at the same time, fit that the promise
should be kept? Ought you not, upon the principle of strict justice, to
make some provision for persons coming to the place upon promise that
the English laws should be continued, who find out that they have got into
a country governed by a despotism; — that they have got into a country
where the religion they carried with them has no establishment? — that
they have got into a country where they are to wander throughout an
immense extent of territory, or to find their way back again as they can ;
which they will do, when they consider the treatment they are to meet
with if they remain there?

Sir, the bill professes ostensible good, but is pregnant with ostensible
mischief. It is not adopted or avowed by anybody, abroad or at home.
All the answer the honourable gentleman received to his question was,
"this is a bill that came from the House of Lords." If that circumstance
alone is sufficient reason for passing it, without any argument, to be sure
the bill is so far entitled to the concurrence of this House; but if something
more like a reason is thought necessary, I shall be glad to hear it; I shall
be glad to have a ground to change my opinion. Until then, Sir, I shall
certainly give this bill a decided negative.

The Attorney-General [afterwards Lord Thurlow]. — . . . .With regard.
Sir, to the rest of the inconveniences: we have been told, that this bill
proposes to take from our fellow-subjects of Canada a constitution, which
has already been given^ and to place them under a despotism, unfit t« be
established in any province belonging to Great Britain. The articles men-
tioned in support of this assertion are, the religion and civil law of the
Canadians being established at Quebec, and the political government for-
merly in Canada being continued there. I will say one word, if the House
will indulge me, as to the taking away the right formerly given. Canada
was a country that had been held by the French for above two hundred
years before our conquest of it It had been taken from the people of
France by the King of France, and put under his immediate government,
for above a hundred years before it was taken by our people. At the time
of the conquest, with 120,000 souls, if I recollect right, there were about
one hundred and fifty of those of the order of noblesse. Th^ original
lorm, not of the govemmenti that is not said, but the original form of civil

1763-1774] Constitutional Documents of Canada. 91

justice, tinder which they lived (using the word "civir in the largest sense,
for it took in both civil and criminal Taw), was taken from them; but there
was very little of the law contained in the Parisian book carried over to
the country. The reason is exceedingly obvious, because, in the establish-
ment of a country totally new, differing in all particulars from the country
of old France, it would have been the most enormous of all cruelties to
have carried over a law, from the meridian of Paris, in order to put it
into immediate execution in a raw, unformed province. So much as was
carried over appears to have received very considerable alteration from the
l^islature which the King of France established there. The legislature
consisted of the governor and of the council, which they called the superior
council, and in which the intendant of police bore a principal part Beyond
the authority which he had as a magistrate, and as the president of the
council, he had great independent authority in making laws of police; he
had great independent authority in being sole judge of all causes that
related to the revenue ; and under that establishment the province remained
for ninety or one hundred years, before it was taken by the English. When
it was tadcen, gentlemen will be so good as to recollect upon what terms
it was taken. Not only all the French who resided there had eighteen
months to remove, with all their moveable effects, and such as they could
not remove, they were enabled to sell ; but it was expressly stipulated, that
every Canadian should have the full enjoyment of all his property, particu-
larly the religious orders of the Canadians, and that the free exercise of
the Roman Catholic religion should be continued. And die definitive
treaty of peace, if you examine it as far as it relates to Canada, by the
cession of the late King of France to the Crown of Great Britain, was
made in favour of property; made in favour of religion; made in favour
of the several religious orders. In this situation it was, that the Crown
of this country was called upon to form a' constitution for Canada: yet,
something has been thrown out, as if it was a favourite idea of certain
men of this country, that the Crown should be considered as the legislator
of a country newly conquered. I will not run through all the authorities,
and all the arguments, which are common-place upon the subject; but I
have always considered the English constitution, upon that point, to be
this, — that what was conquered by the arms of England acceded to the
English sovereign, which is as much as to say, to the King^ Lords, and
Commons of England. I have always understood, also, that it was under
that authority, and in conformity with the rule and measure of law, that
in every instance, through every period of English history, the King has
given to newljr-conquered countries their constitution; subject to be cor-
rected by the joint interposition of the King, Lords, and Commons of this
country ; and that such constitution might be reformed, by correcting the
ill advice, if. any ill advice had been given, under which the King had acted,
m giving them a constitution, upon the event, and at the moment, of the
conquest.

Then, Sir, the question occurs — upon the conquest of this country, what
was it incumbent to advise the King to do with respect to it? I have
heard a great deal of the history ol the famous proclamation of 1763;
which, though not an act of Parliament, fares pretty much as ill as this
proposed act appears to do; for I think it meets widi nobody to avow it
The proclamation certainly gave no order whatever with respect to the
constitution of Canada. It certainly, likewise, was not the finished compo-
sition of a very considerable and respectable person, whom I will not name,
but went unfinished from his hands, and remained a good while unfinished
in the hands of those to whom it was consigned afterwards. It professed
to take no care of the constitution of Canada ; it states all the ao^uisitions,
both of the peopled countries and barren territories — the latter being many
hundred times larger than the former — ^which were made in the course of
the last war; and, speaking of them all in general, it declares to mankind,
that his Majesty thought proper to divide them into certain distinct and
separate governments ; that it was in his Majest/s contemplation to give
them a constitution, like that which had been given to the other colonies,

92 Constitutional Documents of Canada, [1763-1774

as soon as the circumstances of the colony would admit of it; and it
promised to settlers, expressly to invite them to settle, that, in the mean-
time, they should have the benefit of the laws of England. So ran the
proclamation. Now, Sir, a proclamation conceived in this general form
and applied to countries the most distant, not in situation only, but in
history, character, and constitution, from each other, will scarcely, I believe,
be considered as a very well studied act of state, but as necessary imme-
diately after the conquest But, however proper that might be with respect
to new parts of such acquisitions as were not peopled before, yet, if it is
to be considered according to that perverse construction of the letter of it;
if it is to be considered as creating an English constitution ; if it is to be
considered as importing English laws into a country already settled, and
habitually governed by other laws, I take it to be an act of the grossest and
abs|irdest and crudest tyranny, that a conquering nation ever practised
over a conquered country. Look back. Sir, to every page of history, and I
defy you to produce a single instance, in which a conqueror went to take
away from a conquered province, by one rough stroke, the whole of their
constitution, the whole di their laws under which they lived, and to impose
a new idea of right and wrong, of which they could not discern the means
or the end, but would find themselves at a loss, and be at an expense greater
than individuals could afford, in order to inform themselves whether they
were right or wrong^. This was a sort of cruelty, which, I believe, was
never yet practised, and never ought to be. My notion, with regard to this
matter, I will venture to throw out as crude and general. To enter into
the subject fully, would require more discussion than the nature of such
a debate as this will admit of. My notion is, that it is a change of sove-
reignty. You acquired a new country; you acquired a new people; but
you do not state the right of conquest, as giving you a right to goods and
chattels. That would be slavery and extreme misery. In order to make
the acquisition either available or secure, this seems to be the line that
ought to be followed — ^you ought to change those laws only which relate
to the French sovereignty, and in their place substitute laws which should
relate to the new sovereign; but with respect to all other laws, all other
customs and institutions whatever^ which are indifferent to the state of
subjects and sovereign, humanity, justice, and wisdom equally conspire to
advise you to leave them to the people just as they were. Their happiness
depends upon it; their allegiance to their new sovereign depends upon it
Sir, what happened at the conquest? This proclamation being sent out in
the manner mentioned, was not addressed to the Canadians. If it be true,
that his Majesty may, according to the principle of law, or pursuant tp the
history of the law, of this country, universally and uniformly — (there is
not an exception to the contrary)— ^ive new laws to the country, in what
manner is that to be done? By an instrument not addressed to them? By
an instrument, so far from adding anything to their laws, not mentioning
them? But, it is said, they generally did understand, that such should be
their constitution, without reference to them in particular. I wish gentle-
men would go back to the proclamation in 1763, and I would ask them from
what expression it is, that either the Canadians can discover or English
lawyers advance, that the laws of Canada were all absolutely repealed, and
that a new system of justice, as well as a new system of constitution, was
by that instrument introduced. Sir, the consequence of that proclamation
was, that commissions were granted to the governor, in the manner they
were granted to the governor of New York on a former occasion. The
difference between the establishment of New York and the establishment
of Canada was, as the difference of 1,700 and 120,000. It is true, there was
likewise a commission of admiralty given in the English form; and a
variety of other articles, known to antiquarians, not known in Canada.
There was also a commission of oyer and terminer. The honourable and
learned gentleman who spoke last made an objection to repealing all the
present existing commissions. I do not know whether it had occurred to

* See No. XXIII. Lord Mansfield's Judgment.

1763-1774] Constitutional Documents of Canada. 93

him to read the present existing commissions. If it had, I think he would
not hesitate mudi upon repealing them; because the general commissions
of oyer and terminer, etc., are temporary. The other commissions are,
one to the court of King's Bench, and another to the court of Common
Pleas. The commission to the court of King^s Bench is to inquire, by the
oath of good and lawful men of the country, into all crimes, causes of
actions, and upon issue; jumbling together the criminal and civil juris-
diction of the country. They were framed, I believe, in Canada. How
they came to be so framed, I cannot imagine. The first thing discovered
was, that they were impracticable; not only impracticable with respect to
the people, but impracticable with respect to the commissions themselves.
The people were so ignorant, not only of the form of our law, but with
respect to personal actions, that it was totally impossible to execute them.
If any dispute arose, there was no instance of the Canadians resorting to
the English courts of justice; but they referred it among themselves, for
among themselves only could they find any idea of what they had been
used to. I would ask any gentleman, whether, if the thing had been done
according to some men's opinions, diey could have afflicted any country
with a greater curse, than an intricate system of laws, which they could
not understand the terms or meaning of?

With regard to the criminal law of the country, in the first place, it
is more simple, in the next place it is more compulsory; so they did, in
point of fact, find their own way. The first thing that happened which I
recollect in the history of Quebec, was, that the grand jury desired to
have all the accounts of the province laid before them, and, in the next
place, there were some very laudable, good Protestants among them, who
desired that the Popery laws should be carried fully into execution. They
lodged a general presentment against all the inhabitants of the colony for
being Papists.

With regard to the civil laws, the whole was overturned. In their
tenures, when any man found himself wronged by the French laws, he
went to an English attorney, to know how to get it righted. If wronged
by the English laws, he was told, that a proclamation was no law. The
consequence was, that the King lost all profit from tenures ; and in many
other articles, such as transmutation of property, they were unwilling,
because they had not the benefit of the English laws, to pay any thing to
the King.

The state of confusion the country was reduced to, and individuals
were reduced to, was beyond all manner of description. In this situation
they remained uncorrected during all this compass of time; and now the
present bill is upbraided, because it does not adopt a trial by jury, which
necessarily includes the form of English actions, in a case where it would
be destructive to the peace and happiness of the country. If it would make
them happy, undoubtedly let us give them English laws. If the English
laws would be a prejudice to them, it would be absurd tyranny and bar-
barity to carry over all the laws of this country, by which they would lose
the comfort of their property, and in some cases the possession of it. As
far as that goes, I consider it merely as a gift of the conqueror to the con-
quered people, whom he does not mean to treat cruelly. The criminal law
stands as in England. I have observed many things exceedingly strong
which have, in my poor opinion, prejudiced the Canadians against the bill ;
but as to the criminal law, it is certainly liable to none of the objections
now urged.

The next article is with regard to religion. To take away religion is
what nobody wishes. What is to be substituted in the place of it? Why,
a geneial toleration, says my learned friend, without any kind of establish ^
ment; or if an establishment, that of the church of England; or that the
churdi of England should at least go pari passu with the church of Rome.
Taking it in either of those views, I fairly own, I differ very much in
opinion with regard to the law of this country. By the first of Elizabeth,
I take it that there is no reason whatever, why the Roman Catholic religion
should not have been exercised in this country as well as in that ; confining

94 Constitutional Documents of Canada. [1763-1774

it entirely to that act, I know no reason to the contrary. The 37th article

of our religion speaks in such language, that the poorest Roman Catholic,

who had any sense, might use it just as much as the warmest Protestant;

for the language by the act^ and article, is only this, that no foreigner

whatever should have any jurisdiction, power, or authority within the

realm: but there is nothing in the act to prevent a man believing the m-

fallibility of Popery, if he thinks proper to believe it It may refer to any

church in the known world. I take the act of parliament to be purely

declaratory of that which is the law—of that which must be the law, in

every sovereign state under heaven. Then as to the right of the clergy

to their dues; the right of the bishop to his dues — these rights do not

extend to his ecclesiastical functions ; they extend only to that maintenance

which he was possessed of before, and which was small enough before.

In lieu of tithe, there was a thirteenth paid to the clergy. The bishop has

always lived in a seminary; the see was not sufficient, in point of effects,

to maintain him : but observe in what manner his rights are reserved. They

are reserved to be exercised only with relation to such as choose to be

Catholics. Nobody is compelled to be a Catholic: they are rather invited

not to be Catholics, by having an exemption held out to them. If that be

the suffipient performance of the stipulation in the treaty of peace, and if

the country is ready to accept of it eo nomine, gentlemen should make no

objection to it It is the very least that could have been given either to

humanity or justice ; considering them as having stipulated for that religion

at the time. If I had had to prescribe what was to be pfiven them, I should,

instead of stripping the Roman Catholics of their religion, which was the

religion of all temporal and all judicial authority, have thought myself

bound in conscience and humanity to have allowed the religion, with one

degree more of establishment, if it must be called establishment; I mean

with one degree more of maintenance than it had before.

The next objection is that which relates to the governor and council.
I could wish that those gentlemen who object to the legislature would be
pleased to substitute something in the place of it I have never yet heard
the most sanguine of those who desire to assimilate the government of
Canada to the constitution of Great Britain say, it is fit to give the Cana-
dians a governor, council, and assembly; but if it is not fit, what kind of
government would you reserve for them, preferable to the one chalked
out by the bill before us ? Do not let us amuse ourselves with aggravating
the possible cons^uences which may befall the wisest constitution in the
world. But how is it to be carried into execution? Why, by drawing as
matw of the Canadians as it is possible to do with safety to the sovereignty
of Canada, into that assembly ; by middng it a somewhat better thing Sian
the form of their present constitution. At present, it consists of a governor
and council, with authority to make laws, which do not affect the life or
limbs of any person ; in which every law that has been thought necessary
has been brought under a doubt, by the form in which the authority is
conveyed; for if they are enabled to make only such laws as do not affect
the life or limbs of any person, what law does not come within one of those
bounds? It is meant to give them a more active constitution. It is con-
fessed, on all hands, that this is essentially necessary, and that it is imprac-
ticable to put it in the form which other gentlemen seem to wish.

With regard to the question asked by the honourable gentleman,
whether this is to be a permanent constitution? — ^whether it is wished
there should be so rough a form of government established in any English
province whatever? — I can only say, that unless the present government be
not only objected to, but the objection so stated as to point out some period
of time in which it is fancied to be right to create the assembly which is
now confessed to be wrong, I do not see how it would be possible, with
the fullest purpose of doing it, to assimilate that constitution, in point of
form ,to this. But it is to be assimilated by a new clause, to be added to
the present billl If you were to give them a very short duration of time,
every body knows that the same argument against assemblies would go to
the short time to be prefixed. If the idea were to make the law to last

1763-1774] ConstituHonal Documents of Canada. 95

from period to period, from three years to three years, is that the method
of treating the country? — giving them no hopes of permanence? But if
you do not fix the time, they wifi not look upon this to be the constitution,
nor be anxious to assimilate with it! When gentlemen apply the word
''assimilation" to religion, to law, to civil laws, and to manners, I can
easily conceive it is not an undesirad>le object in policy, that they should
be so far assimilated. To a certain degree, I can conceive that the govern-
ment of the country, under the present constitution, will look upon it to be
their duty to assimilate the people in language, manners, and every odier
respect in which they can be expected to hold a more intimate connexion.
But when that assimilation is proposed to be carried into the law- form
of the constitution, I cannot conceive the form of the British constitution,
as it stands at present, proper for them. Upon this main principle, you
ought to make a repartition of the sovereignty of the country between the
King and the people, of whom 558 are to be elected a parliament. On this
principle, the sovereignty of this country was intended to reside, and does,
in fact reside there. But do you mean to vest the sovereignty of the
province, either by repartition or otherwise, in any other place than in the
House of Lords and Commons of Great Britain? Yet, if you follow your
assimilating idea, you must do that I only know that none of the charters
intended it It is impossible for the King to have done it — ^to have created
the sovereign authority of governor, council, and assembly, in any one of
the provinces. In point of fact, thev have considered themselves, in more
views than I wish to draw into debate, masters of the sovereign power.
Is their money to be applied to support the British empire? Are their
forces to be applied to the support of the British empire? Are the^ con-
tent that the King, Lords, and Commons of Great Britain shall be the judges
of the drawing forth of those forces, and the applying of that money to
the protection of the British empire? I think I drew a degree of attention
and conviction, when I stated it as an absurdity, that the sovereignty of
the province should be divided between the governor, council, and assem-
bly; and to be sure it is a grossness, — ^it is making two allied kingdoms,
totsdly out of our power, to act as a federal union if they please, and if
they do not please, to act as an independent country — a federal condition
pretty near the condition of the states of German]^. If you do not like
that idea, in all the extent, in all the grossness of it, would you create a
constitution in such a case which would make it, in fact, the very thing
you deny in words?

The next thing that has been said is, that Englishmen carry over their
constitution along with them; and in that respect it is a hard measure to
take from them any of the English laws they carry over with them. I no
more understand this proposition, especially as applied to the present sub-
ject, than I do the former. When the Crown of Great Britain makes a
conquest of any foreign established country, if it be true that it is an
article of humanity and justice to leave the country in possession of their
laws, then, I say, if any English resort to the country, they do not carry
the several ideas of laws that are to prevail the moment they go there:
it would be just as wise to say, if an Englishman goes to Guernsey, the
laws of the city of London were carried over with him. To take the laws
as tfaey stand has been allowed ; to act according to those laws, and to be
bound by their coercion, is a natural consequence. In this view, I think
the bill has done nothing obnoxious. I have no speculative opinions. I
would have consulted the French habit to a much greater extent, if it had
been for me to have framed the law.

Colonel BarrS. — . . . . Sir, the honourable and learned gentleman who
spoke last has thought proper to give a short, but very imperfect, and for
aught I know, a very incorrect, history of this proclamation. He says it
was left in an office ; it was left a sketch, and that sketch was unfinished ;
it was left by one noble lord, and take up by another, who thought proper
to make considerable additions to it. The honourable and learned gentle-
man seems to be very much displeased with this proclamation. He has
reasoned against it in different parts, and stated divers inconveniences in it

96 Constitutional Documents of Canada, [1763-1774

I cannot help observing, that the honourable and learned gentleman seems
to be more solicitous upon this occasion than the conquered inhabitants of
that country, and, in some measure, more than those who have been the
conquerors of it This proclamation. Sir, gave a certain form to the
colony. It provided, that the inhabitants should have an assembly, as well
as all the other royal governments, as soon as possible. The proclamation
held out this language, that *'until such assemblies could be cadled, aU per-
sons inhabiting in, or resorting to, the said colonies, might confide in the
royal protection for the enjoyment of the benefit of the laws of England."
Under this proclamation, thus held out as a solemn act to the people of
that countiy, many Englishmen went, and settled in the heart of Canada :
but their rights, their privileges, were not thought worthy of the honour-
able and learned gentleman's consideration; he stood up only in defence
of the Canadians: but there is a very considerable number of men, no
matter of what description — they may have been poor bankrupts, but they
are English subjects, who have settled there under the faith of this pro-
clamation. The honourable and learned gentleman was not precise in
stating the limits of our colonies. He seemed unwilling for the House
to think that any one of the colonies, especially Pennsylvania and Virginia,
had a right to settle beyond the Endless Mountains ; as if the honourable
and learned gentleman could be ignorant of the fact that many thousands
of English subjects are established some hundred miles beyond the Endless
Mountains, upon the very spot which you are now going to make a part
of this country of Canada.

Sir, with respect to the Canadians themselves, the learned gentleman
asks — ^what would you do with them? Would you do the crudest thinir
that ever was done to any conquered nation upon earth? Would you take
away their laws, their customs? Now, Sir, I never yet knew it was found
a grievance to any nation, to give them the English laws, the English con-
stitution. So far from it, the Canadians admired and revered those laws, as
tion. So far from it, the Canadians admired and revered those laws, as
far as they could be made acquainted with them. If it is doubted, I have
an evidence to produce — ^the honourable and learned gentleman himself.
He says, "what did they do when their grand jury met? they called for
their accounts, the public accounts. They likewise wished to put in execu-
tion the Popery laws." Could there be any stronger proof m the world,
that they knew the value of those laws? The criminal laws you have
thought proper to give them; but you have not given tiiem all. To my
certain knowledge, they wish to have the Habeas Corpus. You have
retained the civil law. What you will afterwards do to get the law admin-
istered, is to me incomprehensible. The civil law of die country stands
founded upon what is called tiie custom of Paris. Thirty folio volumes
of that custom those learned gentlemen are to make themselves masters
of, and lay open to you, instead of making the English law the basis of
their constitution. If any customs, or any particular laws, are applicable
to the people of that country, take those customs and laws, and graft them
upon the law you give them. Mr. Maseres has stated his opinion to you.
It is in the hands of the public: but you have not followed his advice.
My honourable friend wishes an establishment of a different kind: others
think the establishing such a government as this is right One law of
inheritance the Canadians complain of : the court of France has complained
of it, and once attempted to correct it. It is that which the learned gentle-
man knows to be a custom with them ; namely, the quantum taken for the
crown upon the alienation of any estate ; they wish to get rid of that In
short, if you had led them with any address, by degrees they would have
received great part of the English law: they would have hugged it to
their bosoms ; they would, from time to time have abolished stated customs,
and, by this time, you would have assimilated them to your constitution,
and not left them standing single, as Catholics, under an arbitrary power.

Another thing I wish to notice. Has there been any application from
the country? any complaint of all this chaos which the honourable gentle-
man has complained of? No: there is no complaint The principal people

1763-1774] Constitutional Documents of Canada, 97

of the country are of a very particular cast; they take a liking — ^this I
know to be the fact — they take a liking to assemblies; they think they
have as good a right to have assemblies as any other colony on the contin-
ent. It is strange, if they like this constitution, that you will not give them
all the benefit and advantage of it. They ask for it ; and when I sa^ they
ask for it, I do not mean to say that they have made any application in
form to the court here, but they have stated their wishes to die governor
there. Why not let them have assemblies? But it is said, they are not ripe
for assemblies I Government has, to be sure, made use of the same argu-
ment to induce them to drop that idea. It was said, "Don't you see very
plainly, that the colonies upon the continent have all of them assemblies?
Don't you see they are quarrelling with their King? If you have an
usembly, you will probably be in the same situation." Now. a quarrel
with their King, to the Canadians, is reckoned worse than any vengeance
that can be poured upon them. They will not hear of any thing that would
put them upon bad terms with their King. The method that I should
have thought most natural, is the method recommended by Mr. Maseres,
which was, by degrees to introduce what is proper in your laws, and to
let what is proper in the French laws remain with them.

You have determined to establish, by this bill, the Roman Catholic
religrion: by this trill the Roman Catholic religion has its establishment
Sir, it is very singular how this poor Roman Catholic religion has been
treated : in Maryland it has been tolerated, in Ireland persecuted, in Canada
foa choose to give it an establishment I do not mean to say you ought to
strike at their religion. I think you ought to give it them within certain
bounds. ....

The next thing I shall take the liberty to mention is, that this council,
chosen by the governor, is to be suspended, and removable by him. It has
been said, you have taken no measure to make a quorum, to sa^ what is
a board: but give me leave to tell you, from my friends, the Omadians,
that the governor may summon every one of those persons, or seventeen
of them ; and yet he may give them to understand he does not wish to see
them. In that case, not a man to whom such a hint was given would dare
to show himself: to be well at court, with them, is every thing, and the
court is at present the governor. I do not mean to say, that such a thing
IS likely to arise from the conduct of the governor there ; but I have more
apprehension from a wicked measure when I see an honest man is put at
the head of it I should be less alarmed at seeing this measure proposed,
if he were recalled, and an unprincipled man placed at the head. This last
proposition alarms me the more, because the noble lord declares, and
some other gentlemen say the same, that this bill is to be perpetuad. A
learned gentleman near me wishes it to be temporary. Now, if there is
any jHirt of the bill that ought to be temporary, it is this ; and with respect
to the law of Canada, with respect to the religion of Canada, they are two
very important matters. It is not very easy to make a change in the estab-
fislunent of them. With respect to religion, it is impossible to do it; but
vitih respect to this arbitrary power it is possible, unless you mean to say,
diey shall be slaves to the end of time. Though you have taken great
pains to defeat the purpose of settlers, yet if the Canadians should give
np their conscience a little, and accept of your religion, which is possible
as many English are settled there, and you should wish to give them a
legislature, by making this bill perpetual you never can do it I may be
told that the committee is the properest stage in which to discuss the bill.
Certainly, we are now not a full house; but perhaps not half the present
number of members may be here next day this bill is taken into considera-
tion; and for that reason I throw out these observations, I am afraid I
have detained the House too long. I have stated, very loosely, the objec-
tions I have to the bill. I have more to urge, but I do not choose to men-
tion them in so thin a house. One thing I would say — that I look upon
this measure as bad in itself, and as leading to something worse ; that I
foresee it will not contribute to the peace of the country for which it is

intended ; and that it carries in its breast something that squints and looks

G

98 Constitutional Documents of Canada, [1763-1774

dangerous to the inhabitants of our other colonies in that country. Fore-
seeing this, and looking upon the measure in itself as a very dangerous
one, I shall give my hearty negative to it in this stage.

The Solicitor-General [Alexander Wedderbum]. — . . . . With regard*
Sir, to the great point of religion, I believe I should do an injustice if I
attributed to any gentleman a desire to convert the Canadians, foy an act
of force, to the Protestant faith. However desirable it may be, that there
should be a conformity of opinion, I do not believe there are any gentle-
men in this House who wish to effect the conversion of the Canadians,
in any way but by the force of persuasion and conviction. Is the Roman
Catholic religion made the essential article of this bill? I can see, by the
article of this bill, no more than a toleration. The toleration, such as it
is, is subject to the King's supremacy, as declared and established by the
act of the first of Queen Elizabeth. Whatever necessity there may be for
the establishment of ecclesiastical persons, it is certain they can derive no
authority from the see of Rome, without directly offending against this
act. That the bishop may ordain priests, and that he may dispense with
marriages of cousins german, nobody will have the least objection. If the
Catholic religion is to remain, the bishops must ordain priests : the worship
cannot exist without priests ; and there cannot be priests without bishops ;
unless you will permit missionaries to go from other countries to fill the
cures in Canada. Of the alternative, which is the most politic? — ^that the
priests should be bred in the country, or that the Franciscans or Dominicans
should go over, and you of necessity be obliged to connive at their so
doing? But then it is complained, that these clergy are to be allowed to
hold, receive, and enjoy their accustomed dues and rights. What, Sir,
would you tolerate their relig^ion, and tell them, at the same time, that
they shall have no priests? or would you have these priests subsist upon
the casual benefactions of individuals? Is it not better that they should
subsist under the authority of the state, than that these priests, who so
zealously endeavour to gain an empire over the minds of the people, should
be placed in a state of dependence on them for their maintenance? And
further. Sir, is not all this indulgence given subject to his Majesty's appro-
bation, and not that of any Canadian authority? and is it not provided,
that nothing contained in the act shall disable his Majesty from making a
provision out of the rest of the accustomed dues and rights for the Protes-
tant clergy, in such manner as he may from time to time think necessary
and expedient? So that all their tithes are subject to be taken from them,
as affirmed, for a Protestant clergy. I should suspect, that the Canadians'
objection would be, that this provision defeats such a re-establishment oi
priests as they expected from the former part of the bill; and I am sure
it would be perfectly ridiculous to make a fund for the establishing of the
Protestant religion, especially as there is not any great number of Protes-
tant clergy in 3ie country.

With regard to the civil and criminal law established by this bill, I
have no difficulty to say, that the criminal law there established ought to
be the law of England. I would not have compelled the Canadians to
adopt the criminal law, if they had found it a hardship. I have not a doubt
of the preference of either of the two codes of laws being in favour of
the English. I should think it would be so in theory, and I am confirmcid
in my opinion by the testimony of those gentlemen who are best acquainted
with the state of Canada. I speak from the best authority, from that of
the chief justice. What does he say? That the Canadians are fully sen-
sible of the benefit of the criminal law, and that they would prefer it to
the returning to the criminal law under which they lived. If we change
their laws, where it is clearly for their advantage, and they are sensible
of that advantage, we repair, in some measure, the evil of conquest ; and
this we have done, by the boon we have given them in this part of the bill.
It is similar to that instance which Montesquieu quotes, of the demands
of the conquering nation, that the vanquished should abolish the custom of
exposing their children; which, he says, is one of the finest exercises of
the power of the conquering over the conquered nation, that was ever

1763-1774] Constitutional Documents of Canada. 99

heard of. I have no doubt the Canadians will be fully sensible of the
benefits of the proposed change, and will not complain that they are sub-
ject to the English criminal law, which is mild in its punishment, and
certain in its description of the offence.

With regard, Sir, to the civil law, at present to effect a change in that
law, would be to deprive the Canadians of that property which they are
entitled to enjoy. In civil cases, until they shall have adopted ideas very
dififerent from those which they at present entertain, certainly the trial by
jury would be no blessing to them. To alter long-established habits, to
create a more manly course of thinking, to make the Canadians competent
judges in civil matters, must be the work of time. Individuals bred up in
a country where trial by jury does not prevail, would find it very difficult
to exercise the office of a juryman. They would consider it a hardship,
instead of accepting it as a benefit. The introduction of it must, I repeat,
be the work of itme. I consider the assembly as sitting to make experi-
ments, for the purpose of bringing the country as much as possible into
that mode of living, and into those sentiments of cordiality with the Gov-
ernment, which the nature and habits of the people will admit. I assuredly
think it desirable that they should acquire the mode of thinking of British
subjects, and be brougbt, as much as possible, to adopt British manners;
but if you alter their laws, it will be difficult to produce this change ; if you
alter their manners, iQ<will be still more difficult You must not seek to
attempt it by any violent or sudden alteration; if you do, you put off the
wished-for event to a greater distance, than if you suffered things to take
their own course.

Another objection has been urged against the measure, which more
properly belongs to the committee; namely, that there is no clause in the
bill to make its operation temporary. Now, Sir, I consider this bill, in its
nature, to be temporary. A bill of this kind cannot but be temporary,
because it is a bill of experiment. As to how far it is adapted to the wants
of that country, gentlemen differ; but I think it will bring the Canadians
much more to the resemblance of British subjects than they are at present.
Gentlemen who oppost this measure have not attended to two points.
In the first place, will it secure the law of Canada as to civil rights? With
respect to this, it makes two material alterations; one, that me property
of the state may be devised by will, the other, that all land given by his
Majesty may be held in free and common soccage. By these means, those
lands will henceforward be held by the law of England ; and no doubt the
people will avail themselves of the power of devising, which that law gives
them; which will bring the estate, of course, to the eldest son. This will
bring them nearer to the general laws of England. But should the Cana-
dians not be inclined to receive these alterations, they will have very little
effect. I consider, therefore, this bill essentially a temporary one; but I
shall be against any clause to make it so. In the first place, for what
period would you take it? If for any period, it would have this bad effect
vith regard to the Canadians ;it would hold out to them a period, when it
would cease to operate, and it would induce them to be stirring up objec-
tions against it during all the term that you permitted it to be in force.
If you take a long period, the effect will be the same as if it were made
perpetual; if a short one, it is merely an experiment And let me only
remind gentlemen of the difficulty of nxing the period.

I have hitherto. Sir, in all I have said, considered the Canadian inhab-
itants as the objects of the legislature. A great deal has been said with
regard to the British subjects settled in Canada. Now, I confess, that the
situation of the British settler is not the principal object of my attention.
I do not wish to see Canada draw from this country any considerable
number of her inhabitants. I think there ought to be no temptation held
out to the subjects of England to quit their native soil, to increase colonies
at the expence of this country. If persons have gone thither in the course
of trade, they have gone without any intention of making it their permanent
residence; and, in that case, it is no more a hardship to tell them, "this is
the law of the land", than it would be to say so to a man whose affairs

100 Constitutional Documents of Canada. [1763-1774

induced him to establish himself in Guernsey, or in any other part of
North America. With regard to the English who have settled there, tficir
number is very few. They are attached to the country either in point of
commercial interest, or they are attached to it from the situations they
hold under government. It is one object of this measure, that these per-
sons should not settle in Canada. The subjects of this country, in Holland,
in the Baltic, and in different parts of the world, where they may go to
push their commercial views, look upon England as their home; and it
should be our care to keep alive in their breasts this attachment to their
native soil. With regard to the other portion of the inhabitants of North
America, I think the consideration alters; if the geographical limits are
rightly stated. I think one great advantage of the extension of territory is
this, that they will have litUe temptation to stretch themselves northward.
I would not say, ''cross, the Ohio, you will find the Utopia of some great
and mighty empire." I would say, "this is the border, beyond which, for
the advantage of the whole empire, you shall not extend yourselves." It is
a regular government; and that government will have authority to make
enquiry into the views of native adventurers. As to British subjects within
the limits, I believe there are not five in the whole country. I think this
limitation of the boundary will be a better mode, than any restriction laid
upon government. In the grant of lands, we ought to confine the inhabit-
ants to keep them, according to the ancient policy of the country, along the
line of the sea and river. Upon these grounds, Sir, I think this bill ought
to go to the committee. I do trust that that committee will, at least, be
as well attende4 as this House. The project is one that deserves most
serious consideration ; and I am satisfied it will be the endeavour of gentle-
men to make it as perfect as possible.

Mr, Charles Fox, — . . . . First of all. Sir, my learned friend has not
sufficiently attended to what I said, that I objected as much to the levying
of the tax by the House of Lords, as to the tax itself. You know how
exceedingly nice we are on this point. My learned friend says, they have
been in possession: now, I do not apprehend they could have any legal
right, if the proclamation had any force ; for that, by the laws of England,
the Roman Catholic clergy should be entitled to tithes, is what I cannot
comprehend. That the proclamation did not affect Canada, I have not
heard my learned friend affirm. The question is, whether this be not liter-
ally giving a right to the cler^ of that country ; whether it be not giving
them a right to exact that, which they had not a legal right to exact before
this act passed? If so, it is giving a power to raise money; and we never
permit bills of this nature to originate in the House of Lords. I think this
objection alone fatal to the bill, without going further; but with regard
to the measure itself, I will say, that it is not right for this country to
originate and establish a constitution, in which there is not a spark or
semblance of liberty. A learned gentleman has said, that by this^ means
we should deter our own countrymen from settling there. Now, Sir, as it
is my notion, that it is the policy of this country to induce Englishmen to
mix as much as possible with the Canadians. I certainly must come to a
different conclusion. Everything that forwards the learned gentleman's
end, defeats my view of the subject The learned gentleman has, too with
great ingenuity, stated the inconvenience in Canada, if we give them our
laws with respect to real property. I do not suppose there is any gentle-
man who would approve of those laws being forced upon them; but the
learned eentleman spoke, as if all civil law were comprehended in this
kind of relation, which affects the descent of property, the Habeas Corpus,
and all other rights. He quoted Montesquieu with approbation, about ex-
posing children, but he says, "I cannot give the Canadians trial by jury;
I cannot give them the Habeas Corpus;" which are laws of the same
nature, and fully as commendable as those which prevented the exposing
of children. I cannot conceive why we should not give them the law of
this country. If we gave them that law, it would be easy to alter it in
many respects, so as to make it agreeable to them. That, Sir, I coilceive
it to be the duty of this country to do; and it is very easy to do it: but

1763-1774] Constitutional Documents, of Cchadd. .Id

to go at once, and establish a perfectly despotic government, contrary to
the genius and spirit of the British constitution, carries with it the appear-
ance of a love of despotism, and a settled design to enslave the people of
America, very unbecoming this country. My idea is, that America is not
to be governed by force, but by affection and interest But the Roman
Catholic religion, the learned gentleman says, is not established. Accord-
ing to my notion, the establishment of that religion consists in government
paying its teachers ; and when the professors of that religion receive tithes,
that, I maintain, is establishing a tax. I profess I do not myself object so
much to diat portion of the bill; because I think the persecution of the
Roman Catholics is much to be deprecated, and that the penal laws of this
country are repugnant to eveiy principle of toleration. I think there might
be, in some part of his Majesty's dominions^ an asylum, where Roman
Catholics might go, if persecuted. I still, however, think that this provision
has not yet been distinguished from a tax ; that we are now going, for the
first time, to levy a tax, brought down from the House of Lords, for the
support of a Roman Catholic establishment; that we are about to levy a
tax on the people of Canada, for the support of a religious establishment;
and that we are taking this bill of the House of Lords, when it ought to
have originated here. If the Roman Catholic clergy have been in posses-
sion of a right to tithes, they must have been in possession of it from the
good-will of the people of the country. If they should ever be disposed
to sue for their dues, they are now to have a legal right to them, by a bill
conoing from the House of Lords.

Mr. Edmund Burke, — . . . . The learned gentleman observes, that it
is a tyranny to place over a whole people a law they do not understand.
But, Sir, is it not less a tyranny to place a law over them which they do
not understand, than to impose upon them a law which we do not under-
stand ourselves? Does this House know what that law and custom is
which they are going to impose upon their fellow subjects? I do not
condenm either Qie present law, or that which is proposed in its place.
I will not approve the one or the other; much less attempt to impose it
either upon Frenchmen or Englishmen, until I know more of the nature of
those laws than I do at present The customary law of Canada may be a
defect grown up from the time of barbarism, and corrected by despotism;
as in many parts of France, in many parts of Germany, and in many other
parts of the world. Can we say, what is the customary law of Paris, which
is going to be made law by this bill — which is going to be made law in
Canada? Do we know how to modify it by the practice and admission of
the civil law, which has been admitted into almost all the provinces of
France? For observe, that it is not the custom of Paris, which has been
mitigated by ordinances and mitigated by the civil law, which is proposed
to be established ; but the custom of Paris, unmitigated, unqualified, is now
proposed to be established for ever, as the law of the province of Canada.
I should be glad to read the clause, to see if I am right in that expression ;
for I could wish to be correct In page 3, it says, that "all his Majestjr's
Canadian subjects shall hold and enjoy their property and possessions,
etc.; and that in all matters of controversy relative to property and civil
rights, resort shall be had to the laws of Canada." I see I was rather mis-
taken, and am willing to correct myself. It is not the custom of Paris that
is to be established in that extent, but the custom of Canada, of which we
know little or nothing. But there is something worse in the wording of
this clause; for it is to be established, it is said, "in as large, ample, and
beneficial manner, as if the said proclamation, commissions, ordinances, and
other acts and instruments had not been made." The wording of ttiis
clause supposes, that the acts and ordinances, and law of England, had not
been beneficial to the Canadians ; that the law of Canada is by the English
government approved; and the law of England stands condemned, as not
being beneficial. Now, I should be glad to ascertain two facts; first,
whether the British government is odious to the Canadians; and next,
what are the excellences of that government to which we are reverting;
what beneficial effects it has produced ; and whether the people of Canada

102 i . : • - Ctmiifuiional Documents of Canada. [1763-1774

have flourished more under the French gbvemment, than under the Eng-
lish government? These are matters of fact necessary to be known, to
enable us to judge of these laws. I shall never be induced to consider
government in the abstract The government under which the people have
flourished most, that is the best government I should desire to see the
present state of the country compared with its state for the twelve or
fourteen years preceding the troubles that gave rise to the present measure.
Perhaps the people have enjoyed great benefits. If they have I would
inquire, whether this proposed change must not produce great incon-
veniences? Until I have this light of facts, it will be impossible for me to
give an honest vote, with a view to a change of the government of Canada.
If you introduce laws that have lain dormant for twelve or fourteen years,
it is as much an innovation, as if you had made the constitution new. I
have no objection to make the constitution new, provided the necessity of
so doing is set in a clear and saits factory manner before me. I think
Parliament can proceed upon no principles but two— reason and authority.
Reason we have none. The next question is, what is our authority? I
believe the opinions of the learned gentlemen near me, will, must, and
ought to have their due degree of weight with the House. They seldoni
give their authorities, without, at the same time, giving their reasons. It
may be said, we have the gentlemen here, and therefore have no need for
their written opinions. I should very readily agree to this, if gentlemen
will tell me that these written opinions may not have been given with a
greater or less degree of latitude in the council — if gentlemen will tell me
that I cannot, for the sake of the public good, have those facts brought
before us, which those learned gentlemen made use of to justify their own
opinions. The reasons of those great law authorities, combined with the
authority of those facts, must have great weight with me.

I have hitherto avoided offering a single word upon the general policy
of this bill. It is said, the general provisions of the bill are to be considered
in the committee, and the general argument on bringing up the report
I guard myself from this admission, upon this single question — ought not
such a ground of information to be first given, as will induce you to reject
the law of England, and assume the law of Canada? — that is, to reject the
law which you do know, and the beneficial effects of which you have
experienced, in order to impose another law upon the Canadians which
you do not know, but the ill effects of which you have felt? Are you to
proceed, in a manner so wild and at random, in condemning the British
laws unheard, and establishing the French law in Canada? I may venture
to say, "condemning" the law of England; because its condemnation is
virtually made, the moment it is proved not to be beneficial to the people.
I believe I am not so attached to words, as to put my own opinion in com-
petition with that proof; but as yet I have no evidence that the people do
not like our law. I do not know this to be the case. The presumption is,
that the law under which they have long lived, is the law most agreeable
to them. I will go upon presumption, when I have no other ground to
judge upon. The law may have been more agreeable to them from their
ignorance. They did not know of any better ; and the moment they know
some other system more beneficial, diey may wish to adopt it Until I
know that the people of Canada condemn the British law, I will not impose
another, which their own enlightened judgment would have rejected. Has
any petition appeared before the House, to tell us the law was a burthen to
them? Is eidier the form of trial, or the laws by which they are tried,
disagreeable? What evidence have we of all this? As a friend to the
people of Canada, I ask these questions. The conquest of them should
not make them less dear to me: I would even treat them with a milder
hand. The treaty, too, has demanded it : but until I know that the English
laws are not beneficial — are not good for all men in all cases ; until I loiow
this, — ^tmtil the people of Canada complain of them — I will not presume
that they are opposed to them. At present, there is an ^glish complaint
against the establishing of French laws. I should be glad to hear a French
complaint against the establishing of English laws; and whenever that

1763-1774] Constitutional Documents of Canada. 103

comes, I shall be ready to give it a fair hearing. But at present, the bill
stands upon no complaint There can be no mischief in postponing it ; but
there may be much mischief, if you give the people French despotic gov-
ernment, and Canadian law, by act of parliament. By a delay of a year,
they would be kept out of the advantage of having Canadian law univer-
sally established, which Canadian law universally establishes a despotism;
and there is nothing left to complain of but the despotism established by
necessity. At present, they bear that grievance ; but a grievance by neces-
sity, and a grievance established by law, are two very different things.
Supposing the bill to be delayed for a whole year, the extent of the evil on
our side will be, that we shall have more information; and as for the
Canadians, they will remain a little longer in the same situation in which
they are at present. If you were prepared to give them a free constitution,
I should be in haste to go on ; but necessity — ^"necessity, the tyrant's plea"
— is urged for proceeding immediately.

Let us have evidence, then, of that necessity. I stand for the necessity
of information; without which — ^without great, cogent, luminous informa-
tion— I, for one, will never give my vote for establishing the French law in
that country. I should be sorry to see his Majesty a despotic governor.
And am I sure that this despotism is not meant to lead to universal despot-
ism ? When that countiy cannot be governed as a free country, I question
whether this can. No free country can keep another country in slavery.
The price they pay for it will be their own servitude. The constitution
proposed is one which men never will, and never ought to bear. When
we are sowing the seeds of despotism in Canada, let us bear in mind, that
it is a growth which may afterwards extend fo other countries. By being
xnade perpetual, it is evident that this constitution is meant to be both an
instrument of tyranny to the Canadians, and an example to others of what
they have to expect ; at some time or other it will come home to England.
When it is proved that the laws of England could not govern Canada, it
will be plain that some stronger power than the laws of England is neces-
sary to govern this country. I shall give my first vote upon this bill, against
the despotic government there; whether it is to be established for any
length of time, or to be established at all by Parliament When you cannot
make a free government, you ought to leave a country to be governed by
the force of necessity. Government, and a free government, are two
different things ; but with regard to those laws which are in use at present,
I cannot form an opinion — I know nothing of the custom of Canada.
I should be glad to receive proper information. When I have received
proper information, I will then endeavour to speak to the merits of the
bill as far as I can : at present, I cannot form any opinion, I wish to have
it understood, that what I have now said relates solely to the question of
information

Examination of General Caiuleton, Governor-General of Canada

Will you give the committee an account of the commerce and govern-
ment of Canada, when you first arrived in that country as governor? — I am
not prepared to give an account of the trade; it would extend very far,
and require several papers which I have not here.

I beg you to give an account of the state of the government at that
time. — In what respect?

I understood when you went over as governor, that you established a
form of government. In what manner was the civil government carried
on in Canada? — ^The civil government consisted of a governor and council.
They were authorized to make laws and regulations in the province, under
certain restrictions. Both the questions are extremely wide ; I do not know
precisely what the gentleman's ideas are. If I had thought it essential, I
would have procured papers from the Custom-House of the imports and
exports. If I had lived in the country fifty years, I should not have been
able to give a precise account, without having the papers in my hand.

What was the mode of proceeding in the courts of justice when you
arrived there? — ^The justice of the province was distributed by two courts

104 Constitutional Documents of Canada. [1763-1774

the Supreme Court and the Court of Common Pleas, and likewise by other
courts which had power more restrained and confined than the Court of
Common Pleas.

What was the form of trial in the Court of King's Bench? — I hope the
committee will not expect I should state that with accuracy. The chief
justice should do it. I think the Supreme Court or Court of King's Bench,
was according to the English form.

General Conway. — I do not mean to object to the question of the
honourable gentleman, but I submit to his consideration, whether as we
are to hear the chief justice, and the attorney-general of Quebec, it is not
more proper to put the question to them.

Mr. Mackworth* — Were any objections made to that mode of trial? —
There are two sets of people in Canada: one, those who call themselves
the ancient subjects, the other the new subjects. The first are very well satis-
fied with the form of justice administered in the Court of King's Bench; the
other, the newly acquired subjects, are extremely satisfied with the integrity
of the court, but extremely dissatisfied with the mode of trial Their dis-
satisfaction arises, first from the great expense that the court draws them
mto; and in the next place, from all the proceedings being in a language
they do not understand : they are likewise not satisfied with juries. They
are extremely flattered and pleased that there are to be juries; that they
are to be admitted to be of the number; but they think it very strange
that the English residing in Canada should prefer to have matters of law
decided by tailors and shoemakers, mixed up with respectable gentlemen
in trade and commerce; that they should prefer their decision to that of
the iudge.

Have they been dissatisfied with the judgments that have passed in the
Court of King's Bench? — I cannot say I ever heard a complaint of the
kind.

If juries were composed of the species of men such as they approved
of, would they disapprove of the mode of trial by jury? — The great object
with the Canadians would be to procure justice; and to procure it at a
reasonable and moderate expense : these are the essential points. As to the
mode of trial, whether by jury or by the judge, they would prefer the
latter from custom, habit, and education. I am not authorized to speak
for the Canadians, to assert that they absolutely pray against juries. They
certainly are attached to their own customs and manners. I am willing
to give as much information as is in my power, but the chief justice is
much, better qualified than I am.

If the expense was moderate, and the jury composed of proper men,
would tney object to that mode of trial on account of thinking they should
not have justice done them in the trial? — I cannot say that the Canadians
would wish to adopt it: on the contrary, I have heard them make objections
to it How far those objections will carry weight, I know not

Is not the trial by jury in the Court of Common Pleas optional? —
I understand so.

Do you know that the Canadians of late, in the trials in that court,
have chosen the trial by jury to decide their causes? — In general, I under-
stand not

Can you give any authentic account of the number of Protestant sub-
jects now in the province of Quebec? — I had the return of the province
last April of the number of Protestants in the year 1770. By that return,
I believe, every body who calls himself a Protestant is included. By that
account they are under four hundred men, about three hundred and sixty,
besides women and children, in the whole colony of Canada. I am afraid
their numbers are diminished since.

Do you think the diminution of the number of British subjects is an
advantage or disadvantage to the province? — ^That is a political question.
I am afraid their circumstances have been so reduced, as to compel them
to quit the province; I speak from humanity. I do not mean to give any
political opinion upon the subject.

In general, are these three hundred and sixty persons composed of

1763-1774] Constitutional Documents of Canada, 105

men of substance and property in the province? — ^There are some who
have purchased lands— officers, or reduced officers, some very respectable
merchants ; there are other inferior officers in trade, and a good many dis-
banded soldiers. In general, they are composed of people of small property.

What do you think may be die number of the new subjects of Canada?
— About one hundred and fifty thousand souls; all Roman Catholics.

In the conversation you have had with the Canadians in general, are
they not very earnest for the restitution of the ancient Canadian laws? —
They were very much so, when I was in the province ; and by the accounts
I have received since I came to England, they still continue very earnest
indeed, and anxious about it

Have they expressed lately any apprehension on seeing plans of gov-
ernment sent over, that those plans should take place, or any satisfaction
or desire that they should? — ^They have expressed great uneasiness at the
apprehension, and more warmth than is usual for that people. They seem
determined to form associations and compacts to resist the English law,
if they should be compelled to do it, as far as they could do so with
decency, and their duty to the government would permit

Have the clergy in Canada since the peace enjoyed and received the
tithes and parochial dues? — ^They have received the tithes and parochial
dues as formerly ; there may be some who have not, but very few ; as few
as those gentlemen who receive their rents; they are as well paid as the
rents.

Mr, Charles Fox. — Did they receive the tithes and dues only from the
Roman Catholics, or from the Protestants likewise? — I really do not know ;
there are so few Protestants that cultivate the land.

Was there an idea that the Protestant landholders were exempt from
paying tithe? — I have heard some of the clergy say, that in the uncertain
state of things, they would not ask the Protestants to pay unless they chose
it: as there were opinions spread among them, that it was not agreeable
to the English law to try the fight, they would have to encounter the great
expense of the law. I think it induced them to act with great moderation
and discretion in the matter ; hoping in a short time, that the laws would be
ascertained, that they might know what ought to be paid and what not

Did those few British subjects inhabit the towns of Quebec and Mont-
real?— Chiefly; there are very few in the country, so few', tfiat they are
scarcely to be seen in travelling through it, as there are but three hundred
and sixty in a district of three hundred miles long, and very wide.

Lord North. — Is not the cultivation of the lands entirely in the hands
of the Canadians? — Almost entirely.

What part of the trade is in the hands of the Canadians? — I have
heard about two-thirds.

Is not the trade much increased? — I understand the trade is increased
very much.

Do you attribute that increase to the trial by jury, or introducing so
much of the English law as has been introduced? — No; they have no
dependence upon that at all.

Can you assign any probable reason to what it is to be attributed?—
The colony of Quebec was in its state of infancy; it is so still, in some
measure. They have been now fourteen years quiet The country has
peoi^ed very fast; besides the natural increase of population, there have
been a great many Acadians, who had come into the province ; people taken
from America and Nova Scotia, that were scattered in the province during
the course of the war. As the people multiply, they act as a sort of
farmers; they take possession of the lands behind their own, so that they
go on cultivating the country very fast

Do you not think the old inhabitant in Canada is receiving considerable
advantage from the change of the disposition of the inhabitants, from a
military to a commercial life? — No doubt he is. Under the French govern-
ment, the spirit of the government was military, and conquest was the
chief object ; very large detachments were sent up every year to the Ohio,
and other interior parts of the continent of North America. This drew

106 Constitutional Documents of Canada, [1763-1774

them from their land, prevented their marriages, and great numbers of
them perished in those different services they were sent upon. Since the
conquest, they have enjoyed peace and tranquility; they have had more
time and leisure to cultivate their land, and have had more time to extend
their settlements backwards; the natural consequence of which is, that
wheat is grown in great abundance. I have been very well informed, that
we have exported large quantities of wheat. '

Colonel BarrS, — I submit, whether it would not be better to go through
one particular part first, without going into any other.

Lord North. — Jt is almost impossible. No man can know how many
questions every particular member has to ask upon this point

Colonel BarrS. — I have only one question to ask upon that point,
reserving myself to ask others; it follows from the noble lord's question.
If by any means that same warlike spirit was introduced again, would it
not introduce the like disagreeable and bad consequences? — I take it, that
a spirit of war in that, and in all countries, is very much against population
and the cultivation of land.

What measures in that country would put an end to this spirit? — ^Their
being subdued by the people they meant to conquer.

Lord North, — ^Has not the increase of the agriculture been the principal
cause of the increase of the commerce? — It is so understood.

Do you not understand, that the great capitals of our merchants, their
great knowledge, and their spirit in trade, have likewise contributed to the
increase of it? — I believe they may have been of advantage.

Are the Canadian inhabitants desirous of having assemblies in the
province? — Certainly not.

Have they not thought with horror of an assembly in the country, if it
should be composed of the old British inhabitants now resident there? —
No doubt it would give them great offence.

Would they not greatly prefer a government by the governor and
legislative council to such an assembly? — No doubt they would.

Do you not think a free exportation of com contributed to the encour-
agement of population and agriculture, as much as any of the foregoing
causes? — ^The population was the first effect; the cultivation of the land
was the consequence.

Was it necessary to have any land to be qualified to serve on a jury in
the country? — ^I believe there is very little nicety in that matter; tfiere is
too great a scarcity of Protestants. I beg leave to add, in the list of jurors
I mentioned, there were a great number of disbanded soldiers that kept
tippling houses.

Is that the only idea of the assembly, that you ever knew suggested to
the Canadians, and to which they returned their answer? — I put the ques-
tion to several of the Canadians. They told me assemblies had drawn upon
the other colonies so much distress, had occasioned such riots and con-
fusion, that they wished never to have one of any kind whatever.

Did not the Canadians likewise think, that assemblies would draw
upon them expences as well as distress? — ^By distress I meant the dis-
pleasure of this country. No, they never stated that

Have you never heard, that they imagined they should be obliged to
pay the expence of government as soon as they had assemblies, but that
until they had them they were not to pay the expence? — No, that was not
the idea of the Canadians; they dislike it as not being comformable to
their ancient customs.

Do you mean indiscriminately the whole law, civil and criminal?--
The civil law.

Do you think, if all their customs of descent and heritage were pre*
served, that they would be dissatisfied with the introduction of trial by
jury? — With regard to any portion of their law, one custom separate from
another, I believe they would be extremely hurt to have any part of their
customs taken from them, except where the commercial interest of the
country may require a reasonable preference, and such commercial laws
as can be especially mentioned to them. I believe they would make no

1763-1774] Constitutional Documents of Canada. 107

objection to any such commercial laws, if they may know what those laws
are. But laws in the bulk, which nobody can explain to them, they think
would be delivering them over a prey to every body that goes there as an
attorney or lawyer.

Was the dissatisfaction expressed by the Canadians at large, or by the
corps of noblesse? — ^They were pretty unaiiimous in most points; as unani-
mous as so large a body could be expected to be.

Are the noblesse better pleased with a jury in criminal causes? — I never
heard objections made to the criminal law, except in one instance. Very
soon after I went into the province, there were some Canadian gentlemen
and some English gentlemen arrested for a very great crime indeed\
They were accused of a very great crime indeed. They were committed
to gaol until the next trial. It was the unanimous sense of the province
that they were innocent, and they were found innocent at their trial. Upon
that occasion, I heard several of the Canadian noblesse complain of the
English law; but, upon my word, I recollect no complaint of the criminal
law but upon that occasion.

What was the nature of the complaint? — They complained that upon
the deposition of one man of very bad fame, gentlemen should be com-
mitted to j>rison, and there remain a considerable time before they could
come upon their trial. They said, that under the former law, more than
one information would have been taken, and an inquiry made by the King's
attorney-general, and that those gentlemen would not have been arrested
if such information had been taken, as their innocence by that means would
have appeared.

Has there been any other trial by jury for a capital ofiFence? — I do not
remember to have heard of any.

Have there been any considerable number of trials for offences among
the common people? — ^Very few, to my knowledge.

What number of these noblesse is there is this country? — My memoo'
will not suffer me to tell.

Nearly? — I suppose a hundred and fifty; I speak at random.
What is the occupation of them ; do any of them trade? — I believe very
few ; they are not fond of trade. They have been brought up in tfie troops ;
they do not apparently trade; perhaps they may have connexions with
some that do.

Do you know from the Canadians themselves, what sort of adminis-
tration of justice prevailed under the French government, whether pure
or corrupt?— Very pure in general; I never heard complaints of the admin-
istration of justice under the French government.

Was it so pure, that there was no room for favour from the judge? —
The intendant of the province was chief in matters of justice.

What was his general character? — ^With regard to his character as
chief justice, I believe it was unexceptionable. It can never be the interest
of a sensible man to connive at, or suffer, iniquity in courts of justice.
The matters in dispute are very small between neighbour and neighbour,
and he would only incense the people for very little purpose. The French
intendant had other methods of making large sums of money, and enrich-
ing his favourites, if he had a mind to do it

Was the administration of justice, in the other branch, equally pure?—
He was at the head of all justice. He had his delegates, who presided in
small matters in the other parts of the province. There was an appeal
from the others to the intendant.

Were the decisions of the court in the three districts always just? —
I believe so ; I never heard any complaints from the people, that the courts
of justice were not properly administered. I have heard of great fortunes
made in another manner.

If their favourite laws and favourite customs were preserved to them,
would they not, in every other case, take the law of England? — ^They do
not know what the law of England is ; they call the law of England the

^The Walker Case. See Kingsford, History of Canada, rot V.

108 Constitutional Documents of Canada. [1763-1774

mode of administering justice. They do not know the difference between -
Canadian law and English, in the mode of administering it. The essential '^
laws of England, in deciding matters of property, they have not the least <
idea of. The intelligent part of the Canadians think and hope, that their ^
laws and customs may be continued, because they know what tfiey are. :

Have the intelligent part of the Canadians any idea of the law of
habeas corpus? — I believe not the least. I do not say there are no gentle- "^
men who have made it their particular study. ^

Are there any number of the professors of the law, capable of instruct- i
ing them in the law there? — ^There is a Mr. Taylor, attorney-general ; there

is a Mr. , secretary. I would not venture to say there is one r

lawyer in the whole province who has been at the bar in England ; I may . r.
be mistaken. I do not know one that ever was at the bar as a lawyer.

Then I understand you do not imagine that any other person but those r
two are, barristers? — Not to my knowledge. >!

In ereneral, have not the British subjects in Canada and the old sub- i
jects intercourse with one another?— pThey have very little society. i

Do the Canadians in general communicate their sentiments to the -
British subjects at all, or to the officers, etc? — ^They are very decent people, .;
and communicate their sentiments only to those whom the King haa ap- ;
pointed to receive them.

Has there been, by the supreme council established, any summary trial .j
for small matters in the different parts of the province? — ^Yes; the justices
of the peace formerly had authority to try small causes.

Were any of the Canadian gentlemen among those justices? — Not one.

Did there exist in the French government any summary mode of pro-
ceeding in the country? — ^Yes; some of the seigneurs had a right to hold j
courts of justice. They almost all had a right; but few exercised that >
right 1

Has that been taken away under the English government, or more %
exercised? — Entirely taken away; besides that right, which the seigneur ^
of the original tenure has, there was what is called the right of proceeding >
as delegates to different parts of the province. i.

Are those delegates resident inhabitants, who have a commission some- \
thing like justices of the peace in England r — ^They were creditable people ;,
of good understanding. There was scarcely such a thing as a lawyer ad- '^
mitted into the colony, under the French government, except the King's ,
lawyers; I mean regularly educated lawyers. There were attomies and
notaries. .,

Do you conceive the people of the country to be at all informed of ,
the French law they lived under ?-^They understand the French law from
education, as the people of England understand the English law from edu-
cation, from the customs and usages of the place. {

Do they understand more than the general custom of descent and
neritage, and the mode of conveying property in that country? — They
understand in all respects whatever comes before them. All the French
law was not introduced into Canada. They are acquainted with the laws
of property generally, and the custom of Canada ; but as to the other laws
of Paris, they are not introduced: they are as much unknown to them as
the law of Eiogland.

Is there any code of Canadian law published? — ^There are law books,
and some that contain precisely the laws and customs of Paris, from
whence the Canadian laws are derived. There are, besides these, a col-
lection of the customs of Canada, as far as they are able to procure them,
which I understand is published.

Has there been any plan proposed since you have been governor, or
any in your predecessor's time, to determine causes of small value? — ^I do
not know that there is any plan. They have no sort of intermeddling
with the administration of justice, but in juries.

Would not that have removed their objection to the English govern-
ment, and given general satisfaction in the country? — ^The administration
of justice by the seigneurs was rather a tax upon them; there were very

1

1763-1774] Constitutional Documents of Canada. 109

few that exercised it Since I have been there, they have applied to me
to know whether they might not exercise it; or to know, whether it was
taken from them. I said, I wished they would let the matter lie dormant
till something was finally determined.

What IS the wish of the people who would be subject to this jurisdic-
tion? Do they wish to be tried without expence, and upon the spot? —
They were under some check under the French government They cer-
tainly were not delivered up to their mercy: there was an immediate ap-
p^ to the King's courts of justice. They were under the check of the
King's courts of justice, and the King's attorney-general brought every
thing up immediately.

Might not some alterations have made that very agreeable, such as
might have enabled them to bring small suits to immediate issue? — They
are very much attached to their ancient customs. They were so much
dissatisfied with the people to whom commissions of the peace were
granted in different parts of the province, that I was obliged to take away
their i>ower. It never was much trusted into the hands of the French.

Were all the judges in all the courts of justice in Canada bred to the
law? — No.

Were any more than the chief justice of the King's Bench? — I believe
not one.

Were the Canadians made aware by those persons, that a jury in civil
actions have nothing to do with the law? — ^Tliey have a very confused
idea of the English law.

What was the nature of those decent compacts and associations they
were determined to enter into, to resist the laws of this country? — ^To
bind themselves in all marriage contracts, as strictly as it was in their
power to do, that all their possessions should go according to the Cana-
dian customs, and in general to adhere to that as closely and firmly as
possible.

Did the supreme legislative council ever make any laws to secure
property, according to tibe Canadian customs? — ^There were some ordi-
nances made; but I never could learn that anything was clear or certain
in the law, nor did I understand clearly what was the law and custom;
nor does it seem to be a clear question in the country. I have heard the
same man argue for the English law in one cause, because it suited his
cause, and I have heard him argue for the French law in another cause.
There^ is an ordinance for quieting the minds of the Canadian subjects,
directing the court of common pleas to decide agreeably to the laws and
customs of Canada, in adhering as much as possible to the laws of Eng-
land. There is also an appeal to the supreme court of equity, which is
directed by the common laws of England.

Would two-thirds be satisfied to have their suits, relative to debts in
the country, decided by the Canadian law? — I believe not

Have they any regular method of conveying their sense at present? —
I understand they have conveyed it in petitions. When I was in the prov-
ince, seeing great heats and animosities upon every occasion in various
sorts of people, and that petitions of all kinds greatly incited these ani-
mosities, I dissuaded them, as much as it was in my power, from meas-
ures of that sort. Before my arrival they nad expressed their desire in
a petition to the King. They frequently repeated the substance of that
petition, as their earnest desire and wish, and would have drawn up a
fresh one, had I not dissuaded them from so doing. My reason was, that
I wished them to wait till the King should think proper to reply to their
petition. During my residence, upon all occasions, all sorts of people ex-
pressed the same wish and desire as in the petition, which I understood
to be the petition sent before my arrival. I understand that since I have
been in England, they have expressed the same wish and desire by fresh
petitions, for fear the former one should be forgot. I assured them that
in due time proper attention would be paid to it and justice be done ; and
that in the mean time, they ought to rest satisfied with the good-will and
intention of tiiis country towards them. I saw a letter, or paper, asking

110 Constitutional Documents of Canada. [1763-1774

two Canadian gentlemen, in case I had not been here, to act for them as
their agent, to present this petition.

Are the Canadians aware that an assembly into which they were ad-
mitted would be a legal and decent method of making the sense of the
inhabitants known, or have they been led to look upon all representations
of assemblies as factions, etc.? — I believe they have no idea of assemblies,
but what they receive from Uie newspapers, and the accounts that come
from the other provinces.

Have, or have not, any pains been taken to explain to such persons
the excellence of such a constitution, and the advantages that would arise
from it, or have they been left to conjecture? — It is a difficult matter to
instruct a whole people in lessons of politics, and I have never attempted it.

At the time the apprehensions of the Canadians were signified to the
officers of government, had there been no conference among the principal
people in Canada? Had there been no conference with the governor, to
hit upon the form of government most agreeable to the people? — ^Tliey
had frequently expressed their desire and prayer to have their ancient
usages restored to them; and stated that the form of government which
came nearest their ancient usages would be most agreeable to them.

Did they state what those usages and customs were, to the persons to
whom they applied? — ^They were in general words, and are expressed in
the petition. All conversations upon the subject were to the same effect

Do you conceive it would be impracticable at this time, without giv-
ing general lessons of politics to all the people, to explain the advantages
they would derive from the English government, without the abolition of
all their usages? — ^They have very often told me, that during the military
government, the English frequently expressed to them the happiness, and
great advantages they would receive, by the introduction of the laws of
the English government, and by the protection of the civil laws of the
country ; that they were to become a happy people by the change. Several
years after, when they had experienced what it was, and found that they
were debarred of what they looked upon as the civil rights of subjects,
and that they understood that, as Roman Catholics, they could not enjoy
places of profit, or trust, or honour, they thought it was adding mockery
and insult to severity; and were astonished that people could hold such
language to them.

Was it ever suggested to them, that the difficulty could be got over,
and that the Roman Catholics might be admitted to some share in the
government? — I have often told them that I believed it would be the case
m time.

Did you ever hear of any of the principal Canadians expressing a
wish that, until there was an assembly established, the council established
by the King should be so modified, as to bear as near a relation as pos-
sible to the moderate principles of the constitution of this country? — I
often heard them express a wish, that Canadians should be admitted into
the council; I never heard anything further.

How was the legislative cotmcil composed in the French government?
Had Canadians a share? — It was more a council of justice than of state,
and more a council to receive appeals than to make laws; they made
certain small regulations. The governor was chief of the council: the
intendant was president, and he collected the voices. There were a cer-
tain number of the Canadian inhabitants that were of the council likewise.

.... How long were you governor of Quebec, and resident? Are you
not governor now? — I am governor now. I was in the province as gov-
ernor, or lieutenant-governor, commanding in the province, about four
years.

Did you not, during the time of your being governor, endeavour to
learn the manners, temper, and genius of the people over whom you pre-
sided?— No doubt

From the knowledge and experience you have of those people, do
you think they would choose to have the English law as a rule to govern
them both in matters of property and matters of crime; or in either, and

1763-1774] Constitutional Documents of Canada. Ill

which of them? — ^The Canadians are very anxious to have (Canadian law
to decide in matters of property. I believe they are pretty indifferent in
regard to criminal law.

Is that your judgment, formed from your knowledge and experience
of them? — It is.

Do you not imagine that the aversion they have expressed to the
English law is because they think it is likely to interrupt the course of
descent and inheritance, and to load them with incapacities as Roman
Catholics? — ^The partiality and attachment which they have to the laws
and customs they possess is well known; and they apprehend that laws
unknown to them may introduce something terrible to them; they know
not what

Is there not a great difference between the criminal laws of the two
countries? — ^The criminal law they have experienced is, in fact, not so ex-
tremely different The mode of prosecution, the mode of deciding by the
law, is very different; but the trial of great crimes, in nearly all civilized
countries, is almost entirely the same.

Are there not more ptmishments in the law of England than in the
law of Canada? — I believe there are: I cannot pronounce.

Was their dislike to the English law uniform from the beginning? —
From the time they first experienced it, they very soon found a great dif-
ference in the expense, which was very grievous and oppressive to them;
not from any defect in the characters of the gentlemen; but the wealth
of the country, compared to this, is extremely small. Fees of all sorts,
Aottgh not unreasonable in this country, were considered extremely heavy
in that

Did they not complain, that the proceedings were held in a language
they did not understand; and that no Canadian advocates were permitted
to plead in the courts? — That was a great complaint indeed, till it was
remedied.

When that was remedied, did they then express as great dislike as
they did before? — ^The expense continued pretty much the same; the sat-
isfaction was greater, having then lawyers that could plead in the language
they knew. I believe there has been very little of that in the supreme
cotirt

Have you seen an act passed in the other House relative to Canada ? —
I have.

Do you think that bill gives the freest form of government to Canada
it is susceptible of? — I should think it the best form advisable to give in
the present state of the colony.

During the time the English law was executed, had they any such
thing as regular gaol deliveries? — I understand the chief justice is to at-
tend. It is a question much more applicable to him.

Were not people apprehended by the power of the intendant and at-
torney-general, and detained without any kind of assistance from any
other f^ace? — I never heard any complaint of the kind.

Do you not know there was some officer that had that power? — I do not
know he had the power, but he may have acted from his own caprice or
fancy.

Where was that power vested?— 'The power was in the intendant,
likewise in the attorney-general.

Was any person ever prosecuted? — I really do not know that any one
was.

Did the mode of trial upon court-martials for military offences dur-
ing the French government, give any offence? — No.

Were they not tried by some council of officers of the corps ?-^I
should imagine they were tried by the corps of military men.

Had they any objection to that mode of trial? — I never heard they had.

Were the noblesse not very fond of military rank and distinction be-
fore the conquest? — ^They were almost all military men, and of course
fond of rank and distinction.

Do they enjoy such gratifications now? — I do not know that any of

112 Constitutional Documents of Canada, [1763-1774

the Canadians in Canada enjoy any gratifications from the court of France.

Do they enjoy any tinder English government? — None.

Would it not foe flattering to them to enjoy some rank? — ^Undoubtedly.

Would it be more pleasing to have a share in the government? — ^Un-
doubtedly.

If his Majesty did not choose to appoint any particular persons in the
place to a share of government, would they not be glad of having other
lawful and honourable means oi providing for themselves? — No doubt

Do not the gentlemen of Canada form some opinion relative to the
welfare and prosperity of their own country? Is not that a matter of dis-
cussion among them? — It has been a matter agitated very much; but
they seem to confine their ideas chiefly to the restoration of their laws
and customs, and wish that all distinction should be taken away which
separates them from the English subjects. By that I understand the ad-
mission into places and offices of trust and honour, eqtlally with the
English.

Would they be glad to be in such a situation as to make this idea of
theirs prevalent? — No doubt

Have they such objections to the form of an assembly, as to wish to
make their ideas prevalent in such assembly? — ^They do not wish for as-
semblies; but if assemblies must be, no doubt they would wish them to
be a free representation of the people. If that should be the case, they
would compose a great part of that assembly.

Would they have an objection to a seat in such an assembly, in which
they might have an opportunity of delivering their opinions? — ^They have
never had an assembly, or anything like an assembly, nor have they the
least desire to have one; but if there should be one they wish to have a
share in it

Have they any particular objection to arbitration? — ^Very far from an
objection to it In a great measure they have come into it, wishing to
keep clear of the courts of justice.

Could they, therefore, have any objection to have causes decided by
gentlemen of the country? — ^They would wish very much to have their
causes decided by gentlemen bred up in the country; acquainted with their
laws, usages, and language. They would give the preference to judges;
but^ I do not know whether they would make any violent opposition to
juries, if this country should think them advantageous. They confined
their petition mostly to general points. I do not know how far they
would make juries an essential point . . .

Examination of Francis Maseres^ Esq., Late Attorney-General of

Quebec

Mr. Masires was then called in, and acquainted the committee, that
he went to Canada in 1766, and resided there three years. He was then
asked.

What were the sentiments of the Canadian inhabitants, upon the sup-
position that the laws of England would be of no more authority among
them, by reason of the proclamation? — A great many were very uneasy
upon the apprehension of a sudden change of the* laws respecting family
descent; such as dower, and the like.

What sentiments do they entertain of the form of judicature? — I
heard great complaints against the administration of justice. I en-
deavoured to sift them to the bottom. I think the result was the expense
principally; partly the delay according to the mode of English adminis-
tration. The expense did not consist principally in the fees of attorneys,
but the provost-marshal's fees, which were thought intolerable. At die
same time, I doubt much whether the provost-marshal did exact unrea-
sonable fees ; because, the two that acted there have assured me^ they did
not make fifty pounds a-year of their place. Whether they said true, I
cannot tell. I have heard of the extravagance of the fees, and also of
the great burthens of attorneys and advocates ; but those fees are not now
greater, but rather less.

1763-1774] Constifufional Documents of Canada. 113

Do Tou think the people have a strong attachment to our laws and
customs? — ^I believe that die great body of the Canadians, with the ex-
ception, perhaps of an hundredth part of the whole, would be very well
satisfied with the establishment of those laws.

Were the people of Canada very apprehensive on account of the sup-
posed danger to religion? — I never heard them express much apprehen-
sion with respect to any danger to their religion; but they have at times
expressed dissatisfaction at the disqualification and civil inconvenience
attending the exercise of their religion; not any that the performance oi
mass would ever be impeded.

What do you understand to be the sentiments of the Canadians with
regard to the form of government they would wish to live under? — I have
not heard many of the Canadians enter fully into the subject I believe
their opinion is that of our poet,

"Whate'er is best administered is best"

They have no predilection at present in favour of a legislative council, or
in favour of an assembly : I speak of the generality of the people. There
are a few persons who have thought more upon the subject than the rest:
I believe they would incline to an assembly.

What sort of an assembly do you suppose they would like: an as-
sembly of which they might have a part, or one which consists of his
Majesty's own subjects? — I have heard some of them say, they would
rather have an assembly consisting equally of Protestants and Catholics,
or at least of such Catholics as would take the oath of abjuration of the
pope's power, but not the declaration against transubstantiation, — than be
governed by the legislative council. I have heard so ; but in general those
who express a wish for an assembly, wish for one without the exclusion
of any Catholics on account of the oath: — I mean the oath as it now
stands: I mean that which is commonly called the oath of supremacy. I
do not know any instance of a Canadian taking that oath ; but they have
been under no temptation to do it Hitherto they have had no assembly.
As to being a part of the council, it would have been necessanr to take
the declaration against transubstantiation, as well as the oath of suprem-
acy: therefore the distinction has not been tendered to them.

Do you think the Canadians are desirous of serving upon juries in
civil causes? — I believe they would like to have the option of doing so
continued to them. The ordinance that directed that court, directed the
jury to be optional ; and I know that many of the people do actually choose
to have a jury, when their causes come to be decided there ; which I look
upon to be more conclusive than any testimony of opinions may be.

Would they perform the office of jurymen? — ^They sometimes com-
plained of that as a burthen.

Were not the forms of proceeding according to the French law, in
nutters of contract and recovery of debts, exceedingly different from
those which prevail under our law? — I believe they were. The mode of
aecution is different They had not the law of imprisonment in execu-
tion for a common debt: but it was introduced by the special description,
ty that original ordinance that set out the courts of justice. Since that
tmie they have made very frequent use of it: full as much as the British
subjects, or more so.

Do they in civil causes look upon the difference as a hardship? — I do
not know tiiat they do. I recollect a circumstance in the execution of a
process in civil causes, in which the Canadians did complain of the Eng-
lish law, until it was corrected: that was, there was too great haste made
in sellinp^ their landed property in a hurrying secret manner, and at a
small price, for less than it was worth, in order to pay their debts. That
has been corrected by an ordinance of March, 1770; and care has been
taken to correct the process of imprisonment, which made them liable to
imprisonment for debt even for the sum of twelvepence currency, in that
part ninepence currency, by substituting the sum of forty shillings. The

114 Constitutional Documents of Canada. [1763-1774

ordinance provides that an estate shall not foe sold but after a proper time,
and not at all for a debt less than twelve pounds.

Would not the Canadians think themselves happy without the restora-
tion of their laws and customs, and if none of their forms of government
were retained? — I think they would not be happy without the restoration
of some of their family customs, as tenures of land, the mode of convey-
ing, marriages, descent, and dower, and the rule in cases of persons dying
intestate.

Do not the Canadians at present esteem it a burthen to be drawn
from their homes to serve upon juries? — I have heard complaints of the
kind.

Are you not of opinion that, in order to make a trial by jury more
beneficial, it would be right for a certain allowance to be made to persons
called to serve on juries? — I think it would. A small one would be suffi-
cient : five shillings a man would make them wish to be called upon juries.
I think that allowance should be paid by the party that requested the jury.

In any and in what degree might it be expedient to establish the civil
jurisdiction of England, in preference to that of Uie French, for trials of
civil property? — I received an answer from an able Canadian, M. Cugnet,
to whom I have no reason to be partial, as he has written very spiritedly
against my plan, — that the conquest was in itself a misfortune; and that
they must bear with a great deal, he was sensible, in consequence of it;
that the criminal law must be that of the conqueror, that is, le lot du
prince; but that they must submit to it He has further said, as to civil
matters, that in point of justice, his Majesty ought to keep up all the an-
cient and civil laws of the Canadians; but even there he admits, that the
form of administering justice must in the great courts be changed.

Would it be convenient, and for the interest of them as well as of
us, that the trial by jury should be established? — I think so; more espe-
cially if optional, as it takes away all pretence of hardship.

Is not the province of Canada, by the superior spirit and great capi-
tals of the English merchants, very much improved? — ^Very much.

Have not those merchants, who have so improved the province, en-
gaged in those concerns and embarked their property there under the
sanction of the English government? — ^Undoubtedly.

Do you think the property so embarked would be equally secure, if
the common law of England with respect to civil trials was entirely abol-
ished?— I rather think not equally secure. Certainly, they would not
think it equally secure.

What proportion of the trade of the province is in the hands of the
English merchants? — I can only tell from information I have received
here in England: I am told it is seven-eights. The increase of the trade
is an undoubted certainty. I am inclined to think it is entirely owing to
the industry of the English merchants.

Did not the intendant make regulations? — I have seen the commission
of the intendant. I think there is a power given him singly, in certain
cases, to niake some regulations — not of the highest magnitude, but under
some limitations, I cannot very well tell what.

Did not the intendant regulate the price of the com of the country,
when it exceeded the consumption of every family; fixing his own price
upon a certain quantity? — I do not remember hearing that circumstance
from any Canadian.

Do you think the English merchant would continue to embark his
property in that country, if he had not the sanction of English law? — I
believe it would be a great discouragement to him.

Would the Canadians admit a part of the English law, rather than
lo$e those benefits they find from the introduction of English merchants
among them? — I am persuaded they would. I apprehend, if the option
was that the English merchants should cease to trade there, or that they
should submit to have that part of the law, trial by jury, they would un-
doubtedly choose the latter.

Are not justices of the peace appointed to decide causes? — Upon the

1763-1774] Constitutional Documents of Canada. 115

first establishment of the civil government, General Murray endeavoured
to soften the change of conquest to the conquered people. The method of
administering justice was as follows: he first established a supreme court
of judicature, called the king's bench, in which the chief justice of the
province singly was to preside, and which was directed to determine all
matters criminal and civil according to the laws of England, taking him-
self to be bound to give those directions in consequence of the King's
proclamation. He also instituted, by the same ordinance, a court of com-
mon pleas, in which he directed the judge to determine all matters accord-
ing to equity, having regard nevertheless to the laws of England, as far
as the circumstances of the province would permit ; and he gptve an appeal
from that court to the court of King's bench, which was directed to fol-
low the laws of England strictly. He also instituted justices of the peace,
and gave to each a power to determine civil matters, in a summary way,
mider five pounds of the currency of that province, about four pounds
English.

Was not the tyrannical behaviour of those magistrates, in their de-
partment as judges, the cause of complaint among the Canadians?— Some
did behave tyrannically, and their conduct gave rise to great complaints ;
others made use of their power so discreetly as to be a great blessing to
the people. Of these, two were Frenchmen, Canadians, old subjects of old
France before the conquest, both Protestants.

Were any of those men suspended from their offices? — None. The
governor, instead of suspending them, made an ordinance, in March, 1770,
whereby he took away the civil jurisdiction of all justices of the peace.
It was governor Carleton's ordinance.

From what cause was it taken away? — I do not know. It was a less
odious way, perhaps, of disqualifsring. It was a little while after I left
the province.

I wish to know in general whether, if the English law was estab-
lished in Canada, — ^the civil law — a few years' experience would not con-
ciliate the Canadians in general to that form of judicature? — I am per-
suaded it would : and more especially if methods were taken, to remove
some of their objections. How far it may be expedient to take such
measures the House will judge. One of their objections is to juries, from
the necessity of being unanimous, which they sometimes ridicule, by calling
it a method of trial by strength of body and power to fast longest. I
conceive, therefore, that that trial would be more agreeable to 3iem, if
the majority of the jury were permitted to decide the verdict; but as it
is, with all its inconveniences, I believe they would choose to have it in
the manner it is, because I see they frequently make use of juries in
aoses of consequence.

If that could be the case, would it not be a means of increasing their
Section and attachment to the government of this country? — In my opin-
ion it would.

Would it not more speedily alienate their affection from both the
laws and the government of France? — I should think it would have that
effect

If that should be the case, would it not greatly promote the interest
of the country and improve it? — I should think it would.

From your knowledge of the French laws, should you wish to see the
property of English subjects decided by those laws, in preference to the
Canadian? — My opinion is otherwise; but I am not able to balance the
merit of the two codes of laws : I do not know enough of either of them.

If the French law should be established, do you apprehend there are
judges sufficient in number, and of sufficient abilities to administer jus-
tice properly to the English subjects? — I doubt it; and besides, while I
was Uiere, the Canadians were must better satisfied with the integrity and
duties of the English lawyers in latter times than of their own ; so as to
employ the English lawyers in the court of common pleas in many causes,
in preference to their own Canadian lawyers, who have always been per-
isitted, from the origin of the civil government, to practice in court

116 Constitutional Documents of Canada. [1763-1774

In your judgment, would not the good object proposed by the re-
establishing of the French laws and customs, be as well or better answered
by retaining a system of English laws, with such alterations as it may be
necessary to introduce? — I think that the best meUiod of giving satis-
faction.

Are not those parts in which you conceive an alteration to be neces-
sary, in order to gratify the prejudices of the Canadians, principally con-
fined to the tenure of land, the mode of succession, and the descent of
property? — ^Yes; adding to it, conveying their lands, selling, marriages,
tenures, etc. I believe I might add, they would be pleased with the con-
tinuation of the law relative to intestate effects. It mi^ht be easily cured
of its defects by the power of making wills : it differs little from ours.

Are you possessed of knowledge enough of the French laws intended
to be introduced by this bill to give judgment by them? — I should not like
to undertake the task. The difficulty may be measured by M. Cugnet's
endeavouring to prove that the French law is a matter of easy attain-
ment He tells us, in the manuscript I have seen, it may be learned* by
the perusal of only thirty volumes in folio and quarto.

I beg to know your judgment upon the propriety of re-establishing
the Catholic religion in Canada, and restoring to the clergy their ancient
rights and dues, without a similar establishment for Protestants? — It is a
very doubtful thing; and, unaccompanied with restraints upon the bishop's
great power, may be of dangerous consequence. It is certainly not neces-
sary to the satisfaction of the Canadians; because the option of paying
tithe, or letting it alone, can never be disagreeable to them. '

Do you understand that the Canadian subjects have at this time this
option? — They certainly have, and sometimes make use of it. They never
presume to sue for tithe, either in the court of king's bench or common
pleas, knowing there is no possibility of succeeding. The ground of that
opinion of theirs and of mine is, the strong words of General Amherst's
answer* to the demands on the part of the French general, for the con
tinuation of the obligation of the people to pay their tithes and other
dues: "Granted, as to the free exercise of their religion; but as to the
obligation of paying tithes, that will depend upon the king's pleasure."
That has been universally understood, till now, to have been a positive
dispensing with the obligation. It has often happened that they have not
paid tithe; much oftener that they did, from their regard to their religion.

Do you consider this bill to be a granting and confirming of this
tithe? — The words of the bill are declaratory: the word "enacted" is not
there. In my opinion, the right does exist at present. How far words de-
claring that to be law, which till this time is clearly understood not to be
law, will operate as enacting words, I do not pretend to say.

Did you ever hear in Canada that the claim to tithe extended to Ro-
man Catholic landholders, and not to Protestant landholders? — Everybody
paid tithe indiscriminately. Since that every body has been understood to
be exempted from tithes indiscriminately.

Can you help us to a ground of distinction, upon which we might be
induced to believe, that the right is a necessary one with regard to Catholic
subjects, and not so with regard to Protestant subjects? — I cannot con-
ceive any.

From your experience of the inclinations and expectations of the Ca-
nadians during your time, do you conceive their expectations went to the
length of imagining they should have this re-establishment of the Catholic
religion made effective, relative to what is meant to be given them by this
bill? — I believe they have been flattered with hopes of that kind, and I
have reason to think promises of endeavouring to procure it have been
made to them. How far they thought they would be successfuli I cannot
tell.

Would they have been induced to believe such would be the result if
no such promises had been made to them? — I am of opinion with Sir

» Sec No. II. Article XXVII.

1763-1774] ConsiitutiotuU Documents of Canada. 117

Jeffery Amherst, that so far from it, if the priests had been permitted to
remain in the possession of their livings, and their places haul been sup-
plied by Protestants, the Canadians would have been satisfied. They would
have been satisfied, if that had been pursued from the begging ; but I
do not mean to say, that so small a degree of indulgence, with respect to
their religion^ would be expedient now.

In your judgment, would not a less degree of indulgence than what
is given by this bill content Uiem? — ^I believe the hopes of the upper dass
of the people have been raised high. The others would be satisfied with
less. Of one hundred and fifty, one hundred and forty-eight would be
satisfied with little more than the security of their property, and those
family laws I mentioned before. Very few that take the lead among them
make a complaint against the English government Of the set of people
who call themselves noblesse, amounting to not more than one hundred
and fifty out of one hundred and fifty thousand — eight or ten, perhaps
twelve, are noblesse according to ^e French ideas. Of which class there
were fifty thousand families in France ; I mean of the hereditary noblesse :
but there are others, who associate themselves with these, and consider
themselves upon the same footing — people who have held civil offices,
uoblesse for life^ disbanded officers who had held commissions in the
militia, or among r^^lar troops — ^those people are most apt to complain.
They fear the change of government the most: they even are, in some
degree, envious of die success and prosperity of inferior people.

Do you not believe, that the most extravagant of the Canadian noblesse
would think themselves perfectly well off, if the two religions were sent
into the country pari passu? — I believe no interruption to the peace of the
country would happen. I believe more persons would be pleased than
displeased.

In your judgment, is the legislative council, which is to be appointed,
and removeable at the pleasure of the governor, and to consist of twenty-
three, a right sort of legislature for the province of Canada, either now,
or ever? — I apprehend not now : certainly, not for ever.

Have you the same objection to a legislative council appointed, and
to be removed, by the King? — Not nearly so strong as agamst a legisla-
tive council removeable by flie governor. There is a wonderful difference ;
the former would not make the counsellors contemptible in the eyes of the
people: they would suppose the counsellors would not be wantonly re-
moved. Whereas, if they were removeable by the governor, they would
be considered as the mere tools and creatures of the governor, and no
reverence would be paid to their acts and ordinances. How far they might
meet with obedience, I will not say.

Would that alteration, substituting the crown in the place of the gov-
ernor, but leaving the council of twenty-three, form a legislature fit to be
given to the province of Canada? — I am inclined to believe that they keep
in view an assembly, notwithstanding the ill conduct of certain assemblies
io North America. But if it be thought that the Popish religion is so
great an objection to the constitution of an assembly, partly because it is
(^gerous to trust Catholics with much power; if it be thought, on the
other hand, unjust to exclude them entirely; I have thought a legislative
council for a few years, consisting of a certain definite number of Roman
Catholics, with a large quorum consisting of Protestants only, might be a
tolerable substitute for an assembly for seven years. My reason for say-
mg Protestants only is, because I conceive, if the Popish religion is not
a bar to admission into this council, it ought not to be a bar to admission
into the assembly. For that occasion, recourse should be had to an as-
sembly; which would be very agreeable to the Canadians, if Catholics
were admitted into it.

Are the pnpvisions introduced by the proclamation such as deserve to
be called inapplicable to the state of the province? — I think not, in the
general extent. They require correction, and a few alterations. With
wspect to the laws, I beg leave to state a distinction. The laws that I
oave mentioned, I can divide into three parts: laws of tenure, laws of

118 Constitutional Documents of Canada. [1763-1774

conveyancing, laws which I shall call a devolution of property. I con
ceive the laws of tenure, by which I mean the laws relating to tiie mutual
and reciprocal ties of landlord and tenant, all subsist, notwithstanding
the proclamation, and do not need a revocation of it to revive them. These
laws of tenure contain the laws that oblige the tenants to pay their quit
rent and corn rent and their mutation fines, to their landlord, to grind
their com at his mill, and give him his meal-toll. If these laws were to
be altered, it would be taking away the property of the seigneur; which
cannot be done, because it is granted by the capitulation. In the next
class, I place the laws of conveyancing, which, though not affecting the
very property of the people, because a man may be made to alter the
mode of conveying his property, without absolute violation of property, is
yet a necessary branch of the law for the convenience of enjoying pro-
perty. These laws I consider as having been changed precipitately, and
that they ought to be restored. In the third class, I place the laws of
devolution; meaning by that the laws of inheritance and dower, and the
right of the husbatid upon the death of the wife: Uie distribution also of
the intestate's effects. Those laws may be changed by the legislature, with-
out a breach of the capitulation. . . .

Examination of William Hey, Esq., Chief Justice of Quebec

How long did you reside at Quebec as chief justice? — Six years; from
the beginning of September, 1766, to 1773.

Have you found the Canadian inhabitants dissatisfied with the intro-
duction of the English law, and exclusion of their own laws and customs?
Do they generally approve of the trial by jury in criminal causes? — I
think they do.

Are they not equally capable of deciding in civil as in criminal causes?
— I do not think the Canadians are in general called upon juries, so often
as other inhabitants of Canada.

Do you conceive they are less capable of distinguishing in causes of
property, or manslaughter? — It is nicer to determine questions of property,
which depend upon cases of law, than criminal causes which depend upon
fact. I always found them extremely attentive to my directions ; if I may
say so.

Were they not willing to receive the like assistance in civil causes? —
I think they were, in general, a very attentive and obedient people.

Are not the laws of Canada respecting lands, dower, and gift by will,
allowed by the court and juries at Canada, respecting the Canadian sub-
jects only to be just as they were when they were in the possession of the
French? — I believe the court of King's bench did admit the Canadian laws
and customs indiscriminately, in general. The ordinance directed them to
do it

Then you believe the Canadians would be content to have the laws
continued to them upon this subject? — I believe they would. They have
made objections to juries. The higher part of the Canadians object to the
institution itself, as humiliating and degrrading. They have no idea of
submitting their conduct to a set of men, their inferiors; and the lower
order look upon it (as in truth it is) a burthen to them.

I apprehend the customs of Canada are as much considered by the
juries of Canada, as the particular customs are here by the judge and
jury? — I believe, in the court of King's bench, they are. I have thought
myself obliged, in my capacity of chief justice, in every case of appeal, to
determine by the same rule; because it seemed to me a gross absurdity,
that I should sit to determine the merits of a cause, governed by one kind
of law, which they had determined under the provisions of another.

Is there any method so likely to reconcile the Canadians, in general,
to our government, as the introduction of the English laws, by the inter-
vention of a jury? — ^There are two questions, rather. I believe they have
great objections to the introduction of English laws. With regard to trial
by jury, they certainly do not understand the benefits resulting from it as
we do; but I do apprehend, under certain modifications, it would not be

1763-1774] Constitutional Documents of Canada. 119

disagreeable to them, both in civil and criminal causes. I think the trial
by jury would not be disagreeable to them, if they were allowed compen-
sation for their time and trouble; and I think, further, if that unanimity
which our law insists upon, was not to be insisted upon there, and that
the jury were to be composed of an unequal number (suppose thirteen or
fifteen) and that the majority of two-thirds were to determine the ques-
tion, I do not, in my own mind, think there would be much objection in
the main body of the Canadians.

Do you mean this regulation to be in criminal as well as civil causes?
— ^No. All in criminal causes.

Have you ever understood that the French suitors had ever been ac-
castomed to make presents? — I have never heard of any instance. I have
found a g^eat alacrity among the Canadians to canvass for the vote of a
judge. That is still remaining in the province.

Have you heard any general complaint of juries deciding partially in
causes of property, or by any improper influence? — I cannot recollect any
particular instance. Suitors have complained. I never heard any general
complaint with regard to decisions. I have heard some with regard to
their conduct in not deciding matters.

Why did they hesitate? — Perhaps it might be from difficulties arising
from the question itself; perhaps it might be prejudice as to the party, as
between one another; but they certainly have departed without giving
verdicts; and, I am ashamed to say, I did not punish them for it.

Then the Canadians do not think, under the proclamation, this country
fS under an indispensible necessity to allow them juries? — I cannot take
upon me to say. They have an option. They have not frequently used
the option. According to the best of my information, it never has been
in the court

Would not the English be very much dissatisfied if juries were not
to determine? — ^Very much so. They are wonderfully zealous for the
trial by jury; and, die misfortune is, they do not act up to it; for I can
never get them to attend. They are not numerous. It certainly comes
upon them at a very inconvenient time. They have, some part of the
year, nothing to do ; the rest of the year they are exceedingly busy.

Under the present bill, do you think you could administer justice
equally to your own satisfaction, or to the Canadians in general, as you
have done hitherto? — ^The question is rather embarrassing for me to ans-
wer. I hope I may answer for the integrity of my own conduct

Could you make yourself equally master of the Canadian law as of the
English law? — ^That must require a great deal of time and attention; and,
I am afraid, more abilities than I am master of. If his Majesty thinks
proper to continue me, I shall certainly try to make myself master of it
I am tmequal to give any opinion upon this bill. It is not my province,
before tiiis House. I profess myself perfectly indifferent to the bill, and
very unable to form an opinion.

If the benefits of the Habeas Corpus were explained to the Canadians,
would they not think themselves highly favoured by it? — I should think it
impossible but they must think themselves highly favoured by it; but I do
not pretend to answer for the opinions of Uie Canadians. They are, in
general, a very ignorant people — a very prejudiced people.

Are they not capable of understanding the benefits of juries, as well
as those of the Habeas Corpus f-—l cannot answer for their capaci^. They
are, at present, in a state of great ignorance with respect to it

If the Habeas Corpus is not allowed, is not arbitrary imprisonment in
the power of the governor, without legal relief? — I should apprehend
there are abundance of restraints upon the governor, which will intimidate
him; and that the courts of justice would relieve against such. It would
not be so instantaneous, perhaps, as the case might require.

What is the mode of relief that the courts would take, if it came to
their knowledge, under the establishment of this bill? — ^They would not
^ive instant relief: but I apprehend the party would be delivered at the
commission of oyer and gaol delivery. If out of term time, not

120 . Constitutional Documents of Canada. [1763-1774

Suppose the imprisonment private, what remedy then? — ^No remedy.

Without the permission of juries, may not money be levied upon any
of the Kinfi^s subjects, under this bill? — I have had but one view of the
bill. I did not know of my attendance here. It does not occur to me, the
power of raising money — it is so directly in the face of every law. I
apprehend it might not be done readily. The application must depend
upon the decision of the court; consequently, upon a jury.

If the Papists were relieved from the oath of transubstantiation,
would they not take the other? — ^The clergy would not Perhaps some of
the other inhabitants would. The clergy might admit the King's suprem-
acy with regard to temporals. I speak only my own opinion. There is no
such thing as public chapels. Debts have been sued for goods supplied to
the Canadians.

Have the Canadians thought the decision fair? — I never heard any
particular objection to them. I believe the import and export have in-
creased.

What proportion is carried on by the English subjects residing there?
— ^The English subjects import more than the Canadians; but when im-
ported, the Canadians take it up from them to the country.

Have the profits of the possessions of the Canadians been increased
since the conquest? — ^They certainly grow more com, are more populous,
and likewise cultivate their land better. If this land had been now sold,
no doubt it would have sold for more. The body of the people are not
at all dissatisfied with the conquest To be sure the higher part are.

Have juries been considered as judges of law as well as fact? — ^They
have taken it upon themselves to judge of law as well as fact They have
laid it down as a certain principle, that they will never give a special ver-
dict upon any occasion.

Have you not paid attention to the Canadian law? — I certainly have,
whenever causes came up to the court of King's bench. Very few causes
ever originated in my own court

Do you understand that, by this bill, all the law in civil causes is to
be repealed, and the law of Canada take pladi entirely? — I understand it so.

What repiedy is substituted in the place of the Habeas Corpus f — I
know of none. There is no long oppression ; they sit every week.

Under the present constitution of the English criminal law and the
French civil law, could a person, not imprisoned for a crime by the oper-
ations of law, have relief by the gaol delivery under this present bill? —
My duty is to inquire into ail prisoners, and to know for what they were
confined. If I did not find a law for it, I should be tempted to make one
myself.

Would the French civil law give any reparation to the party for such
confinement? — I should apprehend it would, upon the common principle
of justice.

Is there any positive law in the Canadian code, that authorizes that
idea, or is it what your humanity would make you infer? — I apprehend,
under every system of laws, there must be naturally a redress for an
injury of that kind. What the particular mode of it is under the Canadian
law, I cannot tell.

Do you mean, that any chief justice, or judge, would be entitled to
assess any particular sum of money to compensate? — ^Undoubtedly, the
court must sit and determine the quantity. I cannot speak to it I never
studied the law of Canada as a system. I have endeavoured, in all cases
of information, to collect the law. I apprehend the aggrieved party must
bring an action ; and that, according to the evidence of the debt, the court
would allow it him. I believe, where the matter has been doubtful, and
has depended upon an intricate account, the court has ex officio awarded
It to arbitrators to settle it I mean under the old Canadian system.

Under the Canadian law, do you know of any power of imprisonment
for debt? — In particular cases there was a power; but, in general, they did
not use the arrest for debt For debts of a large nature, such as bills of
exchange, I believe they did allow it; but, in general, not

1763-1774] ConsHtutiofMl Documents of Canada. 121

Do you conceive the recovery of the property of the English mer-
chants, though in Canada, would be more or less easy, under this bill,
than it was ^fore? — That will depend, in a great measure, upon the estab-
lishment of the courts for the administration of justice. If they were well
supplied with proper powers — ^persons of discernment and integri^ in-
vested with proper powers — I should apprehend that property might be
more easily recovered.

What do you understand, under the present form of the bill, would
be the mode of administering justice in that country? Who would stand
in the place of the Canadian intendant? — I apprehend that would depend
upon the execution of the authority which is given to the Crown, by virtue
of that clause, which enables the King to appoint courts of justice.

Do you apprehend the matter of courts of justice to be left at large? —
I do. I apprehend my present commission will be at an end.

What kind of a conmiission can be given under the Canadian law? —
I see no necessity for altering the commissions. *

Will the establishment absolutely and unimlitedly of Canadian civil
law, tend to encourage or discourage British subjects from purchasing
land m that country? — I believe the British subjects would have no objec-
tion to die restitution of a part of the Canadian laws; but I think the
restitution of the whole would very much disincline them to settle among
the Canadians.

Do you think it would be impracticable, or even very difficult to draw
such a line of admission of Canadian laws, as would give satisfaction both
to the new and old subjects? — I myself have been unfortunate enough to
differ with General Carleton in that respect His Majesty was pleased to
order the governor, the attorney-general, and myself, to make our report
upon the state of the province, and particularly with regard to grievances
which the Canadians either felt, or thought they felt, under the adminis-
tration of justice, as it was then administered ; together with the remedies
that we thought most proper to be applied to those grievances. The Cana-
dians conceived that the introduction of the English laws, and the exclu-
sion of their own, at least their doubt and uncertainty how far that mat-
ter went, was their greatest grievance; and the remedy proposed to be
applied was the restoration of their own laws and customs in toto. I own,
myself, I thought that went too far. I thought that such a mixture might
be made, as would be agreeable both to the Canadians and British sub-
jects, at least the reasonable part of both, and answer every purpose of
state policy here at home. My idea was, that a country conquered from
France, and retained by the treaty at the end of the war was. if possible,
to be made a British province. I was, and still am, very sensible, that must
be a work of time and difficulty; but, however, I thought it an object worth
attending to. The first thing that suggested itself to me under that idea
was, that the laws of this country should be considered as the leading
^ystem of judicature in a province that was to become British. I was will-
ing, however, to allow large exceptions in favour of the prejudices, the
^^ natural and reasonable prejudices, of the Canadians. I was willing
to allow them tiie whole law with respect to their tenures, with respect
to the alienation, descent, and mode of conveying or incumbering their
real property, to the rights of dower and marriage, and the disposition of
their personal estate in case of intestacy. This I thought was a very large
^ for them : quieting and securing their possessions according to their
own notions of property, and not breaking in upon or disturbing their
former settlements. The rest of the law, as the law respecting contracts,
(^ts, disputes of a commercial nature, the law of evidence, and many
other matters of that kind, I thought might safely stand upon English
^ottom. These, with the whole criminal law of England, with the trial
7 jury, the presentments by the grand inquest, together with the estab-
Immt or at least, toleration of meir religion, with some reformation in
tlK proceedings of the courts of justice, to exclude our modes of pleading,
which the Iqpd pleaders of the province are very unequal to, and to intro-
doce a more compendious and simple method of process, more comform*

122 ConstitutioncU Documents of Canada. [1763-1774

able to what they had been used to under their own government, would, I
had hoped, have made up a system that should not reasonably have been
objected to by either British or Canadians. I am of opinion, that at the
time I stated that as the ground of my difference from General Carleton's
report it would have been satisfactory to the Canadians. I am in doubt
now whether it will; but I still think it ought

Why do you think it would not now be satisfactory to the Cana-
dians?— I apprehend they have risen in their demands of late, and hope
to be gratified to the utmost extent of their desires.

Upon what are these very extensive opinions founded? — I know of
no particular ground for the extent of them. It appears to be a natural
progressive state from the condition they were in, to that in which they
now stand. They were terrified, and in a state almost of distraction.
They neither expected to retain their religion or their laws, and looked
upon themselves as a ruined and abandoned people; but when they saw
attention wisely and humanely paid to their situation, they were willing to
improve their condition, as far as their ideas carried' them, to the absolute
restitution of their whole laws and customs. But I know of no particu-
lar encouragement given them to ask anything. It was, I have no doubt,
promised them, that their case should be fully and fairly represented, and
that they might rely upon his Majesty's bounty and goodness for their
relief.

Do you suppose they included in that general wish for the restitution
of their laws and customs, a wish for the restitution of the French criminal
law? — I do not apprehend they did. They seem perfectly satisfied with
the English criminal law. I cannot conceive them so stupid as to wish for
the French law. I speak of the great body of the people. There may be
a few persons of a very peculiar nature, that may wish for it

Do you those persons you so properly describe as looking upon their
situation with respect to their property and with regard to juries, desire
the restitution of their criminal laws? — I have no doubt they do. These
are the noblesse.

Does not the objection of the higher people to the trial by jury, in
civil causes, in a great measure arise from their being deprived of that
influence they used to have from their power over the judges? — I cannot
say it does. I never heard any complaints of their exercising any undue
influence over the judges.

Do you conceive that their readiness to have back the French laws did
not arise from the expectation of success? Have you not heard that the
more powerful were the most successful than the lower people? — I never
have heard any thing particular one way or the other; but one would be
apt to imagine that such an influence might prevail. I am inclined to
think, in general, that their courts of justice were pure, and justice fairly
administered. There was a great control of the superior council over
every judge's determination. As that council was composed of men of
the first rank and character in the province, I cannot suppose they wcr**
under any undue influence, or that they would suffer any.

Would not the lower and middle Canadians be flattered and pleased
by the power given by a jury, in proportion as the higher were morti-
fied?— I am inclined to think not They would "endure it," that is all: and,
under the alterations I have mentioned before, it would be less disagree-
able to them; but I fear it would take a long time to convince them of
the use or advantage of it

Was an appeal to the superior council attended with no difficulty or
expense? — No difficulty, and very little expense.

Where will the right of hearing appeals be lodged under this law? —
I apprehend tiiat will depend upon the constitution of the courts; as they
will, and must be new modelled under that law.

Do you think the former law of appeals will be inapplicable to the
ffovemment of that country under its new law, without a special provision
being made? — ^There will be no court to appeal to. The present courts
wUl be abolished; the present judges will be abolished. The authority

1763-1774] Constitutional Documents of Canada. 123

that constitutes these courts may, I presume, constitute the mode of pro-
ceeding in them, and how and where to appeal from them. But this act
only directs, in my apprehension, that the rules of law to be observed in
these courts should be those of Cunada, with regard to civil property.

Can you suggest any body sufficiently qualified in the laws of Canada
to receive the appeal and do justice upon that appeal? — I have no parti-
cular person in my eye to mention.

Do you understand the appeal would be according to the spirit of the
French law? — ^The ultimate appeal would always rest upon the Kin^; and
cotmcil; but the stages it would go through must depend upon the con-
stitution of the courts.

Do you conceive there would be no inconvenience arise to persons
from having their property tried upon an appeal under such laws? — I can-
not give an opinion upon the competency of the privy council.

Not with regard to the abilities of the privy council. But do you
conceive that the education of a man for a privy councillor in this cotmtry
will enable him to judge of the extent of these Canadian laws. Is the
Canadian system of laws a short system, or is it contained in many
books? — It is much less complicated than the English, and contained in a
much less number of books. The text of the Canadian law is contained
in a very few articles ; but the commentaries may be very voluminous.

Are there not many parts of the Canadian law immaterial to this
point, but which might be attended with considerable inconvenience to the
English subjects residing there? — I must confess I am not able to answer
that question. The Canadian laws were extracted — ^those that were thought
necessary and applicable to every purpose of securing their property--4>y
a set of gentlemen in Canada; who, I believe, were very unequal to the
work. The compilation is published, and has been printed : it is generally
thought to be a faithful one.

In adopting that compilation, and establishing trial by jury in civil
causes, might not such trial be obtained without any burthensome expense
to the inhabitants? — I do apprehend it might, if the courts of justice
would regulate the fees.

Would it not be difficult, in some cases, for the courts to regulate
the expenses? — I should think not, in material matters; but in the fees
of counsel, for example, no court can, or perhaps ought, to interfere.

Do you conceive that, at present, the Canadians are much attached to
France, and would wish to be under that government again? — I do not
apprehend that the body of them would. No doubt the noblesse and die
military have been great sufferers, from the loss of their employments
and commissions; and it is natural enough to suppose that they would in-
cline to their old employments, under their own government But I should
hope that they, if proper indulgence were paid to them, might be made
to withdraw from every idea of returning to their old government, and
become good British subjects.

Do you conceive the Canadians would have any great objection to a
provincial assembly, into which Roman Catholics would be admitted, under
certain restrictions, such as taking the oaths? — I believe they have no
Idea of advantage from it. They look upon the house of assembly as a
house of riot, calculated for nothing but to disturb the government, and
obstruct public servants.

Do they understand that there is a resemblance between the house ot
assembly and the House of Commons in this country? — ^They do not under-
stand the principles of either.

Have there not been conferences in that country, relative to the form
of government, and arrangement of laws, that may best suit them? — 1
know of no particular conferences in that country relative to a form of
government and arrangement of laws.

Has it never been agitated with them, what would make them happy?
—I know of no conference among them upon that subject. Their ideas
are a perfect submission to the Crown, and to any authority the Crown
diooses to erect They have a high confidence in his Majesty. If he

124 Constitutional Documents of Canada. [1763-1774

chooses to call a house of assembly, I have no doubt they will compose it ;
but they would not know what to do when they came there, nor have they
any idea of the advantages of such an assembly.

They never, then, have been made to tmderstand by any of the King's
servants, that it would be of advantage to them? No pains have been
taken to tell Uiem that, by means of an assembly, they would have a power
of intemal regulation; but they have been taught to put the amplest con-
fidence in the Crown? — ^They require no instruction; it is their natural
habit I have harrangued the juries upon the advantages of the British
constitution ; but, whether it was my fault in not delivering my ideas upon
the subject clearly, or that they were not interpreted to them in the French
language, I do not believe any Canadian took notice of what I said. I
mean, my ideas with regard to trial by jury and the criminal law of Eng-
land. I never mentioned any advantage of an assembly.

Have you ever understood that there was an absolute dislike to as-
semblies among the Canadians, or only a dislike in part? — ^They do not
understand them, and what they do not understand, they cannot be said to
dislike.

Were they ever informed that assemblies could be managed so as to
be extremely obsequious to government? — ^They do not at all understand
the method of making themselves so. To the English merchants, who are
desirous of establishing the English laws, it would, of course, be an en-
couragement

Mr, Edmund Burke, — .... But before I proceed, allow me to state,
in a few words, my opinion with regard to the principle of toleration.
There is but one healing. Catholic principle of toleration which ought to
find favour in this House. It is wanted not only in our colonies, but here.
The thirsty earth of our own country is gasping and gaping, and crying
out for that healing shower from heaven. The noble lord has told you
of the right of those people by the treaty; but I consider the right of
conquest so little, and the right of human nature so much, that the former
has veiy little consideration with me. I look upon the people of Canada
as coming, by the dispensation of God, under the British government I
would have us govern it, in the same manner as the all-wise disposition
of Providence would govern it We know He suffers the sun to shine
upon the righteous and unrighteous; and we ought to 8u£Fer all classes,
without distinction, to enjoy equally the right of worshipping God, accord-
ing the lifi^t He has been pleased to give them. The word "established"
has been made use of: it is not only a crime, but something unnatural
to establish a religion, the tenets of which you do not bdieve. Applying
it to the ancient inhabitants of Canada, how does the question stand? It
stands thus: — ^you have got a people professing the Roman Catiiolic reli-
gion, and in possession of a maintenance, legally appropriated to its clergy.
Will you deprive them of that? Now, that is not a question of "establish-
ment:" The establishment was not made by you; it existed before the
treaty; it took nothing from the treaty; no legislature has a right to take
it away ; no governor has a right to suspend it This principle is confirmed
by the usage of every civilized nation of Europe. In all our conquered
colonies, the established religion was confirmed to them ; by which I under-
stand, that religion should receive the protection of the state in those
colonies ; and I should not consider that it had received such protection, if
their clergy were not protected. I do say, that a Protestant dergyman
going into that country does not receive the protection of the laws, if he
is not allowed to worship God according to his own creed. Is this remov-
ing the sacred land-mark? What I desire, is, that every one should con-
tribute towards the maintenance of the religion he professes; and if this
is proper to be done, why not do it immediately? The religion to be estab-
lished should be that approved religion which we call the religion of the
church of England. With regard to the religion of our own country, there
would be propriety in the use of the word "established;" but I maintain,
that every one ought to contribute to the support of some religion or

1763-1774] Constitutional Documents of Canada. 125

other? Does any gentlemen mean to say, that the impious profligate, the
moment he chooses to avow himself an unbeliever, can appropriate to his
own use the tithe he has been accustomed to pay for the support of any
religions establishment? Suppose one of those persons should turn Jew —
I would give him complete toleration, but I say, let him support the sjma-
gogrue. I will suppose this case: when a man is sued for his tithe, he will
declare that he does not profess the Roman Catholic religion. He then
walks directly into that mass-house, or church, for the support of which
he has ^sitively refused to engage himself: he says, he does not profess
the Popish religion ; and suppose he abstracts himself from all religion, he
pays no tithe. If this be allowed, you are encouraging him to be an atheist.
Therefore, this clause does not provide for the establishment of popery,
but it does provide for the establishment of atheism. I have not yet heard
a shadow of an answer to this charge; nor the slightest attempt made to
remedy this evil. With a view of meeting it, I shall propose a clause, pro-
viding that the tithe paid by persons not professing the Roman Catholic
religion shall be handed over to the Society for the Propagation of the
GospeL What objection can be made to my proposition I cannot conjec-
ture. Does it trench on the rights of Englishmen? Does it trench on
the rights of the ancient inhabitants of Canada? By no means. When
the people become divided in their religion, why not follow the generous
example set by the treaty of Westphalia; by which the duties of two or
three establishments were discharged in the same church on the same
day; the Roman Catholic, the LuSieran, and the reformed religion? It
sets an example worthy of a Christian church. It is a happy union, that
has fixed peace for ever in those provinces. . . .

Mr. Charles Fox, — I wish, Sir^ to state, in two or three words, what
I consider to be the principle of this clause. My objection to the bill con-
sists mainly in my objection to this clause: it begins by stating, that "it
is at present inexpedient to call an assembly." Now, that I can contra-
dict this assertion, and say it is expedient to call an assembly, I will not
assert; but, from all the information I have obtained in this House, I am
inclined to think it is expedient The principle laid down, in the course
of these discussions, has been this, that the government of the colony
ought to be assimilated, as much as possible, with that of the mother
country. That the establishment of this legislative council is a step to-
wards such assimilation, I hold to be impossible. I am free to say, that
the Canadians are my first object; and I maintain, that their happiness
and their liberties are the proper objects, and ought to be the leading prin-
ciple, of this bill; but how these are to be secured to them without an
assembly, I cannot see. It is not in nature for men to love laws, by which
their rights and liberties are not protected. I must have more substantial
evidence before I consent to establish arbitrary power in that country:
before^ I consent to establish such a government upon the principle, that
volenti non fit injuria, I must be exceedingly well assured of the volens.
You say, that the measure may be corrected. But, is it likely that this
legislative council would go on, from day to day, considering how they
could abridge their own power? This, Sir, is what can be expected from
no set of men whatever. I never wish to see the liberties of a cotmtry
dependent on such extraordinary virtue. Hitherto, I have not heard a
single argument against the establishment of an assembly. We have heard
much of the danger of putting power into the hands of the Canadians ; but
as the persons of the greatest consequence in the colony are stated to be
attached to French law and French customs, are we not, by preferring a
legislative council to an assembly, putting power into the hands of those
most partial to French government? No one has urged the circumstance
of the people of Canada being Roman Catholics as an objection to an as-
sembly; and I trust I shall never hear such an objection stated; for no
one who has ever conversed with Roman Catholics can, I think, believe
that there is anything repugnant, in their views, to the principles of poli-
tical freedom. The principles of political freedom, though not practised
is Roman Catholic coimtnes, are as much cherished and revered by the

126 Constitutional Documents of Canada. [1763-1774

people, as in Protestant countries. If there was danger, I should look
for it more from those of high rank, than those of low.

Lord North. — In the first place, Sir, I cannot admit, that the evidence
taken at our bar has been in opposition to the principle of the bill ; on the
contrary, I think it confirms the most matei!*ial part of it With regard
to^ the particular clause before us, what have the witnesses at the bar
said? The governor certainly is evidence against an assembly; the chief
justice certainly is evidence against an assembly; Mr. Maseres is for
an assembly. But, in point of fact, what came out in evidence? That
there were in the province at present one hundred and fifty thousand
Romaui Catholic subjects, and about three hundred and sixty Protestant
families, whose numbers we will suppose to' be a thousand or twelve hun-
dred persons; but very few of them are possessed of any property at all.
The fair inference, therefore, is that the assembly would be composed of
Roman Catholics. Now, I ask, is it safe for this country — for we must
consider this country — to put the principal power into the hands of an
assembly of Roman Catholic new subjects? I agree with the honourable
gentleman, that the Roman Catholics may be honest, able, worthy, sen-
sible men, entertaining very correct notions of political liberty ; but I must
say, there is something in that religion, which makes it not prudent in a
Protestant government, to establish an assembly consisting entirely of Ro-
man Catholics. The honourable gentleman is of opinion, that more is to
be dreaded from the seigneurs than from those in the lower ranks. Sure
I am, that the seigneurs who are the great possessors of the lands, would
be the persons who composed the assembly, and some of them will, I hope,
be admitted to the legislative council; but then, the governor will choose
those on whose fidelity he has the greatest reason to rely. They will be
removeable by the King in council, and will not depend wholly upon the
Roman Catholic electors, or be removeable at their pleasure. It is not at
present expedient to call an assembly. That is what the act Sfiys; though
it would be convenient that the Canadian laws should be assimilated to
those of this country, as far as the laws of Great Britain admit, and that
British subjects should have something or other in their constitution pre-
served for them, which they will probably lose when they ceased to be
governed entirely by British laws. That it is desirable to give the Cana-
dians a constitution in every respect like the constitution of Great Britain,
I will not say; but I earnestly hope that they will, in the course of time,
enjoy as much of our laws, and as much of our constitution, as may be
beneficial for that country and safe for this. But that time is not yet
come. . . .

Lord North. — In considering. Sir, the various interests involved in
this regulation, many different parties present themselves, with whose in-
clinations and desires the House must naturally be disposed to comply.
The first great interest that calls for the consideration of the House is the
interest of this country, in point of sovereignty and authority over that;
the second interest is, undoubtedly, that of his Majest/s Canadian sub
jects at large, who are, with the exception of a very small number, pro-
fessors of the Roman Catholic religion; a third interest is, the one to
which the honourable member has directed the attention of the House —
that of the English merchants trading to the province, to whose capital and
to whose skill much of the increase of commerce which has taken place
in that colony is to be attributed. There. is also another party, whose in-
terests ought not to be left out of our consideration — I mean the ancient
noblesse.

In the first place, Sir, with regard to this clause, which proposes to
give optional juries in civil causes, I do not consider that it, in any de-
gree, affects the right of this country over Canada in point of sovereignty.
If the CroWn is interested — if the power and authority of this country is
interested — in any questions concerning a jury, it is in criminal matters;
and such a jury the bill has already given to the Canadians. The British
parliament. Sir, having duly considered the great protection afiForded to the
subject by juries, agamst die claim and authority of the Crown, have uni-

1763-1774] Constitutional Documents of Canada. 127

versally given them a jury in all criminal causes. Now, with regard to
giving them also a jury in civil causes, as far as the Kin^s authority is
concerned, I do not conceive that any individual, standing in my situation,
would object to it In granting a jury in all civil causes, the only point
to be considered is, the happiness of tiie parties concerned. The ^iglish
merchants trading to Canada have an undoubted claim to the protection of
parliament They are a most respectable body, and much of the flourish-
ing condition of the colony is owing to their exertions. In compliance
with their interests and desires, I would go as far as the honourable gentle-
man, in granting them every thing that can be granted, without producing
inconvenience and embarrassment If, Sir, I understand the evidence
which has been given at our bar, it certainly is not the desire of the Cana-
dians to have the trial by jury in civil causes. General Carleton, if I remem-
ber his evidence, informed the House that, though the mode of trial by
juries had been introduced into the courts, the Canadians, in general, did
not desire to be tried by them; and it was his opinion, that to give them
their old system of laws would be the only means of making them a happy
people. With regard to the other evidence, Mr. Hey, the diief justice of
Quebec, was of opinion, that the trial by jury is, at present, not preferred
by the people; that the noblesse and die superior class of the Canadians
hold it to be humiliating; and that die lower orders consider it, as in
truth it is, a burthen. Mr. Hey told us, that he did not think the Cana-
dians, in their present state of ignorance, were fit to be upon a jury; that
he had endeavoured to explain to them the benefit of the English laws,
particularly in point of trial ; but, whether what he said was not properly
interpreted to them, or whether his reasons and not his argument had
any effect upon them. He also said, that there had been cases of mis-
behaviour in juries; not of corruption or partiality, but several cases in
which they had refused to decide at all. Mr. Maseres, it is true, told us
that juries would, he believed, be liked under proper r^^lations ; but that
the people did not choose to give their time and attendance for nothing.
Mr. Lotbini^re, on a question being put to him, whether he did not think
the English laws the best for the Omadians in general, answered that he
made no doubt our laws were good and wise, and made us a happy people,
but that his countrymen preferred their old laws and customs. Now, Sir,
this proposition requires that the jury shall be, in all cases, constituted ac-
cording to the laws of England ; and is consequently not such a jury as,
from the evidence of the gentlemen you have heard at your bar, is the
most proper and suitable for the people of Canada. It goes to submit
every question of every sort, relative to property and civil rights ; all the
questions of feudal right ; all the questions of private tenures, and the per-
sons holding under them, to trial by jury; and after what we have heard,
I thiok it would be rather a hasty step to entrust all these things to the
decision of an optional jury. The best way will be to leave die whole
question in the hands of those to whom the administration of justice in
Canada will be confided, and whose duty it will be to adopt, from time
to time, such amendments as the actual state and condition of the colony
may require.

Upon these considerations, I submit, whether it will be proper to bind
down the Crown by the clause now ofiFered, or whether, in this case, the
people of Canada may not safely repose in the confidence, that, in the
forming of the courts of judicature, the interests of all persons concerned
will be taken into consideration, and such a plan setded as, under the
peculiar circumstances of the country, will be found most beneficial to the
whole of the inhabitants. . . .

Mr, Dunning. — Sir, in entering upon the subject, there are three
classes of individuals to be considered: the Canadians, who are the old
inhabitants : the English settlers in the colony ; and the merchants, inhabi-
tants of this country, trading to that colony. The first class are repre-
lented as being averse to trial by jury; the two last are stated to be de-
sirous of the establishment of such a tribunal, but their desires, it seems,
are not worth attending to. I cannot, by any means, assent to the opin-

128 Constitutional Documents of Canada. [1763-1774

ion of the learned gentleman, with regard to the first class, when he sup-
poses that the evidence of the witnesses who have been eacamined at our
bar tends to prove, that» in their judgment at least trial by jury was no^
desirable in uie opinion of the old inhabitants of Canada, the King's new
subjects. If I can hear aright, if I can understand rightly, all those wit-
nesses agreed, and agreed so clearly, and expressed themsdves so forcibly,
that the most wilful misrepresentation cannot place them upon the other
side of this question. Mr. Maseres, I am perfectly sure, was systematical
in his evidence, in declaring, that the Canadians were ready to receive the
trial by jury; that they desire it, and will not be content without it It
was presented to them in an optional form ; and it was evident what their
wish was, from the use they made of it : they claimed the benefit of it ;
they had the benefit of it; they were satisfied with the benefit of it. Mr.
Hey, if I did not misunderstand him, said precisely the same thing. They
therefore distinguished the line of difference, and stated where they were
dissatisfied; in what they wished to have some modification of the law;
what part of the old system they wished re-established ; and what part of
the new system they wished to be rectified. Every ear acquiesced in the
voice that stated to them that, with reference to all commercial subjects,
all matters of contract, all matters of debt, all matters of civil right, with
the exception of those that had relation to matters of religious property,
might safely stand upon English bottom. These, with the whole criminal
law of England, and particularly the right of habeas corpus, made up
together a system, with which, in the opinion of Mr. Hey, the old and
the new subjects of Canada would, at that time, have been perfectly con*
tent But he went on to say, that he doubted whether such would be the
case now ; though he still thought it ought to be.

Such, Sir, is the result of the evidence before us : but at the time that
I say this, I am ready to admit, that if, after more accurate experience,
we are now ripe to say, that a trial by jury is not adapted to the circum-
stances of the colony, we ought not to enforce it Has any body made such
discovery? ^ Has apy body found out, that though applicable in criminal
matters, it is not so in those which relate to personal property? Indeed,
every sort of right is capable of beinp^ stated, and of being discussed and
decided upon by a jury. As to submitting questions of revenue to juries,
God forbid that that idea should be understood in the full extent of it!
But sure I am, that if questions of revenue were not to be decided in this
country by juries, no creature could endure to live in it for a single hour.
That is the only check — and it is a feeble one — with regard to me claim
of the Crown. Juries are not to make the law : they are not judges of the
law: more especially are they not judges of such laws. The legislature
may make those laws; they are to administer; they are to apply them.
If the Crown, or the officers of the Crown, say such a law is imposed^ it
is not competent to a jury to question the validity of that law. If that be
proved to their satisfaction they are bound to find it so; the^ are bound
to carry that law into execution. If they neglect that duty, it is obvious
the same power exists to correct the misconduct of juries abroad as well
as at home. If they persist in that sort of conduct, the law is not so weak,
but that it can apply a proper coercion. I can hardly conceive a jury in
a predicament of wilful determination to refuse to do their duty. In
every point of view, I have always thought, that of all human institutions
for the investigation of truth and the rejection of falsehood and error,
they are by far the most competent judges imaginable. They are called
upon to perform a duty : they return again into society, when that purpose
is answered: they are liable to no temptation: they have the common
interest of their fellow-subjects in view : they have every motive to induce
them to do right : they have no possible temptation to do wrong.

Is that, Sir, the case with judges? With regard to the clause now
proposed to be added to the bill, I think it does not warrant our going into
that consideration. Upon that point, I will only beg to ask, who those
judges are t9 whom the explication of this law is meant to be entrusted?
After the passing of this bill, the excellent judge who appeared at our bar

1763-1774] Constitutional Documents of Canada, 129

win be chief justice no longer, unless he should be again called to fill the
same situation. The House, I trust, has not forgotten what he said with
regard to himself upon that subject A question having been put to him,
whether he could make himself equally master of the Canadian laws as of
the English law, he answered, that it would require a great deal of time
and attention, and he was afraid more abilities than he was master of.
I beg the learned gentleman will tell us, whether he knows any one who
has more abilities. I do not know where such a man is to be found.
I think it will be difficult to meet with a man of that description.

The learned gentleman mistook when he spoke of a person thrusting
himself into a place, for the purpose of getting what did not belong to
him, and he afiFected to claim only three hundred and sixty men, as the
whole amount of the number of Protestants in the colony; but, on this
point, the witness afterwards explained himself to mean three hundred
and sixty masters of families, making the number altogether about two
thousand: but, whether three hundred and sixty, or two thousand, or
twenty thousand, be their number, is no part of the present question
These are men who did not thrust themselves into the place, for the pur-
pose of getting what did not belong to them ; these are men invited thither;
these are men tempted thither. They thought they might trust the King's
word ; they presumed that that word was sacred ; they did not foresee die
time would^ come when any man would dare to violate it : it imported
nothing of imposition to them. Those men, therefore, going thither upon
a ground which they thought ^^ould not sink under them, now address
themselves to you, and claim the protection of those laws, which are gener-
ally understood to secure to them the due performance of all men's engage-
ments. That it is the desire of these inhabitants to have the trial by jury
in cfvil causes introduced into this bill, every witness at your bar has borne
testimony. I apprehend that their situation and condition, and the means
by which they have been brought into that situation and condition, give
them a just claim to the protection of the legislature. And why. Sir, is
the third class to which I have alluded supposed to be less entitled in this
case to consideration? They are known to you as merchants trading to
that i>art of the world : but how long has it been the case, that merchants
trading to that part of the world have not been worthy of attention;
especially when they have this additional claim to urge — that the difficulties
to which they are exposed sprung from the same origin — the King's pro-
clamation? The same witness has told you, that they have formed connec-
tions in that country; that they have become creditors upon the faith of
having English laws ; upon the faith of having English juries to administer
those laws, if tiiey should want them. The merchants are too contemp-
tuously treated, if they are left to suppose, that this measure is not to be
judged of at all by their, inclination. But, if I were of opinion that it
should solely depend upoif the inclination of the Canadians, since it is not
mentioned that it is desired by the Canadians, but only supposed that they
arc not averse to it, that they would not oppose it, and though only two
classes would desire it, their right to it depending upon such grounds as it
does, I should say, there is nothing clearer, than that if the measure is to
depend tipon the inclination of the inhabitants, this inclination points
dearly in its favour. But that is not the point upon which the question
rests; for though it would be improper and impolitic to do any thing dis-
agreeable to certain classes of the people, yet if any doubt exists, that
doubt ought to be decided by your own judgment. The House ought to
dedde, whether it be proper to adopt or to reject it.

Sir, I have felt it to be my duty to detain the House thus long, in
answer to the arguments which have been urged on the other side. I have
not given myself this trouble, from any expectation that what I have said
will produce any effect, but that I might reply to the only argument that
bas been urged, and to state, that what I have heard has not, in any degree,
ahered my opinion. One advantage, however, will result from this dis-
cussion. The fact, that there was a division upon this proposition will get
into die Journals of the House, and there stand a perpetual memento, that

130 Constitutional Documents of Canada, [1763-1774

a small minority were of opinion, that English trial by jury should not be
abolished. . . .

Mr, Edmund Burke, — I will now pass to the other part of the question
— ^the alleged hatred of the Canadians to serve on juries; their inaptitude
to the exercise of the functions. But a jury may be fit for them, though
they may not be fit for jurymen. A love of justice must belong to the
Canadians, as well as to other people; and I cannot believe that trial by
jury is an odious thing to men who are subject to np undue prepossession
against it In a question upon matter of fact, where evidence is taken upon
oadi, between parties who are flesh of our flesh, bone of our bone, is there
any thing calculated so to prejudice mankind, as to make them look upon
the question of trial by jury as an odious thing? What is the reason Uiat
you cannot repose confidence in the known reason of men, as well in that
country as in this? But it is said, the people of Canada are averse to
juries! Have they complained of a jury? We have not one single
syllable of complaint, which has been taken at first hand. Opinions inferred
from conversations may be very easily mistaken. They may have com-
plained, very properly, that they found the laws of the land all shaken;
that they found a new rule given them, by which their family settlements
were all deranged; that they were deprived of all share in the govern-
ment But, Sir, as to the alleged dislike of these people to the trial by
jury, what does the gentleman who filled the office of Attorney-General in
that country with so much honour to himself tell you? Did he point out
this fact? Did he ever give such evidence? He spoke flatly to the con-
trary. He constantly spoke of it, not as a thing which they disliked, but
as one of which they were ignorant Now, dislike and ignorance are very *;
different things. In their ignorance they confused the idea of a grand
Jury with that of a petty jury, and esteemed the law a tyranny. Even Mr.
He/s evidence had only a dubious word or two in it

Having cleared my way thus far, there remains nothing but the evi-
dence of a general officer. He, to be sure, spoke of the ignorance of the -^
people of Canada: he told us of their having no wish to be tried by juries ;
that they preferred the mode of trial by a judge, from custom, habit and
education; and that they thought it strange that the English residents
should prefer to have their lives and properties decided upon by barbers
and shoemakers. You see, Sir, how much these people are to be pitied
whose authority is thus quoted; how ignorant, how much deceived, were
those persons who conversed with this great officer ! how little they knew
of the nature of that institution which they condemned! Their objection
was chiefly an objection of pride. Now, if that was a good reason to urge
against the institution there, it is a good reason against it here. But the
objections of the Canadians, so far as they are solid and substantial, are
easily removeable, without injury to trial by jury. With regard to the
objection, that it is humiliating to be tried by a jury, it can only come
from those who are desirous of being above die law; who are ambitious
of lording it over their brethren. To check that disposition would be one .:
of my reasons for giving a jury; because giving a jury would be giving
protection to the majority of the people, against those whose pride and ^
arrogance make them say it is humiliating to submit to a jury. I have no >^
objection to all the authority which weight of family, great name, and fixed
property in the country can confer. These are always respectable. But ^
how does the establishment of trial by jury necessarily contradict the feel-
ings of this class? It does not contradict their feelings in this country.
All the objections of the Canadians against the measure therefore ought v!
to vanish. ^ ;

The next objection urged against the establishment of juries is that (
they would be a burther to the people. Now, that is an objection of ^
another sort; but what sort of objection is it? The learned gentleman /
has stated it with truth: he says, that no man is willing to be a juror, !|
because he is a juror for the benefit of the community, not for his own ,
benefit^ There is no one but would wish to be excused from discharging 1'
the duties of the office. In many cases here, men must be forced to serve. ^

II

1763-1774] ConstituHoncd Documents of Canada. 131

Why not do in Canada, as we do here? But, if a small allowance were
made, such a measure, I have no doubt, would reconcile the Canadians : —
I would, however, rather try a little longer, and see whether these two
objections, that a jury is oppressive to &e poor and humiliating to the
ridi, cannot be thoroughly removed without it

Another tiling I forgot to allude to. We are told, that to require
unanimity in a jury shocks the Canadians. The learned gentleman gave a
sufficient answer to this objection ; but I shall beg leave to add a few words
more. He observed, that it was the very substance and character of a jury
to be unanimous. Truly, Sir, I know it is the substance and character of a
jury to be unanimous by our law ; but if I could be sufiFered, in a great
public cause, to give an opinion, I do not think that unanimity is abso-
lutdy necessary, but that the majority of a jury might do just as well.
I believe it would prove no inconvenience ; because, even in this country,
the majority of a jury always turns die scale. The inconvenience is this, —
the rest, finding they must yield, trifle with their oath; they cannot be
quite so strict with their oath as I could wish them. I believe that, by
the pa3rment of a very small remuneration for the loss of time, all objec-
tions to juries will vanish. One learned gentleman has suggested thai
compensation might be given to a jury to the amount of three pounds: but
let it be left to the judge, jury and counsel to adapt the payment to the
nature of the cause. Most blameable will they be, if they establish such
compensation as will make the expense eat out the suit

Having said this, I would remark, with regard to what the learned
gentleman has charged aigainst us about forcing laws upon tiiem, that all
such accusations vanish into air: they are not applicable to the case. We
do not know that they abhor a jury — that they abhor a collective jury, in
which they themselves will bear a considerable part. H it be proposed
hereafter to give a jury to Canada, what will the answer be? "Dare I
^ive what the parliament of England has refused?" You never will have a
jury, if you do not put it into this bill : it is absolutely and clearly impos-
sible. How many years elapsed, before you thought of making any con-
stitution for Canada at all ! And now, instead of making them free sub-
jects of England, you sentence them to French government for ages. I
meant only to offer a few words upon the part of the Canadians, and leave
them to their misery. They are condemned slaves by the British parlia-
ment You only give them new masters. There is an end of Canada.

Sir, having given up a hundred and fifty thousand of these people,
having deprived them of the principles of our constitution, let us turn our
attention to the three hundred and sixty English families. It is a small
number; but I have heard, that the English are not to be judged of by
number but by weight ; and that one Englishman can beat two Frenchmen
Let us not value that prejudice. I do not know that one Englishman can
beat two Frenchmen; but I know that, in this case, he ought to be more
valuable than twenty Frenchmen, if you estimate him as a freeman and the
Frenchmen as slaves. What can compensate an Englishman for the loss
of his laws? Do you propose to take away liberty from the Englishman,
because vou will not give it to the French? I would give it to the English-
man, though ten thousand Frenchmen should take it against their will.
Two-thirds of the whole trading interest of Canada are going to be de-
prived of their liberties, and handed over to French law and French judi-
cature. Is that just to Englishmen? Surely, the English merchants want
the protection of our law more than the noblesse 1 They have property
always at sea; which, if it is not protected by law, every one may catch
who can. No English merchant thinks himself armed to protect his prop-
erty, if he is not armed with English law. I daim protection for the three
hundred and sixty English families, whom I do know, against the preju-
dices of the noblesse of Canada, whom I do not know. I must put the
House in mind of what an honourable gentleman said in the course of this
debate — ^that it was seldom that any improvement was introduced into any
^untry, which did not at first, militate against the prejudices of the people.
Was all Eni^d pleased with the revolution? No. The wishes of the

134 Constitutional Documents of Canada. [1763-1774

InhaUtaatt o£ V. And, for the more perfect Security and Ease of the Minds of the
profeM She^ Inhabitants of the said Province, it is hereby declared, That His Majesty's
Romish Rtll' Subjects, professing the Religion of the Church of Rome, of and in the
f*°A *K^^?* ^^^ Province of Quebec, may have, hold, and enjoy, the free Exercise of
SupKma^'aa ^^ Religion of the Church of Rome, subject to the King's Supremacy,
by Act I. Eiiz.; declared and established by an Act, made in the First Year of the Reign
*°f ^^S^^^ of Queen Elisabeth, over all the Dominions and Countries which then did,
accustomed ^^ thereafter should, belong to llie Imperial Crown of this Realm ; and that
Does. the Clergy of the said Church may hold, receive, and enjoy, their accus-

^ tomed Dues and Rights, with respect to such Persons only as shall profess

the said Religion.
^o^»»jjnn»y VI. Provided, nevertheless. That it shall be lawful for His Majesty.
HiaMajMrty ^^ Heirs or Successors, to make such Provision out of the rest of the said
for the Sup- accustomed Dues and Rights, for the Encouragement of the Protestant
l***^t^tot Religion, and for the Maintenance and Support of a Protestant Clergy
Clergy. within the said Province, as he or they shall, from Time to Time, think

necessary and expedient.
NoPeraon VI I. Provided always, and be it enacted. That no Person, professing

^on^^ij^ ^^ Religion of the Church of Rome, and residing in the said Province,
gion obliged shall be obliged to take the Oath required by the said Statute passed in the
|o*^«the First Year of the Reign of Queen Elisabeth, or any other Oaths substituted
EH?* bw to ^y ^^y other Act in the Place thereof; but that every such Person, who by
take' {>ef ore the the said Statute is required to take the Oath therein mentioned, shall be
Governor, etc, obliged, and is hereby required, to take and subscribe the following Oath
Oath? ***' before the Governor, or such other Person, in such Court of Record as

His Majesty shall appoint, who are hereby authorized to administer the

same; videlicet,

I, A. B.» do sincerely promise and swear. That I will be faithful, and
bear true Allegiance to Hvs Majesty King GEORGE, and him will defend
to the utmost of my Power, against all traitorous Conspiracies, and
Attempts whatsoever, which shall be made against His Person, Crown and
The Oath. Dignity; and I will do my utmost Endeavour to disclose and make known
to His Majesty, His Heirs and 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 tvithout any Equivocation, mental
Evasion, or secret Reservation, and renouncing all Pardons and Dispensa-
tions from any Power or Person whomsoever to the Contrary.

So Help Me GOD.
Penona refua- And every such Person, who shall neglect or refuse to take the said
to1>eaubject Oath before mentioned, shall incur and be liable to the same Penalties,
to the Penal- Forfeitures, Disabilities, and Incapacities, as he would have incurred and
riM by Act I. been liable to for neglectin|: or refusing to take the Oath required by the

* said Statute passed in the First Year of the Reign of Queen Elisabeth.

HiaMaJeaty'a VIII. And be it further enacted by the Authority aforesaid, That

%^^^itt- *^^ ^*^ Majesty's Canadian Subjects, within the Province of Quebec, the

Ugious Orders religious Orders and Communities only excepted, may also hold and enjoy

g^cceptedS may their Property and Possessions, together with all Customs and Usages

poueMiona!^ relative thereto, and all other their Civil Rights, in as large, ample, and

etc. beneficial Manner, as if the said Proclamation, Commissions, Ordinances,

and other Acts and Instruments had not been made, and as may consist

with their AU^iance to His Majesty, and Subjection to thd Crown and

..parliament of Great Britain; and that in all Matters of Controversy, rela-

Ad' t ^^^^ ^^ Property and Civil Rights, Resort shall be had to the Laws of

ten of Om* Canada, as the Rule for the Decision of the same; and all Causes that shall

trorersy resort hereafter be instituted in an^ of the Courts of Justice, to be appointed

th^^*^V* within and for the said Provmce, by His Majesty, His Heirs and Succes-

CanadaioT ^^^* shall, with respect to such Property and Rights, be determined agree-

the Decision, ably to the said Laws and Customs of Canada, until they shall be varied

or altered by any Ordinances, that shall, from Time to Time, be passed

in the said Province by the Governor, Lieutenant Governor, or Commander

in Chief, for the Time being, by and with the Advice and Consent of the

1763-1774] Constitutional Documents of Canada. 155

J-

Legislative Council of the same, to be appointed in the Manner hereinafter
mentioned.

IX. Provided always, That nothing in this Act contained shall extend, Not to atcnd
or be construted to extend, to any Lands that have been granted by ^*s J^mSby
Majesty, or shall hereafter be granted by His Majesty, His Heirs ^^d^iMVLtLlSty
Successors, to be holden in free and common Soccage. in common

X. Provided always, That it shall and may be lawful to and for Soccage.
every Person that is Owner of any Lands, Goods, or Credits, in the said
Province, and that has a Right to alienate the said Lands, Goods, or Credits, Ownen of
in his or her Life-time by Deed of Sale, Gift, or otherwise, to devise orgj^^J'Jg'^
bequeath the same at his or her Death, by his or her last Will and Testa- MmeVf Will,
ment; any Law, Usage, or Custom, heretofore or now prevailing in the etc, if «cccut-
Province, to the Contrary hereof in any-wise notwithstanding; such WillJ^^g^^jjJJJ*
being executed, either according to the Laws of Canada, or according to ^f Canada.
the Forms prescribed by the Laws of England.

XL And whereas the Certainty and Lenity of the Criminal Law ?^ criminal L«w
England, and the Benefits and Advantages resulting from the use of it,of EN^iaiulto
have been sensibly felt by the Inhabitants, from an Experience of more be continued
than Nine Years, during which it has been uniformly administered; be «tj?J"?
dierefore further enacted by the Authority aforesaid, That the same shall
continue to be administered, and shall be observed as Law in the Province
of Quebec, as well in the Description and Quality of the OfiFence as in the
Method of Prosecution and Trial; and the Punishments and Forfeitures
thereby inflicted to the Exclusion of eveiy other Rule of Criminal Law, or
mode of Proceeding tihereon, which did or might prevail in the said
Province before the Year of our Lord One thousand seven hundred and
sixty- four; any Thing in this Act to the Contrary thereof in any Respect
notwithstanding; subject nevertheless to such Alterations and Amend-
ments as the Governor, Lieutenant Governor, or Commander in Chief for
the Time being, k>y and with the Advice ^d Consent of the Legislative
Conncil of the said Province, hereafter to be appointed, shall, from Time
to Time, cause to be made therein, in Manner herein-after directed.

XIL And whereas it may be necessary to ordain many Regulations ^o"" hu Maleatr
the future Welfare and good Government of the Province of Quebec, the ^i^ appoint a
Occasions of which cannot now be foreseen, nor, without much Delay and Coonciff or
Inconvenience, be provided for, without intrusting that Authority, for a<^«^*f*"*
certain Time, and under proper Restrictions, to Persons resident there : pro^fnee.
<\nd whereas it is at present inexpedient to call an Assembly; be it there-
fore enacted by the Authority aforesaid. That it shall and may be law-
ful for His Majesty, His Heirs and Successors, by Warrant under His
or Their Signet or Sign Manual, and with the Advice of the Privy Coun-
cil to constitute and appoint a Council for the Affairs of the Province
of Quebec, to consist of such Persons resident there, not exceeding
Twenty-three, nor less than Seventeen, as His Majesty, His Heirs ^1^3
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 ordinances
constitute and appoint such and so many other Person or Persons as shall with the Con-
be necessary to supply the Vacancy or Vacancies: which Council, so *lN5J5^nOT
pointed and nominated, or the major Part thereof, shall have Power andr^
Authority to make Ordinances for the Peace, Welfare, and good Govem-\
ment, of the said Province, with the Consent of His Majesty's Governor, \
or, in his Absence, of the Lieutenant Governor, or the Commander in Chief
for the Time Being.

XHL Provided always, Tl^at nothing in this Act contained shall The Counca
extend to authorize or impower the said Legislative Council to lav any^^enotim-
Taxes or Duties within the said Province, such Rates and Taxes only ex- jJ^^JSca,^
cepted as the Inhabitants of any Town or District within the said Province Pnblick Roada
nay be authorized by the said Council to assess, levy, and apply, within theor®«lWJ«*i»
»id Town or District, for the Purpose of making Roads, erecting and****'**^
repairing publick Buildings, or for any other Purpose respecting the local
Convenience and (Economy of such Town or District*

^ For the method of raiaing prorinclal revenue, aee Noa. XXVI, XXVIII.

136

Constitutional Documents of Canada. [1763-1774

Ordinances
made to be
laid before
His Majesty
for His
Approbation.

Ordinances
touching Re-
ligion not to
be in Force
without His
Majesty's
Approbation.

When
Ordinances
are to be

Sassed by a
lajority.

Notning to
hinder His
Majesty to
constitute
Courts of
Criminsd,
Civil and
Ecclesiastical
Jurisdiction.

All Acts
formerly made
are hereby (
inforced
within the '
Province. I

XIV. Provided also, and be it enacted by the Authority aforesaid.
That every Ordinance so to be made, shall, within Six Months, be trans-
mitted by the Governor, or, in his absence, by the Lieutenant Governor, or
Commander in Chief for the Time being, and laid before His Majesty for
His Royal Approbation; and if His Majesty shall think fit to disallow
thereof, the same shall cease and be void from the Time tlfat His Majesty's
Order in Council thereupon shall be promulgated at Quebec.

XV. Provided also. That no Ordinance touching Religion, or by which
any Punishment may be inflicted greater than Fine, 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 Meet-
ing 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 Lieuten-
ant Governor, or Commander in Chief for the Time being, to attend the
same.

XVII. And be it further enacted by the Authority aforesaid. That
nothing herein contained shall extend, or be construed to extend, to pre-
vent or hinder His Majesty, His Heirs and Successors, by His or Their
Letters Patent under the Great Seal of Great Britain, from erecting, con-
stituting, and appointing, such Courts of Criminal, Civil, and Ecclesiastical
Jurisdiction within and for the said Province of Quebec, and appointing,
from Time to Time, the Judges and Officers thereof, as His Majesty, His
Heirs and Successors, shall think necessary and proper for the Circum-
stances 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 Planta-
tions in America; but that all and every the said Acts, and also all Acts of
Parliament heretofore made concerning or respecting the said Colonies or
Plantations, shall be, and are hereby declared to be, in Force, within the said
Province of Quebec, and every Part thereof.

Preamble.

Certain duties
imposed by his
most Christian
Majesty upon
rum, brandy,
etc., imported
into Quebec.

XXVI

THE QUEBEC REVENUE ACT, 1774
(14 George III, c. 88.)

An Act to establish a fund towards further defraying the charges of the
Administration of Justice, and support of the Civil Government within
the Province of Quebec in America.

Whereas certain duties were imposed by the authority of his Most
Christian Majesty upon wine, rum, brandy, eau de vie de liqueur, imported
into the Province of Canada, now called the Province of Quebec, and also
a duty of three pounds per centum ad valorem upon all dry goods imported
into and exported from the said Province, which duties subsisted at the
time of the surrender of the said Province to your Majesty's forces in the
late war: And whereas it is expedienjfc that the said duties should cease
and b<^ discontinued, and that in lieu and instead thereof other duties should
be raised by the authority of Parliament for making a more adequate pro-
vision for defraying the charge of the administration of justice and the
support of civil Government 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

1763-1774] Constitutional Documents of Canada. 137

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, one thousand, seven hundred, ^*|«" April 5,

and seventy-five, all the duties which were imposed upon rum, brandy, ^yg^^Jn^-n^^^

eau de vie de liqueur, within the said Province, and also of three pounds within the

per centum ad valorem on dried goods imported into or exported from the P«"o^i»c«»

said Province, under the authority of his most Christian Majesty, shall be

and are hereby discontinued; and that in lieu and instead thereof there shall

from and after after the said fifth day of April, one thousand ?cven hun-J«4^^«*Jj/

dred and seventy-five be raised, levied, collected, and paid unto his Majesty.j^^g duties

his heirs and successors, for and upon the respective goods hereinafter to bepaid to

mentioned, which shall be imported or brought into any part of the said ^i* Majesty.

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.

For every gallon of brandy, or other spirits, of the manufacture o/Ther»te«.
Great Britain, three-pence.

For every gallon of rum, or other spirits, which shall be imported or
brought from any of his Majesty's sugar colonies in the IV est Indies, six-
pence.

For every gallon of rum, or other spirits which shall be imported or
brought from any other of his Majesty's colonies or dominions in America,
nine-pence.

For every gallon of foreign brandy, or other spirits of foreign manu-
facture imported or brought from Great Britain, one shilling.

For every gallon of rum or spirits of the produce or manufacture of
any of the Colonies or Plantations 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 imported ot
brought into the said Provihce in ships or vessels belonging 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 respectively,

II. And it is hereby further enacted by the authority a-foresaid, thatjjj^?^®**"*^
the said rates and duties charged by this Act shall be deemed, and are ©f Gref t"°"^^
hereby declared, to be sterling money of Great Britain, and shall be col- Britain,
lected, 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 proportion and value of five shillings and six-
pence the ounce in silver; and that the said duties hereinbefore granted
shall be raised, levied, collected, paid, and recovered, in the same manner How they are
and form, and by such rules, ways, and means, and under such penalties ^"^ levied,
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, powers
directions, penalties, and forfeitures relating thereto, were particularly
repeated and again enacted in the body of this present Act: and that all
the monies that shall arise by the said duties (except the necessary charges*°^^*>"***«5
of raising, collecting, levying, recovering, answering, paying, and account-*^* ** ^" '
ing for the same), shall be paid by the Collector of his Majesty's Customs,
into the hands of his Majesty's Receiver-General in the said Province for
the time being, and shall be applied in the first place in making a more
certain and adequate provision towards defraying the expences of thejjndhowto
administration of justice and of the support of Civil Government in the°**^P^®*^'
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.

138

Constitutionat Documents of Canada. [1763-1774

ReffltiAtiofia
witn respect
to goods
brought into
the ProTince
chargeable
with the
duties before
mentiottcd.

Penalties and
forfeitures
when to be
prosecntad
for, etc.

An/person
keeping a
house of
publick enter-
tainment to
pay II 16s.
for a license.

Penalty of
110 for erery
offence.

Not to make
void French
revenues, etc.,
reserved at
the conquest

shall be, and is, or are hereby impowered, from time to time, by any "wrar-
rant 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 defraying
the said expences; and that the residue of the said duties shall remain and
be reserved in the hands of the said Receiver-General, for the future dis-
position of Parliament.

III. And it is hereby further enacted by the authority aforesaid that
if any goods chargeable with any of the said duties herein-before mentioned
shall be brought into the said Province by land carriage, the same shall
pass and be carried through the port of St John's, near the 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 with, 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 of 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
brougtit or removed contrary to this Act, shall forfeit treble the value of
such goods, to be estimated and computed 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 con-
veyance of such goods, shall also be forfeited and lost, and shall and may
be seized by any officer of his Majesty's Customs, and prosecuted as herein-
after mentioned. i

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 juris-
diction 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 authority aforesaid, that there
shall from and after the fifty 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 Commander in Chief of the said Province to any
person or persons for keeping a house or any other place of publick enter-
tainment, 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 entertainment, or retailing any such liquors without such licence
shall forfeit and pay the sum of ten pounds for every such offence, 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
Receiver-General of the Province for the use of his Majesty.

VI. Provided always that nothing herein contained shall extend or
be construed to extend to discontinue, determine, or make void any part
of the territorial or casual revenues, 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

1763-1774] Constitutional Documents of Canada. 139

same manner as if this Act had never been made: anything therein con-
tained to the contrary notwithstanding.

VII. And be it further enacted by the authority aforesaid, that if In salts
any action or suit shall be commenced against any person or persons *<>'JJ2Sttothii
anything done in pursuance of this Act/ and if it shall appear to the Court ^ct, defend-
er Judge where or before whom the same shall be tried, that such action ants to have
or suit is brou^^ht for ansrthing that was done in pursuance of, and by the treble coats,
authority of this Act, the defendant or defendants shall be indemnified and
acquitted for the same; and if such defendant or defendants shall be so
acquitted; or if the plaintiff shall discontinue such action or suit, such
Court or judge shall award to the defendant or defendants treble costs.

XXVII

ADDRESS OF THE GENERAL CONGRESS TO THE INHABIT-
ANTS OF THE PROVINCE OF QUEBEC

October 26th, 1774.
Friends and Fellow-Subjects,

We, the delegates of the colonies of New-Hamshire, Massachusetts
Bay, Rhode Island, and Providence Plantations, Connecticut, New York.
Xew-Jcrsey, Pennsylvania, the counties of Newcastle, Kent and Sussex on
the Delaware, Maryland, Virginia, North-Carolina, and South-Carolina,
deputed by the inhabitants of the said Colonies, to represent them in a
general congress at Philadelphia, in the province of Pennsylvania, to con-
sult together of the best methods to obtain redress of our afflicting griev-
ances, having accordingly assembled, and taken into our most serious con-
sideration the state of public affairs on this continent, have thought proper
to address your province, as a member therein deeply interested.

When the fortune of war, after a gallant and glorious resistance, had
incorporated you with the body of English subjects, we rejoiced in the
truly valuable addition, both on our own and your account; expecting, as
courage and generosity are naturally united, our brave enemies would
become our hearty friends, and that the Divine Being would bless to you
the dispensations of his over-ruling Providence, by securing to you and
your posterity the inestimable advantages of a free English constitution
of government, which it is the privilege of all English subjects to enjoy.

These hopes were confirmed by the King's proclamation, issued in the
year 1763, plighting the public faith for your full enjoyment of those
advantages.

Little did we imagine that any succeeding ministers would so auda-
ciously and cruelly abuse the royal authority, as to withhold from you the
fruition of the irrevocable rights, to which you were thus justly entitled.

But since we have lived to see the unexpected time, when ministers of
this flagitious temper have dared to violate the most sacred compacts and
obligations, and as you, educated under another form of government, have
artfully been kept from discovering the unspeakable worth of that form
you are now undoubtedly entitled to, we esteem it our duty, for the weighty
reasons hereinafter mentioned, to explain to you some of its most important
branches.

'In every human society, (says the celebrated Marquis Beccaria) there
is an effort continually tending to confer on one part the height of power
and happiness, and to reduce the other to the extreme of weakness and
inisery. The intent of good laws is to oppose this effort, and to diffuse
their influence universally and equally.'

Rules stimulated by this pernicious 'effort*, and subjects, animated by
the just 'intent of opposing good laws against it,' have occasioned that vast
^riety of events, that fill the histories of so many nations. All these

* Thia document iUtutrates the attempt hj the American Colonies to induce Canada
to take ]Mrt in the Continental Confess of 1775. See J. H. Smith, Our Struggle for
the Fourteenth Colony.

140 Constitutional Documents of Canada. [1763-1774

histories demonstrate the truth of this simple position, that to live by the
will of one man, or set of men, is the production of misery to all.

On the solid foundation of this principle, Englishmen reared up the
fabric of their constitution with such a strength, as for ages to defy time,
tyranny, treachery, internal and foreign wars : and as an illustrious author
of your nation, hereafter mentioned, observes, They gave the people of
their colonies the form of their own government, and this government
carrying prosperity along with it, they have grown great nations in the
forests they were sent to inhabit'

In this form the first grand right is, that of the people having a share
in their own government by their representatives, chosen by themselves,
and in consequence of being ruled by laws which they themselves approve,
not by edicts of men over whom they have no control. This is a bulwark
surrounding and defending their property, which by their honest cares and
labours they have acquired, so that no portions of it can legally be taken
from them, but with their own full and free consent, when they in tlicir
judgment deem it just and necessary to give them for public services:
and precisely direct the easiest, cheapest, and most equal methods, in which
they shall be collected.

The influence of this right extends still farther. If money is wanted
by rulers, who have in any manner oppressed the people, they may retain
it, until their grievances are redressed ; and thus peaceably procure relief,
without trusting to despised petitions, or disturbing the public tranquility.

The next great right is that of trial by jury. This provides, that neither
life, liberty, nor property can be taken from the possessor, until twelve of
his unexceptionable countrymen and peers, of his vicinage, who from their
neighbourhood may reasonably be supposed to be acquainted with, his
character, and the characters of the witnesses, upon a fair trial, and full
enquiry, face to face, in open court, before as many of the people as choose
to attend, shall pass their sentence upon oath against him ; a sentence that
cannot injure him, without injuring their own reputation, and probably
their interest also ; as the question may turn on points that in some degree,
concern the general welfare: and if it does not, their verdict may form a
precedent, that, on a similar trial of their own, may militate against them.

Another right relates merely to the liberty of the person. If a subject
is seized and imprisoned, though by order of government, he may, by virtue
of this right, immediate obtain a writ, termed a Habeas Corpus, from a
judge, whose sworn duty it is to grant it, and thereupon procure any
illegal restraint, to be quickly enquired into and redressed.

A fourth right is, that of holding lands by the tenure of easy rents,
and not by rigorous and appressive services, frequently forcing the pos-
sessors from their families and their business, to perform what ought to
be done, in all well regulates states, by men hired for the purpose.

The last right we shall mention, regards the freedom of the press.
The importance of this consists, besides the advancement of truth, science
and morality, and arts in general, in its diffusion of liberal sentiments on
the administration of government, its ready communication of thoughts
between subjects, and its consequential promotion of union among them,
whereby oppressive officers are shamed or intimidated into more honour-
able and just modes of conducting affairs.

These are the invaluable rights that form a considerable part of our
mild system of government: that sending its equitable energy through all
ranks and classes of men^ defends the poor from the rich, die weak from
the powerful, the industrious from the rapacious, the peaceable from the
violent, the tenants from the lords, and all from their superiors.

These are the rights, without which a people cannot be free and happy,
and under the protection and encouraging influence of which, these colonies
have hitherto so amazingly flourished and increased. These are the rights
a profligate ministry are now striving, by force of arms, to ravish from
us, and which we are, with one mind, resolved never to resign but with
our lives.

These are the rights you are entitled to, and ought at this moment in

1763-1774] Constitutioncd Documents of Canada. 141

perfection to exercise. And what is offered to you by the late act of
parliament in their place? Liberty of conscience in your religion? No.
God gave it to you ; and the temporal powers with which you have been
and are connected £rmly stipulated for your enjoyment of it. If laws
divine and human, could secure it against the despotic capacities of wicked
men, it was secured before. Are the French laws in civil cases restored?
It seems so. But observe the cautious kindness of the ministers who pre-
tend to be your benefactors. The words of the statute are, that those 'laws
shall be the rule, until they shall be varied, or altered by any ordinances
of the governor and council.' Is the 'certainty and lenity of the criminal
law of England, and its benefits and advantages', commended in the said
statute, and said to 'have been sensibly felt by you,' secured to you and
your descendants? No. They too are subject to arbitrary 'alterations'
by the governor and council ; and a power is expressly reserved of 'appoint-
ing sudi courts of criminal, civil, and ecclesiastical jurisdiction, as shall
be thought proper.' Such is the precarious tenure of mere will, by which
you hold your lives and religion.

The crown and its ministers are empowered, as far as they could be
by i>arliament, to establish even the inquisition itself among you. Have
you an assembly composed of worthy men elected by yourselves, and in
whom you can confide, to make laws for you, to watch over your welfare,
and to direct in what quantity, and in what manner your money shall be
taken from you? No. The power of making laws for you is lodged in
the governor and council, all of them dependent upon, and removeable at
the pleasure of a minister. — Besides, another late statute, made without
your consent, has subjected you to the imposition of excise, the horror of
all free states; they wresting your property from you by the most odious
taxes, and laying open to insolent tax-gatherers, houses the scenes of
domestic peace and comfort, and called the castles of English subjects in
the books of their laws. And in the very act for altering your government,
and intended to flatter you, you are not authorized to 'assess, levy, or
apply any rates and taxes, but for the inferior purposes of making roads,
and erecting and repairing public buildings, or for other local conveniences,
within your respective towns and districts.' Why this degrading distinc-
tion? Ought not the property honestly acquired by Canadians to be held
as sacred as that of Englishmen? Have not Canadians sense enough to
attend to any other public affairs, than gathering stones from one place
and piling them up in another? Unhappy people! who are not only in-
jured, but insulted. Nay morel — ^With such a superlative contempt of
your understanding and spirit has an insolent ministry presumed to think
of you, our respectible fellow-subjects, according to the information we
have received, as firmly to persuade themselves that your gratitude, for
the injuries and insults they have recently offered to you, will engage you
to take up arms, and render yourselves the ridicule and detestation of the
world, by becoming tools, in their hands, to assist them in taking that
freedom from us, which they have treacherously denied to you; the un-
avoidable consequence of which attempt, if successful, would be the extinc-
tion of all hopes of you or your posterity being ever restored to freedom :
ior idiotcy itself cannot believe, that, when their drudgery is performed,
they will treat you with less cruelty than they have us, who are of the same
blood with themselves.

What would your countryman, the immortal Montesquieu, have said
to such a plan of domination, as has been framed fot you? Hear his
words, with an intenseness of thought suited to the importance of the
subject. — ^'In a free state, every man, who is supposed a free agent, ought
to be concerned in his own government; therefore the legislative should
leside in the whole body of the people, or their representatives.' — 'The
political liberty of the subject is a tranquility of mind, arising from the
opinion each person has of his safety. In order to have this liberty, it is
requisite the government be so constituted, that one man need not be
afraid of another. When the power of making laws, and the power of
txicutmg them are united in the same person, or in the same body of

142 Constitutional Documents of Canada. [1763-1774

magistrates, there can be no liberty; because apprehensions may arise, lest
the same monarch or senate should enact tyrannical laws, to execute them
in a tyrannical manner.'

The power of judging should be exercised by persons taken from the
body of the people, at certain times of the year, and pursuant to a form and
manner prescribed by law. There is no liberty, if the power of judging
be not separated from the legislative and executive powers.'

'Military men belong to a profession which may be useful, but is often
dangerous. — The enjoyment of liberty, and even its support and preserva-
tion, consists in every man's being allowed to speak his thoughts, and lay
open his sentiments.'

Apply these decisive maxims, sanctioned by the authority of a name
which all Europe reveres, to your own state. You have a governor, it may
be urged, vested with the executive powers, or the powers of administra-
tion. In him, and in your council, is lodged the power of making laws.
You have judges, who are to decide every cause affecting your lives, liberty
or property. Here is, indeed, an appearance of the several powers being
separated and distributed into different hands, for checks one upon another,
the only effectual mode ever invented by the wit of men, to promote their
freedom and prosperity. But scorning to be illuded by a tinselled outside,
and exerting the natural sagacity of Frenchmen, examine the specious
device, and you will find it, to use an expression of Holy Writ, 'a painted
sepulchre,' for burying your lives, liberty and property.

Your judges, and your legislative council, as it is called, are dependent
on your Governor, and he is dependent on the servant of the Crown in
Great Britain. The legislative, executive, and judging powers are all
moved by the nods of a minister. Privileges and immunities last no longer
than his smiles. When he frowns, their feeble forms dissolve. Such a
treacherous ingenuity has been exerted in drawihg up the code lately
offered you, that every sentence beginning with a benevolent pretension,
concludes with a destructive: and the substance of the whole, divested of
its smooth words, is — that the crown and its minister shall be as absolute
throughout your extended province, as the despots of Asia and Africa.
What can protect your property from taxing edicts, and the rapacity of
necessitous and cruel masters? Your persons from lettres de cachet, gaols,
dungeons, and oppressive service? your lives and general liberty from
arbitrary and unfeeling rulers? We defy you, casting your view upon
every side, to discover a single circumstance, promising from any quarter
the faintest hope of liberty to you or your posterity, but from an entire
adoption into the union of these colonies.

What advice would the truly great man before mentioned, that advocate
of freedom and humanity, give you, was he now living, and knew that we,
your numerous and powerful neighbours, animated by a just love of our
invaded rights, and united by the mdissoluble bands of affection and inter-
est, called upon you, by every obligation of regard for yourselves and your
children, as we now do, to join us in our righteous contest, to make a com-
mon cause with us therein, and to take a noble chance of emerging from
a humiliating subjection under governors, intendants, and military tyrants,
into the firm rank and condition of English freemen, whose custom it is,
derived from their ancestors, to make those tremble who dare to think
of making them miserable.

Would not this be the purport of his address? 'Seize the opportunity
presented to you by Providence itself. You have been conquered into
liberty, if you act as you ought. This work is not of man. You are a small
people, compared to those who with open arms invite you into fellowship.
A moment's reflection should convince you which will be most for your
interest and happiness, to have all the rest of North America your unalter-
able friends, or your inveterate enemies. The injuries of Boston have
roused and associated every colony, from Nova Scotia to Georgia. Your
province is die only link that is wanting to complete the bright and strong
chain of union. Nature has joined your country to theirs. Do you join
your political interests. For their own sakes they never will desert or

1763-1774] Constitutional Documents of Canada. 143

betray yott. Be assured that the happiness of a people inevitably depends
on their liberty, and their spirit to assert it The value and extent of ^e
advantages tendered to you are immense. Heaven grant you may not dis-
cover them to be blessings after they have bid you an eternal adieu.'

We are too well acquainted with the liberality of sentiment distinguish-
ing your nation, to imagine, that difference of religion will prejudice you
against a hearty amity with us. You know, that die transcendant nature
of freedom elevates those, who unite in the cause, above all such low-
minded infirmities. The Swiss Cantons furnish a memorable proof of this
truth. Their union is composed of Catholic and Protestant states, living
in the utmost concord and peace with one another, and thereby enabled,
ever since they bravely vindicated their freedom, to defy and defeat every
tyrant that has invaded them.

Should there be any among you, as there generally are in all societies,
who prefer the favours of ministers, and their own interests, to the welfare
of their country ; the temper of such selfish persons will render them incred-
ibly active in opposing all public-spirited measures, from an expectation
of being well rewarded for their sordid industry by their superiors: but
we doubt not you will be upon your guard against such men, and not
sacrifice the liberty and happiness of the whole Canadian people and their
posterity, to gratify the avarice and ambition of individuals.

We do not ask you, by this address, to commence hostilities against
the government of our common sovereign. We only invite you to consult
your own glory and welfare, and not to suffer yourselves to be inveigled
or intimidated by infamous ministers so far as to become the instruments
of their cruelty and despotism, but to unite with us in one social compact,
formed on the generous principles of equal liberty, and cemented by such
an exchange of beneficial and endearing offices as to render it perpetual
In order to complete this highly desirable union, we submit it to your
consideration, whether it may not be expedient for you to meet together
in your several towns and districts, and elect deputies who after meeting
in a provincial congress, may chuse delegates, to represent your province
in the continental congress, to be held at Philadelphia, on the tenth day of
May, 1775.

In this present congress, beginning on the fifth of last month, and
continued to this day, it has been with universal pleasure, and an unani-
mous vote, resolved, that we should consider the violation of your rights,
by the act for altering the government of your province, as a violation of
onr own ; and that you should be invited to accede to our confederation,
which has no other objects than the perfect security of the natural and
civil rights of all the constituent members, according to their respective
circumstances, and the preservation of a happy and lasting connection
with Great Britain, on the salutary and constitutional principles herein
before mentioned. For effecting these purposes, we have addressed an
humble and loyal petition to his Majesty, praying relief of our grievances;
and have associated to stop all importation from Great Britain and Ireland,
after the first day of December, and all exportation to those kingdoms and
the West Indies, after the tenth day of next September, unless the said
grievances are redressed.

That Almighty God may incline your minds to approve our equitable
and necessary measures, to add yourselves to us, to put your fate, when-
ever you suffer injuries which you are determined to oppose, not on the
small influence of your single province, but on the consolidated powers of
North America, and may grant to our joint exertions an event as happy
as our cause is just, is the fervent prayer of us, your sincere and affection-
ate friends and fellow-subjects.

Henry Middleton, President

By order of the Congress,
Oct 26, 1774.

THIRD PERIOD
1774-1791

THIRD PERIOD
1774-1791

The Quebec Act was almost still-bom, owing to the breaking
out of hostilities between England and the Thirteen Colonies. At
any rate, according to the opinion of Governor Haldimand, its
passing prevented Canada from becoming a thirteenth State of the
Union (see No. XXXIV). The war, however, did not entirely
suppress the demands of the British in Canada for a House of
Assembly, and as soon as peace was declared in 1783, these de-
mands were reinforced by the arrival in Canada of those colonial
citizens — ^known to history as the United Empire Loyalists — who
had remained loyal to the British connexion during the Revolu-
tionary War.

Carleton, now Lord Dorchester, returned to Canada for his
second term of office as Governor in 1786, and there lay before
him a complicated task. The "ancient subjects," that is, the
British in Canada, persisted in their demand for a "new and free
constitution," which now included, in addition to a House of
Assembly, the right of taxation and some control over the Execu-
tive (see Nos. XXXVIII ; XXXIX). The United Empire Loyal-
ists, though loyal to the monarchical principle, were nothing
behind the Fathers of American Confederation in their claim to
representative institutions. Further advanced that contemporary
Englishmen in political thought, it soon became evident to Dor-
chester that they would not complacently endure the constitutional
system erected by the Quebec Act. On the other hand, the French
Canadians were still children in political experience, to whom
representative institutions were only "une machine anglaise pour
nous taxer" (see Nos. XL; XLI). Dorchester's problem was no
easy one. Would it be possible out of such opposing forces to
present an equitable solution?

The "ancient subjects" began the struggle with numerous
despatches and petitions, of which examples are given, and in 1788
they sent Adam Lymbumer to London, who stated their case at
the bar of the House of Commons (see No. XLVI). The way
did not lie very clearly before the Government. However, as the
United Empire Loyalists had to a large extent settled west of the
French-Canadians in what is now the Province of Ontario, the
Government decided, against Dorchester's wish, to divide the
province (see No. XLVII), and they submitted a draft constitu-
tion to the Governor in October, 1789. Grenville's covering des-
patch (see No. L) is of interest, as it outlines a new departure in
Canadian government. In addition, the heartsearchings over a

new constitution gave rise to a famous suggestion contained in an
opinion which Dorchester obtained from Chief Justice William
Smith. The proposal was in reality one for the federation of
British North America (see Nos. LIII; LIV). However, the
time was not ripe and the Constitutional Act was passed in 1791
(see No. LV), which provided for the division of the province by
an Order-in-Council. This Order was duly issued on August 24,
1791. In September, Dorchester was appointed Captain-General
and Govemor-in-Chief of both provinces. Houses of Assembly
were established in each new division.

The documents given below illustrate the various difficulties
which led to the drawing up of a new constitution.

1774-1791] Constitutional Documents of Canada, 149

XXVIII

THE QUEBEC REVENUE ACT, 1775

(IS George III, c. 40.)

An Act for amending and explaining an Act, passed in the fourteenth year
of his Majesty's reign, intituled "An Act^ to establish a Fund towards
further defraying the charges of the Administration of Justice and
support of the Civil Government within the Province of Quebec, in
America."

Whereas by an Act passed in the fourteenth year of his Majesty's Preamble,
reign (intituled, "An Act to establish a fund towards further defrsi^ing
the charges of the administration of justice and support of the Civil Gov- Q^use in Act
eminent within the Province of Quebec in America")* it is amongst other 14 George III,
things enacted, that if any goods, chargeable with any of the duties in the'^^^
said Act mentioned, shall be brought into the said Province by land car-
riage, the same shall pass and be carried through the Port of Saint John's,
near the River Sorrel; or if such goods shall be brought into the said
Province by any inland navigation other than that upon the River Saint
Lawrence, the^ same shall pass and be carried upon the said River Sorrel
by the said port, and shall be there entered with, and the said respective
rates and duties paid for the same to such officer or officers of his
Majesty's customs as shall there be 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 pay-
ment of the said rates and duties, or shall be brought into any part of 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 treble the value of such goods ; to be estimated and
computed 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 be forfeited
and lost, and shall and may be seized by any officer of his Majesty's Cus-
toms, and prosecuted as thereinafter mentioned: And whereas there is
reason to apprehend that the regulations and restrictions contained in the
said hereinbefore recited clause, so far as they relate to tiie bringing of
rum, brandy, or other spirits into the Province of Quebec by land carriage,
may, without further explanation, operate to the prejudice and disadvantage
of the commerce carried on with the Indians in the upper or interior parts
of 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 thejjj^ j^ . ,
King's Most Excellent Majesty, by and with the advice and consent of the subjects may*
Lords Spiritual and Temporal, and Commons, in this present Parliamentbrinf, byland
assembled, and by the authority of the same, That it shall and may be law- JJ[A*"»»^ "*v»"
ful to and for all his Majesty's subjects freely to bring, carry or convey, by fny porta of
land, carriage, or inland navigation, into any ports of the Province ofQueoecnot
Quebec, not heretofore comprehended within the limits thereof by his*?"*®^?*"* . ,
Majesty's Royal Proclamation of the seventh of October, one thousand in the Royal
seven hundred and sixty- three, any quantity of rum, brandy, or other Proclamation
spirits, anything contianed in the before-recited Act of Parliament to the J^^*^*^^*
contrary thereof in any wise notwithstanding. quantity of

» 14 George III, C. 88. (See No. XXVI.) SS*' ^^^^^'

iSO ConsHtutiofial Documents of Canada, [1774-1791

XXIX

INSTRUCTIONS TO GOVERNOR CARLETON, 1775'
[Trans.: Shortt and Doughty.]

4. And whereas by an Act passed in the fourteenth year of Our
Reign, intituled, "An Act for making more effectual provision for the
"Government of the Province of Quebec in North America," it is enacted
and provided, that no person, professing the Religion of the Church of
Rome, and residing in the said Province, shall be obliged to take the Oath
of Supremacy required by an Act passed in the first year of the reign of
Queen Elizabeth, or any other Oaths substituted by any other Act in the
place thereof; but that every such Person, who by the said Statute is
required to take the oaths therein mentioned, shall be obliged, and is
thereby required, under certain Penalties, to take and subscribe an Oath in
the form and Words therein prescribed, and set down ; It is therefore Our
Will and Pleasure, that you do administer to each and every Member of
Our said Council, being a Canadian, and professing the Religion of the
Church of Rome, and cause each of them severally to take and subscribe
the Oath mentioned in the said Act passed in the fourteenth year of Our
Reign, intituled; "An Act for making more effectual provision for the
"Government of the Province of Quebec in North America;" and also
cause them severally to take an Oath for the due Execution of their places
and Trusts, and for their equal and impartial administration of Justice.

5. And that We may be always informed of the Names and Characters
of Persons fit to supply the Vacancies, which may happen in Our said
Council, you are from time to time to transmit to Us, by one of Our
Principal Secretaries of State, the names and Characters of such persons.
Inhabitants of Our said Colony, whom you shall esteem the best qualified
for that Trust; And you are also to transmit a duplicate of the said
Account to Our Commissioners for Trade and Plantations, for their
Information.

6. And if it shall at any time happen, that by the death or departure
out of Our said Province, of any of Our said Councillors, there shall be a
Vacancy in Our said Council, Our Will and Pleasure is : that you signify
the same to Us by one of Our Principal Secretaries of State, and to Our
Commissioners for Trade and Plantations, by the first Opportunity, that
We may by Warrant under Our Signet and Sign Manual, and with the
Advice of Our Privy Council, constitute and appoint others in their stead.

7. You are forthwith to communicate such and so many of these
Our Instructions to Our said Council, wherein their Advice and Consent
are mentioned to be requisite, as likewise all such others from time to time,
as you shall find convenient for Our Service to be imparted to them.

8. You are to permit the Members of Our said Council to have and
Enjoy Freedom of Debate and vote in all Affairs of Public Concern, that
may be debated in Council.

9. And Whereas by the aforesaid Act passed in the fourteenth year
of Our Reign, intituled, "An Act for making more effectual provision for
"the Government of the Province of Quebec in North America," It is fur-
ther enacted and provided, that the Council for the Affairs of the said
Province, to be constituted and appointed in Manner therein directed, or
the Major Part thereof, shall have power and Authority to make Ordin-
ances for the peace, Welfare, and good Government of the said Province
with the Consent of Our Governor, or, in his absence, of the Lieutenant
Governor, or Commander in Chief for the time being; provided, that no
Ordinance shall be passed, unless upon some urgent Occasion at any Meet-
ing of the Council, except between the first day of January and the first day
of May. And Whereas the State and Condition of Our said Province

^ These Instructions were sent by Lord Dartmouth to Carleton on January 7th,
1775. Ther were rendered necessary oy the passing of the Quebec Ac^ 14 George III,
c. 83, to which reference ii made throughout. Sections 1 to 4, 23 to 29 and 39 to 56
of these Instructions are omitted.

1774-1791] Constitutional Documents of Canada, 151

do require, that immediate provision should be made by Law for a Great
Variety of Arrangements and Regulations essentially necessary to the
Government thereof; It is therefore Our Will and Pleasure, that you do
within a convenient time issue Summons for the Assembling of Our said
Council in their Legislative Capacity either on the first day of April next,
or as soon after as may be convenient, in Order to deliberate upon,, and
frame such Ordinances, as the Condition of Affairs within Our said Pro-
vince shall require, and as shall, in your and their Judgement, be lit and
necessary for the Welfare of Our said Province, and the Territories there-
unto belonging.

10. You are nevertheless to take especial Care.
That no Ordinance be passed at any Meeting of the Council, where
less than a Majority of the Council is present, or at any time, except t>e-
tween the first day of January and the first day of May, as aforesaid,
unless upon some urgent Occasion; in which Case every Member thereof
resident at Quebec, or within fifty Miles thereof shall be personally sum-
moned to attend the same.

That no Ordinance be passed for laying any Taxes or Duties, such
Rates and Taxes only excepted, as the Inhabitants of any Town or District
may be authorized to assess, levy and apply within the said Town or Dis-
trict, for the making Roads, erecting and repairing public Buildings, or for
any other purpose respecting the Local Convenience and CEconomy of such
Town or District.

That no Ordinance touching Religion, or by which any punishment
may be inflicted greater than Fine or Imprisonment for three Months be
made to take effect, until the same shall have received Our Approbation.

That no Ordinance be passed relative to the Trade, Commerce, or
Fisheries of the said Province, by which the Inhabitants thereof shall be
put upon a more advantageous footing, than any other His Majesty's Sub-
jects either of this Kingdom, or the Plantations.

That no Ordinance respecting private property be passed without a
Clause suspending its Execution, until Our Royal Will and Pleasure is
known ; nor without a saving of the Right of Us, Our Heirs and Successors,
and of all Bodies politic and corporate, and of all other persons, except
such as are mentioned in the said Ordinance, and those claiming by, from,
and under them; And before such Ordinance is passed, proof must be
made before you in Council, and entered in the Council-Books, that public
Notification was made of the Party's Intention to apply for such Ordinance
in the several Parish Churches, where the Lands in Question lye, for three
Sundays at least successively » before any such Ordinance shall be proposed ;
and you are to transmit and annex to the said Ordinance a Certificate
under your hand that the same passed through all the Forms above men-
tioned.

That no Ordinance shall be enacted for a less time than two years,
except in Cases of imminent Necessity, or immediate temporary Expedi-
ency; and you shall not reenact any Ordinance, to which Our Assent shall
have been once refused, without express leave for that purpose first ob-
tained from Us, upon a full representation by you to be made to Us by
one of Our Principal Secretaries of State, and to Our Commissioners for
Trade and Plantations, for their Information, of the Reasons and Neces-
sity for passing such Ordinance; nor give your Assent to any Ordinance
for repealing any other Ordinance, which hath passed in your Government,
and shall have received Our Royal Approbation, unless you take Care,
that there be a Clause inserted therein suspending and deferring the
Execution therof, until Our Pleasure shall be known, concerning the same.
That in all Ordinances imposing Fines, Forfeitures or Penalties, ex-
press Mention be made, that the same is granted, or reserved to Us, Our
Heirs and Successors for the public Uses of the said Province, and the
Support of the Government thereof, as by the said Ordinance shall be
directed; and that a Clause be inserted declaring, that the Money, arising
by the Operation of the said Ordinance, shall be accounted for unto Us
in this Kingdom, and to Our Commissioners of Our Treasury for die time

152 Constitutional Documents of Canada, [1774-1791

being; and audited by Our Auditor General of Our Plantations, or his
Deputy.

That all such Ordinances be transmitted by you within six Months
after their passing, or sooner, if opportunity offers, to Us by One of Our
Principal Secretaries of State, and Duplicates thereof to Our Commis-
sioners for Trade and Plantations, for their Information; that they be
abstracted in the Margents, and accompanied with very full and particular
Observations upon each of them, that is to say( whether the same is intro-
ductive to a new Law, or does repeal a Law then before in being ; and you
are also to transmit in the fullest manner the Reasons and Occasion for
enacting such Ordinances, together with fair Copies of the Journals of the
proceedings of the Council, which you are to require from the Clerk of
the said Council.

11. In the Consideration of what may be necessary to be provided
for by Law within Our said Province, as created and established by the
aforesaid Act, Intituled, "an Act for making more affectual Provision for
"the Government of the Province of Quebec in North America," a Great
Variety of important Objects hold themselves forth to the Attention of
the Legislative Council.

12. The Establishment of Courts, and a proper Mode of administering
Civil and Criminal Justice throughout the whole Extent of Our Province,
according to the Principles declared in the said Act "for making more
effectual Provision for the Government thereof," demand the gn^eatest Care
and Circumspection; for, as on the one hand it is Our Gracious purpose,
conformable to the Spirit and Intention of the said Act of Parliament, that
Our Canadian Subjects should have the benefit and use of their own Laws,
Usages and Customs in all Controversies respecting Titles of Land, and
the Tenure, descent. Alienation, Incumbrances, and Settlement of Real
Estates, and the distribution of the personal property of Persons dying
intestate ; so on the other hand, it will be the duty of the Legislative Coun-
cil to consider well in framing such Ordinances, as may be necessary for
the Establishment of Courts of Justice, and for the better Administration
of Justice, whether the Laws of England may not be, if not altogether, at
least in part the Rule for the decision in all Cases of personal Actions,
grounded upon Debts, Promises, Contracts, and Agreements, whether of a
Mercantile or other Nature; and also of Wrongs proper to be compen-
sated in damages; and more especially where Our natural-bom Subjects
of Great Britain, Ireland, or Our other Plantations residing at Quebec,
or who may resort thither, or have Credits, or Property within the same,
may happen to be either Plaintiff or defendant in any civil Suit of such a
nature.

13. Security to personal Liberty is a fundamental Principle of Justice
in all free Governments, and the making due provision for that purpose is
an object the Legislature of Quebec ought never to lose Sight of; nor can
they follow a better Example than that, which the Common Law of diis
Kingdom hath set in the provision made for a Writ of Habeas Corpus,
which is the Right of every British Subject in this Kingdom.

14. With regard to the Nature and number of the Courts of Justice,
which it may be proper to establish, either for the whole Province at large,
or separately for its dependencies, and the times and places for holding
the said Courts, no certain Rule can be laid down in a Case, in which the
Judgement must in many Respects at least be altogether guided by Circum-
stances of local Convenience and Consideration.

15. In General it may be proper, that there should be a Superior or
Supreme Court of Criminal Justice and Jurisdiction for the Cognizance
of all Pleas of the Crown, and for the Trial of all manner of Offences
whatsoever, to be held before the Chief Justice for the time being at such
times and places, as shall be most convenient for the due and speedy
Administration of Justice, and the preventing long Imprisonments ; the said
Court to be called and known by the name of the Court of King's Bench ;
That, for the more orderly establishment and Regulation of Courts oi
Civil Jurisdiction, the Provmce of Quebec, as limited and bounded by the

1774-1791] ConstiiuHonal Documents of Canada. 153

aforesaid Act of Parliament "for making more effectual Provision for
**thc Government of the Province of Quebec in North America," be divided
into two Districts by the names of Quebec and Montreal, each district to
be limited and bounded in such manner, as shall be thought best adapted to
the Object of the Jurisdiction to be established therein; That there be
established in each of the said Districts a Court of Common Pleas to be
held at such times and places, as shall be judged most convenient, and to
have full power, Jurisdiction and Authority to hear and determine all Civil
Suits and Actions cognizable by the Court of Common Pleas in West-
minster Hall, according to the Rules prescribed by the said Act of Parlia-
ment "for making more effectual Provision for the Government of the
"Province of Quebec in North America," and according to such Laws and
Ordinances, as shall from time to time be enacted by the Legislature of the
said Province in manner therein directed; That there be three Judges in
each of the said Courts of Common Pleas, that is to say, two of Our
natural-bom Subjects of Great Britain, Ireland, or Our other Plantations,
and one Canadian ; and also one Sheriff appointed for each District ; That
besides the foregoing Courts of Criminal and Civil Jurisdiction for the
Province at large, there be also an Inferior Court of Criminal and
Civil Jurisdiction in each of the Districts of the Illinois, St Vincenne,
Detroit, Missilimakinac and Gasp^e, by the names of the Court of King's
fiench for such district, to be held at such times, as shall be thought most
convenient, with Authority to hear and determine in all Matters of Crim-
inal Nature according to the Laws of England, and the Laws of the
Province hereafter to be made and passed ; and in all Civil Matters accord-
ing to die Rules prescribed by the aforesaid Act of Parliament "for making
more effectual Provision for the Government of Quebec in North Amer-
ica;" That each of the said Courts shall consist of one judge, being a
natural-bom Subject of Great Britain, Ireland, or Our other Plantations,
and of one other Person, being a Canadian, by the name of Assistant or
Assessor, to give advice to the Judge in any Matter, when it may be neces-
sary, but to have no Authority or Power to attest or issue any Process, or
to give any Vote in any order. Judgement, or decree ; That the said Judges
so to be appointed, as aforesaid, for each District, shall have the same
power and Authori^ in Criminal Cases, as is vested in the Chief Justice of
Our said Province ; and also the same Power and Authority in Civil Cases,
as any other Judge of Common Pleas within Our said Province, excepting
only that, in Cases of Treason, Murder, or other Capital Felonies, the said
Judjges shall have no other Authority, than that of Arrest and Commitment
to the Goals of Quebec, or of Montreal, where alone Offenders in such
Cases shall be tried before Our Chief Justice ; That a Sheriff be appointed
in each of the said Districts for the Execution of Civil and Criminal Pro-
cess; That the Governor and Council (of which in the absence of the
Governor and Lieutenant Governor, the Chief Justice is to be President)
shall be a Court of Civil Jurisdiction for the hearing and determining all
Appeals from the Judgement of the other Courts, where the matter in
dispute is above the value of Ten Pounds; That any Five of the said
Council, with the Governor, Lieutenant Governor, or Chief Justice, shall
constitute a Court for that purpose ; and that their Judgment shall be final
in all Cases not exceeding the Value of £500 sterling, in which Cases an
Appeal from their Judgement is to be admitted to Us in Our Privy Council.
It is however Our Will and Pleasure, that no Appeal be allowed, unless
security be first duly given by the Appellant, that he will effectually prose-
cute the same, and answer the Condemnation, as also pay such Costs and
Damages, as shall be awarded by Us, in case the Sentence be affirmed;
Provided nevertheless, where the matter in question relates to the taking,
or demanding any Duty payable to us, or to any Fee of Office, or annual
Rents, or other such like matter or thing, where the Rights in future may
be bound, in all such Cases appeal to Us ,in Our Privy Council is to be
admitted, tho' the immediate sum or value appealed for be of less value.
And it is Our further Will and Pleasure, that in all Cases, where Appeals
are admitted unto Us in Our Privy Council, execution be suspended until

1S4 Constitutional Documents of Canada, [1774-1791

the final determination of such Appeal, unless good and sufficient security
be given by the Appellee to make ample restitution of all, that the Appellant
shsdl have lost by means of such decree or judgement, in case, upon the
determination of such Appeal, such decree or judgement should be re-
versed, and restitution awarded to the Appellant. Appeals unto Us in Our
Privy Council are also to be admitted in all cases of Fines imposed for
misdemeanors ; Provided the Fines, so imposed, amount to, or exceed the
sum of £100 sterling, the Appellant first giving good Security, that he will
effectually prosecute the same and answer the Condemnation, if the sen-
tence, by which such Fine was imposed in Quebec, be affirmed.

16. It is Our Will and Pleasure, that all Commissions to be granted
by you to any person or persons to be judges or justices of the peace, or
other necessary Officers, be granted during pleasure only.

17. You shall not displace any of the Judges, Justices of the p^eace or
other Officers or Ministers without good and sufficient cause, which you
shall signify in the fullest and most distinct manner to Us by one of Our
principal Secretaries of State, and to Our Commissioners for Trade and
Plantations^ for their Information.

18. And whereas frequent complaints have heretofore been made of
great delays and undue proceedings in the Courts of Justice in several of
Our Plantations, whereby many of Our good Subjects have very much suf-
fered ; and it being of the greatest importance to Our Service, and to the
Welfare of Our Plantations, that Justice be every where speedily and duly
administered; and that all disorders, delays, and other undue Practises in
the Administration thereof be effectually prevented; We do particularly
require you to take especial Care, that in all Courts, where you are or
shall be authorized to preside, justice be impartially administered; and
that in all other Courts established, or to be established within Our said
Province, all Judges, and other persons therein concerned do likewise
perform their several Duties without any delay or partiality.

19. You are to take care, that all Writs be issued in Our Name
throughout the Province under your Government.

2X), The establishment of proper regulations in matters of ecclesias-
tical concern is an Object of very great importance, and it will be your
indispensable duty to lose no time in making such arrangements in regard
thereto, as may give full satisfaction to Our new Subjects in every point,
in which they have a right to any indulgence on that head; always re-
membring, that it is a toleration of the free exercise of the religion of
the Church of Rome only, to which they are entitled, but not to the
powers and privileges of it, as an established Church, for that is a prefer-
ence, which belongs only to the Protestant Church of England.

21. Upon these principles therefore, and to the end, that Our just
Supremacy in all matters ecclesiastical, as well as civil, may have its due
scope and influence, it is Our Will and Pleasure, —

First, that all appeals to, or correspondence with any foreign ecclesias-
tical jurisdiction, of what nature or kind so ever, be absolutely forbidden
under very severe Penalties.

Secondly, That no Episcopal or Vicarial Powers be exercised within
Our said Province by any Person professing the Religion of the Church
of Rome, but such only, as are essentially and indispensably necessary to
the free exercise of the Romish Religion ; and in those cases not without
a Licence and Permission from you under the Seal of Our said Prov-
ince, for, and during Our Will and Pleasure, and under such other limita-
tions and restrictions, as may correspond with the spirit and provisions of
the Act of Parliament, "for the making more effectual provision for the
"Government of the Province of Quebec;" And no person whatever is to
have holy Orders conferred upon him, or to have the Cure of Souls with-
out a Licence for that purpose first had or obtained from you.

Thirdly, That no person professing the Religion of the Church of
Rome be allowed to fill any ecclesiastical Benefice, or to have and enjoy
any of the Rights or Profits belonging thereto, that is not a Canadian by
birth, (such only excepted, as are now in possession of any such Bene-

1774-1791] Constitutional Documents of Canada, 155

ficc,) and that is not appointed thereto by Us, or by, or under Our Au-
Ihority, and that all Right, or claim of Right in any other Person what-
ever to nominate, present, or appoint to any vacant Benefice, other than
such as may lay claim to the patronage of Benefices, as a Civil Right, be
absolutely abolished. No Person to hold more than one Benefice, or at
least not more than can reasonably be served by one and the same In-
cumbent

Fourthly, That no person whatever, professing the Religion of the
Oiurch of Rome, be appointed Incumbent of any Parish, in which the
Majority of the Inhabitants shall solicit the appointment of a Protestant
Minister; in such Case the Incumbent shall be a Protestant, and entitled
to all Tythes payable within such Parish; But nevertheless the Roman
Catholicks may have the use of the Church for the free exercise of their
Religion at such time, as may not interefere with the Religious Worship
of the Protestants: And in like manner the Protestant Inhabitants in
every Parish, where the Majority of Parishioners are Roman Catholicks,
shall notwithstanding have the use of the Church for the exercise of their
Religion at such times, as may not interfere with the Religious Worship
of the Roman Catholicks.

Fifthly, That no Incumbent professing the Religion of the Church
of Rome, appointed to any Parish, shall be entitled to receive any Tythes
for Lands, or Possessions occupied by a Protestant ; but such Ty&es shall
be received by such Persons, as you shall appoint, and shall be reserved
in the hands of Our Receiver General, as aforesaid, for the support of a
Protestant Qergy in Our said Province to be actually resident within the
same, and not otherwise, according to such directions as you shall receive
from Us in that behalf. — ^And in like manner all growing Rents and Profits
of a vacant Benefice shall, during such vacancy, be reserved for, and ap-
plied to the like uses.

Sixthly, That all Persons professing the Religion of the Church of
Rome, which are already possessed of, or may hereafter be appointed to
any ecclesiastical Benefice, or who may be licensed to exercise any Power
or Authority in respect tiiereto, do take and subscribe before you in
Council, or before such Person as you shall appoint to administer the
same, the Oath required to be taken and subscribed by the aforesaid Act
of Parliament passed in the fourteenth year of Our Reign, intituled, "An
Act for making more effectual Provision for the Government of the Prov-
"ince of Quebec in North America."

Seventhly, That all Incumbents of Parishes shall hold their respec-
tive Benefices during good behaviour, subject however, in cases of any
Conviction for criminal Offences, or upon due proof of seditious At-
tempts to disturb the Peace and Tranquillity of Our Government, to be
deprived, or suspended by you with the Advice and Consent of a Major-
ity of Our said Council.

Eightly, That such Ecclesiasticks, as may think fit to enter into the
holy state of Matrimony, shall be released from all Penalties, to which
they may have been subjected in such Cases by any Authority of the See
of Rome.

Ninthly, That freedom of Burial of the Dead in Churches and Church
yards be allowed indiscriminately to every Christian Persuasion.

Tenthly, That the Royal Family be prayed for in all Churches and
Places of Holy Worship, in such manner and form, as are used in this
Kingdom; and that Our Arms and Insignia be put up not only in all such
Churches and Places of Holy Worship, but also in all Courts of Justice;
and that the Arms of France be taken down in every such Church or
Court, where they may at present remain.

Eleventhly, That the Society of Romish Priests, called the Semi-
naries of Quebec and Montreal, shall continue to possess and occupy their
Houses of Residence, and all other Houses and Lands, to which they were
lawfully intitled on the 13th of September, 1759; and it shall be lawful
for those Societies to fill up Vacancies, and admit new Members accord-
ing to the Rules of their Foundations, and to educate Youth, in order to

156 Constitutional Documents of Candida. [1774-1791

qualify them for the Service of Parochial Cures; as they shall become
vacant. It is nevertheless Our Will and Pleasure, that not only these
Seminaries, but all other Religious Communities, so long as the same shall
continue, be subject to visitation by You Our Governor, or such other
Person, or Persons, as you shall appoint for that purpose, and also sub-
ject to such Rules and Regulations, as you shall, with the Advice and
Consent of Our Council, think fit to establish and appoint

Twelthly, It is also Our Will and Pleasure, that all other Religious
Seminaries and Communities (that of the Jesuits only excepted) do for
Uie present and until We can be more fully informed of the true State
of them, and how far they are, or are not, essential to the free exercise
of the Religion of the Church of Rome, as allowed within Our said Prov-
ince, remain upon their present Establishment; but you are not to allow
the admission of any new Members into any of the said Societies or Com-
munities, the Religious Communities of Women only excepted, without
our express orders for that purpose. That the Society of Jesuits be sup-
pressed and dissolved, and no longer continued, as a Body corporate and
politic, and all their Rights, Possessions and Property shall be vested in
Us for such purposes, as We may hereafter think fit to direct and appoint ;
» but We think fit to declare Our Royal Intention to be, that the present
Members of the said Society, as established in Quebec shall be allowed
sufficient stipends and Provisions during their natural Lives; — ^That all
Missionaries amongst the Indians, whether established under the Author-
ity of, or appointed by the Jesuits, or by any other ecclesiastical Authority
of the Romish Church, be withdrawn by degrees, and at such times and
in such manner, as shall be satisfactory to the said Indians, and con-
sistent with the Public Safety ; and Protestant Missionaries appointed in
their places; That all ecclesiastical Persons whatsoever, of the Church of
Rome, be inhibited, upon the Pain of Deprivation, from influencing any
Person in the making a Will, from inveigling Protestants to become
Papists, or from tampering with them in matter of Religion, and that
the Romish Priests be forbid to inveigh in their Sermons against the Reli-
gion of the Church of England, or to marry, baptize, or visit the sick, or
bury any of Our Protestant Subjects, if a Protestant Minister be upon
the Spot.

22. You are at all times and upon all occasions to give every Counte-
nance and Protection in your Power to such Protestant Ministers, and
School Masters, as are already established within Our said Province, or
may hereafter be sent thither, to take care, that such Stipends and Allow-
ances, as We may think fit to appoint for them, be duly paid; that the
Churches already appropriated, or which may hereafter be appropriated
to the use of Divine Worship according to the Rites of the Church of
England, as by Law established, be well and orderly kept; and, as the
Number of Protestants shall, by God's blessing, increase, to lay out new
Parishes in convenient Situations, and set apart and appropriate proper
Districts of Land therein for the Scite of Churches, and Parsonage
Houses, and for Glebes for the Ministers and Schoolmasters.

30. The Extension of the Limits of the Province of Quebec neces-
sarily calls forth your Attention to a Variety of new Matter and new
Objects of Consideration; The protection and control of the various Set-
tlements of Canadian Subjects, and the regulation of the Peltry Trade in
the upper or interior Country on the one hand, and the protection of the
Fisheries in the Gulph of St. Lawrence, and on the Labrador Coast on
the other hand, point to Regulations, that require deliberation and de-
Dpatch.

31. The institution of inferior Judicatures with ^limited Jurisdiction
in Criminal and Civil Matters for the Illinois, Poste St. Vincenne, the
Detroit, Missilimakinac, and Gasp^e has been already pointed out, and
the Appointment of a Superintendant at each of these Posts is all, that is
further necessary for their Civil concerns; But it will be highly proper
that the Limits of each of those Posts, and of every other in the interior
Country should be fixed and ascertained; and that no Settlement be al-

1774-1791] Constitutional Documents of Canada, 157

lowed beyond those Limits; seeing that such Settlements must have the
consequence to disgust the Savages ; to excite their Enmity ; and at length
totally destroy the Peltry Trade, which ought to be cherished and encour-
aged by every means in your Power.

32. It IS Our Royal Intention, that the Peltry Trade of the interior
Country should be free and open to all Our Subjects, Inhabitants of any
of Our Colonies, who shall, pursuant to what was directed by Our Royal
Proclamation of 1763, obtain Licences from the Governors of any of Our
said Colonies for that purpose, under Penalties to observe such Regula-
tions, as shall be made by Our Legislature of Quebec for that purpose;
Those Regulations therefore, when established, must be made public
throughout all Our American possessions, and they must have for their
object the giving every possible facility to that Trade, which the stature
of it will admit, and as may consist with fair and just dealing towards
the Savages, with whom it is carried on. The fixing stated times and
places for carrying on the Trade, and adjusting Modes of settling Tariffs
of the prices of Goods and Furs, and, above all, the restraining the Sale
of Spirituous Liquors to the Indians will be the most probable and effec-
tual means of answering the ends proposed. These and a variety of other
regulations, incident to the nature and purpose of the Peltry Trade in
the interior Country, are fully stated in a Plan proposed by Our Com-
missioners for Trade and Plantations in 1764, a Copy of which is here-
unto annexed\ and which will serve as a Guide in a variety of cases, in
which it may be necessary to make provision by Law for that important
Branch of the American Commerce.

33. The Fisheries on the Coast of Labrador, and the Islands adjacent
thereto are objects of the greatest Importance, not only on account of
the Commodities they produce, but also as Nurseries of Seamen, upon
whom the Strength and Security of Our Kingdoms depend.

34. Justice and Equity demand, that the real and actual property
and possession of the Canadian Subjects on that Coast should be pre-
served intirely; and that they should not be molested or hindered in the
exercise on any Sedentary Fisheries they may have established there.

35. Their Gaims however extend to but a small District of the
Coast, on the greatest part of which District a Cod Fishery is stated to
be impracticable.

36. On all such parts of the Coast, where there are no Canadian
Possessions, and more especially where a valuable Cod Fishery may be
carried on, it will be your Duty to make the Interests of Our British
Subjects going out to fish there in Ships fitted out from Great Britain
the first object of your care, and, as far as circumstances will admit, to
establish on that Coast the Regulations in favour of British fishing Ships,
which have been so wisely adopted by the Act of Parliament passed in
the Reign of King William the Third, "for the Encouragement of the New
Foundland Fishery," and you are on no account to allow any possession
to be taken, or Sedentary Fisheries to be established upon any parts of
the Coast, that are not already private Property, by any persons what-
ever, except only such as shall produce annually a Certificate of their
having fitted out from some Port in Great Britain.

37. We have mentioned to you the Fisheries upon the Coast of
Labrador, as the main object of your attention; but the Commerce car-
ried on with the Savages of that Coast, and the state and condition of
those Savages deserve some regard; the Society of Unitas Fratrum, urged
by a laudable Zeal for promoting Christianity, has already, under Our
Protection, and with Our Permission, formed Establishments in the
Northern parts of that Coast for the purposes of civilizing the Natives,
and converting them to the Christian Religion. Their success has been
answerable to their Zeal ; and it is Our express Will and Pleasure, that
you do give them every countenance and Encouragement in your power

* Tbe plan is in Shortt and Doughty, p. 433.

158 Constitutional Documents of Canada, [1774-1791

and that you do not allow any Establishment to be made, but with their
consent, within the limits of their possessions.

38. By Our Commission to you under Our Great Seal of Great
Britain you are authorised and impowered, with the advice and consent
of Our Council, to settle and agree with the Inhabitants of Our said
Province of Quebec for such Lands, Tenements, and Hereditaments, as
are now, or shall, hereafter be in Our Power to dispose of. It is there-
fore Our Will and Pleasure that all Lands, which now are, or hereafter
may be subject to Our Disposal, be granted in Fief or Seigneurie, in like
manner as was practised antecedent to the Conquest of the said Province ;
omitting however in any Grant, that shall be passed of such Lands, the
Reservation of any Judicial Powers, or privileges whatever. And it is
Our further Will and Pleasure that all Grants in Fief or Seigneurie, so
to be passed by you, as aforesaid, be made subject to Our Royal Ratifica-
tion, or Disallowance, and tc a due Registry thereof within a limited time,
in l£ke manner as was practised in regard to Grants and Concessions held
in Fief and Seigneurie under the French Government

XXX

AN ORDINANCE FOR ESTABLISHING COURTS OF CIVIL
JUDICATURE IN THE PROVINCE OF QUEBEC

[Trans.: Shortt and Doughty.]

February 25, 1777.

Whereas it is necessary to establish Courts of Civil Judicature for
the speedy Administration of Justice within this Province; It is therefore
Ordained and Enacted by His Excellency the Captain General, and Gov-
ernor in Chief of this Province, by and with the Advice and Consent of
the Legislative Council of the same. That,

Art. 1. For the Ease and Convenience of His Majesty's subjects re-
siding in different Parts of this Province, the same shall be and hereby
is divided into Two Districts, to be called and known by the names of
Quebec and Montreal, whidi said Districts shall be divided and bounded
by the River Godfroy on the South, and by tiie River St Maurice on the
North side of the River St Lawrence.

Art. 2. A Court of Civil Jurisdiction, to be called the Court of
Common Pleas, shall be, and hereby is erected, constituted, and estab-
lished for each of the said Districts, the one whereof shall sit at the City
of Quebec, and the other at the City of Montreal, at least one Day in
every week, for the decision of Causes in which the Value of the mat-
ter in Dispute shall exceed Ten Pounds, Sterling; and another Day in
every week for the Decision of Causes in which the matter in Dispute
shall be of or under the Value of Ten Pounds Sterling, and shall so con-
tinue their Sittings throughout the whole Year, excepting Three Weeks
at Seed Time, a Month at Harvest, and a Fortnight at Christmas and
Easter, and except during such Vacations a^ shall be appointed by the
Judges for making their Circuits twice every Year through their separ-
ate Districts. The said Courts shall have full Powers, Jurisdiction, and
Authority, to hear and determine all matters of Controversy relative to
Property and Civil Rights, according to the Rules prescribed by an Act
of Parliament made and passed in the Fourteenth Year of the Reign of
His Present Majesty, intituled, "An Act for making more effectual Pro-
"vision for the Government of the Province of Quebec, in North
"America," and such Ordinances as may hereafter be passed by the Gov-
ernor and Legislative Council of the said Province.

Art 3. In matters above the Value of Ten Pounds Sterling, the
Presence of Two Judges shall be necessary to constitute a Court of

* This Ordinance and the two following are the oatcome of sectiona 14 and 15 of
Carleton'a Inatractions, 1775 (see No. XXIX).

1774-1791] Constitutional Documents of Canada. 159

G>mmon Pleas; the Decision of which Court shall be final in all cases
where the matter in Dispute shall not exceed the Value of Ten Pounds
Sterling, except in matters which may relate to taking or demanding
any Duty payable to His Majesty, or to any Fee of Office, or Annual
Rents, or other such like matter or Thing, where the Rights in future may
be bound, in which Cases, and also in all Matters that exceed the said
Value of Ten Pounds Sterling, an Appeal shall lie to the Governor and
Council ; provided Security be duly given by the Appellant, that he will
effectually prosecute the same, and answer the Condemnation; as also
pay such Costs and Damages as shall be awarded, in case the Judgement
or Sentence of the Court of Common Please shall be affirmed.

Art, 4. The Governor and Council are hereby erected and con-
stituted a Superior Court of Civil Jurisdiction (whereof in the absence
of the Governor and Lieutenant the Chief Justice shall be President)
for hearing and determining all Appeals from the inferior Courts ofV
Civil Jurisdiction within the Province, in all cases where the matter in \
Dispute shall exceed the Sum of Ten Pounds Sterling, or shall relate to
the taking or demanding any Duty payable to His Majesty, or to any Fee
of Office or Annual Rents, or other such like Matter or Thing, where the
Rights in future may be bound, though the immediate Sum or Value
appealed for be less then Ten Pounds Sterling. And any Five Members
of die said Council (the Judg^es who shall have given the Judgment ap-
pealed from excepted) with flie Governor, Lieutenant Governor, or Chief
Justice, shall constitute a Cofurt for that Purpose, which shall sit the first
Monday in every Month throughout the year, and continue sitting each
Month as long as the Business before it may require : And the said Court
of Appeals shall have Power to revise and examine all the Proceedings
in the Court below, and to correct all errors both in Fact and in Law,«—
and to give such Judgment as the Court below ought to have given, and
on Judgment to award and issue such Execution as the Law shall direct.

Art 5. The Judgment of the said Court of Appeals shall be final in
all cases where the matter in Dispute shall not exceed the Value of £50(1
• /Majesty in His Privy Cx>uncil, provided security be first duly given by j
(Sterling; but in all cases exceeding that Value, an Appeal shall lie to His^
Ihe Appellant, that he will effectually prosecute his Appeal, and answer
the Condemnation, as also pay such Costs and Damages as shall be
awarded by His Majesty in His Privy Council, in case the Sentence of
the said Court of Appeals shall be affirmed. An Appeal shall likewise lie
to His Majesty in His Privy Council from the Judgment of the said Court
of Appeals in all cases where the matter in Question shall relate to the
taking or demanding any Duty. payable to His Majesty, or to any Fee of
OflSce, or Annual Rents, or any such like matter or Thing, where the
Rights in future may be bound, though the immediate Sum or Value ap-
pealed for be less than £500 Sterling; and in all cases where Appeal shall
be allowed to His Majesty in His Privy Council, Execution shall be
suspended until the final determination of such Appeal, provided Security
be given as aforesaid.

Art 6. All Judgments, Sentences and Executions of the Courts of
Civil Jurisdiction, which it has been found necessary to establish since
the 1st May, 1775, are hereby ratified and confirmed, subject nevertheless
to an Appeal to the said Court of Appeals, in matters exceeding the value
of Ten Pounds Sterling, and in cases where Rights in future may be
bound.

Art 7. Any Party meaning to Appeal from any Judgment, either
of the said last-mentioned Courts, or of the Courts of Civil Jurisdiction
subsisting in the Province before the 1st of May, 1775, shall sue out the
Writ of Appeal within Three Months after the Publication of this Ordi-
nance, after which Period the same will not be allowed.

Art 8. All Actions instituted in any of the Courts of Civil Jurisdic-
tion subsisting in the province before the 1st of May, 1775, or in those
established since the 1st of May, 1775, and remaining undetermined therein,
shall be transmitted to the Courts of Cx>mnton Pleas hereby established

160 Constitutional Documents of Canada. [1774-1791

for the respective Districts, to be proceeded upon to Judgment, as if the
same had been commenced therein; and also all Matters remaining unde-
termined in any Court of Appeals heretofore subsisting in this Province
shall be forthwith transmitted to the Court of Appeals hereby established,
to be proceeded upon therein to Judgment and Execution.
February 25. 1777.

Guy Carleton.

XXXI

AN ORDINANCE TO REGULATE THE PROCEEDINGS IN THE
COURTS OF CIVIL JUDICATURE IN THE PROVINCE

OF QUEBEC

[Trans.: Shortt and Doughty.]

February 25, 1777.

Whereas it is necessary for the Ease and Convenience of His Ma-
jesty's subjects who may have Actions to prosecute in the Courts of Civil
Judicature established in this Province, that the mode of Administering
Justice in the said Courts should be clearly ascertained, and rendered as
plain as possible : It is therefore Ordained and Enacted by his Excellency
the Captain General and Governor in Chief of this Province, by and with
the Advice and Consent of the Legislative Council of the same. That,

Art 1. In all cases or Matters of Property, exceeding the Sum or
Value of £10 Sterling, upon a Declaration presented toiany one of the
Judges of the Court of Common Pleas, by any Person, setting forth the
Grounds of his Complaint against a Defendant, and praying an Order tc
Compel him to appear and answer thereto, such Judge shall be, and
hereby is empowered and required in his separate District to grant a
Writ of Summons in the Language of the Defendant, issuing forth in
His Majesty's Name, tested and signed by one of the Judges, and directed
to the Sheriff of the District, to summon the Defendant to appear and
answer the Plaintiffs Declaration on some certain future day, Regard
being had to the Distance of the Defendant's Abode from the Place
where the Court sits; but if the Judges, or any Two of them are satis-
fied, by the Affidavit of the Plaintiff, or otherwise, that the Defendant is
indebted to him, and on the point of leaving the Province, whereby the
Plaintiff might be deprived of his Remedy against him; it shall be lawful
for the said Judges, or any Two of them,«to grant an Attachment against
the Body of such Defendant, and hold him to Bail, and for Want of Bail
to commit him to Prison until the Determination of the Action against
him: The Declaration shall in all cases accompany the Writ, and the
Plaintiff shall not be permitted to amend it until the Defendant shall
have answered the matter therein contained, nor afterwards, without pay-
ing such reasonable Costs as the Court may ascertain.

Art 2. Copies both of the Writ of Summons, and the Declaration,
shall be served on the Defendant personally, or left at his House with
some grown Person there, otherwise the Service shall be deemed in-
sufHcint

Art 3. If on the Day of the Return of the Writ of Summons the
Defendant does not appear in Person, or by Attorney (Proof of such Ser-
vice being produced or made in Court) the Plaintiff shall obtain a Default
against the Defendant, and if on calling over the Action in the next
Weekly Court Day the Defendant should still neglect to appear, without
any good Reason for such his Neglect, the Court after hearing and receiv-
ing sufficient Proof of the Plaintiff's Demand, shall cause their final Judg-
ment to be entered against the Defendant, and shall reward such Costs
thereupon as they shall think reasonable, and issue such Execution as the
Law, according to the nature of the case, may direct

Art 4. If Defendant appears at the Return of the Writ of Sum-

1774-1791] Constitutional Documents of Canada. 161

mons, or, having made Default on that Day, pays such Costs as the Court
may think reasonable, and appears on the next Weekly Court Day after
such Return, he shall, either then, or on such other Day as he may obtain
from the Court, make his Answer to the Declaration, either in Writing
or Verbally as he thinks fit, provided that if his Answer is Verbal the
Qerk of the Court shall take down the substance thereof in writing, and
preserve the same amongst the Records of the Court

If the Plaintiff does not appear, or appearing does not prosecute his
action, the same shall be dismissed with Costs.

Art 5. If upon the Declaration and Answer, or such further Plead-
ings as the Court may, if it thinks proper, permit or direct, the Parties
shall appear to differ essentially in their State of Facts, the Court shall
ascertain and order the Qerk to take down in Writing, such Facts, ma-
terial to the Decision of the Cause as it will proceed to receive rroof
upon, and appoint a Day for hearing such Proofs as the Parties shall
think proper to produce.

Art 6. In sdl Cases where Witnesses are produced they shall be ex-
amined and Cross Examined, viva voce, in open Court, unless some good
Reason is shewn to the Judges for departing from this Rule in particular
Cases. The Examinations of the Witnesses shall be taken down in Writ-
ing by the Qerk, and filed among the Records of the Court.

Art 7. In the Proof of all Facts concerning Commercial Matters
Recourse shall be had in all the Courts of Civil Jurisdiction in the Prov-
ince, to the Rules of Evidence laid down by the English Laws*.

Art 8. The Party meaning to Appeal from any Sentence or Judg-
ment of any of the Courts of Common Pleas, shall sue out a Writ from
the Court of Appeals, tested and signed by the Governor, Lieutenant
Governor, or Chief Justice, stating that the Appellant complains of being
aggrieved by the Judgment and therefore commanding the Judges of the
Inferior Court, or any Two of them, to send up the Original Papers and
Proceedings in the Cause, and Transcrips of all Rules, Orders and Pre-
ceedings found in the Records or Registers of the Court concerning the
same; such Writ, when presented to any of the Judges of the Court be-
low, shall be allowed by him, if the Appellant has given the requisite
Security, and when allowed, the Clerk of the Court shall proceed to com-
ply witii the Order of the Writ, and the Judges, or any Two of them,
shall make their Return against the Return Day thereof.

Art 9. If the Appellant does not within Eight Days after the Return
of the said Writ, and the Transmission of the proceedings, file his Rea-
sons of Appeal, the Appellee shall obtain a Rule or Order, that unless
the Appellant's Reasons of Appeal are filed in Four Days, the Appeal
will be dismissed, and if the said Reasons of Appeal are not filed within
Four Days after Service of the said Rule on the Appellant or his Agent,
the Appeal shall accordingly be dismissed with Costs.

Art 10. Within Eight Days after the Reasons of Appeal are filed,
the Appellee shall file his Answers thereto, or if he neglects so to do the
Appellant shall obtain a Rule or Order, that unless the Appellee file his
Answers within Four Days he will be precluded from filing them after
that Period; and if his Answers are not filed within Four Days after
Service of such Rule on the Appellee or his Agent, he shall accordingly
be precluded from filing them, and the Court will proceed to hear the
Cause on the part of the Appellant, and proceed to Judgment therein
without the Intervention of the Appellee.

Art 11. The said Court of Appeals nevertheless shall and may, upon
Application made, and good Cause shewn by either of the Parties (Notice
h^ng given the other) prolong the Time allowed for filing either the
Reasons of Appeal or Answers thereto, and in case the Court shall not
be sitting, at the Time when such Reasons or Answers ought regularly
to be fil^, the Party neglecting shall apply to the Court, at the next sit-
ting thereof, and shew his Reasons for such his Neglect: and if the Court

> Conpare for this policy Carleton'a Instmctiont, 1775, Section 12 (No. X^QX).

162 Constitutional Documents of Canada, [1774-1791

finds them insufficient, it will, as the case may be, either dismiss the Ap-
peal, or proceed to hear it without the Intervention of the Appellee, as
above directed.

Art 12. When the Reasons of Appeal, and Answers thereto, are
filed, the Court shall on the Application of either of the Parties, fix on
such convenient Day for the hearing of the Cause as to it may seem
proper.

Art. 13. If the Writ of Appeal is not allowed by one of the Judges
of the Court below, and a Copy thereof served on the Appellee or his
Agent within Fifteen days after any Judgment given in the Court of
Common Pleas, Execution shall issue, and no Appeal shall be allowed or
received from the Court of Common Pleas after the Expiration of one
Year from the Date of the Judgment of such Court

Art. 14. The Execution sued out from any of the Courts of Civil
Jurisdiction shall be a Writ issuing in the King's Name, tested and signed,
when issuing from the Court of Appeals, either by the Governor, Lieu-
tenant Governor, or Chief Justice, and when issuing from the Court of
Common Pleas, by one of the Judges of the Court for the District in
which it is given, directed to the Sheriff of the District, setting forth the
Judgment of the Court between the Parties, and the kind of Execution
which the Law, according as the case may be, shall direct, whether the
same be to take the Body, or to levy a Sum of Money out of any One's
Goods and Chattels, Lands and Tenements, or to do any Special matter
or Thing whatever; the Date of the Judgment shall be indorsed on every
Writ of Execution, and that Indorsement signed by the Judge.

Art. 15. In all Cases where execution shall issue against Real and
Personal Estates the Sheriff shall first dispose of the Personal Property,
and if the Proceeds thereof fall short of the Amount of the Judgment
the Real Estate or so much tiiereof, as will produce the Amount shall
be sold for that purpose.

Art. 16. Where Moveables shall be seized by the Sheriff under an
Execution, he shall cause the seizure to be published at the Church Door,
of the Parish, inimediately after Divine Service, on the first Sunday suc-
ceeding such Seizure, and at the same time cause to be proclaimed the
Day and Place when and where he intends to proceed to the sale thereof,
provided that the Place of Sale shall be in tiie same Parish in which the
Seizure is made.

Art 17. When Lands and Tenements shall be seized by the Sheriff
under a Writ of Execution, he shall advertize the Sale thereof Three
Several Times in the Quebec Gazette, to be on some certain Day aftei
die expiration of Four Months from the Date of the First Advertisement,
and proclaim the said Sale at the Church Door of the Parish in which the
Premises are situated, immediately after Divine Service, on the Three
Sundays next preceeding the same and Cause a Copy of the said Advertise-
ment to be fixed on the Door of the Parish Church.

Art 18. If Two or more Writs of Execution shall be issued upon
Judgments given the same Day against the same Defendant or Defend-
ants, and so marked on the Writs, such Executions shall have the same
Privilege and be satisfied in the same Proportions, and the Sheriff, or
other Person to whom such Writs of Execution shall be Awarded, re-
ceiving die same, is hereby authorized and Commanded, after the sale of
the whole of such Defendant's Real and Personal Estate, where the Writ
shall be awarded against both, in case the same should not be sufficieii>
to satisfy the whole of such Judgments, to pay over and divide the Nett
Produce of such sale or Sales, after deducting his own Costs and Charge^,
amongst the several Plaintiffs, in Proportion to the Amount of their re-
spective Judgments.

Art. 19. On every Execution the Sheriff shall be allowed all his
Disbursements, and shall be authorized to charge over and above at the
Rate of Two and an Half per centum, to be deducted out of the Money
he Levies.

Art 20. Proceedings in Actions under £10 Sterling. In Matters either

1774-1791] Constitutional Documents of Canada, 163

not exceeding or under Ten Pounds Sterling, any Person having a Right of
Action against another, shall prepare, or procure from the Clerk of the
Court of Common Pleas, a Declaration

******

This Summons shall be signed by one of the Judges of the Court, and
a Copy thereof, and of the Declaration, served on the Defendant P/er-
sonally, or left at his Dwelling House, or Ordinary Place of Residence,
with some grown Person there; and the Person serving the same shall
inform the Defendant, or such grown Person, of the Contents thereof.
If, at the Time mentioned in the Summons, the Defendant does not ap-
pear (Proof of the Service thereof being produced in Court) the Judges,
or any one of Them shall hear the Cause on tiie part of the Plaintiff, and
make such order, Decree, or Judgment, and award such reasonable Costs
of Suit, as to them or him shall appear agreeable to Equity and good Con-
science ; but if the Defendant does not appear by himself, or his Agent, and
the Plaintiff, or his Agent, does not appear, or appearing does not Prose-
cute, or prosecuting, fails in his Action, the Judge or Judges shall dismiss
the Defendant with Costs. If the Plaintiff makes good his Charge against
the Defendant, the Judge or Judges shall give Judgment accordingly, and
award Costs and Execution, but the Execution shall not issue till the next
Court Day after Judgment given: the Execution shall go against the
moveables only of the Defendant, which shall be seized by some Person
to be for that Purpose appointed by the Court, and sold by him in the
manner mentioned in the Sixteenth Article of this Ordinance. But the
Execution shall contain an Exception of the Party's Beasts of the Plough,
Implements of Husbandry, Tools of his Trade, and one Bed and Bedding,
unless his other Goods and Chattels should prove insufficient, in whidi
case such Beasts of the Plough, Implements of Husbandry and Tools of
his Trade shall be sold, but not the Bed and Bedding. The judge or
judges, may, if they think proper, order the Debt to be levied by Install-
ments, provided the Time allowed shall not exceed the Space of Three
Months from the Day of issuing the Execution.

Art 21. In Matters, as well above as of or under the Value of Ten
Pounds Sterling, if the Defendant shall convey away or secrete his Effects,
an Execution shall go against his Person, to be taken and detained in
Prison until he satisfies the Judgment

Art 22. For the Satisfaction of all Judgments given in Commercial
Matters between Merchants, as well as of all Debts due to Merchants for
Goods, Wares, and Merchandizes, by them soldL Execution shall issue not
only against the Goods, Chattels, Lands and Tenements of the Defend-
ant, but also, in case they shall not produce the Amount of the Plaintiff's
Demand, against his Person, to be taken and conveyed into the Prison oi
the District, and there detained until he pays the Amount of the Judg-
ment, or otherwise settles with and satisfies the Plaintiff: Provided, that
if the Defendant after remaining one Month in Prison, shall make Ap-
plication to the Court, and make an Affidavit that he is not worth Ten
Pounds, the Plaintiff shall pay to the Defendant the Sum of Three Shil-
lings and Six pence weekly for his Maintenance as long as he shall be
detained in Prison at the Suit of the Plaintiff ; such Payment shall be made
in Advance on Monday in every Week, in Failure of which the Court
from whence the Execution issued shall order the Defendant to be re-
leased: but the Plaintiff shall not be obliged to make such Payment if
he can prove, to the Satisfaction of the Court by which the Defendant
stands committed, that the Defendant has secreted or conveyed away his
Effects to defraud his Creditors.

Art 23. When any Person against whom Judgment shall be given
in any of the Courts of Common Pleas shall not have sufficient Goods
Chattels, Lands or Tenements, to satisfy such Judgment within the Juris-
diction of the Court wherein such Judgment shall have been obtained, but
shall have Goods, Chattels, Lands or Tenements within the Jurisdiction of
the other Court of Common Pleas, it shall be lawful for the Judge or

164 Constitutional Documents of Canada. [1774-1791

Judges of the Court wherein Judgment shall have been obtained to award
Execution to the Sheriff of the other District, who, after getting the Writ
indorsed by one of the Judges of the Court for the District in which the
Goods, Chattels, Lands, or Tenements are situated, shall execute the same,
and make return thereof to the Court from which it issued ; and sudi Writ
and Return shall be by him sent to the Sheriff of the District from whence
the Writ was originally awarded, to be delivered into the Court that
issued the same. — ^The Sheriff executing such Writ shall be answerable
for his Doings relative thereto before the Court from which it was origi-
nally awarded ; and the Judges of the Court of Common Pleas for the one
District may, in like manner, award Execution against the Body of a Per-
son residing in the other in Cases where such Execution is by Law al-
lowed; and the Sheriff executing the Writ to him in such case directed
shall convey the Body of such Person into the Prison of the District
wherein such Person shall be arrested.

Art. 24. This Ordinance, and the several Provisions and matters
therein contained, shall remain in Force only during the Space of Two
Years from the Publication thereof.

Guy- Carleton.

February 25, 1777.

XXXII

AN ORDINANCE FOR ESTABLISHING COURTS OF CRIMINAL
JURISDICTION IN THE PROVINCE OF QUEBEC.

[Trans.: Shortt and Doughty.]

March 4, 1777.

It is Ordained and Enacted by His Excellency the Captain General
and Governor in Chief of this Province, by and with the advice and con
sent of the Legislative Council of the Same, That,

ART. I.

There shall be, and hereby is erected, constituted and established for
ihe Province at large, a Supreme Court of Criminal Justice and Jurisdic-
tion, to be called and known by the name of the Court of King's Bench,
for the Cognizance of all Pleas of the Crown, and for the Trial of all
manner of Offences whatsoever; the said Court ^hall be held before the
Chief Justice of the Province, or Commissioners that may be appointed
for executing the Oflfice of Chief Justice for the Time being, who shall
hear and determine the said Pleas of the Crown, and otf all manner oi
Offences whatsoever, according to the Laws of England, and the Ordi-
nances of the Government and Legislative Council of the Province.

And for the Speedy Administration of Justice, and the preventing
long Imprisonments, there shall be held in every Year, Four Sessions
of the said Court of King's Bench, whereof Two Sessions, shall be held
at the City of Quebec, and the other Two at the City of Montreal, at the
Times hereafter following, to wit, at the City of Quebec on the First
Tuesday of May and the First Tuesday of November, and at the City of
Montreal on the First Monday of March and the First Monday of Sep-
tember in every year: but nothing herein contained shall extend to pre-
vent the Governor, Lieutenant Governor, or Commander in Chief for the
Time being, to issue Commission of Oyer and Terminer and Gaol delivery
at any other Time or Times, when he may think it necessary and ex-
pedient so to do.

ART. n.

In each of the Districts of Quebec and Montreal there shall be held
and kept. Four Times in every Year, a Court of General Quarter Sessions
of the Peace, by the Commissioners of the Peace of each respective Dis-
trict, or so many of them as are or shall be limited in the Commission of

1774-1791] Constitutional Documents of Canada. 165

the Peace, who shall hear and determine all matters relative to the Con-
servation of the Peace, and whatsoever is by them cognizable, according
10 the Laws of England, and the Ordinances of the Governor and Legis-
lative Council of the Province.

The said Sessions for the District of Quebec, shall be held at the
City of Quebec, and the said Sessions for the District of Montreal shall
be held at the City of Montreal, on the days hereafter following, to wit,
on the second Tuesdays of the Months of January, April, July, and Octo-
ber, in every year.

And Two of the said Commissioners of the Peace shall sit weekly
in Rotation, in the Cities of Quebec and Montreal, for the better Regu-
lation of the Police, and other matters and Things belonging to their
Office; and the names of the Commissioners who are to sit in each Week
shall be posted up on the door of the Sessions House, by the Clerk of the
Peace, Two Days before their respective Sittings.

ART. m.

As the great extent of this Province may render it often impracticable
for the Coroner of the District to give his Attendance at the different
Places where it might be necessary, the Captains of Militia shall be and
hereby are impowered, in their respective Parishes, when any marks of
Violence appear on any dead Body, to summon together Six respectable
Householders of his Parish, to inspect the same; and he shall according
to their Opinion, report the manner and cause of such Death in writing,
to the nearest Commissioner of the Peace, that a further examination
may be made therein, if necessary.

ART. IV.

And as great Inconveniences might arise from the want of Peace
Officers in different parts of the Province, the said Captains of Militia
shall be and hereby are impowered to arrest any Person guilty of any
Breach of the Peace, or any Criminal Offence, within their respective
Parishes, and to convey or cause to be conveyed, such Person before the
nearest Commissioner of the Peace, to be dealt with according to Law.

(Signed) Guy Carleton.
March 4, 1777.

XXXIII
THE COLONIAL TAX REPEAL ACTS 1778

(18 George III, C. 12.)

An Act for removing all doubts and apprehensions concerning taxation 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 the reign of his pres-
ent Majesty, as imposes a duty on tea imported from Great Britain
into any Colony or Plantation in America, or relates thereto.

Whereas taxation by the Parliament of Great Britain, for the purpose Preamble,
of raising a revenue 'in his Majesty's Colonies, Provinces, and Plantations
in North America, has been found by experience to occasion great uneasi- ♦
ness and di3orders among his Majesty's faithful subject, who may never-
theless be disposed to acknowledge the justice of contributing to the com-
mon defence of the Empire, provided such contribution should be raised
under the authority of the General Court, or General Assembly, of each
respective Colony, Province, or Plantation : And whereas, in order as well
to remove the said uneasiness, and to quiet the minds of his Majesty's
subjects who may be disposed to return to their allegiance, as to restore

. * This Act is more particularly concerned with the American Colonies. It is
tnclnded hei^ because the title may include Canada, though it is obvious that it did
not repeal No. XXVI.

166 Constitutional Documents of Canada. [1774-1791

^^.the peace and welfare of all his Majesty's Dominions, it is expedient to
hereSefmr ^^^^^^^ *^** *hc King and Parliament of Great Britain will not impose
pose^y the" ^i^X duty» tax, or assessment, for the purpose of raising a revenue in any
King: and of the Colonies, Provinces, or Plantations: May it please your Majesty
Great* Britain^ *^^* ** "^^^ ^^ declared and enacted, and it is hereby declared and en-
on any of the acted by the King's Most Excellent Majesty, by and with the advice and
Colonies in consent of the Lords Spiritual and Temporal, and Commons, in this pres-
cao^the'wSt ^"* Parliament assembled, and by the authority of the same, that from
Indfes; except an<} after the jMkssiag of this Ac^he King and Parliament of Great Bri-
etc. tain will not impose a»y~<ki ly; tstx, 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 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 man-
ner as other duties collected by the authority of the respective General
Courts, or General Assemblies, of such Colonies, Provinces, or Planta-
tions, are ordinarily paid and applied.
- , 11. And be it further enacted by the authority aforesaid, that from

an Act? 7 Geo. ^^^ after the passing of this Act, so much of an Act made in the seventh
III as imposes 3^ear of his present Majesty's reign, intituled "An Act for granting cer-
a duty on tea tain duties in the British Colonies and Plantations in America; for allow-
Great Brita?™ ^^ * drawback of the duties of Customs upon the exportation from this
into America kingdom of coffee and cocoanuts of the produce of the said Colonies or
repealed. Plantations; for discontinuing the drawbacks payable on China earthen-

ware exported to America; and for more effectually preventing the clan-
destine running of goods in said Colonies or Plantations," as imposes a
duty on tea imported from Great Britain into any Colony or Plantation
in America, or has relation to the said duty, be, and the same is hereby
repealed.

XXXIV

HALDIMAND TO GERMAIN*

[Trans.: Shortt and Doughty.]

Quebep, 25th October, 1780.
My Lord,

As it is my Duty, it has been my Business to inform myself of the
State of the Country & I coincide with the Majority of the Legislative
Council in Considering the Canadians as the People of the Country, and
think that in making Laws and Regulations for the Administration of
these Laws, Regard is to be paid to the Sentiments and Manner of think-
ing of 60,000 rather than of 2,000 — three fourths of whom are Traders &
Cannot with propriety be Considered as Residents of the Province. — In
this point of view the Quebec act, was both just and Politic, tho' unfor-
• . tunately for the British Empire, it was enacted Ten Years too late — It

requires but Little Penetration to Discover that had the System of Gov-
ernment Sollicited by the Old Subjects been adopted in Canada, this
Colony would in 1775 have become one of the United. States of America
Whoever Considers the Number of Old Subjects who in that Year corre-
sponded with and Joined the Rebels, of those who abandoned the defence
of Quebec in virtue of Sir Guy Carleton's Proclamation in the fall of the
same Year, & of the many others who are now the avowed well wishers
of the Revolted Colonies, must feel this Truth however national or Reli-
gious Prejudices will not allow him to declare it.

Your Lordships Most Obedient & Most humble Servant,

^ (Signed) Fred Haldimand.

^ This letter throws contemporary light on the value of the Quebec Act. LoH
George Germain became Colonial Secretary in July, 1776.

1774-1791] Constitutional Documents of Canada. 167

XXXV

TREATY OF PARIS, 1783

[Trans.: Shortt and Doughty.]

DEFINITIVE TREATY of Peace and Friendship betweeH His Britannic
Majesty and the United States of America, — Signed at Paris, the 3rd
of September, 1783.

In the Name of the Most Holy and Undivided Trinty.

It having pleased the Divine Providence to dispose the hearts of the
Most Serene and most Potent Prince, George the Third, by the Grace of
God, King of Great Britain, France and Ireland, Defender of the Faith,
Duke of Brunswick and Lunenburg, Arch-Treasurer and Prince Elector
of the Holy Roman Empire, &c., and of the United States of America, to
forget all past misunderstandings and differences that have unhappily in-
terrupted the good correspondence and friendship which they mutually
wish to restore: and to establish such a beneficial and satisfactory inter-
course between the 2 Countries, upon the ground of reciprocal advan-
tages and mutual convenience, as may promote and secure to both perpe-
tual Peace and Harmony; and having for this desirable end already laid
the foundation of Peace and reconciliation, by the Provisional Articles
signed at Paris, on the 30th of November, 1782, by the Commissioners
empowered on each part ; which Articles were agreed to be inserted in, and
to constitute, the Treaty of Peace proposed to be concluded between the
Crown of Great Britain and the said United States, but which Treaty
was not to be concluded until terms of Peace should be agreed upon be-
tween Great Britain and France, and His Britannic Majesty should be
ready to conclude such Treaty accordingly ; and the Treaty between Great
Britain and France having since been concluded, His Britannic Majesty
and the United States of America, in order to carry into full effect the
Provisional Articles above-mentioned according to the tenor thereof, have
constituted and appointed, that is to say:

His Britannic Majesty, on his part, David Hartley, Esq., Member of
the Parliament of Great Britain; and the said United States, on their
part, John Adams, Esq., late a Commissioner of the United States of
America at the Court of Versailles, late Delegate in Congress from the
State of Massachusetts, and Chief Justice of the said State, and Minister
Plenipotentiary of the said United States to Their High Mightinesses the
States General of the United Netherlands; Benjamin Franklin, Esq., late
Delegate in Congress from the State of Pennsylvania, President of the
Convention of the said State, and Minister Plenipotentiary from the
United States of America at the Court of Versailles; John Jay, Esq., late
President of Congress and Chief Justice of the State of New York, and
Minister Plenipotentiary from the said United States at the Court of
Madrid; to be the Plenipotentiaries for the concluding and the signing
the present' Definitive Treaty: who, after having reciprocally communi-
cated their respective Full Powers, have agreed upon and confirmed the
following Articles:

Art. 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, Dela-
ware, 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
18 formed by a line drawn due North, from the source of the St Croix
River to the Highlands, along the said Highlands which divide those

168 ConstituHonal Documents of Canada. [1774-1791

Rivers that empty themselves into the River St. Lawrence from thqse
which fall into the Atlantic Ocean, to the North- westernmost head of
Connecticut River; thence down along the middle of that River to the
45th degree of North Latitude; from thence foy a line due West on
said latitude until it strikes the River Iroquois or Cataraquy'; thence
along the middle of the said River into Lake Ontario; through the mid-
dle of the said Lake until it strikes the communication by water between
that' Lake and Lake Erie; thence along the middle of said communi-
cation into Lake Erie: through the middle of said Lake until it ar-
rives at the water communication between that Lake and Lake Huron;
thence along the middle of said water communication into the Lake Huron ;
thence through the middle of said Lake to the water communication
between that Lake and Lake Superior; thence through Lake Superior.
Northward of the Isles Ro^al 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 North-western point thereof,
and from thence on 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 Norther-most part of the 31st degree of North lati-
tude: South by a line to be drawn due East from the determination of
the line last mentioned, in the latitude of 31 degrees North of the Equa-
tor, to the middle of the River Apalachicola or Catahouche; thence along
the middle thereof to its junction with the Flint River; thence straight
to the head 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 mouthy in the Bay of Fundy
to its source; and from its source directly North to the aforesaid High-
lands, which divide the Rivers that fall into the Atlantic Ocean from those
which fall into the River St. Lawrence: comprehending all Islands within
20 leagues of any part of the shores of the United States, and lying be-
tween 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 respectively touch the Bay of Fundy, and the 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 Gulph 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 fish of every
kind on such part of the Coast of Newfoundland as British Fishermen
shall use, (but not to dry or cure the same on that Island,) and also on
the Coasts, Bays, and Creeks of all other of His Britannic Majesty's Do-
minions in America; and that the American Fishermen shall have liberty
to dry and cure fish in 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 same, 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 Inhabitants, Proprietors, or Possessors of the ground.

IV. It is agreed that Creditors on either side shall meet with no
lawful impediment to the recovery of the full value in sterling money of
all bona fide debts heretofore contracted.

V. It is agreed that the Congress shall earnestly recommend it to
the Legislatures of the respective States, to provide for the restitution of
all estates, rights, and properties which have been confiscated, belonging
to real British Subjects: and also of the estates, rights, and properties of

*The older names for that part of the St. Lawrence between Lake Ontario and
the mouth of the Ottawa RiTer.
'i.e. Rainy Lake.

1774-1791] Constitutionat Documents of Canada. 169

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 13 United States, and therein to remain 12 months
nnmolested 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 recon-
sideration 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 equity, but with that spirit of conciliation whicn, on the return
of the blessings of Peace, should universally prevail. 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
bond fide price (where any has been given) which such Persons may have
paid on purchasing any of the said lands, rights, or properties since the
LOnfiscation.

And it is agreed that all Persons who have any interest in confiscated
lands, either by debts, marriage settlements, or otherwise, shall meet with
no lawful impediment in the prosecution of their just rights.

VL That there shall be no future confiscations made, nor any prose-
cutions commenced against any Person or Persons, for or by reason ot
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 con-
finement 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 shall be a firm and perpetual Peace between His Bri-
tannic 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 from henceforth cease: all Prisoners on both sides shall be
set at liberty, and His Britannic Majesty shall with all convenient speed,
and without causing any destruction, or 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 Harbour 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 belonging to any of the said
States, or their Citizens, which in the course of die 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 Mississippi, from its source to
the Ocean, shall for ever remain free and open to the Subjects of Great
Britain, and the Qtizens of The United States.

IX. In case it should so happen that any Place or Territory belong-
ing to Great Britain, or to The United States, should have been conquered
by the arms of either, from the other, before the arrival of the said Provi-
sional Articles in America, it is agreed that the same shall be restored
without difficulty, and without 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
space of 6 months, or sooner if possible, to be computed from the day of
the signature of the present Treaty.

In witness whereof, we, the Undersigned, their Ministers Plenipoten-
tiary, have in their name, and in virtue of our Full Powers, signed with
our Hands the present Definitive Treaty, and caused the Seals of our
Arms to be aflBxed thereto.

Done at Paris, this 3d day of September, in the year of our Lord, 1783.
D. Hartley. John Adams.

B. FlLANKLIM.

John Jay.

170 Constitutional Documents of Canada. [1774-1791

XXXVI
HALDIMAND TO NORTH*

[Trans.: Shortt and Doughty.]

Quebec, 6th November, 1783.
My Lord,

Your Lordship has already been made acquainted with the general
State of this Country, I am told that in the Petition which Some of His
Majest/s Antient Subjects have prepared to be presented to Parliament,
they lay great Stress upon the Number of Loyalists who are to Settle in
the Province, as an Argument in favor of the Repeal of the Quebec Act
and for Granting a House of Assembly, but I have great Reason to be-
lieve these unfortunate People have suffered too Much by G>mmittees
and Houses of Assembly, to have retained any prepossession in favor of
that Mode of Government, and that they have no Reluctance to Live under
the Constitution established by Law for this Country. At the Meeting
of the Legislative Council I intend to propose and recommend the Pass-
ing an Ordinance for the Introduction of the Habeas Corpus' Act or Some
other Mode for the personal Security, which will put the Liberty of the
Subject in that Respect upon the Same footing as in England, and which
will remove one of the ill grounded Objections to the Quebec Act, for
tho' that Law had never been introduced into the Province, people were
taught to believe that the Quebec Act had deprived the Inhabitants of the
benefit of it. —

I have the Honor to be with the greatest Respect and Esteem,
My Lord, Yours Lordship's Most Obedient, and Most Humble Servant,

Fred: Haldimand.

XXXVII

FINLAY TO NEPEAN*

[Trans.: Shortt and Doughty.]

Quebec, 22d October, 1784.
Sir,

The Advocates for a House of Assembly in this Province take it for
granted that the people in general wish to be represented ; but that is only
a guess, for I will venture to affirm that not a Canadian landholder in
fifty ever once thought on the subject and were it to be proposed to him,
he would readily declare his incapacity to Judge of the matter. Although
the Canadian Peasants are far from being a stupid race, they are at pres-
ent an ignorant people, from want of instruction — ^not a man in five hun>
dred among them can read; perhaps it has been the Policy of the Qergy
to keep them in the dark, as it is a favourite tenet with -the Roman Catholic
Priests, that ignorance is the mother of devotion. The Females in this
Country have great advantage over the males in point of Education. The
Sisters of the Congregation, or grey Sisters as they are called, are settled
in the Cx>untry Parishes here and there to teach girls to read, write, sew,
& knit Stockings: there's only a few of that Sisterhood — diey are the
most useful of any of the religious orders in Canada.

Before we think of a house of Assembly for this Country, let us lay
a foundation for useful knowledge to fit the people to Judge f f their
Situation, and deliberate for the future well-being of the Province. The

' The new conditionB after the Rerolationary War already influence "the ancient
Btibjects" in renewing their appeals for a House of Assembly. Lord North was one ol
the Secretaries of State from April to December, 1783.

*^ee No. XXXVII and note, p. 171.

* Hugh Finlay, Postmaster-General and a member of the Council. Sir ETan Nepean
was first Permanent Under Secretary of State for the Home Department. He was
i4>pointcd in 1782.

1774-1791] Constitutional Do cutnents of Canada, 171

first step towards this desireable end, is to have a free school in every
Parish — ^Let the schoolmasters be English if we would make Englishmen
of the Canadian^; let the Masters be Roman Catholics if it is necessary,
for perhaps the people, at the instigation of the Priests, would not put
their children under the tuition of a Protestant.

The natural bom subjects say, that they settled in Canada under the
Rings promise to call a house of Assembly as soon as the circumstances
of the Province would permit. The time is now come, say they; they
likewise state many priviledges that they hoped to enjoy on the faith of
the Royal Proclamation, of which they were deprived by the Quebec Act.

It is not yet ascertained that the people wish for a house of Assembly !
— Is it not the very essence of representation that the members of the
house be chosen by the free and uncontrolled voices of the people in
their districts? The Quebec Act gives full power and authority to His
Majestys Legislative Council to make Laws and grant all manner of
Priviledges to render His Majestys subjects in Canada free and happy;
if they are not actually so, the Legislative Council alone is to blame, not
the Quebec Act, for by it the Council may alter even the Criminal Law.

Before any Act passes giving the Canadians a house of Assembly,
let us be sure that it will be agreeable to a majority of the landholders —
Let the nature of free representation be set forth, let the duty of a repre-
sentative be explained, and convey a proper idea of the powers a house
will have to frame laws, and lay taxes: this necessary information ought
to be drawn up in plain clear terms, and read to the people every Sunday
for three months by the curate of each Parish immediately after divine
service, that the inhabitants or country people, may turn it in their
thoughts, consult among themselves and advise with the most sensible in
the Parish, be they French or English, to enable them to come to a deter-
mination concerning this matter.

Let those who assert that it is necessary for the wellbeing of the
people that the habitans have a share in the Government, do their best
endeavours to show them by solid arguments that it will be for their
good — ^At the end of three months, or six if more time is requisite, let
the Captains of Militia in presence of the Curate and four of the most
notable in the Parish take the voices of the people for House, or no
House? If a majority throughout the Province say House, grant thieir
desire — if they say no house — the British Parliament will not force that
form of Government upon them: the ancient subjects, (a small propor-
tion of the people) ought not unreasonably to insist on that which a ma-
jority of their fellow Citizens refuse after mature deliberation.

When the people, by means of education, become more enlightened,
they will probably wish for an alteration of the present system — ^whene-
cver that desire appears let the alteration be made — in the mean time let
it always be held up that a house will be called whenever a majority of
the people apply for it

I conceive, that whenever taxation is mentioned, the Peasant will
reject the idea of a house, from his narrow way of thinking, and attach-
ment to money. Were a house to be forced on them, and that house lay
taxes to defray the expence of Government and a thousand useful purposes
which the English Members (if any English there should be chosen) would
be continually be projecting, they would deem themselves oppressed and
probably wish to join the American confederacy, not possessing knowledge
enough to foresee the evil consequences of that Junction. The Enemy s
of Government (and there never is wanting turbulent people in all Coun-
trys) would make a handle of their discontentment and keep up a spirit
which they would hope to turn to account one day or other.

We at this moment enjoy all the benefits arising from the Habeas
corpus act*.

The Legislative Council have repeatedly refused to grant Jurys in civil
cases. Say the people, there is no Judge on the Bench capable of determin-

*For an illuminating note on Habeas Corpus in Canada, see Lucas, History of
Canada (Oxford, 1909), p. 88.

172 Constitutional Documents of Canada, [1774-1791

ing a Cotntnercial point so well as a Jury of Merchants, nay 'tis absolutely
impossible that Right can be done to die subject by Judges not bred to
the Law, under that anticommercial ill-understood System la coutume de
Paris, without the intervention of Juries — ^Jurys are an Englishman's
birth right. — Why refuse optional Juries? asks an old subject — ^because,
answer the Judges, they are too burthensome on the people. No, replys the
Englishman, Jurys are not burthensome when the Courts are properly
regulated by terms, but here you have weekly Courts, as inconvenient as
injurious since they tend by their frequency to deprive the Subject of
trial by Jury, a right which an Englishman never can give up, and which
His Majesty was pleased by His 13th Instruction strenuously to recom-
mend, but the Judges who have had most influence with our Governors
have found means to prevent our having Jurys in the Civil Courts, as
they have been looked on as a pernicious check on the power of the Bench\

It has been remark'd that men never wish for more power than the
Law gives them, unless they intend to use it — On trials for Damages, the
want of Juries may be severely felt

May I, Sir, refer you to a sensible man Mr. Grant of St. Roc, (a mem-
ber of the Legislative Council) for ample information concerning our
Courts of Justice — he lives at No. 42 Newman street.

It has been represented that poor people cannot afford to attend as
Jurors on civil causes — ^Let them be paid and they will cheerfully serve —
'tis but reasonable that the contending partys should pay.

I have taken the liberty to trouble you with this letter at the desire
of my friend Governor Skene.

I have the honor to be Sir,

Your most obedient and very humble Servant,

Hugh Finlay.

XXXVIII

PETITION FOR HOUSE OF ASSEMBLY, 24 NOVEMBER, 1784
TO THE KING'S MOST EXCELLENT MAJESTY

[Trans.: Shortt and Doughty.]

The humble Petition of Your Majesty's Ancient and New Subjects;
Inhabitants of the Province of Quebec.

MAY IT PLEASE YOUR MAJESTY.

AFTER the Conquest of the Province of Canada by the Arms of
Great Britain, Your Petitioners in compliance with Your Majesty's gracious
and royal Proclamation, bearing date the 7th day of October, 1/63, Settled
and became established, in the New acquired Colony of Quebec; in the
full reliance on the faith of the Crown of Great Britain, as expressed in
that Proclamation, for the enjoyment of those Laws, that Freedom and
Security in Canada, which the Principles of the English Constitution
afforded, in every part of the British Dominions in America. YOUR
PETITIONERS and the Inhabitants of the Province, have chearfully on
every occasion, obeyed the Controuling power of the Parliament of Great
Britain, and with patience have suffered, during a period of Anarchy and
War, rather than wound Your Majesty's feelings, or embarrass the Throne
with Remonstrances and Petitions at a time when the safety of the Nation,
made sacred every moment of Public deliberation. The Actions and Con-
duct of Your Petitioners when truly represented, will best express to Your
Majesty, the Sincerity of their Loyalty and Attachment to the Crown and
Government of Great Britain.

YOUR PETITIONERS look with Concern on the burthen of Great
Britain, and with great Pain and Commiseration they see the distresses
of Your Majesty's loyal Subjects, who, driven from their Estates, Wealth,
and Possessions are daily taking Shelter in this British Colony; though

^ See p. 186 and note for the introduction of trial by jury in civil casea.

1774-1791] Constitutional Documents of Canada, 173

their unsettled and distressed Situation, may for the present hinder them
from bringing forward their Petitions and their Claims; Your Majesty
will readily perceive that a Government similar or Superior, to that under
which they were bom, had lived, and were happy, must be considered by
those Your Majesty's unfortunate Subjects as an Affectionate proof of
Your Majesty's ratemal Care and Regard for them ; and the first Comfort
which Your Majesty in releif to their Distresses can now grant: And the
more so, as it will be a Blessing not merely granted to them, but extended
to their Children and Posterity. YOUR PETITIONERS fully persuaded
that the Welfare and Happiness of Your Majesty's Subjects, are objects
oi Your Majesty's serious and benign Consideration — ^beg leave to lay their
Petition at the foot of the Throne and ardently to request Your Majesty's
Interposition for the Repeal of the Quebec Bill ; allowing such Priviledges
as are already granted to the Roman Catholick Religion; as being inade-
quate to the Government of this extensive Province; the Cause of much
Confusion in our Laws, and fraught with trouble and uneasiness to Your
Majesty's loyal Subjects here. And that Your Majesty will be pleased to
Concur in establishing your affectionate Subjects of this Province, in the
full Enjoyment, of their civil Rights as British Subjects; and in granting
them a Free, Elective House of Assembly. In these hopes they humbly
presume to Suggest, that Qauses of the following Import, may be inserted
in the Act of Parliament, which shall be made to Confirm a free Constitu-
tion to this Country.

1st THAT the House of Representatives or Assembly, — be chosen
by the Parishes, Towns and Districts of the Province, to be Composed of
Your Majesty's Old and New Subjects, in such manner as to Your
Majesty's Wisdom may seem most proper, that the Assembly be triennial,
and the Members elected every three Years.

2d. THAT the Council consist of not less than Thirty Members and
in case of Division on any measure before them, that no Act shall be
passed, unless at least Twelve Members agree to carry the Vote. That the
appointment of the Members, may be during their residence in the Province,
and for Life; yet subject to temporary leave of Absence, as mentioned in
the 11th Article; And that they serve as Councellors, without Fee or
Reward.

3d. THAT the Criminal Laws of England be continued, as at present
established by the Quebec Act.

4th. THAT the ancient Laws and Customs of this Country, respecting
landed Estates, Marriage Settlements, « Inheritances and Dowers, be con-
tinued; yet subject to be altered by the Legislature of Quebec; And that
Owners may alienate by Will, as provided by the 10th Section of the
Quebec BiU.

5th. THAT the Commercial Laws of England, be declared to be the
Laws of this Province, in all Matters of Trade and Commerce, subject to
be Changed by the Legislature of Quebec, as in the preceeding Article.

6th. THAT the Habeas Corpus Act, the 31st Charles 2d be made
part of the Constitution of this Country.

7th. THAT Optional Juries be granted, on all Trials in Courts of
Original Jurisdiction. That they be regularly Baloted for, and a Pannel
formed as in England ; either in the Case of an ordinary or a Special Jury,
at the option of the Party applying for the same. And that Nine Members
out of tfie Twelve, may in Civil Causes, be sufficient to Return Verdicts,
subject to be Modified by the Legislature of Quebec, as in the 4th Article.

8th. THAT the Sheriffs be elected by the House of Assembly, and
approved and Commissioned by the Governor, at the Annual Meeting of
the Legislature. That they hold their Appointment during the period
elected for, and their good Behaviour; and that they find reasonable
Security, for a faithful discharge of their Duty.

9th. THAT no Ofl&cer of the Civil Government, Jud^e or Minister of
Justice, be suspended by the Governor or Commander m Chief for the
time; from the Honours, Duties, Salaries or Emoluments, of his Appoint-
ment; but with the advice and Consent of Your Majesty's Council, for the

174 Constitutional Documents of Canada. [1774-1791

Affaires of the Province; which Suspension shall not Continue, after the
Annual Sitting of the Council ; unless it be approved by the same. The
cause of Complaint if approved, to be thereafter reported to Your Majesty,
for Hearing and Judgement thereon.

10th. THAT no New Office be Created, by the Governor or Com-
mander in Chief for the time; but with the Advice and Consent of Your
Majesty's said Council and be approved at their Annual Meeting, as in
the preceeding Article.

11th. THAT all Offices of Trust be executedl by the Principal in the
Appointment; unless by leave of Absence from the Governor, with advice
and Consent of his Council; which leave of Absence, shall not extend to
more than Twelve Months, or be renewed by the Governor, but with the
Approbation of the Council, at the Annual Session.

12th. THAT Judges be appointed to preside in the Courts of the
Province; to hold their places during Life, or their good Behaviour, and
that they be rewarded with Sufficient Salaries, so as to confine them to the
functions of administering Justice, That every Cause of Accusation for a
Removal, proceeding from the Governor, shall follow the Rule laid down
in the 9th Article. And every Cause of Accusation for a Removal on the
part of the Public, shall proceed from the House of Assembly, and be
heard by the Council; which, if well founded, shall operate a Suspension;
and in either Case, be decided in Appeal and Report to Your Majesty.

13th. THAT Appeals from the Courts of Justice in this Province to
the Crown, be made to a Board of Council, or Court of Appeals, composed
of the Right Honble The Lord Chancellor and the Judges of the Courts
of Westminster Hall.

14. YOUR PETITIONERS beg leave, humbly to Represent to Your
Majesty; that from their Proximity to the United States, who from Situa-
tion and Qimate, have many advantages over them, the Internal Regu-
lations for promoting the Trade^ Agriculture and Commerce, of this
Province; are now become more intricate and difficulty; and will require
great Care and Attention, on the part of the Legislature here; to watch
over the Interests of this Country. They therefore request, that the
Assembly may have the Power, of laying the Taxes and Duties, necessary
for defraying the Expences of the Civil Government of the Province. And
for that purpose, that the Laws now existing, laying Taxes and Duties to
be levied in the Province, may be repealed.

SUCH MAY IT PLEASE YOUR MAJESTY are the Intreaties and
Prayers of Your loyal Subjects; and in full Confidence they trust, that
Your Majesty will releive them from the Anarchy and Confusion, which
at present prevail, in the Laws and Courts of Justice of the Province, by
which, their Real Property is rendered insecure. Trade is clogged, and that
good Faith, which ought, and would subsist among the People, and which
is the Life and Support of Commerce, is totally destroyed. And be Gra-
ciously pleased to Secure to them, a Constitution and Government, on such
fixed, and liberal Principles, as may promote the desire Your Affectionate
Subjects of this Province have, of rendering this Mutilated Colony, a
bright Gem in the Imperial Crown of Great Britain. And that may call
on the present Generation, for their unceasing Acknowledgements and
Gratitude. And upon the future, to feel as the present, that the Security
and Happiness of the People and Province of Quebec; depend on an
Union with, and Submission to, the Crown and Government of Great
Britain.

In these pleasing hopes Your Petitioners as in Duty bound will ever
pray, &c &c. &c.

Quebec, 24th November, 1784.

(Signed by five hundred and one names.)

1774-1791] Constitutional Documents of Canada. 175

XXXIX
PLAN FOR A HOUSE OF ASSEMBLY^

[Trans. : Shortt and Doughty.]

We conceive that the House of Assembly ought for the present, to
consist of a Number not exceeding 70 Representatives, who ought all to
profess the Christian Religion, And Speak and write the English or french
languages.

That, to procure that Number, the City of Quebec (being the Capital)
and Parish, and the City of Montreal and Parish, between them, elect 13,
Members. The city of three Rivers 2, Members. And as there are in the
province 120 parishes, that they be divided into counties and districts
according to the Number of Inhabitants, in such manner as each County or
district may elect two or four Members.

That the Legislature have the power, on application to them, to erect
such parishes as may in future be settled, into Counties or districts, to
elect and Send Members to the Assembly, as the province increases in
population.

That the qualification necessary to have a Vote at the Election of the
representatives for the Cities shall be, a House, Shed or lot of Ground of
the Value of forty Pounds Sterling ; And, for the Counties or districts, a
real Estate, Estate of Inheritance or Terre en roture, of at least, one and
a half Acres in front by 20 Acres in Depth, or other Estate of higher
denomination, And of which the Voter shall have the absolute property,
lying within the district or County, or City and parish he votes for.

That the qualification necessary for a person offering himself to serve
as a representative shall be a real Estate of Inheritance or descent in Lands
or Houses of the Value of thirty Pounds Sterling yearly Rent. —

That every person shall prove by Oath, (under the pains and penalties
of perjury) his qualification to either Vote or represent, being of the age
of twenty one years, And be absolute proprietor of the qualification.

That none but Males shall either Vote or represent

That the Assembly have free liberty of debate. And the power of
chusing a speaker.

Tluit all laws j-elating to taxation or raising monies on the Subject,
originate in "-the House of Assembly.

That the Assembly have the sole right to try and decide in all con-
tested Elections.

That all affairs be carryed in the Assembly by a Majority of Votes.

That at every Meeting of the Assembly, the Speaker, And, at least one
half of the representatives be necessary to form a house. — *

That the (governor or Lieutenant Governor for the time being, shall be
obliged to call together the representatives in assembly, once every year,
between the first of January and the first of May of every year, And, at
any other time the Urgency of Affairs may require. —

Endorsed: Plan for a House of Assembly drawn up by the Commit-
tee's of Quebec and Montreal, in November 1784.

In Mr. Lymbumer's, 24th July, 1789.

'Adam Lymburner, who represented in London those who signed the petition of
Nov. 24, 1784 (No. XXXVIII), informed Grenville by letter on Julv 24, 1789, that a
Committee of the memorialists had drawn up a plan for a House of Assembly, which
Bc enclosed and possibly endorsed, as follows: —

"When this plan was made out in the fall of 1784, the lo^alisU had not hepin
their new Settlements. As these new Settlements have been divided, and erected into
nve new diatricts, it may be proper that each district send a certain number of Repre>
sentativea. And that the two districts of Quebec and Montreal, containing the old
Mttled part of the Country, be divided into a certain number of districts (for the pur-
pose of electing Representatives only) tP choose Members for the House of Assembly."

176 Constitutional Documents of Canada, {1774-1791

XL

OBJECTIONS TO THE REQUESTS MADE TO OUR AUGUST

SOVEREIGN, DECEMBER, 1784*

[Trans.: Shortt and Doughty.]

In the Address read at an Assembly held at the house of the R.R.P.F.
Recolets, the 30th of November, 1784.

That, considering the burden of Great Britain, a House of Assembly
should be granted us, to impose Taxes, &c.

That we ought certainly to view with sorrow the burden of our Mother
Country ; but alas ! it can only be a fruitless sorrow, for what remedy can
we offer? We, whose wants increase day by day; we, who, every year
despoil ourselves of our last farthing to pay for the supplies, which this
Mother Country is compelled to furnish us, and which are already ex-
hausted ; we, who in spite of the enormous sums, which in consequence oi
the war have been left in this country, are still in arrears with the parent
state, for the balance of a considerable sum. What then are the resources
on which taxes could be levied? Is it on the Towns? Who does not know
the poverty of their Citizens. Is it on the Lands? Who does not know
that the rural districts are in debt to the Towns, and have at present
nothing with which to liquidate; that misery is the lot of a very large
portion of their Inhabitants? What will be the result then, if a portion of
their labours must be applied to the support of the State?

This representation, which is true in every point, ought to be convincing
evidence that a House of Assembly for the imposition of Taxes is not only
useless, but would be prejudicial to the interests of this Colony.

That the Chamber be indifferently composed of the ancient and new
Subjects, &c

This article requires more explanation: for, from this word indiffer-
ently there might be as many and even more ancient than new Subjects in
the House, which would be contrary to natural right, as there are twenty
Canadians to one ancient Subject. What would become of our rights if
they were entrusted to Strangers to our Laws.

That the Council be composed of thirty members without salaries, &c

This might be satisfactory if there were enough disinterested rich men
to take the part of the people, the honest poor man being unable to give
his time for nothing. '

That the Criminal Laws of England be continued here.

That the leniency of these laws would make their continuation desir-
able; but the demand is unnecessary, since they are in force.

That the Laws, Usages and Customs of this Country be continued;
subject nevertheless, to those changes that the Legislation may find neces-
sary, &c

This article is contradictory; in that it affirms our Rights, and com-
pletely destroys them. For as a matter of fact, is it not destroying them to
subject them to any alterations which the Legislation may find it necessary
to make? Would they not become arbitrary? What statutes could be
based on Rights as changeable as the House to which they will be sub
mitted?

That the Commereial Laws of England be declared those of this
Province, subject to the same alterations as in Article IV, &c.

That the reply to article IV will serve for this article.

That the Act of Habeas Corpus shall be in force, &c.

That our August Sovereign having granted it to us, it is unnecessary
to trouble him further concerning it

^ This U a. translation of a re^ly drawn up on behalf of the French-Canadians to
the petition of 24 Not., 1784 (No. XXXVIII). Although printed in December, 1784.
it was not sent officially to EnfJ^iid till January, 1789, when Dorchester fonrarded h
in a despatch tp Sydnej.

1774-1791] CdnstituHonal Documents of Canada. 177

That in the Courts of Jurisdiction, Juries may be granted at the re-
quest of the Parties concerned.

That this article is entirely in favour of the Rich against the Poor.
If they are the ordinary Juries ; Ye poor men, what will become of your
families, when you are forced to leave your work, for a part of the year,
to go and decide causes which in no way concern you? You already com-
plain at being compelled to interrupt your work when you are summoned
for Criminal Affairs, which occurs six times in the year. What would
be the result if you were obliged to take part in every sitting? Some one
perhaps will say that this is done in London, and it can therefore be done
in this country. But let such a one compare the number of citizens in
London, amounting to about three hundred thousand men, with twelve
hundred which, at the most is all that you are in this town and its suburbs.
He will then see that you would be obliged to be present at the sittings,
two hundred and fifty times for every time that a citizen of London need
Appear. Judge from this if you have any other trade to carry on, what
would become of your families.

If the Juries are special ones (and in consequence remunerated) what
poor man is there who could contend against a rich oppressor who has
unjustly seized his property; and who, to crush him, may demand a Jur>
(which could not be refused him) would not this force the poor man to
the altemativ^of giving up his cause, or or being totally ruined if he loses.
Complaints are now being made of the expense which Justice entails. Who
will be able to afford it, when the payment of twelve Jurors is to be added?
Would not this dose the door of the Sanctuary of Justice to the poor.

That the Sheriffs shall be elected by the House, approved and com-
missioned by the Governor, &c

That if the Sheriff nominated by the House does not please the Gov-
ernor, what will become of the administration of the Laws of Justice?
Will not a time, of anarchy in consequence ensue, prejudicial to the public
interests.

That no civil Officer shall be suspended from his office by the Govempr
without the consent of the Council, &c

That no new civil Office shall be created by the Governor without the
consent of the Council, &c

That all positions of trust shall be filled by the Persons themselves, &c.
That the three preceding articles would be admissible, time and place
considered.

That Judges shall be appointed for the Courts of the Province, and
that they shall have fixed and sufficient stipends.

That it is right to have Judges to administer Justice, and that they
ongfat to have stipends sufficient to live suitably to their station. For,
without that, they will either neglect the duties of their office, to occupy
themselves with tiie care of their own interests, or they will put Justice up
to auction.

That appeals from the Courts of Justice of this Province be made to
the Lord Chancellor, at the Court of Westminster Hall.

That up to the present time we have made appeals to the King and his
Council, who have taken our Laws as the guide of their decisions. But
what will become of our Rights when brought before a Court which will
deviate in nothing from the British Laws & Constitution? And further if
the Council of the Province changes your laws, and replaces them by the
laws of England, in what confusion and difficulty shall we not be placed?
H. on the contrary, they are allowed to remain in force what means of
Appeal shall we have in a Court which entirely ignores them.

That it may Please His Majesty in the interests of Commerce, and for
the encouragement of Agriculture to invest the House of Assembly with
power to impose Taxes, &c.

That this article duly considered would give rise to many reflections.
For what community is there between our requirements & the proximity,
the dimate, and the situation of the United States which give them the
advantage in Trade over us? Would the imposition of Taxes add three

178 Constitutional Documents of Canada, [1774-1791

months to our summer, and make our river navigable for the whole year?
No: then the advantage would still be on our neighbours' side. Would
Taxes make our Agriculture flourish? No: for the Beigniors to encourage
Agriculture give the lands for three years, exempt from all dues, and the
lands often lie uncultivated for lack of means to work them.

What is it then that compensates for the advantages they possess over
us? It is the peace that our rural districts' have hitherto enjoyed; free
from Taxation, and in spite of the severity of the climate, they have seen
the fruit of their labours, and have enjoyed it. To this it may be urged
that the rural districts are harassed by the billeting of Troops and by
corv^es. This is true, but would the imposition of Taxes exempt them
from this burden. Let us see.

When the King considers it necessary to send Troops into this Colony
for the safety of our possessions, would any one oppose it? No, this is a
right which the King possesses in all his Dominions, without even being
obliged to give account of his action. Have we Barracks in a condition
for housing these Troops? No : can they live the whole year under canvas?
no ; then we must either construct Barracks, or lodge them.

Troops bring with them a considerable amount of ammunition,
provisions, &c. Who is to transport these goods to their destination?
willing men, it will be said, who will be well paid. You can get willing
men, it is true, but at a rate so exorbitant that the Province would not have
enough to pay for this one branch of defence. If you impose taxes upon
them, you will no longer find them. So then, not to put a stop to works
so indispensable, it will be necessary to commandeer; and in consequence
we must have recourse to Corv^es.

But someone will perhaps say as has already been said, that what are
called Volunteers will be raised in the country. Here then would be a
band of Freemen condemned to Slavery. Is it not enough for fortune to
have treated them so unkindly, without increasing their misery by slavery.
This being inadmissible, taking everything into consideration it appears
conclusive after mature deliberation that Taxation cannot exempt us from
the billeting of Troops, or from corv^es ; and that consequently an Assem-
bly for the imposing of Taxes would be contrary to the interests of this
impoverished Colony.

End.

I certify that during the Course of the month of December of the year
1784, I have printed about two hundred copies of the Objections and about
the same number of an Address to His Majesty in opposition to the House
of Assembly, (in the same space of time) Montreal, 29th December, 1788.

FL. Mesflet, printer.

XLI

THE VERY HUMBLE ADDRESS OF THE ROMAN CATHOLIC

CITIZENS AND INHABITANTS OF DIFFERENT CONDITIONS

IN THE PROVINCE OF QUEBEC IN CANADA*

[Trans.: Shortt and Doughty.]

TO THE KING
Sire,

The Favours which it has pleased Your Royal and Generous Heart to
heap upon Your faithful and loyal Canadian Subjects, the present ill-
considered Measures of Your Ancient Subjects resident in our Province
and the small Number of New Subjects who have joined them, make us
hope that Your Most Gracious Majesty will allow us to kneel down at the
Foot of your Throne to implore Your Benevolence and Your Justice.

In the Addresses which we have taken the Liberty of transmitting to
Your Majesty, Two points have the unanimous Consent of our Fellow-

^ This address,, which is here printed from a translation, is onsigned and ondAted.
See, however, conclusion of prerioos doctiment.

1774-1791] Constitutional Documents of Canada. 179

citizens. The Religion of our Forefathers was for Your new Subjects,
as to every People in the World, the essential Point of our Petitions.
Animated by that Confidence with which the Generosity of our Sovereign
inspired us, we hoped, and still hope that Your Majesty will grant us tine
necessary Means for perpetuating it in our Colony. We are, Most Gracious
Sovereign, in most urgent need of Priests to carry on the work of the
Seminaries and Missions of our Province; Directors and Professors of
this Qass, and indeed of any other are lacking. Our Colleges are deserted ;
from this want arises Ignorance, and from Ignorance Moral Depravity.
Submissive and loyal, this People hope to receive from Your Royal Clem-
ency, Permission to bring from Europe, Persons of this Class.

The second Object, Most Gracious Sovereign, was that under whatever
Fomi of Government might seem best to Your Majesty to establish in this
Province, Your Catholic Canadian Subjects, without distinction, mi^ht
enjoy all the Privileges, Immunities, and Prerogatives, enjoyed by British
Subjects in all those Parts of the Globe, which are under Your Sway.

From this second Object follows our most earnest Desire to see in the
Legislative Council of our Province a larger Number of Your New Cath-
olic Subjects in proportion to their numbers ; Persons experienced in our
Customs, who being naturally better acquainted with our Municipal Laws,
would more effectually impress on us the Advantages resulting from the
Royal Instructions of Your Majesty, who has granted them to us.

An Infant Colony, a People very imperfectly acquainted with the
British Laws and Constitution does not feel that it ought, without due con-
sideration, to ask for Laws and Customs as yet unknown to it; it ought,
on the contrary, and such is the opinion of Your Petitioners, to cast itself
entirely on the Goodness of its August Sovereign, who can best form the
Government which is most suited to his Subjects, and employ the Measures
most fitted to render them happy. ^

May wc be allowed to assure Your Majesty, that we in no wise concur
in the Petitions* of Your Ancient Subjects, conjointly with some New
Ones, whose Number compared with the total number comprised in our
Province, can exercise but little Influence.

That the Greater Number of the principal Proprietors of our Colony
have not been consulted.

May it please You, Most Gracious Sovereign, to consider, that the
House of Assembly is not the unanimous Wish, nor the general Desire of
Your Canadian People, who through Poverty and the Misfortunes of a
recent War, of which this Colony has been the Theatre, arc not in a Con
dition to bear the Taxes which must necessarily ensue, and that in many
respects to Petition for it appears contrary to, and inconsistent with the
»ellbeing of the New Catholic Subjects of Your Majesty.

For this reason. Most Gracious Sovereign, we entreat You that in
Consideration of the Fidelity and Loyalty of Your Canadian Subjects, to
whose Behaviour in the most critical Circumstances, their former Gov-
cmoar Sir Guy Carleton has testified, our Diocesan Bishops may be
allowed to bring over from Europe the Spiritual Help, which is so indis-
pensably necessary for us, that the free Exercise of our Religion may be
continued to us to the fullest Extent, without any Restriction, that our
Municipal and Civil Laws may be preserved in their Entirety, and that
with these two Points may be granted the same Privileges enjoyed by our
Forefathers and ourselves, before the Conquest of this Country by the
jictorious Arms of Your Majesty; that Your new Catholic Subjects, who
lonn nineteen twentieths of this Province, may in the future, proportion-
ately to their Number, have a larger Share in the Distribution of Your
Royal Favours. And that, in Case it should be Your Royal Will to agree
to the Petitions of Your Ancient Subjects, and of some New Ones, it may
please you to suspend Your Royal Judgment till all the Qasses and Com-
Q^ities which compose our Colony shall have been universally and legally
^ed together, which the Lateness of the Season, at present prevents us

* See No. XXXVra.

180 Constitutional Documents of Canada. [1774-1791

from doing; so that by these Means the unanimoas Wish of our People
may be transmitted to Your Majesty.

This is what Your faithful and loyal Canadian Subjects, relying upon
Natural Right, and still more, upon Your Paternal Affection, humbly hope
to obtain from their Most Gracious Sovereign. They will never cease to
pray for the Preservation of Your Sacred Person, for your August Family,
and for the Prosperity of your Realm. Such are the feelings which lead
us to subscribe ourselves, with the deepest Respect.

Sire,

Your Majesty's
Most humble,

most obedient, Faithful
and loyal Subjects.

XLII
INSTRUCTIONS TO LORD DORCHESTER. 1786*

[Trans.: Shortt and Doughty.]

Instructions to Our Right Trusty and Welbeloved Guy Lord Dorchester,
Knight of the Most Honourable Order of the Bath — Our Captain
General and Governor in Chief in and over Our Province of Quebec
in America, and of all Our Territories dependent thereupon — Given
at Our Court at St James's the 23d Day of August, 1786. In the
Twenty Sixth year of Our Reign.

12 The Establishment of Courts and a proper Mode of administer-
ing Civil and Criminal Justice throughout the whole Extent of Our
Province according to the Principles declared in the said Act for making
more effectual provision for the Government thereof demand the greatest
Care and Circumspection, for as on the one Hand it is Our gracious pur-
pose, conformable to the Spirit and Intention of the said Act of Parliament,
that Our Canadian Subjects should have the Benefit and Use of their own
Laws, Usages and Customs in all Controversies respecting Titles of Land,
and the Tenure, Descent, Alienation, Incumbrances and Settlements of real
Estates and the Distribution of personal property of Persons dying intes-
tate, so on the other hand it will be the Duty of the Legislative Council to
consider well in framing such Ordinances, as may be necessary for the
Establishment of Courts of Justice, and for the better Administration of
Justice, whether the Laws of England may not be, if not altogether, at
least in part the Rule for the Decision in all Cases of personal Actions
grounded upon Debts, Promises, Contracts and Agreements, whether of a
Mercantile or other Nature, and also of Wrongs proper to be compen-
sated in Damages, and more especially where Our Natural bom Subjects
of Great Britain, Ireland, or other Plantations residing at Quebec, or who
may resort thither or have Credit or Property within the same, may happen
to be either Plaintiff or Defendant in any Civil Suit of such a Nature.

14. . . .Whereas, in pursuance of Our former Instructions to Our Gov-
ernors and Commanders in Chief, Courts of Justice have been established
within Our province of Quebec, It is Our Will and Pleasure that you do
take due care that in all Cases whatever the Powers and Authorities
granted by Us, or by any Ordinance confirmed by Us, to the said several
Courts be duly observed and enforced, and that the Proceedings therein
be in all things conformable to the said Act of Parliament '*for making

> la 1786 Carleton was raised to the fieerage as Baron Dorchester, on his reap

5 ointment as Governor. These new instructions reflect new conditions. (Compare No.
XIII). Several Sections have been omitted.

1774-1791] Constitutional Documents of Canada, 181

**inore effectual provision for the Government of the Province of Quebec,"
and to such Ordinances as may have been or hereafter may be enacted by
the Legislature for those purposes; And that the Governor and G)uncil
(of which in the Absence of the Governor and Lieutenant Governor the
Chief Justice is to be President) shall continue to be a Court of Civil
Jurisdiction for the hearing and determining of all Appeals from the
Judgment of the other Courts, where the Matter in dispute is above the
Value of ten Pounds; That any five of the said Council (if no more shall
upon Summons be present) with the (jovemor, Lieutenant (jovemor or
Ciiief Justice shall constitute a Court for that purpose, and that their Judg-
ment shall be final in all Cases not exceeding the Value of five hundred
Pounds Sterling; In which Cases an Appeal from their Judgment is to be
admitted to Us in Our Privy Council ; It is however Our Will and Pleasure
that no Appeal be Allowed unless Security be first duly given by the Appel-
lant that he will effectually prosecute the same, and answer the 0>ndemna-
tion, as also pay such Costs and Damages as shall be awarded by Us, in
case the Sentence be afiirmed; Provided nevertheless, where the Matter
in Question relates to the taking or demanding of any Duty payable to Us,
or to any Fee of Office^ or Annual Rents or other such like Matter or
Thing, where the Right m future may be bound, in all such Cases Appeal
to Us in Our Privy Council is to be admitted, though the immediate Sum
or Value appealed for be of less Value; and it is Our further Will and
Pleasure that in all (3ases where Appeals are admitted unto Us in Our
Privy Council Execution be suspended until the final Determination of
such Appeal, Unless good and sufficient Security be given by the Appellee
to make ample restitution of all that the Appellant shall have lost by means
of such Decree or Judgment, in case upon the Determination of such
Appeal such Decree or Judgment should be reserved, and restitution
awarded to the Appellant : Appeals unto Us in Our Privy Council are also
to be admitted in all Cases of Fines imposed for Mis-demeanours, Provided
the Fines so imposed amount to or exceed the Sum of One hundred Pounds
Sterling, the Appellant first giving good Security that he will effectually
prosecute the same, & answer the Condenmation, if the Sentence by which
such Fine was imposed in Quebec be affirmed.

16 It is Our Will and Pleasure that all Commissions, to be granted

by you to any person or persons to be Judges or Justices of the Peace or
other necessary Officers, be granted during Pleasure only.

37.... Whereas it will be for the general Benefit of Our Subjects
carrying on the Fishery in the Bay of Chaleur in Our Province of Quebec
that such Part of the Beach & Shore of the said Bay as is ungranted should
be reserved to Us, Our Heirs & Successors, It is therefore Our Will and
Pleasure that you do not in future direct any Survey to be made or Grant
to be passed for any Part of the ungranted Beach or Shore of the said
Bay of Chaleur, except such Parts thereof as by Our Orders in Council
dated the 29th of Jime and 21st of July last are directed to be granted to
John Shoolbred of London, Merchant, and to Messrs. Robin Pipon and Co.
of the Island of Jersey, Merchants, but that the same be reserved to Us,
Our Heirs and Successors together with a sufficient Quantity of Wood-
Land adjoininf^ thereto necessary for the purpose of carrying on the Fish-
ery; The Liimts of such Wood-Land so to be reserved, to be determined
upon amd ascertained by you and Our Council for Our said Province of
Quebec in such manner as from the most authentick Information shall
appear to you & them most convenient and proper for that purpose ; It is
itevertheless Our Intention and We do hereby signify to you Our Will and
Pleasure that the free Use of such Beach or Shore and of the Wood-Land
90 to be reserved shall be allowed by you or any Person authorized by you
to such of Our subjects as shall resort thither for the Purpose of carrying
OQ the Fishery in such proportions as the Number of Shallops, he or they

182 Constitutional Documents of Canada. [1774-1791

shall respectively employ, may require; provided that, if any Fisherman
who shall have permission to occupy any Part of the said Beach or Shore
and Wood-Land for the purpose of the said Fishery shall not daring any
one Season continue so to occupy & employ any Part of the said Beach or
Shore and Wood Land so allotted to him, you or any Person authorized
by you as above may & shall allow the Use of such Part to any other
Fisherman who shall apply for the same for the purpose of carrying on the
Fishery. And Whereas it may be necessary to establish local Regulations
to prevent Abuses as well as Disputes and Misunderstanding between the
Fishermen resorting to the said Beach or Shore; It is Our Will and
Pleasure that you, by and with the Advice and Consent of Our said Coun-
cil, do frame such Regulations from time to time as to you shall appear
necessary to answer diose salutary Purposes and that you transmit the
same to Us thro' one of Our Principal Secretaries of State for Our Pleas-
ure therein by the first Opportunity,

38,... We have mentioned to you the Fisheries upon the Coast oi
Labrador as the Main Object of your Attention, but the Commerce carried
on with the Savages of that Coast and the State and Condition of those
Savages deserve some r^ard : The Society of Unitas Fratrum urged by a
laudable Zeal for promoting Christianity have already under Our protection
and with Our permission formed Establishments in the northern Parts of
that Coast for the purpose of civilizing the Nations and converting them
to the Christian Religion. Their Success has been answerable to their
Zeal, and It is Our express Will and Pleasure that you do give them every
Countenance & Encouragement in your Power, and that you do not allow
any Establishment to foe made but with their Consent within the Limits of
their Possessions.

39 By Our Commission to you under Our Great Seal of Great

Britain you are authorized & impowered with the Advice and Consent of
Our Council to settle and agree with the Inhabitants of Our said Province
of Quebec for such Lands, Tenements and Hereditaments as now are or
shall hereafter be in Our Power to dispose of, It is therfore Our Will
and Pleasure that all Lands, which now are or hereafter may be subject
to Our Disposal, be granted in Fief or Seigneurie, in like manner as was
practised antecedent to the Conquest of the said Province, omittingr how-
ever in any Grant that shall be passed of such Lands the reservation of
any judicial Powers or Privileges whatever; And It is Our further Will
and Pleasure that all Grants in Fief or Seigneurie, so to be passed by
you as aforesaid, be made subject to Our Royal ratification or Disallow-
ance and a due Registry thereof within a limited time, in like manner as
was practised in regard to Grants and Concessions held in Fief or Seig-
neurie under the French Government.

40 Whereas many of Our Loyal Subjects, Inhabitants of the Colo-
nies and Provinces now the United States of America, are desirous of
retaining their Allegiance to Us and of living in Our Dominions, and for
this purpose are disposed to take up and improve Lands in Our Province
of Quebec, And We being desirous to encourage Our said Loyal Subjects
in such their Intentions and to testify Our Approbation of their Loyalty to
Us and Obedience to Our Government by allotting Lands for them in Our
said Province, And Whereas We are also desirous of testifying Our Appro-
bation of the Bravery and Loyalty of our Forces serving in Our said
Province, and who may have been reduced there, by allowing a certain
Quantity o^Land to such of the Non-Commissioned Officers and Private
Men of our said Forces who are inclined to become Settlers therein, It is
Our Will and Pleasure that immediately after you shall receive these Our
Instructions you do direct Our Surveyor General of Lands for Our said
Province of Quebec to admeasure and lay out such a Quantity of Land
as you, with the Advice of Our Council, shall deem necessary, and con-
venient for the settlement of Our said Loyal Subjects, and the Non-Com-
missioned Officers and Private Men of Our Forces which may have been
reduced in Our said province, who shall be desirous of becoming Settlers
therein; Such Lands to be divided into distinct Seigneuries or Fiefs to

1774-1791] Constitutional Documents of Canada. 183

extend from two to four Leagues in front and from three to five Leagues
in Depth if situated upon a navigable River, otherwise to be run square
or in such shape and in such Quantities as shall be convenient and prac-
ticable, and in each Seigneurie a Glebe to be reserved & laid out in the
most convenient Spot, to contain not less than 300, nor more than 500
Acres; The Property of which Seigneuries or Fiefs shall be and remain
vested in Us, Our Heirs & Successor, And you shall allot such Parts of
the same as shall be applied for by any of Our said Loyal Subjects, Non-
G>mmissioned Qfficers and Private Men of Our Forces reduced as afore-
said, in the following Proportions, that is to say,

To every Master of a Family One Hundred Acres and fifty Acres for
each Person of which his Family shall consist;

To every single Man fifty Acres;

To every Non-Commissioned Ofl&cer of Qur Forces reduced in Quebec
Two Hundred Acres;

To every private Man reduced as aforesaid One Hundred Acres,

And for every Person in their Families fifty Acres.

The said Lands to be held under Us, Our Heirs and Successors,
Seigneurs of the Seigneurie or Fief in which the same shall be situated,
upon the same Terms, Acknowledgements & Services as Lands are hela
in Our said Province under the respective Seigneurs holding and possess-
ing Seigneuries or Fiefs therein, and reserving to Us, Our Heirs and Suc-
cessors from and after the expiration of Ten Years from the admission of
the respective Tenants a Quit Rent of one half penny per Acre.

41 ... . And whereas upon the raising and establishing the Corps late
the 84th Regiment of Foot, We did promise and declare that the Officers
and Privates of the said Corps should when reduced be intitled to and
receive Grants for certain allotments of Lands in. proportion to their
xespective Ranks therein. It is Our Will and Pleasure that you do in man-
ner as herein before directed Grant Warrants of Allotment and Survey to
such of the Officers and privates of the said late Eighty fourth Regiment
of Foot now reduced, who shall be willing to settle and become Inhabitants
of Our said Province of Quebec, and shall apply for the same for such
Quantities of Land as they shall be respectively intitled to. In consequence
of our said promise and declaration contained in Our Instructions to Our
Governors of New York and North Carolina dated the 3d April 1775,
that is to say,

To Field Officers 5000 Acres

Captains 5000

Subalterns 2000

Non Commission Officer 200

Privates 50

and that the Surveys be made and Grants for the same delivered free of
Expence as herein before directed. Provided nevertheless that every Coni-
missioned and Non Commissioned Officer or private belonging to the said
late 84di Regiment of Foot, who shall claim and apply for Land in Our Pro-
vince of Quebec as aforesaM, shall declare upon Oath, that no Land has
been obtained by him in any of our other Provinces in America under Our
Royal declaration as aforesaid.

42 It is Our further Will and Pleasure, that every Person within

the meaning of these Our Instructions upon making application for Land
shall take the Oaths directed by Law before you or our Commander in
Chief for the time being, or some person by you or him authorized for that
purpose and shall also at the same time make and subscribe the following
Declaration (Viz.) "I, A B, do promise and declare that I will maintain
"and defend to the utmost of my power the authority of the King in His
"Parliament, as. the supreme Legislature of this Province," which Oaths
and declaration shall also be taken, made, and subscribed by every Future
Tenant before his, her, or their admission upon Alienation, Descent, Mar-
riage or otherwise howsoever, and upon refusal the Lands to become re-
setted in us Our Heirs and Successors; And it as our further Will and

184 Constitutional Documents of Canada. [1774-1791

Pleasure that the expence of laying out and surveying as well the Seig-
neuries or Fiefs aforesaid, as the several Allotments within the same and
of the Deed of admission shall be paid by the Receiver General of Our
Revenue in the said Province of Quebec ; out of sudi Monies as shall be in
his hands, upon a Certificate from you or Our Commander in Chief for the
time being in Council, Oath being made by Our Surveyor General to the
Account of such Expence; Provided however that only one half of the
usual and accustomed Fees of Office shall be allowed to Our said Surveyor
General or any other of Our Officers in the said Province entitled thereunto
upon any Survey or Allotment made, or upon admission into any Lands by
Virtue of these Our Instructions.

43. . . .And whereas we have some time since purchased the Seigneurie
of Sorel from the then Proprietors, the Lands of which are particularly
well adapted for improvement and cultivation; and the local situation of
the said Seigneurie makes it expedient that the same should be settled by
as considerable a number of Inhabitants of approved Loyalty as can be
accommodated therein, with all possible dispatclh— It is therefore Our will
and Pleasure, that you do cause all such Lands within the same as are
undisposed oi, to be run into small Allotments, and that you do allot the
same to such of the Non-Commissioned Officers and private Men of Our
Forces who may have been reduced in Our said Province, or to such other
of Our Loyal Subjects as may be inclined to settle and improve the same,
in such Proportions as you may judge most conducive to their Interest and
the more speedy Settlement of Our said Seigneurie. The Lands so allotted
to be held by Us, Our Heirs, and Successors, Seigneurs of Sorel, upon the
same Conditions and under the same reserved Rent at the Expiration of
ten years, as the other Tenants of Seigneuries now hold their Lands and
pay to Us, and also of taking the Oaths and making and subscribing die
Declaration as herein before is mentioned and directed ; The Expence of
making the said Allotments and of Admission thereunto be also paid and
defrayed in like manner as those in the Seigneuries directed to be laid
out by these Our -Instructions. It is nevertheless Our Will and Pleasure
that the Allotments to be made to such of Our Loyal Subjects from the
Provinces or Colonies now the United States of America, as may be dis-
posed to settle and improve Lands in Our said Province of Quebec, shall
be limited to those only who may have withdrawn themselves from the said
Provinces or Colonies after the signing of the definitive Treaty of Peace
with the said United States, & no other.

And it is Our Will and Pleasure that a Record be kept in the Office of
the Receiver General of Our Revenue of every Admission into Lands as
well by Virtue of these Our Instructions with respect to Our Loving Sub-
jects retiring from the Provinces & Colonies, now the United States of
America, and to Our Forces disbanded as aforesaid, as in Cases of future
Admission by Alienation or otherwise, A Docquet of which shall be trans-
mitted yearly to Us, thro' one of Our principal Secretaries of State, & al^o
a Duplicate thereof to Our High Treasurer or the Commissioners of Our
Treasury for the time being.

1774-1791] Constitutional Documents of Canada. 185

XUII

FINLAY TO NEPEAN

[Trans.: Shortt and Doughty.]

Quebec, 13th february, 1787
Dear Sir ^

Tho' we have been a month in Council we have not as yet debated on
any one Ordinance: the Chief Justice has proposed three; they lie on the
uble. The draught of a Militia Law is now before a committee; that, and
the regulation of the Courts of Justice are objects of the first moment

A well established Militia will secure the Province, and if the King's
Ancient subjects (comprehending the Loyalists) can but have English Law'
for the rule of decision of English causes, as laid down in his Majestjres
12th Instruction, they'll be contented and happy: but our Judges of the
Common Pleas set their faces against the introduction of English law in
all cases whatsoever ; They say that they are warranted by the Quebec Act
to declare and to uphold, that the intention of the King and Parliament
was, that no Law but French Law should subsist in Canada, the English
Cnrninal Law excepted.

Some people affect to call the King's Natural born subjects, new Cana"
dians — ^He who chose, say they, to make Canada his place of residence lost
the name of Englishman. The Old Canadians are £hose we conquer'd in
1760 and their descendants, the new Canadians are composed of emigrants
from Elngland, Scotland, Ireland, and the Colonies now the united
States: by the Act of the 14th* of his present Majesty they are converted
into Canadians, and Canadians they must ever remam. This doctrine is
pleasing to the Noblesse or gentry of the Country, who will not easily get
rid of French prejudices ;—-iut to cherish a predilection for every thing
that is french, is not, in my opinion, the most likely means to make Eng-
lishmen of the Canadians. It is held here by some of His Majesty's natural
bom subjects, that the natives of this Province ought, as much as is pos-
sible, to be kept unmixed and unconnected with the other Colonists, to
serve as a strong barrier, between our Settlements and the United States,
*'Its inhabitants are numerous, and by Religion, Language, Laws & Customs
"are the class of men the least likely to coalesce or unite with the neigh-
"bouring States of America."

Unless the Canadians can be brought to perceive that it is their intrest
to be attached to Great Britain, they will lean towards that Government
which they may erroneously have conceived best calculated to promote
their welfare; we ought not to forget their lukewarmness in 1 /7S— the
better sort of the people in general, and the Qergy, behaved well, but we
had little or no assistance from the peasantry, and all this arose from the
insinuations of the Colonists, touching the supposed intention of the King
and Parliament in passing the Quebec bill : it seems at present the wish of
those who prefer french Law, and french Customs, to inculcate, that if wi
introduce the English Commercial Law, the Estates and property of the
Canadians will he annihilated, and this has had an effect, and has produced
some applications to Lord Dorchester, praying him to prevent the introduc-
tion of English Law in any case. These applications were foimded on
error.

Your ever obedient and most humble servant,

Hugh Finlay.

* 5;ee Dorchester's Instructions (1786), Art. 12 (No. XUI).
*Sce No. XXV.

186 ConstitutiofMl Documents of Canada, [1774-1791

XLIV

ORDINANCE RE PROCEEDINGS OF CIVIL COURTS,

30 APRIL, 1787

[Trans.: Shortt and Doughty.]

An Ordinance to continue in Force for a limited Time an Ordinance made
in the 25th Year of His Majesty's Reign, intituled, "An Ordinance to
"regulate the Proceedings in the Courts of Civil Judicature ,and to
"Establish Trials by Juries^ in Actions of a Commercial Nature, and
"Personal Wrongs, to be compensated in Damages," with such addi-
tional Regulations as are expedient and necessary.

Be it Enacted and Ordained by His Excellency the Governor, and the
Legislative Council, and by the Authority of the same, it is hereby Enacted
and Ordained, That an Ordinance made and passed the Twenty fifth of
April, in the Twenty fifth year of His Majesty's Reign, intituled, "An
"Ordinance to regulate the Proceedings in the Courts of Civil Judicature,
"and to establish Trials by Juries in Actions of a Commercial Nature, and
"Personal Wrongs, to be compensated in Damages," and every Clause and
Article therein contained, be continued, and the same is hereby continued
from the expiration thereof to the end of the Sessions of the Legislative
Council which will be held in the Year of our Lord 1789.

And whereas Additional Regulations are at this Time found to be
expedient and useful; Be it further Enacted by the same Authority, That
in every Instance where the Fact is not verified by a Verdict of the Jury,
but by other Proof, or the Testimony of Witnesses, the same shall be
inserted in the Record of the Cause, that in case of Appeal the whole pro-
ceedings may go up to be adjudged in the Superior Tribunal, as regularly
and as fully as the same was before the Court of Common Pleas.

And wiierever the Opinion or Judgment of the said Court of Common
Pleas is pronounced upon any Law, Usage, or Custom of the Province,
the same shall in like manner be stated upon the Minutes or Record of the
Court, and referred to, and ascertained, that the real ground of the Opinion
or Judgement may also appear to the Court of Appeals, and upon all
Opinions conceived by any Party to be to his Injury, he shall be allowed
his Exception, to be preserved in the Minutes ; all which Proceedings shall
be transmitted under the Signature of the Judges, or any Two of them,
and the Seal of the Court, that all His Majesty's Subjects, and especially
His Canadian Subjects, by these means may be protected in the Enjoyment
of all the Benefits secured to them for their Property and Civil Rights, by
the Statute passed in the 14th year of His Majesty's Reign intituled, "An
"Act for making more effectual Provision for flie Government of the
*'Pcovince of Quebec, in North America," and by the Ordinances above-
mentioned.

And be it further Enacted by the Authority aforesaid, That in all
Cases adjudged in the Provincial Court of Appeals, where the same may
be appealed to His Majesty in His Privy Council, and where their Opinion
or Judgment is pronounced on any Law, Custom or Usage of the Province,
the same shall in like manner, and for the same Reason as hereinbefore
mentioned, be stated upon the Record, or referred to and ascertained.

And, in all Causes of which the Common Pleas have Cognizance above
Ten Pounds Sterling, the same shall be proceeded in, heard, and determined
only in regular Terms, consisting of the First Fifteen Days (Sundays and
Holidays excepted) in the Months of January and July, and the last Fifteen
Days of March and September, ^Yearly, the First Return Days whereof
shall always be the First Day of the Term, and the rest of the Return Days,
and the General Rules of Practice, such as the respective Judges of the
Common Pleas shall fix in a Formulary.

^ In 1785 proyision for trial by jury in civil cases was introduced into "The ordi-
nance rerulatinc the Proceedings m Courts of Civil Judicature" (see Shortt aad
Doni^tj, p. 529). This Docament expands the regulations.

1774-1791] Constitutional Documents of Canada. 187

And, to take away all Doubts and Scruples with respect to the Right
of Appeal in any Cause before the said Courts of Common Pleas. Be it
enacted and Declared by the same Authority, That the Court of Appeals
shall be deemed and adjudged to have an Appellate Jurisdiction, with all
the Power necessarily annexed to such Jurisdiction ; and that it shall hence-
forth belong to the Provincial Court of Appeals to determine the Question
when security shall be requisite, and the sufficiency thereof, and the Ad-
mission, Dismission, or Remission of Appeals, and the supply of the Defects
of the Record and of the Effect of the Appeal as a Supersedeas of all or
any Proceedings in the Lower Courts for the stay of Execution on the
Judgment of the same, or any Process of the nature of Execution, with
Authority also to make Rules and Orders, to regulate, effectuate and accel-
erate the Proceedings in all causes of Appeal, for the Advancement of
Justice, and to prevent unnecessary Delays and Expence in the same.

And, where Appeals are brought by Executors, Administrators, Cura-
tors, Tutors or Guardians, the Plaintiff shall not have Execution, nor any
Process in the nature of Execution, without such security first given as the
Court of Common Pleas in their Discretion shall direct, to refund the
Dams^es and Costs, in case the Judgment shall be reversed, together with
such Costs as the Court of Appeals may award.

And, for the more convenient Dispensation of Justice iti small Causes.
It is enacted and Ordained by the same Authority, that it shall and may be
lawful for his Excellency the Governor, or the Commander in Chief of the
Province for the Time being, by and with the advice and consent of His
Majesty's Council, to appoint by Commission such and so many Persons
as he shall Judge fit, and for such Parts of the Province as he shall think
proper, to hear summarily, and to determine finally, without Appeals, all
Matters of Debt of Ten Pounds or under; and it shall likewise be lawful
tor His Excellency the Governor, or the Commander in Chief for the Time
being, by and witii the Advice and Consent of His Majesty's Council, to
regulate the Fees to be taken by the Persons so commissioned, and by their
Subordinate Officers, and to direct a mode of proceeding for them, where-
of, and the extent of their Jurisdiction respectively, a Notification shall
be published in the Quebec Gazette, for the Information of all Persons
whom it may concern. *

Whereas there are many Thousands of Loyalists and others settled in
the Upper Countries above Montreal, and in the Bays of Gaspy and Cha-
leur, below Quebec, whose ease and convenience may require that addi-
tional Districts should be erected as soon as Circumstances will Permit; —
It is Enacted and Ordained by the Authority aforesaid. That it may be
lawful for the Governor or Commander in Chief for the Time being, with
the Advice and Consent of the Council, to form, by Patent, under the Seal
of the Province, one or more new Districts, as his Discretion shall direct,
and to give Commission to such Officer or Officers therein as may be neces-
sary or conducive to the ease and convenience of His Majesty's Subjects
lesiding in the remote Parts of the Province.

And be it further Enacted by the Authority a foresaid. That no Process
of Attachment, except in the case of the Dernier Equippeur, according to
the usage of the Country, shall hereafter be issued for Attaching the
Estate, Debts and Effects of what Nature soever, of any Person or Persons
whomsoever, whether in the Hands of the Owner, the Debtor, or a Third
Person prior to Trial and Judgment, except where there be due Proof on
Oath (to be indorsed on the Writ of Attachment) to the Satisfaction of
one of the Judges of the Court issuing the same, that the Defendant, or
Proprietor of the said Debts and Effects, is indebted to the Plaintiff in a
Sum exceeding Ten Pounds, and is about to secrete the same, or doth
abscond, or doth Suddenly intend to depart from the Province, with an
Intent to Defraud his Creditor or Creditors, and that the Defendant is then
indebted to the Plaintiff, and he doth verily believe that he shall lose his
Debt, or sustain Damage, without the Benefit of such Attachment

Provided always. That nothing herein contained shall be construed to
the Prejudice of the Rights of Landlords, in their legal Course, for the

188 Constitutional Documents of Canada. [1774-1791

Recovery of Rents, according to any former Mode of Proceeding by any
LaWp usage, or Custom whatsoever; and provided also, that whenever the
Defendant or Debtor shall either pay the Debt and Costs, or give Security
to the Sheriff or OfEcers for the goods so attached, as in Cases of Bail on
Personal Arrests, subject to Justification in Court to answer the Value of
the Goods, and abide the Judgment of the Court, the same shall be fortli-
with restored; and for that Purpose the Defendant or Debtor shall be
allowed Forty Eight Hours, after which Period, if the Debt and Costs be
not paid, nor Security given, the Goods so seized shall remain attached, and
held by the Sheriff or Officer to answer the Judgment of Law.

Be it further Enacted by the Authority aforesaid. That the additional
Regulations hereby Enacted shall be in force until the end of the Sessions
that shall be held in the Year of our Lord 1789, or as long as the Ordinance
hereby renewed ; and that the Ordinance passed in the Twenty-fifth year oi
the Reign of his present Majesty, intituled, "An Ordinance for granting a
"limited Civil Power and Jurisdiction to His Majesty's Justices of the
"Peace in the Remote Parts of the Province" be no longer in force than
until Such Small Jurisdictions as by this Act are authorized shall be actu-
ally erected.

Enacted and Ordained by the Authority aforesaid, and passed in
Council under the Public Seal of the Province, at the Council Chamber,
in the Castle of St. Lewis, in the City of Quebec, the 30th of April, in the
27th Year of the Reign of our Sovereign Lord George the Third, &c &c
&c, and in the Year of our Lord 1787.

By His Excellency's Command.

XLV

ORDINANCE RE CRIMINAL COURTS, 30 APRIL, 1787*

[Trans.: Shortt and Doughty.]

An Ordinance to Explain and Amend an' Ordinance for establishing Courts
of Criminal Jurisdiction in the Province of Quebec.

Whereas it is expedient that public Officers should be established in
the several Parishes of this Province, under the Denomination of Peace
Officers ; It is Enacted and Ordained, by his Excellency the Governor and
the Legislative Council, That all and every the Captains, and other Officers
of Militia in the said several Parishes of this Province, duly commissioned
by His Excellency the Governor, or the Commander in Chief for the Time
being ,and likewise the Serjeants named and appointed by the said Captains
and other Officers in the respective Parishes, be, and they are hereby
declared to be Public and Peace Officers within their respective Parishes
and authorized and enjoined to do and exercise all and singular the Duties
and Services of Public and Peace Officers within their respective Parishes
according to Law.

And be it further Enacted by the same Authority, That it shall be
Lawful for the Commissioners, or Justices of the Peace, assembled in
Quarter Sessions, or by a Majority of the same, and they are hereby re>
quired, as soon as conveniently may be ,to name and appoint such and so
many Persons as they may think sufficient, within the Towns and Banlieus
of Quebec and Montreal, for carrying into Execution the orders and De-
crees of the several Courts, and to preserve the Public Peace therein, every
of which Persons so appointed shall faithfully perform the Duties of the
Offices for which he may be so appointed for the space of one year ; pre-
vious to the expiration whereof it shall be the Duty of the said Commis-
sioners or Justices of the Peace annually to appoint others to serve in tfieir
stead, and to increase or diminish the number first appointed, as to them
shall appear to be most for the Public Weal and Safety ; and that no such

* This is an amendment to the Ordinance of 4 March, 1777 (No. XXXII.)

1774-1791] Constitutional Documents of Canada. 189

appointment shall be valid in Quebec or Montreal, and their Banlieus
respectively, in the Case of a Civil or Military Officer, or in any Person
in Priest's Orders, or in the Profession or Practice of Physic or Surgery,
or amy Miller, Ferryman, Schoolmaster, or Student of any College or
Seminary, or any Person not of full Age : or for neglectinff or refusing to
perform the said Office or Offices there shall be the Forfeiture of Twenty
Pounds, to be recovered in any Court of Record, with Costs of Suit, by
Bill, Plaint, or Information, in which no Essoign, Wager, of Law, or any
more than One Imparlance, shall be allowed.

(signed) Dorchester.
30 April, 1787.

XLVI

DEBATE ON LYMBURNER'S EVIDENCE

[Trans. : Shortt and Doughty.]

On May 16, 1788, Mr. Powys moved in the House of Commons, that
Mr. Adam Lymbumer, Agent of that section of the population in Canada,
French and English, desirous of having a House of Assembly, &c., be heard
at the Bar of the House in support of the petition from Quebec of 24th
Nov., 1784\ Mr. Lymbumer being admitted read a paper pointing out the
defects of the system of laws then administered in the Province and the
need for a remedy. This paper is given in Canadian Archives Q. 62A-1,
pp. 1-101. After he had withdrawn, a debate followed which is quite fully
reported in Hansard, Vol. 27, pp. 511-533. The substance of the debate,
however, is given in the following summary from The London Chronicle
(May 15-17, 1788).

"Mr, Powys entered into a detail of circumstances and the allegations
contained in the petitions. He stated it as the general wish of the^ Cana-
dians, that some determinate code of laws should be established in that
Province, and that they might not henceforward be subjected to the sole
ordinance of a legislative Council, appointed by the Crown, and removable
at the pleasure of the Crown. They wished to have a House of Assembly
instituted in the province, and the English laws in general extended to
ihem. He observed, that they had not the privilege of Habeas Corpus ; at
least it was not a part of their constitution, though it might be occasion-
ally allowed them. They were deprived of the trial by Jury, except in a
iew instances. As to the Council, above alluded to, it ought not to exist;
for, in the opinion of the best informed and most elegant historian of the
present age (Mr. Gibbon), where the legislative power is appointed by the
executive department, it is a sure criterion of a despotic government. The
petitioners wished to be put on the same footing with the provinces of Nova
Scotia and New Brunswick, which have a House of Assembly, and partake
of the blessings of English laws*. He thought their request was just and
reasonable, and merited the attention of the House. He concluded with
moving. That it is the opinion of this Committee, that the petitions from
Quebec merit the serious and immediate attention of the House.

Sir Matthew White Ridley seconded the motion. The laws, he said,
were in Canada vague and undefined; and wherever this is the case, very
great abuses are the consequence. He hoped, that if the House should not
find time in the remainder of this session to come to any ultimate decision
on the subject, they would at least adopt a resolution that might give the
(Canadians good reason to hope for a determination in their favour in the
succeeding session.

The Chancellor of the Exchequer agreed with the Hon. Mover, that the

1 See No. XXXVIII.

* In Nora ScotU a House of AaaembW was constituted in 1758 (see SeUetions from
tkt Pubiic Documents Relating to Nova Scotia, Halifax, 1869). A House of Assembly
was proTided for when New Brunswick was constituted a prorince in 1784 (see
Domtnion Sessional Papers XVI, No. 70).

190 Constitutional Documents of Canada. [1774-1791

petitions deserved the serious attention of the House; but nothing could
be done immediately in the business. Parliament, he said, was not ripe
for the discussion of an affair of such magnitude as the framing of a con-
stitution for a large, flourishing and growing province. A sufficient body
of information had not been transmitted from that colony, to enable the
House to determine upon the merits, of the subject contained in the peti-
tions. As to the appointment of a House of Assembly, though he was
inclined to recommend that mode of legislation, he had strong doubt
whether it would be proper at this time, when the province was in a state
of heat and fermentation. A popular Assembly would not tend to allay
that heat. The privilege of Habeas Corpus was ordered by the Legislative
Council of Quebec, to be granted to the inhabitants; so diat they had no
reason to complain in that particular. He was not pleased with the motion
m its present form.

Mr, Fox ridiculed the idea that Parliament was not ripe for the forma-
tion of a constitution for Quebec. Could it be supposed that, after that
province had been in our possession for the space of 25 years, sufficient
information had not been procured to authorise a complete determination
upon what laws were most expedient for the government of it? He
charged His Majesty's Ministers with great neglect, and even witli being
unfit for the offices they held as they had not taken the proper steps to
accelerate this business.

The Chancellor of the Exchequer vindicated himself from the charge
of neglect; and Mr, Fox rejoined.

Mr. Marsham thought the House ought to pass a bill immediately for
extending the Habeas Corpus Act to Quebec; that ii might no longer be
considered as a mere favour or indulgence to the inhabitants, but as a
matter of right He also proposed, that after the Chairman should have
left the chair, the House should pledge itself to enter fully into this business
early in the next session.

Mr. Sheridan regarded the Ministry as culpable, for having so long
neglected the proper adjustment of the laws for the province of Canada.

Mr. Alderman Watson remarked, that great inconveniences arose in
Canada from the bad administration of bad laws, and hoped that the British
laws, in general would be extended to that province.

Mr. Martin was convinced of the propriety of coming to a speedy
determination on this head.

Sir James Johnstone was friendly to the prayer of the petitions; but
wished that the discussion might be postponed till next session.

Mr. Burke agreed to the motion.

Mr. C. L. Smith, Sir W. Dolben, Sir Herbert Mackworth, and Sir
Watkin Lewes, also spoke on the occasion.

The Chancellor of the Exchequer having moved, that the Chairman
leave the Chair, instead of putting the question on Mr. Powys's motion, a
division took place ; when the numbers were, for the Minister's motion 104,
against it 39, majority 65.

Mr. Powys then moved, that this House will, early in the subsequent
session, take into consideration the petitions from Quebec.

1774-1791] Constitutional Documents of Canada, 191

XLVII

SYDNEY TO DORCHESTER*

[Trans. : Shortt and Doughty.]

Whitehall, 3d Sept., 1788.
My Lord.

Your Lordship will have seen, by the proceedings which took place
in Parliament in the course of the last Session, the Arguments which were
made use of on the Introduction of the Petition brought by Mr. Lymburner
from Quebec, for a Change of the present Constitution of the Province,
and the reasons which occurred to His Majesty's Ministers for avoiding
any decision upon that very important Subject

It will, however, be absolutely necessary that it should be resumed
very shortly after the next meeting, and it will, of course, be a matter of
great importance to His Majest/s Servants, that they should be previously
prepared to enter into a full discussion of the business, and to propose
sudi arrangements as may be found to be expedient for removing every
just and re&sonable cause of complaint &at may exist among His Majesty's
Subjects, of any description whatsoever, who are Inhabitants of that
Province.

The vtiriety of applications which have from time to time been trans-
mitted from thence upon this business, of so opposite a tendency to each
other, render it extremely difficult to fix upon any Arrangements calculated
to satisfy all the Parties interested in, or connected with it ; His Majesty's
Servants however, are desirous to give the matter a full consideration and
that they may be the better enabled to form a competent judgment of the
steps adviseable to be taken, they are solicitous of obtaining from Your
Lordship a full and impartial account of the different Oasses of Persons
who desire a Change of Government, as well as of those who are adverse
to the Measure, specifying, as nearly as it can be ascertained, the Propor-
tion of Numbers and Property on each side in the several Districts ; and,
That your Lordship at the same time should state in what manner, either
the interests, or influence of the latter, might be affected by any alteration,
and what is the Nature and grounds of their apprehensions from the
Introduction of a greater Portion of English Law, of a System of Govern-
ment more conformable to that established in other British Colonies.

In particular. They wish to be informed from what Causes the objec-
tion of the old Canadian Subjects to an House of Assembly chiefly arises:
Whether, from its being foreign to the Habits and Notions of Government
m which they have been educated, or, from an apprehension that it would
be so formed as to give an additional Weight to the New Subjects, anS
lead to the introduction of Parts of the English Law which are obnoxious
to them ; or, from an idea that being invested with a Power of Taxation,
it would eventually subject their Property to Burthens from which they
are at present exempted; In like manner, whether the Objections which
appear to exist to a farther Introduction of Trial by Jury, arise either
irom Prejudices against the Nature and Mode of such a decision, or from
the difficulty of finding Jurors properly qualified, and the inconvenience to
Individuals of the necessary Attendance ; or from the Notion of this species
of Trial being necessarily coupled with Modes of Proof and Rules of Law,
different from those to which they are accustomed.

Though several of these points have already been noticed by Your
Lordship in some of your Letters to me, and in the Papers which accom-
panied them, yet His Majest/s Servants do not think that they are suffi-
ciently explicit to enable them to form a decided opinion.

The anxiety of His Majesty's Servants to be perfectly informed with

'This document illustrates tlie anxiety of' the Britisli GoTernment to understand
Caiudian affairs as ful^ as possible before making any change in the Constitution,
pomas Townshend, Baron, afterwards Viscount Sydney, became Secretary of State
tor the Home Department December 33, 17^.

192 Constitutional Documents of Canada. [1774-1791

regard to all these matters as soon as possible, has induced them to send
out an Extraordinary Packet Boat, and they are in hopes of receiving from
Your Lordship upon her return, a full communication of the Sentiments
entertained upon these several heads of enquiry, and which communication
they wish to be made in a manner that may be proper to be laid before
Parliament at the next meeting.

I find, upon an examination of the Plans submitted by Your Lordship's
predecessor^ that the most considerable part of the disbanded Troops and
Loyalists who have become Settlers in the Province since the late War,
have been placed upon Lands in that part of it which lie to the Westward
of the Ceders', and beyond those Lands (excepting only Detroit and its
Neighbourhood) which are granted in Seigneurie ; as these People are said
to be of the number desirous of the Establishment of the British Laws,
It has been in G>ntemplation to propose to Parliament a division of the
Province, to commence from the Boundary Line of the Seigneurie granted
to Monsieur de Longueil, and to take in all the Country to the Southward
and Westward in the manner described in the inclosed paper. But, before
they take any step towards the execution of this measure, they are de-
sirous of receiving the advantage of Your Lordships opinion how far it
may be practicable or expedient; or, whether any other line or mode of
sepai^tion would be preferable. Your Lordship will however understand,
that it is The Kings intention that the New Settlers in that part of the
Province who now hold their Unds upon Certificates of Occupation, shall,
at all events, be placed upon the same footing in all respects, as their
Brethren in Nova Scotia and New Brunswick, by having their Lands
granted to them in free and Common Soccage, with a Remission of Quit
Rents for the first Ten Years; and Instructions will be prepared accord-
ingly, as soon as Your Lordship's opinion upon the plan abovementioned
shall be obtained.

With a view to the execution of the Plan in question, it will be neces-
sary for you to consider, previously to your Report upon it, what sort of
Civil Government ought to be formed for its internal arrangement, &
whether the Number and description of the Inhabitants and other Cir-
cumstances are such as do, or do not, make the immediate Establishment
of an Assembly within this district, practicable and adviseable. At all
events It will be natural, as the greatest Part of these New Settlers are
attached to the English Laws, that that System should be introduced as
the general Rule, with such Exceptions or Qualifications as particular and
local Circumstances may appear to require ; At the same time Your lord-
ship will attend to the situation to which the Old Canadian Settlers at
Detroit would be reduced, provided it may be found expedient, in conse-
quence of the Information which the King^s Servants expect to receive
irom Your Lordship, (and by which you will understand they mean in a
great degree to be guided) to resist the Application for any Change of
the Constitution of the remaining part of the Province; and. Your Lord-
ship will also consider, in case of such a determination, in what part of
the Province within the reserved limits, the Settlers at Detroit, if they
should desire to be removed, might be accommodated with Lands the
best suited to dieir advantage.

I am &c.,

Sydney.

* General Haldimand.

* The rapids on the St. Lawrence below Lake St. Francis.

1774-1791] Constitutional Documents of Canada. 193

XLVIII

DORCHESTER TO SYDNEY*

[Trans.: Shortt and Doughty.]

Quebec, 8th November, 1788.
My Lord,

The Province of Quebec consists at present of seven districts or
counties; Quebec and Montreal in the cbntral parts, Gaspe at and near
ihe mouth of the Saint Lawrence, and the country, west of Point au
Boudet, divided into the four districts of Luneburg, Mecklenburg, Nassau,
and Hesse. The Canadians, or new subjects, occupy the districts of
Quebec and Montreal, and some are also to be found in the districts of
Gaspe, and Hesse. The three districts' of Luneburg, Mecklenburg, and
Nassau, are inhabited only by the loyalists, or old subjects of the Crown.
The Commerce of the country being chiefly carried on by the English
occasions a considerable mixture of inhabitants in die towns of Quebec
and Montreal, nearly in the proportion of one British to two Canadians.
Some of the former are also settled at Three rivers, Terrebonne, Wil-
liam Henry, Saint Johns, and the entrance of Lake Champlain, and a
small number are dispersed among the Canadians in the country parishes ;
the fur trade has collected some hundreds at Detroit, as the fisheries have
at the bay of Chaleurs, and other parts of the district of Gaspe. The
proportions of British and Canadians in the two districts of puebec and
Montreal, exclusive of the towns, may be about one to forty, m the same
districts, inclusive of the ^owns, one to fifteen, in the district of Hesse
one to three, in the district of Gaspe two to three, and in the whole prov-
ince, taken together, about one to five.

A change of the laws and form of government, by the introduction
of an Assembly, is chiefly promoted by the commercial part of the com-
munity, in the towns of Quebec and Montreal. The Canadian Habitans,
or farmers, who may be stiled the main body of the freeholders of the
country, having little or no education, are unacquainted with the nature
of the question, and would, I think, be for, or against it, according to
their confidence in the representations of others. The Clergy do not
appear to have interfered. But the Canadian gentlemen in general are
opposed to the measure; they object to the introduction of a body of new
laws, to the extent and tendency of which they are strangers; they ex-
press apprehensions of much disquietude among the people from the
introduction of an assembly, and conceive that the low state 6i learning
and knowledge in the country would lay them open to the pursuit and
adoption of wrong measures, and to dangers, which a more enlightened
people would not be exposed to. The fear of taxation, I take for granted,
is among the motives of those, who are adverse to the change, and would
no doubt strongly influence the sentiments of the common people, if they
should come to consider the merits of the question. The objections,
which appear to exist to a farther introduction of the trial by jury, arise
partly from prejudice, and partly from an idea, that the choice would be
narrow, and render it difficult to find jurors, totally disinterested.

In addition to these observations, it may be proper to mention, that
the population of this country is chiefly confined to the mar^n of the
waters from the western side of the gulph of Saint Lawrence m the dis-
trict of Gaspe, to the settlements at and above Detroit, a chain of not
less than eleven hundred miles ; and that, though the ancient settled parts
of the districts of Quebec and Montreal, from Kamaraska to Point au
Boudet (comprehending about three hundred and seventy miles of the
above line) may find no great burthen in the expence of a representation,
it may be otherwise with the inhabitants newly set down in Gaspe, Lune-

^Dorckester'f reply to the degpatch o£ 3 Sept., 1788 (No. XLVII).
'The DiatricU of Lunenburg, Mecklenburg, Nassau and Hesse were erected and
defined by Patent dated July 24, 1788.

194 Constitutional Documents of Canada. [1774-1791

burg, Mecklenburg, Nassau, and Hesse, and that the inconveniencies and
charges of assembling, from parts so distanct, would be increased by the
nature of the climate^ which renders the roads for several months in the
year difficult, if not impracticable.

A division of the province, I am of opinion, is by no means ad vise-
able at present, either for the interests of the new, or the ancient districts,
nor do I see an immediate call for other regulations, than such as are in-
volved in the subject of the general jurisprudence of the country. Indeed
it appears to me, that the western settlements are as yet unprepared for
any organization, superior to that of a county. This has lately been g^ven
to them, and will, I trust, answer their present wants, if I except Hesse,
whose commercial and complicated affairs call for a particular provision,
now under the consideration of a Committee of the Council. But though
I hold a division of the province at present inexpedient, yet I am of opin-
ion, that no time should be lost in appointing a person of fidelity and
ability, in the confidence of the loyalists, to superintend, and lead them,
and to bring their concerns with dispatch to the knowledge of govern-
ment, under the title of Lieutenant Governor of the four western districts
above named.

Should a division of the province notwithstanding be determined by
the wisdom of His Majesty's Councils, I see no reason, why the inhabi-
tants of those western districts should not have an Assembly, as soon as
It may be organized without detriment to their private affairs, nor against
their having so much of the English system of laws, as may suit theii
local situation, and condition. But in this case particular care should be
taken to secure the property and civil rights of the Canadian settlers
at Detroit, who, I am convinced, would not chuse to emigrate, though
good lands might be given them in the lower parts of the province. ^ But,
should they chuse to move, it would be attended with much inconvenience,
as would dieir being left insulated, and attached to the district of Montreal.

With respect to proper limits for the new government, in the event
of a separation, I would recommend those described in the annexed paper,
which will comprehend all the settlements of the loyalists on the river
Saint Lawrence above Point au Boudet, and those also lately laid out for
them on the south side of the Uttawas river.

I am with much respect and esteem
Your Lordship's most obedient, and most humble servant,

Dorchester.

The Proposed Line of Division.

To commence at a stone boundary on the north bank of the Lake St
Francis, at the cove west of pointe au Bodet, in the limit between the
township of Lancaster, and the seigneurie of New Longueuil, 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 the Ottawas River, to
ascend the said river in to the lake Temiscaming, and from the head of
the said lake by a line drawn due north until it strikes the boundary line
of Hudson's bay, including all the territory to the westward and south-
ward of the said line to the utmost extent of the country commonly called
or known by the name of Canada.

D.

1774-1791] Constitutional Documents of Canada. 195

XLIX

FINLAY TO NEPEAN

[Trans.: Shortt and Doughty.]

Quebec, 9th february, 1789.
Dear Sir

The great question, whether a House of Assembly would contribute
to the welfare of this Province in its present state? has been so fully dis-
cussed that the subject is entirely exhausted — both old and new subjects
here, who have openly declared their sentiments, now composedly wait
the decision of the British Parliament with respect to Canadian Affairs.
It was, in my humble opinion, a wise measure to endeavour to draw
irom every quarter as much information as could possibly be had — there
has not been any restraint on the people — they have said all they had to
say. The petitions and counter petitions to His Majesty, (which have no
doubt ere now reached the foot of the Throne) have been published in
our Gazette.

I am .ignorant of Lord Dorchester's way of thinking relative to a
house of the representatives of the people; I do no believe that he has
confided his opinion on that head to any person on this side of the Atlantic.

Every thing considered relative to the present situation of this Prov-
ince, I confidently believe that a constitution founded on the 12th Article
of His Majesty's instructions to the Governor GeneraP, would be the
6ttest for this Country in its actual state.

We might make the people entirely English by introducing the English
language. This is to be done by free schools, and by ordaining that all
suits in our Courts shall be carried on in English after a certain number
of years.

I have never been able to perceive why the Laws of England should
not be the rule for the decision in all cases of personal actions grounded
upon debts, promises contracts and agreements whether of a mercantile or
other nature, and also of wrongs proper to be compensated in dammages.
Nor have I been able to see that it would be expedient to alter the Laws
Customs and usages that have hitherto in Canada governed in all contro-
versies respecting Titles of lands, and the tenure, descent, alienation, in-
cumbrances, and settlements of real Estates, and the distribution of per-
sonal property of persons dying intestate.

The advocates for a House of Assembly would say that this Plan
stands on too narrow a bottom: nothing short (say they) of Power to
Tax can ever give a spur to Trade, or rouse the indolent habitant to in-
dustry— and as England holds her Colonies for the sole purpose of ex-
tending her Commerce, the power to raise money must be granted to the
people in this Province to render it of real utility to the Parent State.

Some people remark that the Canadians were not consulted before
the Criminal Law of England was introduced into this Province — it was
given them for their good: it may therefore (they conclude) be well left
to the wisdom of a British Parliament to make all the changes in the
(institution of this Country now become necessary from the acquisition
of so many thousands of His Majesty's natural bom subjects as settlers
among us.

The Mass of the Canadians are not yet qualified to Judge of the
matter — ^they could not reason on the proposed change: they'll be happy
under any well regulated Government, and perfectly contented whilst they
remain exempted from Taxes, provided no alarm shall be sounded to
rouse apprehensions touching the safety of their religion.

The Seigneurs, I presume, will ever oppose proposals tending to alter
Ihe present System, as I believe that they conceive their consequence de-
pends on the support of that System: but of what consequence can a
(^nadian Sei^eur be in an English commercial Province I He enjoys no
particular privileges in the Society — ^He has no legal command over his

* See No. XLII.

196 Constitutional^ Documents of Canada. [1774-179

tenants, nor are they in general look'd up to for their superior knowledfl
Their fortunes are for the most part but very slender: yet you may ha]
seen by their late publications here that they pretend to a consequeni
which but few (not of that class) are willing to allow them.

Among the number there's sensible well informed Gentlemen who a
in estimation with all ranks of the people, but it would be as hard to ro
out the prejudices of an Englishman in favour of the British Constit
tion, as it will be to undo the predilection that a Canadian gentleman h
for that form of Government which we found established here at the coi
quest of the Country. i

A Canadian Seigneur speaks thus : "The Laws, ancient usages, a^
"customs of our Province would soon be abolished if the King's natu^
"bom subjects should succeed in their application for a House of Assej
"bly. We wish to preserve our Laws in full force to the end of time. V
"have an undoubted claim to share all places of honor or profit in d
"service of Government in proportion to our numbers. That we have ui
"formly adhered to these demands, let our addresses* of 1784 and 17
"bear testimony."

On these remarks, I will Just observe, that as the house of Represe
tatives would be composed of a Majority of Canadian free-holders, th
would not alter the Laws without being fully satisfied that they stood
need of alteration.

The King makes no distinction between a man born in Canada ai
one bom in middlesex — ^we are all His Majesty's subjects — ^He is the fou
tain of honor — ^His Royal favor will extend to the worthy, be they nq
or be they natural bom subjects. j

I have the honour to be, Dear Sir, Your obliged and very faithful serva^

Hugh Finlay.

GRENVILLE TO DORCHESTER

[Trans.: Shortt and Doughty.]

Whitehall, 20th Octr., 1789.
My Lord,

The public dispatches* of this date will inform your Lordship of t|
intention of His Majesty's Servants, with respect to the plan to be pi
posed in Parliament for altering the present Constitution of Canada.H
feel that it is due to your Lordship, that I should inform you of %
grounds on which this resolution has been adopted, in a more particu]
manner than the nature of a public dispatch appears to admit; and, l
that purpose, I inclose to your Lordship in confidence, a paper containi
the heads of those suggestions, on which the present measures are found
I am persuaded that it is a point of true Policy to make these Cono
sions at a time when they may be received as matter of favour, and wh
it is in Our own power tq regulate and direct the manner of applyl
them, rather than to wait 'till they shall be extorted from us by a nec^
sity which shall neither leave us any discretion in the form, nor any me
in the substance of what We give.

I am ignorant how far your Lordship's Opinion coincides with I
ideas stated in the inclosed paper. One point I observe, and have allud
to in my public Letter, on which you have stated Objections; but I thi
Ihey arc such as apply to the present state of the Province, rather than
what it would be under a different form of Government

With regard to the remainder, it would certainly give me great sat

1 See No. XL and XLI.

' See No. LI. William Wvndham Grenville, afterwards Lord Grenville, succeed
Sydney as Secretary for the Home Department in June, 1789.

1774-1791] Constitutional Documents of Canada. 197

faction if I could find the opinions which I entertain confirmed by your
Lordship's experience and knowledge of the Subject

But, in all events, I have not the smallest doubt of your Lordship's
wish to co-operate in carrying into execution, in the most advantageous
manner, that Plan which Parliament shall ultimately adopt, on a subject
which has been so long before them; and I trust you wUl see the im-
portance in this point of view, of your delaying your visit to this Country,
'till after the new Government shall have been put in motion.

There is one subject adverted to in the paper which I now enclose, of
which no mention is made, either in the BilP now transmitted to your
Lordship, or in the dispatch which accompanies it What I mean is, the
suggestion relative to the 'possibility of making such reservations of Land
adjacent to all future Grants, as may secure to the Crown a certain and
improving Revenue. — A Measure, which, if it had been adopted when the
Old Colonies were first settled, would have retained them to this hour in
obedience and Loyalty. I confess that I am very particularly anxious to
&nd myself sufficiently informed to be able to recommend to His Majesty,
the adoption of some system of this nature, in His remaining Colonies, and
I should therefore feel myself obliged to your Lordship, if you would
consider it with attention, and state to me your Sentiments, both as to the
general principle, and as to the best mode of carrying it into effect, in the
different Provinces under the King's Government in North America.

Your Lordship will perceive, by the different accotmts, which you
will receive from Europe, that the state of France is such, as gives Us
little to fear from that quarter in the present moment. The opportunity
is therefore most favourable for the adoption of such measures as may
tend to consolidate Our strength, and increase our resources, so as to
enable Ourselves to meet any efforts that the most favorable event of the
present troubles can ever enable her te make.

I am, &C.,

W. W. GSENVILLE.

LI

GRENVILLE TO DORCHESTER

[Trans.: Shortt and Doughty.]

Whitehall, 20th Octr., 1789.
My Lord,

It having been determined to bring under the consideration of Par-
liament early in the next Session the propriety of making farther pro-
vision for the good government of the Province of Quebec, I enclose to
your Lordship the draught of a BilP prepared for this purpose.

His Majesty's Servants are desirous, before this Plan shall be pro-
posed to Parliament, to avail themselves of such observations upon it as
your Lordship's experience and local knowledge may suggest It is prob-
^ie that Parliament may not meet till towards the end of January next,
and that there will therefore be full time for me to receive your Lord-
ship's answer to this dispatch with such remarks as may occur to you on
the proposed Bill, and with such information as may be necessaiv to
oiable me to supply those particulars of detail which are now left in
blank.

Your Lordship will observe that the general object of this plan is to
assimilate the Constitution of that Province to that of Great Britain, as
nearly as the difference arising from the manners of the People and from
^c present Situation of the Province will admit

In doing this a considerable degree of attention is due to the pre-
judices and habits of the French Inhabitants who compose so large a
proportion of the community, and every degree of caution should be

^ 'The first draft of the Constitutional Act of 1791. It is giren in Shortt and
"°"i*ty, p. 667.

198 Constitutional Documents of Canada. [1774-1791

used to continue to them the enjoyment of those civil and religious Rights
which were secured to them foy the Capitulation of the Province, or have
since been granted by the liberal and enlightened spirit of the British
Government

This consideration has had a great degree of weight in the adoption
of the plan of dividing the Province of Quebec into two Districts which
are to remain as at present under the administration of a Governor
General, but are each to have a Lieut. Governor and a separate Legislature.

The King's Servants have not overlooked the reasons urged by your
Lordship against such a separation^ and they feel that while Canada re-
mained under its present form of Government great weight would have
been due to those suggestions; but when the resolution was taken of
establishing a Provincial Legislature, to be constituted in the manner now
proposed, and to be chosen in part by the People every consideration of
policy seemed to render it desirable that the great preponderance pos-
sessed in the Upper Districts by the King's antient Subjects, and in the
lower by the French Canadians should have their effect and operation in
separate Legislatures ; rather than that these two bodies of People should
be blended together in the first formation of the new Constitution, and
before sufficient time has been allowed for the removal of antient pre-
judices, by the habit of obedience to the same Government, and by the
sense of a common interest

With respect to the intended Boundaries of these Provinces a blank
is left in the Bill in order that your Lordship may, with the assistance of
the Surveyor General, who is now in Quebec, consider of such a descrip-
tion of those Boundaries as may be sufficiently intelligible and certain,
so as to leave no room for future difficulties on that subject The division
between the two Provinces is meant to be the same as is mentioned to
your Lordship in Lord Sydney's Letter of 3d Sept., 1788, with the alter-
ation suggested by your Lordship in your Letter of the 8th November
following".

There will however be a considerable difficulty in the mode of de-
scribing the Boundary between the District of Upper Canada and the
Territories of the United States. As the adhering to the Line mentioned
in the Treaty with America would exclude the Posts which are still in
His Majesty's Possession, and which the infraction of the Treaty on the
part of America has induced His Majesty to retain, while on the other
hand the including them by express words within the Limits to be estab-
lished for the Province by an Act of the British Parliament would prob-
ably excite a considerable degree of resentment among the Inhabitants of
the United States, and might perhaps provoke them to measures detri-
mental to Our Commercial Interests. Possibly the best solution for this
difficulty might be to describe the Upper District by some general words
such as "All the Territories, &c., &c., &c., possessed by and subject to His
Majesty, and being to the West or South West of the Boundary Line of
Lower Canada, except such as are included within the present Boundaries
of the Government of New Brunswick.

In settling this point of the Boundaries it will also be a question,
whether the Fishing Settlement in Gaspe may not with advantage be an-
nexed to the Government of New Brunswick rather than to be left as a
part of that of Lower Canada under the system now proposed to be estab-
lished particularly as the local Circumstances of that District might render
a representation of it in an Assembly at Quebec extremely difficult if not
impracticable.

The Legislature in each of the Two Provinces is intended, as your
Lordship will observe from the draught of the Bill, to consist of His
Majesty represented by His Governor, or Lieutenant Governor, a Legis-
lative Council, and a House of Assembly.

It is intended to separate the Legislative from the Executive Council

» See No. XLVIII.

« Sec No8. XLVII and XLVIII.

1774-1791] Constitutional Documents of Canada. 199

and to give to the Members of the former a right to hold their Seats
during their Life and good Behaviour, provided they do not reside out
of the Province, or attach themselves to any Oath of allegiance or Obe-
dience to the United States, or to any other Foreign Power.

It is the King's farther intention to confer upon the Persons whom
he shall distinguish by calling them to His Legislative Council some mark
of Honour, such as a Provincial Baronetage either personal to themselves,
or descendible to their Eldest Sons, in lineal Succession.

A ^eat accession of wealth to the Provinces might probably induce
his Majesty at a future period to raise the most considerable of these
Persons to a higher degree of Honour, but this could certainly not be
done with propriety under the present Circumstances.

The Object of these regulations is both to give to the Upper branch
of the Legislature a greater degree of weight and consequence than was
possssed by the Councils in the Old Colonial Governments, and to estab-
lish in the Provinces a Body of Men having that motive of attachment
to the existing form of Government, which arises from the possession
of personal or hereditary distinction.

It will be very necessary that great attention should be paid to the
choice of those Persons who are to be placed in this situation in the first
mstance, and of diose whom His Majesty may be advised from time to
time to add to that number; and as your Lordship's long knowledge of
the Province and of die Individuals who compose the higher classes of
the Community, must render your Lordship more particularly competent
to such a Selection, I must desire that your Lordship will consider this
point with that degree of attention to which its importance entitles it, and
that you will state to me the names of those Persons whom you may think
fit objects of the King's favor in this respect, in each of the Two Provinces
intended to be formed.

In the draft of the Bill which I enclose, a blank is left for that which
is to be fixed as the smallest number of which the Councils are respec-
tively to be composed. It is certainly desireable that this number should
not be made too large in the first instance, as it would be easy for His
Majesty to add to it whenever it may be found expedient, while on the
other hand the calling improper Persons to Uie Council, in order to make
up the number required by the Bill would under the system now pro-
posed be productive of permanent inconvenience and misdiief to His Ma-
jesty's Government

Of this point also your Lordship must unquestionably be the best
Judge, and I shall be anxious to learn your Sentiments upon it My
present idea, founded, however, rather on conjecture than on any satis-
factory information, would be that the Legislative Council in Upper
Canada should not consist of less than six Members, and in lower Canada
of not less than Twelve; and that the selection of these Persons should
be made with a view to encreasing the number by some addition at no
very distant period, as a mark of His Majesty's favor to those Persons
whose Conduct may be found to entitle them to it.

Your Lordship will also state to me for His Majesty's information,
the number and names of those Persons whom you may think proper to
recommend to His Majesty for Seats in the Executive Council.

It is by no means intended that the Members of the Legislative
Council should be excluded from this Body, or that it should on the other
hand be wholly composed of Persons of this description. It may be ad-
viseable tiiat some of the Persons named to the Executive Council in one
of the Districts, should also be admitted to the same distinction in the
other.

In providing for the establishment of a House of Assembly in each
of the Two Provinces, the first question of detail which occurs is that of
the Numbers of which these Bodies should consist, and of the manner in
which they should be elected; particularly with respect to the division
of the Provinces into Counties or Districts, and to the relative proportion
of Representation to be allowed to the Towns.

200 Constitutional Documents of Canada, [1774-1791

The decision of these points must necessarily depend on local knowl-
edge: They are therefore left in blank in the Draft of the Bill, and I
must desire your Lordship's opinion upon them. I am not sufficiently in-
formed whether die present Division of the G>unties would be well
adapted to the Object in question, or whether a subdivision into Parishes
or Districts would be more desireable.

I enclose for your Lordship's information a Paper delivered to m«
by Mr. Lymbumer*, containing a Plan of Representation for the Prov-
ince; but as far as I am at all enabled to form an Opinion on the Subject,
that plan appears to me to be liable to great objection. I also transmit
a plan for the same purpose framed by the Board of Trade in 1765*.

The next point to be considered is the Qualifications of the Electors,
and of the Persons to be elected in each oi the Provinces. This is also
in great measure a point of local detail, depending on the condition &
circumstances of the different Classes of the Inhabitants of the Provinces ;
and on which His Majesty's Servants are therefore desirous of receiving
your Lordship's Opinion. In the margin of the Bill which I now trans-
mit, I have markedT the suggestions which have been made to me on this
Subject; but I do not feel myself enabled, without farther information, to
form any satisfactory Opinion upon them.

The remaining Causes of the Bill do not seem to require much par-
ticular discussion in this Letter; Your Lordship will observe by the 27th
Qause, that it is intended to continue all the existing Laws of the Prov-
ince untill they shall be repealed or varied, by tbe Legislatures of the re-
spective Provinces. An exception is however made and there is a Clause
left in blank for the insertion of such Commercial Regulations, if any,
which it may be thought expedient to introduce, as exceptions to the Ca-
nadian Laws, respecting Property and Civil Rights, previous to investing
the Assembly in Lower Canada with a right to negative all future changes
which may be proposed.

This is a point which is now under the consideration of His Majesty's
Law Servants, but as it is probable that I shall receive your Lordship's
answer to this dispatch before it may be necessary to come to a final de-
cision on this Subject, I shall be ^lad to be furnished with any suggestions
which may occur to your Lordship upon it, as likely to conduce to the ad-
vancement and security of the Commercial Interest of this Kingdom, and
that of the Province as connected with it

The Qause enabling Persons to commute the holding of their Lands
into free and comon Soccage is conformable to what your Lordship has
lecommended with respect to the Upper Districts, and it seems a measure
of good policy to extend the same principle to the lower parts of the Prov-
ince, as far as the prejudices of the French Inhabitants will allow.

I should wish to know your Lordship's sentiments with respect to
the time which might be most convenient for the commencement of this
new System, supposing the Bill to be passed in the next Session of Par-
liament

I am, &c.,

W. W. Gbenvillb.

> See No. XXXIX.

* This date fhould be 1769. (See Shortt and Douglity, p. 666, note No. 2.)

1774-1791] Constitutional Documents of Canada. 201

UI

DORCHESTER TO GRENVILLE

[Trans.: Shortt and Doughty.]

Quebec, 8th February, 1790.
Sir,

I received the triplicate of your dispatch^ No. 2 on the 20th of last
month, and avail myself of the first opportunity to submit to His Majesty's
Ministers such observations on the proposed Bill, as occur to me in Uie
moment

The inclosed Draught* comprehends the corresponding alterations, en-
grafted upon the Bill, transmitted in your letter.

The attainment of a free course of Justice throughout every part of
His Majesty's possessions, in the way least likely to give umbrage to the
United States, appears to me very desirable. For this reason the Boun-
daries of the two proposed Provinces are described by a precise Partition
Ime only of the Country of Canada, with the Addition of such general
words, as I hoped might include the Territories subject to, or possessed
by, His Majesty, to the southward of the forty fifth degree of North Lati-
tude on the side of Lake Champlain, as well as on the side of Oswego,
Niagara, Detroit, and Michilimakinac, corresponding as nearly as could
be, with the idea expressed in your letter. But upon consulting the Chief
Justice, relative to the operation of this description of the Boundary, I
find, that he does not think it will answer the desired end.

The district of Gasp6 it seems best for the present to leave annexed
to the Province of Lower Canada, on account of its commercial connection
with this province, and because, notwithstanding its distance, the com-
munication of it with Quebec by water, is easier than its access to the
scat of the Government of New Brunswick, in the present condition of
that province; the more so, as the difficulty of a representation from that
District, in an Assembly at Quebec is greatly diminished, by the opening
left in the Bill for non residents of any district being elected Represen-
tatives thereof.

But the Bay of Chaleurs being subject to different Governments, par-
ticularly during the present uninhabited state of that part of New Bruns-
wick, gives an opportunity to ill disposed persons to elude the controul of
the law, to the detriment of the Fisheries, and good order; a clause to
remedy this Evil is therefore inclosed, which, if approved of, may be
introduced into the Bill, as an addition to the second clause.

Many advantages might result from an hereditary Legislative Council,
distinguished by some mark of honor, did the condition of the country
concur in supporting this dignity; but the fluctuating state of Property
in these Provinces would expose all hereditary honors to fall into dis-
regard; for the present therefore it would seem more advisable to ap-
point the members during life, good behaviour, and residence in the prov-
ince. The number for Upper Canada to be not less than seven, and for
Lower Canada not less than fifteen, to be encreased by His Majesty, as
Ihe wealth and population of the Country may require. To give thexn as
much consequence as possible, in the present condition of the Province,
they should be selected from among the men of property, where talents,
integrity, and a firm attachment to the Unity of the Empire may be found.
I shall take the first opportunity of communicating the names of such per-
sons, as appear to me the fittest objects of this description.

The House of Assembly for Upper Canada might consist of not less
than Sixteen, and that for Lower Canada of not less than thirty members,
or nearly double in number to the Legislative Councils, to be augmented
also in proportion to the Population of the Country.

As far as I can judge at present it might be advisable to give the

1 See No. U.

* Printed in Sbortt and Dongbty, p. 677.

202 Constitutional Documents of Canada. [1774-1791

Towns of Quebec and Montreal in Lower Canada, a representation of
four members each, and two to the Town of Three RiverSi dividing the
Country Parishes thereof into twenty Circles, to send one member each.
In Upper Canada the four districts of Luneburg, Mecklenburg, Nassau,
and Hesse, to furnish four members each, and hereafter to be subdivided
into as many Circles and Towns, as their condition may require. But the
present time is too short to enter into a more minute detail, for which
reason it is proposed to fix only the smallest number of Members in the
Bill, and to leave the actual subdivision and apportionment, necessary for
an equal representation, to be ascertained by the Lieutenant Governors,
with the advice of the Executive Councils, of the respective Provinces,
under authority for that purpose from His Majesty.

The qualification of Electors, and persons to be Elected, as to birth,
has been extended to inhabitants of the Provinces before and since the
conquest, because they may be considered upon an equal footing with the
natives, and to foreigners naturalized, because an accession to the Prov-
ince of light and property from abroad is desirable, and not likely to
injure the King's interest, under the guards proposed.

The disqualifications of Persons, attainted for Treason, and Felony,
Deserters from the Militia when called out into service, and Bankrupts,
until the full payment of their debts, have been added to the fourteenth
clause, as a check to these evils, and from a persuasion, that persons of
that description are not entitled to any politicsd honors or consequence.

On the expediency of inserting any commercial regulations, as excep-
tions to the Laws of Canada, previous to investing the Assembly in Lower
Canada with a right to negative all future changes, I regret that the com-
plicated and professional nature of the subject, prevents my forming any
other than a general opinion, that whatever regulations of this sort shall
be thought proper to be adopted, should be enacted Specially, unfolded
to the people, and not introduced in bulk, and by general description.

The introduction of a Soccage Tenure I think necessary in the upper
country, and advisable in every part of the province, and this free of
Quitrents from all, holding no more than one thousand acres, as recom-
mended in my letter to Lord Sydney No. 18. And the Quitrent, which
It may be judged proper to lay on large Tracts, should be given up to the
Provincial Governments for their Support, that all seeds of discord be-
tween Great Britain and her Colonies may be prevented. And independent
of this important consideration perhaps the true principle of (Economy
is rather to obviate the necessity of sending money Abroad, than to bring
home any from Quitrents or Duties of any Kind.

I take for granted, that the benefits, arising to the subject, from a
change of the tenure in Fief to that in Common Soccage, are meant to
run throughout, as from the King to His Tenant, so from the latter to
all his Under-tenants, at the time of change; Otherwise the advantages
will be confined to a few, and an interest created unfriendly to the im-
provement of the country. Some alterations have been made in the clause
relative to this point, with a view of clearing doubt upon the subject

The commencement of the operation of the Act, as to every part, ex-
cepting only the issuing the Writs of Election, and calling together the
Houses of Assembly of the respective Provinces, has been fixed at such
time, as may be declared by His Majesty, with the advice of His Privy
Council, not later than Six months after the notification of the Act in
this Country, which I think will allow time sufficient for all necessary
arrangements, as to these points.

But for the Convocation of the Assemblies a more distant period ap-
pears to be necessary, for the reasons above stated. As soon as die proper
plans for their organization shall have been prepared. His Majesty may
order the Assemblies to be convened, as soon as convenient, previous to
the first of January, 1792, as suggested in the thirty first clause of the
Bill, to which is likewise added a proposal for the temporary Government
of the two Provinces in the interval, by the Lieutenant Governors, and
Legislative Councils thereof, According to the model of the Quebec Bill.

1774-1791] Constitutional Documents of Canada, 203

Should this be approved, the Royal indulgence of returning to Eng-
land for a few months on my private Affairs, would give me an oppor-
tunity to lay before His Majesty's Ministers all further explanations in
my power on this subject

Before I conclude, I have to submit to the wisdom of His Majesty's
Councils, whether it may not be advisable to establish a General Govern-
ment for His Majesty's Dominions upon this Continent, as well as a Gov-
ernor Grenend, whereby the united exertions of His Majesty's North
American Provinces may more effectually be directed to the genral in-
terest, and to the preservation of the Unity of the Empire.

I inclose a copy of a letter from the Chief Justice, with some addi-
tional clauses, upon this subject', prepared by him at my request, together
with his draught of an other proposed addition to the Bill, to provide for
the trial of foreign treason and murder, as also a copy of his letter re-
specting the operation of the Boundary, as described in the Bill, with
his idea of the Addition necessary to give free scope to our Courts of
Justice. The clause above referred to under the letter B was also pre-
pared by him at my request.

I am with much respect and esteem, Sir,

Your most obedient, and most humble servant.

Dorchester.

LIII

CHIEF JUSTICE SMITH TO DORCHESTER

[Trans.: Shortt and Doughty.]

Quebec, 5th February, 1790.
My Lord,

The clause inclosed for the Trial of extraprovincial offences appears
to me to be necessary to encourage that spirit of Enterprize, which leads
our people in the Fur Trade to explore the Depths of this Continent, and
has carried them almost over to the Eastern shores of the Pacific Ocean.
This Commerce, elsewhere wearing out, by the encreased Population of
the northeastern parts of the antient Continent, will soon become the
monopoly of our nation. I have couched it in terms least likely of any
that occur to me, to excite the Jealousy of our Neighbours.

The Bill with the other additions for the intended Reforms in this
Country left to be supplied by Your Lordship's local Experience, greatly
improves the old model of our colonial Governments; for even those
called the Royal Provinces, to distinguish them from the Proprietary and
chartered Republics of tiie Stuart Kings had Essential Faults, and the
same general tendency.

Mr. Grenville's plan will most assuredly lay a foundation for two
spacious populous and flourishing Provinces, and for more to grow out
of them ; and compose, at no remote period, a mass of Power very worthy
of immediate attention.

I miss in it however, the expected Establishment to put what remains
to Great Britain of Her Antient Dominions in North America, under one
general direction, for the united interest and safety of every Branch of
the Empire.

The Colonies of England were flourishing Colonies. It was the na-
tural effect of the connection, the Character of the People, and the Genius
of the English Constitution. Our's will be so too. But that prosperity
may be their ruin. And I trust in God that the wisdom, which is dictating
the new Arrangements for us, will perfect its work, by a system to pre-
vent our repeating the Folly, that has plunged the several parts of the
Continent into poverty and distress.

Native as I am of one of the old Provinces*, and early in the public

« See Nm. LIII and LIV.

'Giief Justice Smith was born in New York. He was a member of the Council
of New York State before the American Revolution.

204 Constitutional Documents of Canada. [1774-1791

service and Councils, I trace the late Revolt and Rent to a remoter cause,
than those to which it is ordinarily ascribed. The Truth is that the Coun-
try had outgrown its Government, and wanted the true remedy for more
than half a century before the Rupture commencedr-To what period it
continued to be practicable is problematical, and need not now be assigned.

To expect wisdom and moderation from near a score of Petty Par-
liaments, consisting in effect of only one of the three necessary branches
of a Parliament, must, after the light brought by experience, appear to
have been a very extravagant Expectation. So it has been to my view
above twenty years, and I did not conceal it

My Lord, an American Assembly, quiet in the weakness of their In-
fancy could not but discover in their Elevation to Prosperity, that them-
selves were the substance, and the Governor and Board of Council mere
shadows in their political Frame. All America was thus, at the very out-
set of the Plantations, abandoned to Democracy. And it belonged to the
Administrations of the days of Our Fathers to have found the Cure, in
the Erection of a Power upon the Continent itself, to controul all its own
little Republics, and create a Partner in the Legislation of the Empire,
Capable of consulting their own safety, and the common welfare.

To be better understood by your Lordship I beg leave to put a paper
under this cover\ in the form of additions to the present proposed Bill,
partly suggested by the necessity of something to give a real and useful
significancy to Your Lordship's nominal command of more Provinces than
this*.

As to the moment for commencing such an Establishment, that cer-
tainly must be the worst, when it shall be most wanted. And since its
Erection will speak Intentions, and may ^ve Umbrage, that will be the
best time, in which that Umbrage shall excite the least apprehension.

The Debility of our Neighbours is notorious, nor can be succoured
during the Distractions of France, and the consternation Spread by those
Distractions through all Europe.

Here in these provinces, where it is of much consequence, to set out
with good habits, what juncture can be so favourable, as when the thou-
sands thrown into them, under Your Patronage and Direction, have their
Loyalty confirmed by Resentments for their Sufferings; and so are dis-
posed to take, and especially from Your hand, whatever the wisdom of
Great Britain shall prescribe, as a Gift of her Benevolence.

As to Canada, I mean that part of it to become Lower Canada, the
Biasses in it, if there are any remaining, to the Stock, from which it was
severed, are become perfectly harmless, by that Body of English Loyalty
Your Lordship has planted in the West — By their aversion to share in the
Burdens and Miseries of the Revolted Colonies, and by the growing Dis-
cemement, that our safety and Prosperity is only to be found in the Com-
merce and Arms of Great Britain.

I am old enough to remember^ what we in the Maritime Provinces"
dreaded from this French Colony m the North, and what it cost to take
away that dread, which confined our Population to the Edges of the At-
lantic; and my mind is therefore carried, under such an Administration
as the present one, into a strong Persuasion, that nothing will be neglected
to enable Great Britain, so to serve herself of that Power, she already
possesses here, as to check any Councils to be meditated to her Detri-
ment, by the new Nation she has consented to create. She may do more ;
but this is out of my province.

So much, my Lord, You'll forgive me. I could not repress what I
owed to the vindication of my Zeal, in the sacrifice of my fortune for the
British Interest, and as I think still for the best Interests too of the
Country of my Birth. Most of all I owed it to my Sovereign, in whose
Grace I found a Relief at the end of the Storm.

M.e., No. LIV.

>See London GoMetU, April 15, 17S6, for Dorchester's Commission as Governor
of all British North America.

* i.e. The Maritime Provinces of the former British Colonies.

1774-1791] Constitutional Documents of Canada, 205

With a deep and grateful sense of all Your kindnesses and the honour
of your request of my poor abilities, upon questions of so great magni-
tude and consequence.

I am, My Lord, with the highest respect and esteem,
Your Lordship's most humble and most obedient Servant,

(Signed) Wm. Smith.

LIV

PROPOSED ADDITIONS TO THE NEW CANADA BILL FOR A

GENERAL GOVERNMENT

[Trans.: Shortt and Doughty.]

And to provide still more effectually for the Government safety and
prosperity of all His Majesty's Dominions in North America, and firmly
to unite the several branches of the Empire.

(1) Be it also enacted by the same authority that there shall be
(with a (governor Genersd) a Legislative G>ttncil and a (jeneral Assembly
for all His Majesty's Dominions and the Provinces whereof the same do
now or may hereafter consist in the parts of America to the Southward
of Hudson's Bay, and in those seas to the Northward of the Bermuda
or Somers Islands; And that His Majesty, His Heirs and Successors shall
have power by and with the advice and consent of the said Legislative
Council and (general Assembly to make laws for the peace, welfare and
good Government of all or any of the said Provinces and Dominions: And
that such Laws being passed by the said Legislative Council and (^eral
Assembly and being assented to by His Majesty, His Heirs and Succes-
sors, or being assented to in His Majesty's name by the Person appointed
or to be appointed Governor General of the Provinces and Dominions
aforesaid, or such person as may be appointed by the Crown to exercise
the powers of (jovemor General on the death or absence of such (governor
General, shall be valid and binding on the inhabitants of the said Domin-
ions or such part thereof as shall for that purpose be expressed.

(2) And be it enacted by the same authority that such Legislative
Council may be composed of at least Members from each of the
said Provinces to be appointed as His Majesty by His Royal Instruc-
tions to the Governor General for the time being shall authorize and
direct, who shall hold their several places in the said Council for Life
subject nevertheless to such terms and conditions as are herein before
declared to be annexed to the trust and station of a member of the Legis-
lative Council of either of the said Provinces of Upper & Lower Canada,
and saving to His Majesty's Governor Cieneral or the Person upon whom
that trust by His Majesty's appointment mav devolve, power and author-
ity from time to time by an instrument under the Great Seal to be cre-
ated for the British Dominions in North America, to constitute, appoint
and remove the Speaker of such Legislative Council.

(3) And be it also enacted by the same Authority that such General
Assembly may be composed of such persons as may be elected by the ma-
jority of the House of Assembly of the Province for which they serve
to be manifested by Triplicate Instruments under the hand and seal of
the Speaker thereof to the (Jovemor General, the Speaker of the Legis-
lative Council, and the Speaker of the General Assembly.

(4) And be it also enacted by the same authority that to give any
Acts of the said Governor General, Legislative Council and (general As-
sembly, the force and authority of a Law, the same shall have been as-
sented to in the said Legislative Council by the majority of the voices
forming a house of Council, according to His Majesty's appointment
thereof, and shall have been assented to in the said GentT2l Assembly by
such and so many Voices as will make it the Act of the majority of the
Provinces, having right to be represented in the said General Assembly,

198 Constitutional Documents of Canada. [1774-1791

used to continue to them the enjoyment of those civil and religious Rig^hts
which were secured to them by the Capitulation of the Province, or have
since been granted by the liberal and enlightened spirit of the British
Government.

This consideration has had a great degree of weight in the adoption
of the plan of dividing the Province of Quebec into two Districts which
are to remain as at present under the administration of a Governor
General, but are each to have a Lieut. Governor and a separate Legislature.

The King's Servants have not overlooked the reasons urged by your
Lordship against such a separation*, and they feel that while Canada re-
mained under its present form of Government great weight would have
been due to those suggestions; but when the resolution was taken of
establishing a Provincial Legislature, to be constituted in the manner now
proposed, and to be chosen in part by the People every consideration of
policy seemed to render it desirable that the great preponderance pos-
sessed in the Upper Districts by the King's antient Subjects, and in the
lower by the French Canadians should have their effect and operation in
separate Legislatures ; rather than that these two bodies of People should
be blended together in the first formation of the new Constitution, and
before sufficient time has been allowed for the removal of antient pre-
judices, by the habit of obedience to the same Government, and by the
sense of a common interest.

With respect to the intended Boundaries of these Provinces a blank
is left in the Bill in order that your Lordship may, with the assistance of
the Surveyor General, who is now in Quebec, consider of such a descrip-
tion of those Boundaries as may be sufficiently intelligible and certain,
so as to leave no room for future difficulties on that subject. The division
between the two Provinces is meant to be the same as is mentioned to
your Lordship in Lord Sydney's Letter of 3d Sept., 1788, with the alter-
ation suggested by your Lordship in your Letter of the 8th November
following*.

There will however be a considerable difficulty in the mode of de-
scribing the Boundary between the District of Upper Canada and the
Territories of the United States. As the adhering to the Line mentioned
in the Treaty with America would exclude the Posts which are still in
His Majesty's Possession, and which the infraction of the Treaty on the
part of America has induced His Majesty to retain, while on the other
hand the including them by express words within the Limits to be estab-
lished for the Province by an Act of the British Parliament would prob-
ably excite a considerable degree of resentment among the Inhabitants of
the United States, and might perhaps provoke them to measures detri-
mental to Our Commercial Interests. Possibly the best solution for this
difficulty might be to describe the Upper District by some general words
such as "All the Territories, &c., &c., &c., possessed by and subject to His
Majesty, and being to the West or South West of the Boundary Line of
Lower Canada, except such as are included within the present Boundaries
of the Government of New Brunswick.

In settling this point of the Boundaries it will also be a question,
whether the Fishing Settlement in Gaspe may not with advantage be an-
nexed to the Government of New Brunswick rather than to be left as a
part of that of Lower Canada under the system now proposed to be estab-
lished particularly as the local Circumstances of that District might render
a representation of it in an Assembly at Quebec extremely difficult if not
impracticable.

The Legislature in each of the Two Provinces is intended, as your
Lordship will observe from the draught of the Bill, to consist of His
Majesty represented by His Governor, or Lieutenant Governor, a Legis-
lative Council, and a House of Assembly.

It is intended to separate the Legislative from the Executive Council

» See No. XLVIII.

» See Nos. XLVII and XLVIII.

1774-1791] Constitutional Documents of Canada. 199

and to give to the Members of the former a right to hold their Seats
during their Life and good Behaviour, provided they do not reside out
of the Province, or attach themselves to any Oath of allegiance or Obe-
dience to the United States, or to any other Foreign Power.

It is the King's farther intention to confer upon the Persons whom
he shall distinguish by calling them to His Legislative Council some mark
of Honour, such as a Provincial Baronetage either personal to themselves,
or descendible to their Eldest Sons, in lineal Succession.

A great accession of wealth to the Provinces might probably induce
his Majesty at a future period to raise the most considerable of these
Persons to a higher degrree of Honour, but this could certainly not be
done with propriety under the present Circumstances.

The Object of these regulations is both to give to the Upper branch
of the Legislature a greater degree of weight and consequence than was
possssed by the Councils in the Old Colonial Governments, and to estab-
lish in tiie Provinces a Body of Men having that motive of attachment
to the existing form of Government, which arises from the possession
of personal or hereditary distinction.

It will be very necessary that great attention should be paid to the
choice of those Persons who are to be placed in this situation in the first
instance, and of those whom His Majesty may be advised from time to
time to add to that number ; and as your Lordship's long knowledge of
the Province and of the Individuals who compose the higher classes of
the Community, must render your Lordship more particularly competent
to snch a Selection, I must desire that your Lordship will consider this
point with that degree of attention to which its importance entitles it, and
that you will state to me the names of those Persons whom you may think
fit objects of the King's favor in this respect, in each of the Two Provinces
intended to be formed.

In the draft of the Bill which I enclose, a blank is left for that which
is to be fixed as the smallest number of which the Councils are respec-
tively to be composed. It is certainly desireable that this number should
not be made too large in the first instance, as it would be easy for His
Majesty to add to it whenever it may be found expedient, while on the
other hand the calling improper Persons to the Council, in order to make
up the number required by the Bill would under the system now pro-
posed be productive of permanent inconvenience and mischief to His Ma-
jesty's Government.

Of this point also your Lordship must unquestionably be the best
Judge, and I shall be anxious to learn your Sentiments upon it. My
present idea, founded, however, rather on conjecture than on any satis-
factory information, would be that the Legislative Council in Upper
Canada should not consist of less than six Members, and in lower Canada
of not less than Twelve ; and that the selection of these Persons should
be made with a view to encreasing the number by some addition at no
very distant period, as a mark of His Majesty's favor to those Persons
whose Conduct may be found to entitle them to it.

Your Lordship will also state to me for His Majesty's information,
the number and names of those Persons whom you may think proper to
recommend to His Majesty for Seats in the Executive Council.

It is by no means intended that the Members of the Legislative
Council should be excluded from this Body, or that it should on the other
hand be wholly composed of Persons of this description. It may be ad-
viseable that some of the Persons named to the Executive Council in one
of the Districts, should also be admitted to the same distinction in the
other.

In providing for the establishment of a House of Assembly in each
of the Two Provinces, the first question of detail which occurs is that of
the Numbers of which these Bodies should consist, and of the manner in
which they should be elected; particularly with respect to the division
of the Provinces into Counties or Districts, and to the relative proportior
of Representation to be allowed to the Towns.

206 Constitutional Documents of Canada, [1774-1791

and it shall be a house of General Assembly as often as there shall be
assembled one or more members duly elected by each of the Assemblies
of the said Provinces or of the greater number of such provinces.

(5) And be it further enacted by the same authority that it shall
be lawful for His Majesty, His Heirs and Successors to authorize and
direct His Governor General for the time being or the Person upon whom
that trust by His Majesty's Appointment may devolve, in His Majesty's
name and by an instrument under the great seal of the British Dominions
in North America to summon and call together such General Assemblies
in such manner as His Majesty shall be pleased to signify and command
by His Royal Instructions to such Governor General.

(6) And be it also enacted by the same authority that the Governor
General under such instructions as he may have received from His Ma-
jesty may assemble the said Legislative Council and General Assembly
where, and prorogue and dissolve them, when and as often as he shall judge
it necessary, Provided always and be it enacted that they shall be called
together one at least in every two years, and continue to have the right of
sitting seven years from the Teste or day of the process or summons foi
their election unless they shall be sooner dissolved by the Authority afore-
mentioned. But no Member either of the said Legislative Council or Gen-
eral Assembly shall be permitted to sit or vote in the General Legislature
untill he shall have taken such Oath as hereinbefore directed to be taken
by the Members of the Legislative Council and Assembly of Upper or
Lower Canada, or not being an Inhabitant of either of the said Provinces
last mentioned such other oaths and qualifications as are taken to become
a Member of the Parliament of Great Britain as by His Majest/s In-
structions shall be directed and required.

(7) And be it also enacted by the same Authority that whenever any
Bill which has been passed by the said Legislative Council and by the said
General Assembly shall be presented for His Majesty's Assent to the Gov-
ernor General for the time being or the Person exerising that trust under
His Majesty's Authority, it shall and may be lawful for such Governor
General or other person exercising the said trust, at his discretion, subject
nevertheless to such Instructions as he may from time to time receive
from His Majesty, His Heirs and Successors, either to declare His Ma-
jesty's assent to such Bill, or to declare that he withholds such assent, or
that he reserves the said bill untill His Majesty's Pleasure shall be sig-
nified thereon. And no Bill so to be presented and not assented to in man-
ner aforesaid shall have the force of a Law.

(8) And be it further Enacted by the same Authority that nothing
in this Act contained shall be construed to prevent His Majesty from ap>
pointing, erecting, and constituting such general and executive Council
and Councils as he may judge proper for the £aid provinces and Domin-
ions in general, and Any other Office, in His Royal Judgment and discre-
tion requisite for the said general Government; or from nominating and
appointing thereto from time to time^ such persons as he shall think fit
to compose the same Executive Council, or to execute such offices or from
removing therefrom any person or Persons whom he may think fit to
remove.

(9) And be it also Enacted by the same Authority that it shall and
may be lawful for His Majesty to give Authority to his said Governor
General, or the person exercising that trust, on his arrival in either of the
provinces within his commission, to assume the authority and to perform
all the duties and functions which the Lieutenant Governor thereof, might
exercise and perform ; and the powers and authority of such Lieutenant
Governor shall be suspended & so continue during the time of the Gov-
ernor General's being within the same province; and that it shall also be
lawful for His Majesty to give to the said Governor General for the time
being, tho' absent in some other province of His General Government, au-
thority respecting any act of any of the Provinces of such nature and
tendency as His Majesty may see cause by His Royal Instruction to de-
scribe, to suspend the execution of such Act until His Majesty's Pleas-

1774-1791] Constitutional Documents of Canada. 207

ure shall be signified respecting the same; to which end it shall be the
duty of the person administering the Government in every Province sub-
ject to the Governor General's Authority, to transmit to him a copy of
every bill to which he has assented as soon as possible after the enacting
of die same into a law; and shall upon the suspension thereof by the
Governor General immediately cause the same to be made Imown by proc-
lamation under the great seal of his Province, in the manner most effec-
tual for making the same universally known to the Inhabitants of the
same Province, and all others whom the* same may concern.

( 10) And be it further enacted by the Authority aforesaid, that noth-
ing in this Act contained shall be interpreted to derogate from the rights
and Prerogatives of the Crown for the due exercise of the Royal and
executive authority over all or any of the said Provinces ; or to derogate
from the Legislative Sovereignty and Supremacy of the Crown and rar-
iiament of Great Britain ; but the Acts of Legislation of either of the said
Provinces, as well as the Acts of the Governor General and the Legisla-
tive Council and General Assembly so to be made, shall be subject to the
Royal dis-allowance as exercised heretofore respecting the laws of any
of the British Provinces, and the said Dominions and adl the Provinces
into which they may be hereafter divided shall continue and remain to be
governed by the Crown and Parliament of Great Britain as the supreme
Legislature of the whole British Empire.

LV

THE CONSTITUTIONAL ACT 1791*

(31 George III., c. 31.)

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 pro-
vision for the Government of the Province of Quebec, in hlorth Amer-
ica," and to make further provision for the Government of the said
Province.

Whereas an Act was passed in the fourteenth year of the reign of Preamble,
his present Majesty, intituled "An Act for making more effectual pro-|4Q^ jU^
vision for the Government of the Province of Quebec, in North America" : cap. 83*
And whereas it is expedient and necessary that further provision should recited,
now be made for the good Government and prosperity thereof: 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 ad-
vice and consent of the Lords Spiritual and Temporal, and Commons in
this present Parliament assembled, and by the authority of the same, that
so much of the said Act as in any manner relates to the appointment of So much of
a Council for the affairs of the said Province of Quebec, or to the Po^^r^JJil^to'th?
given by the said Act to the said Council, or to the major part of them,^ppoi,i^^i
to make ordinances for the peace, welfare, and good Government of theofaCottncil
said Province, with the consent of His Majesty s Governor, Lieutenant- '**^5"*^'
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 his mes-
sage to both Houses of Parliament, his Royal intention' to divide his
Province of Quebec into two separate Provinces, to be called the Province Within each
of Upper Canada and the Province of Lower Canada: Be it enacted by^dPwHn^'
the authority aforesaid, that thPFf fr\\?{]\ hft .within >fachof^t]tf said. Pr^v- a LegislariTe
mces yftiWSt^y^^y ^ Legislative Council and an AssemDiy, to be severally Council and

*The enentt which led to the fiassinff of this Act are outlined in the preriona
documents. The debates are in Hansard, Vols. XXVIII and XXIX.

*This intention was carried out by an order-tn-council dated 24 Aucust, 1791.
(See Doughty and McArthur, Docuwitntt relating to the Constitutional History of
Canada, Canadian Archives 1914, p. 3).

208 Constitutional Documents of Canada, [1774-1791

AMemblTto composed and constituted in the manner hereinafter described; and that
bywhSicad- ^" ^^ ^^ ^^ **'*^ Provinces respectively, His Majesty, His Heirs, and
▼iceHiB Successors, shall have power during the continuance of this Act, by and

Majesty may with the advice and consent of the Legislative Council and Assembly of
Se Go*rni- ' ®"^^ Provinces respectively, to make laws for the peace, welfare and good
mentof the Government thereof, such laws not being repugnant to this Act; and that
Frorince. ^H such laws being passed by the Legislative Council and Assembly of
(either of the said Provinces respectively, and assented to by His Majesty,
' 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 binding, to all intents and purposes whatever, within the Prov-
ince in which the same shall have been so passed.
Hialiajem HL And be it further enacted by the authority aforesaid, that for

the^Gorerno? *'^® purpose of constituting such Legislative Council, as aforesaid, in each
or Lieutenant- of the said Provinces respectively, it shall and may be lawful for his
Gorernor of Majesty, his heirs, or successors, by an instrument tmder his or their sign

each Prorince manual, to authorize and dirgrt the Qnvernor ^r f AMitMgnf.Oni^mrkr nr

members to pnrnrm ftdminiritrinn£ the Government, m eaco^ of ^the said Provmces re-
the Lerislatiye gpprfi«^ly jyjtVMn fTi7"rTlfiM hiti^iii ■fi^i iimWfmfi^r^ 1;^ TT?B Hffljjimyi fium^*

Councu. and by an instrument under the Great Seal of such Province^ tg jinnmon

.{9 .thsiLs^^<i Legislative Council, to be established in each of the saia Fitfv*

liices resliClllvtilj^ a MlfflCMlU Ifumber of "fliatreet and proper persotTS? be-

_^ -tMTTItytfeWffFlnan seVeff, to the' tjSTslaiixcjCoiuxdl for the T^OttHtti %l

"Tipper Canada;' mid no fewer than nf teen to the Legislative CotRItH fw

^BeTTOVfrrcfe Of Lower Clnacfa ;' and that i! shall' also be lawfnf-*or4i»

"JTaje'sfy," h\& 'K^ttS'or successors, from time to time, by an instrument

under his or their sign manual, Jo authorize and direct the Governor or

Lieutenant-Governor, or person administering the Govemmenrin "^ch ^

'^""the said Provinces respectively, to summon to the Legislative Cotmcil-«f

such Province in like manner such other persons as his Majesty, his^Uef^

""or -sucdnvdnt^ shall thlftlt fit; and that every person who shall big^'ne sum-

' moned to the Legwlattve' Council of either of the said Pro^tiKts itjpi4^

'^Fvelv. shall thereby becoirtie' a: member of such Legislative Council, lo which

JI]afi!jhaIOui^e been so summoned. **

No oerson IV. Provided" always, and be it enacted by the authority aforesaid,

under 21 years that no person shall be summoned to the Legislative Council, in either of

to be^um^'* ^^^ ^^^^ Provinces, who shall not be of the full age of twenty-<)ne years,

moned. and a natural bom 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.

Members to / V. And be it further enacted by the authority aforesaid, that^very

■e^u?*r Ufe ^'^^^'^bcr of each of the said Legisfatiyfi Councils shall hold. his scat therein

* ** J '^^on^TerTRjjFTiis 1ire,Jbut subject nevertheless to the provisions htw^

. inaTter contained for Vacating the same, in the cases hereinafter specifieSl

mar^nnoMls Vfr-AlTd be it further enacted by the authority aforesaid, that wttCn*-^

hereditary ' cVer his Majesty, his heirs or successors, shall think proper to confer
titles, ot honqir upon any subject of the Crown of Great Britain, by letters patent under
^ni^m^-^ ; the Great Seal of either of the said Provinces, any hereditory title of
moned to th4 honor, rank, or dignity of such Province, descendible according to any
Legislative 1 course of descent limited in such letters patent, ^t shall and may be law-
CouncU. \ fyj ^Qj. hjg 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
Province, 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, Lieu-
tenant-Governor, or person administering the Government of such Prov*

1774-1791] ConsHtuiwwA Documents of Canada, 209

ince, his writ of summons to such Legislative Cotmcil at any time after
he shall have attained the age of twenty-one years, subject nevertheless
to the provision hereinafter contained.

VII. Provided always, and be it further enacted by the ^''^ority Sochi^K^nd-
a foresaid, that whca and so often as any person to whom such hereditary |^i^3fand
r^ht shall have descended shall, without the permission of his Majesty,

his heirs or successors, signified to the Legislative Council of the Prov-
mce by the Governor, Lieutenant-Governor or person administering the
Government tiiere, 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 summons to the Lep:islative Council by virtue of such hereditary
right, unless his Majesty, his heirs or successors, shall at any time think
fit, by instrument under his or their sign manual, to direct that such per-
son should be summoned to the said Council; and the Governor, Lieu-
tenant-Governor, or person administering the Government in the said
Provinces respectively, is hereby authorized and required, previous to
granting such writ of summons to any person applying for the same, to
interrogate such person upon oath, touching the said several particulars
before such Executive. CouaciL aA. .shall- have been appointed by his Ma-
jesty, his heirs or successors, within such Province for the affairs thereof.

VIII. Provided also, and be it further enacted by the authority afore- Seats in Coun-
said, that if any member of the Legislative Councils of either of the saidcilwatedin
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 Legislative 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, sig-
nified 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 authority afore- Hcreditarr
said, that in every case where a writ of summons to such LcfiTwlativeJjJJ^^^y^
Council shall have been lawfully withheld from any person to whom suchfeited,or
hereditary right, as aforesaic^ shall have descended, by reason of suchTac«ted,to
absence from the Province as aforesaid, or of his having taken an oathJ||JJJJ55S?iii£
of allegiance or obedience to any forei^ prince or power, and also intheUresof
every case where the seat in such Council of any member thereof, haviitg die partieiL
such hereditary right as aforesaid, shall have been vacated by reason ofJ|2athitogoto
any ol the causes hereinbefore specified, such hereditary right shall re- the penoii
mam suspended during the life of such person unless his Majesty, hh next entitled
heirs or successors, shall afterwards think fit to direct that he be sum-***"*^"*
moned 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 authority "afore- Scats in
said, that if any member of either of the said Legislative Councils ^hall ^^feUed and
be attainted for treason in any Court of law within any of his Majesty's hereditary

^^^kjminions, his seat in such Council shall thereby become vacant, and anyri8:ht»yrtin-

sudy hereditary right as aforesaid then vested in such person, or to bej^'^wi

derive^ to any other person through him, shall be utterly forfeited and

extinguished.

N

210 Constitutional Documents of Canada. [1774-1791

resoec^the ^^' Provided also, and be it enacted by the authority aforesaid, that
riffbttobe whenever any question shall arise respecting the right of any person to be
summoned to summoned to either of the said Legislative Councils respectively, or re-
S*£f de- ***^"' sP^cting the vacancy of the seat in such Legislative Council of any pcr-
termined son having been summoned thereto, every such question shall by the Go>r
M herein ernor or Lieutenant-Governor of the Province, or by the person adminis-
mentioned. tering the Government there, be referred to such Legislative Council to
be by the said Council heard and determined; and that it shall and may
be lawful, either for the person desiring such writ of summons, or re-
specting 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 Ma-
jesty in his said Parliament shall be final and conclusive to all intents
and purposes whatever.
T|»« Gw««'tto«' XII. And be it further enacted by the authority aforesaid, that the
rbice may' Governor or Lieutenant-Governor of the said Provinces respectively, or
appoint and the person administering His Majesty's Government therein respectively,
^more the shall have power and authority from time to time, by an instrument under
bpeaker. ^^ ffreat Seal of such Province, to constitute, appoint and remove the

Speakers of the Legislative Councils of such Provinces respectively.

His Majesty XIII. And be it further enacted by the authority aforesaid, that for

Se'cSIwnor* ^^? purpose of constituting such Assembly as aforesaid in each of the

to call to- said Provinces respectively, it shall and may be lawful for his Majest)',

52Be'M* his heirs or successors, 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,

within the time hereinafter mentioned, 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

and. for the Assembly in and for such Province.

purpose of XIV.' And be it further enacted by the authority aforesaid, that for

electing the the purpose of electing the member of such Assemblies respectively it
hMv^VwoC' *^^^^ *"^ ^^^ ^^ lawful for his Majesty, his heirs or successors, by an
tarnation instrument under his or their sign manual, to authorize the Governor or

diyidinfirthe Lieutenant-Governor of each of the said Provinces respectively, or the
DCtricUL^c person administering the Government therein, within the time hereinafter
mentioned, to issue a proclamation^ dividing such Province into districts,
/^^ counties, 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 authorize such Governor or Lieutenant-Gover-
nor, or person administering the Government, from time to time to nomi-
nate and appoint proper persons to execute the office of retuming-officer
in each of the said districts, or counties, or circles, and towns or town-
aiiips respectively; and that such division of the said Provinces into dis-
tricts, or counties, or circles, and towns or townships, and such de^arsi;^
tbn and appointment of the number of representatives to be chosen by
each of the said districts, or counties, or circles, and towns or townships,
respectively, and also such nomination and appointment of retuming-
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 Ma-
jesty, his heirs, or successors.
Power of the ^ XV. Provided nevertheless, and be it further enacted by the author-
Gorernorto ity afofesaid, that the provision hereinbefore contained for empowering
furaL^offi- *^^ Governor, Lieutenant-Governor, or person administering the Govem-
eerstocon- ment of the said Provinces respectively, under such authority as aforesaid

^ The proclamations dividing Lower Canada and Upper Canada into electoral dis-
tricts were issued on May 7, 1792, and July 16, 1792, respectively. (See Doughty and
McArthur, pp. 12, 77.)

1774-1791] Constitutional Documents of Canada. 211

from his Majesty, his heirs or successors, from time to time to notninate *>"»»« *^o
and appoint proper persons to execute the office of returning-officer in the^^^J^^^^.
said districts, counties, circles, and towns or townships, shall remain and ment of this
continue in force in each of the said Provinces respectively for the term-^c**
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 P^'o^" JyiJ^J*?©
ince, assented to by his Majesty, his heirs or successors. aem as re-

XVI. Provided always, and be it further enacted by the authority turninj officer

aforesaid, that no person shall be obliged to execute the said office ^^^SJimSa

retuming-officer for any longer time than one year, or oftener than once, Q^h^f^ise pro-

unless it shall at any time be otherwise provided by any Act of the Legis- yided by sa

lativc Council and Assembly of the Province, assented to by his Majesty, ^<^* «/****
L* i • _ Jrrovince.

hu heirs or successors.

XVII. Provided also, and be it enacted by the authority aforesaid,

that the whole number of members to be chosen in the Province of Upper ^^^JlJJ'^^g^
Canada shall not be less than sixteen, and the whole number of member&ecdi Province.
to be chosen in Lower Canada shall not be less than ^iX^ ".

XVIII. And be it further enacted by the au'thonty aforesaid, that Regulations
writs for the election of members to serve in the said Assemblies respec- ^^Jl^'^^J'^^j^^
tivcly shall be issued by the Governor, Lieutenant-Governor, or person election of
administering his Majesty's Government within the said Provinces respec- members to
tively, within fourteen days after the sealing of such instrument as ^^^^^^"JSseinbnar
said for summoning and calling together such Assembly, and that such

writs shall be directed to the respective retuming-officers of the said dis-
tricts, or counties, or circles, and towns 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
provided 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 mem-
bers 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
cither 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
Council and Assembly of the Province, assented to by his Majesty, his
hdrs 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
yit 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 authority aforesaid, thatjg|.^™\°«,^g.
all and every the retuming-officers so appointed as aforesaid, to whom any cute writs,
such writs as aforesaid shall be directed, shall, and they are hereby au-
thorized and required duly to execute such writs.

XX. And be it furtfier enacted by the authority aforesaid, that the By whom the
members for the several districts, or counties, or circles of the said Prov- {5*£*5ro4ii!
inccs respectively shall be chosen by the majority of votes of such per-
sons as shall severally be possessed, for their own use and benefit, of

lands or tenements 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,
^r by certificate derived under the authority of the Governor and Council
of the Province of Quebec, and being of the yearly value of forty shillings ^
sterling or upwards, over and above all rents and charges payable ouL,.^^
of or in respect of tne 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 pos-
sessed for their own use and benefit of a dwelling house and lot of
^otmd in such town or township, such dwelling house and lot ot ground
being by them held in like manner as aforesaid, and being of the yearly
value of five pounds sterling or upwards, or as, having been resident within

212 Constitutional Documents of Canada. [1774-1791

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 dwelling house in which they shall have
so resided, at the rate of ten pounds sterling per annum or upwards.

persi^s XXI. Provided always, and be it further enacted by the authority

not elligible aforesaid, that no person shall be capable of being elected a member to

to the ^ serve in either of the said Assemblies, or of sitting and voting therein,

Aasemblies. ^Jjq gh^ll 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 Rome, or under any

other form or profession of religious faith or worship.

Nopcrton XXII. Provided also, and be it further enacted by the authority

ofage.etc^.?*"*^^'"^^*^^' *^** "° person shall be capable of voting at any election of a
cap^leof ' member to serve in such Assembly, in either of the said Provinces, or of
Totingorof being elected at any such election who shall not be of the full age of
being elected; twenty-one years, and a natural bom 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.
°o«'*»y.P«'"" XXIII. And be it also enacted by the authority aforesaid, that no

fortrewon Person shall be capable of voting at any election of a member to serve
or felony. m 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 Legis-
lative Council and Assembly of the Province, assented to by his Majesty,
his heirs or successors.
ouirVdtotSc© XXIV. Provided also, and be it further enacted by the authority
take the fol- aforesaid, that every voter before he is admitted to give his vote at any
lowing oath, such election shall, if required^ by any of the candidates, or by the re-
tuming-officer, take the following oath, which shall be administered in
the English or French language, as the case may require:

I, A. B,, do declare and testify, in the presence of Almighty God, thai
"•*"• / 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,

oath to S?* ^^^ *^** every such person shall also, if so required as aforesaid,

particulars make oath previous to his being admitted to vote that he is, to the best
Aerein of his knowledge and belief, duly possessed of such lands and tenements,

Bpeci&ed. ^j. ^£ gy^.jj ^ 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.
HiaMa^st^ XXV. And be it further enacted by the authority aforesaid that it

the'covenio? *»h5iM and may be lawful for his Majesty, his heirs, or successors, to author-
to fix the ize the Governor or Lieutenant-Governor, or person administering the
time^and plkce Government within each of the said Provinces respectively, to fix the time
efectiona, ^^^ place of holding such elections, giving not less than eight days' notice
of such time, subject nevertheless to such provisions as may hereafter be
made in these respects, by any Act of the Legislative Council and Assembly
of the Province, assented to by his Majesty, his heirs, or successors.
Sg ^e S^" XXVI. And be it further enacted by the authority aforesaid, that it shall

sionsof the and may be lawful for his Majesty, his heirs or successors, to authorize
Council and the Governor or Lieutenant-Governor of each of the said Provinces respcc-
Assembly, etc. tively, or the person administering the Government therein, to fix the
places and times pf holding the first and every other session of the Legris-
lative 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 proclamation or otherwise, whenever he shall judge it neces-
sary or expedient.

1174-1791] Constitutional Documents of Canada. 213

XXVII. Provided always, and be it further enacted by the authority CotmcU and
aforesaid, that the said i^fiSASl^tive Council and Assembly in each of the^JfUfo-
said ProvintCT'shair be called togetlieV once al (he" least m every twelvegether oncein
calendar months, and that evecy— Assembly JshaH. continue' Tor four years t^"^j«

fiiiiii 111! iljji of thR.retmn.of the.writs^for choosing the' same, STid no"*® ■•***^*
longer; Ttib J ect nevertheless to be" soofier^prorogued or df'ssuiveil by the
Cioirtpiior or Lieutenant-Governor of the Province, or person administering
his Majesty's Government therein.

XXVIII. And be it further enacted by the authority afortsaid. that^^»"

all questions which shall arise in the said Legislative Councils or Assem-J|ierein'tobe
blies respectively shall be decided by the majority of voices of such mem- decided b^
bcrs as shall be present; and that in all cases where the voices shall be*^*°**io"*y
equal the Speaker of such Council or Assembly, as the case may be, shall® vo es.
have a casting voice.

XXIX. Provided always, and be it enacted by the authority aforesaid, No™^™!*^*'*®
that no member either of the Legislative Council or Assembly, in either untif he has
of the said Provinces, shall be permitted to sit or vote therein until hetmkenthe
shall have taken and subscribed the following oath, either before the Gov- f®***^*"*
cmor or Lieutenant-Governor of such Province, or person administering

the Government therein, or before some person or persons authorized by
the said Governor or Lieutenant-Governor, or other person as aforesaid,
to administer such oath, and that the same shall be administered in the
English or French lanugage, as the case may require:

/, A. B., do sincerely promise and swear that I tvill be faithful and Oath.
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 whatever
which shall be made again his person, crown, and dignity; and that I will
do my utmost endeavour to disclose and make known to his Majesty, his
heirs 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 what-
ever to the contrary — So help me God. ^0^

XXX. And be it further enacted by the authority aforesaid, that Gorernor
whenever any bill, which has been passed by the Legislative Council and by "JX^Id His
the House of Assembly in either of the said Provinces respectively, shall Majesty's

be presented for his Majesty's assent to the Governor or Lieutenant-Go v assent to
cmor of such Province, or person administering his Majesty's Government J^"'j^p^]J^^
therein, such Governor or Lieutenant-Governor, or person administering i^tire Council
the Government shall, and he is hereby authorized and required to declare, and Assembly,
according to his discretion, but subject nevertheless to the provisions con- J^JS^for His
tained in this Act, and to such instructions as may from time to time be Majesty's
given in that behalf by his Majesty, his heirs or successors, that he assents pleasure.
to such bill in his Majesty's name, or that he withholds his Majesty's assent
trom such bill, or that he reserves such bill for the signification of his
Majest/s pleasure thereon.

XXXI. Provided always, and be it further enacted by the authority Goremor to
aforesaid, that whenever any bill which shall have been so presented for|^^|^"^*^°
his Majesty's asseiU to such Governor, Lieutenant-Governor, or person of State
administering the Government, shall by such Governor, Lieutenant-Gov- copies of such
crnor, or person administering the Government, have been assented to >" gjjjj^^j^^* ^
his Majesty's name, such Governor, Lieutenant-Governor, or person as to^ which His
aforesaid shall, and he is hereby required, by the first convenient oppor- Majesty in
tunity to transmit to one of his Majesty's principal Secretaries of State, J^JJJ*^'
an authentic copy of such bill so assented to; and that it shall and may be disallowance
lawful, at any time within two years after such bill shall have been so of within two
received by such Secretary of State for his Majesty, his heirs or succes-^*^J^
sors, by his 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

216 Constitutional Documents of Canada. [1774-1791

the amount of such lands within the same as have at any time been fi^ranted
by or under the authority of his Majesty: And that, wherf y**r ft "if- g"»"*
of lands within either of the said Provinces shainiereai^^^-~be made by or
under theatnhorily ofTiis* Majesty, his heirs or "successors^ there shall at
the same time be made, in respect of the same^ a p^•QD9ytjj^nfl^''* ^"^»^^"*
and appropriation of lands for the above mentiSnia^TuiyoscI within the
township or parish to which such lands so to be granteoinalTappertain or
be annexed, or as nearly adjacent thereto as circumstances will admit; and
that no sucn grant 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 granted; 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 estim-
ated at the time of making such grant, equal in ^f^}v^ *^ ^hr Mwnth part
of the Jaodssogranted.
and the rent* XXXvTfrXhaTe it further enacted by the authority aforesaid that

■u^^lotment ^^^ ^^^ every the rents, profits, or emoluments, which may at any time arise
tobeappli- from such lands so allotted and appropriated as aforesaid, shall be appli-
cable to that cable solely to the maintenance and support of a Protestant clergy within
BoiSS^ ^^ Province in which the same shall be situated, and to no other purpose

whatever
Hi» M*AP»i^ XXXVIII. And be it further enacted by the authority aforesaid that
She'corernor ^^ ^^^^ ^^^ ^^V ^^ lawful for his Majesty, his heirs and successors, to
with the ad- authorize the Governor or Lieutenant-Governor of each of the said Pro-
^ge of the vinces respectively, or the person administering the Government therein,
Counciirto from time to time, with the advice of such Executive G>uncil as shall have
erect parson- have been appointed by his Majesty, his heirs or successors, within such
«nd endow Province for the affairs thereof, to constitute and erect within every town-
^^' ship or parish which is now or hereafter may be formed, constituted, or

erected within such Province, one or more parsonage or rectory, or parson-
ages or rectories, according to the establishment of the Giurch of England ;
and from time to time by instrument under the great Seal of such Province
to endow every such personage or rectory^ with so much or sudi a part of
the lands so allotted and appropriated as aforesaid, in respect of any lands
within 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, Lieuten-
ant-Governor, or person administering the Government shall, with the
advice of the said Executive Council, judge to be expedient under the then
existing circumstances of such township or parish.
"»dtiieGov- XXXIX. And be it further enacted by the authority aforesaid, that

senHncum- '^^ shall and may be lawful for his Majesty, his heirs or successors, to
bents to them, authorize the Governor, Lieutenant-Governor, or person administering: the
^^•*T the" Government of each of the said Provinces respectively, to present to every
same as incum-such parsonage or rectory an incumbent or minister of the Giurch of Cng-
bentslniLng- land, who shall have been duly ordained according to the rites of the said
land. Church, and to supply from time to time such vacancies as may happen

therein ; and that every j>erson so presented to any such parsonag^e or
rectory shall hold and enjoy the same, and all rights, profits, and emolu-
ments thereunto belonging or granted, as fully and amply, and in the same
manner, and on the same terms and conditions, and liable to the perform-
ance of the same duties, as the incumbent of a parsonage or rectory in
England.
Presentations XL. Provided always, and be it further enacted by the authority
anS enjoyment *^^''^****^' *^** every such presentation of an incumbent or minister to any
of them to be such parsonage or rectory^ and also the enjoyment of any such parson-
subject to the age or rectory, and of the rights, profits, and emoluments there-
irinted todie ^^> ^^ ^^X ^^^ incumbent or minister, shall be subject and liable to all
Bidiopof rights of institution, and all ofher spiritual and ecclesiastical jurisdiction

• %

1774-1791] Constitutional Documents of Canada. 217

and authority, which have been lawfully granted by his Majesty's Royal ^]« Scotia,
letters i>atent to the Bishop of Nova Scotia, or which may hereafter by***
nis Majesty's Royal authority be lawfully granted or appointed to be ad-
ministered 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. Provtoipn*

XLI. Provided always, and be it further enacted by the authority JgJ^^Jf of
aforesaid, that the several provisions hereinbefore contained, respecting theundsforthe
allotment and appropriation of lands for the support of a Protestant clergy gipport of a
within the said Provinces, and also respecting the constituting, erecting, J^J^^JJ?
and endowing parsonages or rectories within the said Provinces, and alsOmaybeTaned
respecting the presentation of incumbents or ministers to the same, a**^J^*^f^4
also respecting the manner in which such incumbents or ministers shall ^^^^Jj^H
hold and enjoy the same shall be subject to be varied or repealed by any and AMembly.
express provisions for that purose 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 hereinafter provided. Acts of the

XLII. Provided nevertheless, and be it further enacted by the aw^^^or- rSSSJSiaSd
ity aforesaid, that whenever any Act or Acts shall be passed by the Legis-^^jJ^t^lycon-
lative Council and Assembly of either of the said Provinces, containingtainingproTi-
any provisions to vary or repeal the above recited declaration and provisionjloM to tl^
contained in the said Act passed in the fourteenth year of the reign of his g^^ijoned to
present Majesty; or to vary or repeal the above recited provision containedbe laid before
in his Majesty's Royal instructions given on the third day of January "^JjSjiSSlf?o
the year of our Lord one thousand, seven hundred and seventy-five to the^eiyiM His
said Guy Carleton, Esquire, now Lord Dorchester; or tb vary or repeal thelfajesty^i
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 appropria-
tion of lands for the support of a Protestant clergy within the said Provinces ;
or respecting the constituting, erecting, or endowing parsonages or rec-
tories within the said Provinces; or respecting the presentations of incum-
bents or ministers to the same; or respecting the manner in which such
incumbents 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 enjoy-
ment 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 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 members thereof within the
said Provinces or shall in any manner relate to or affect the King's pre-
logative touching the granting 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 that 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 Parlia-
ment shall within the said thirty days address his Majesty, his heirs or suc-
cessors, 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

218

ConsHtuHonal Documents of Canada. [1774-1791

Lands in
Upper Canadm
o be granted
n free and
common soc-
:affe and also
n Lower
Canada, if
lesired.

Persons hold-
ng lands in
Jpper Canada
nay have
'resh grants.

Such fresh
[grants not to
»ar any right
)r title to
the lands.

18 Geo. Ill,
:ap 22,
recited.

1

administering the Government of such Province, an address or addresses
specifying that such Act contains provisions for some of the said purposes
herein before specially described, and desiring that, in order to give effect
to the 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.

XLIII. And be it further enacted by the authority aforesaid, that all
lands which shall be hereafter granted within the said Province of Upper
Canada shall be granted in free and common soccage, in like manner as
lands are now holden in free and common soccage in that part of Great
Britain called England; and that in every case where lands shall be here-
after granted within the said Province of Lower Canada, and where the
grantee thereof shall desire 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 ad-
vice and consent of the Legislative Council and Assembly of the Province.

XLIV. And be it further enacted by the authority aforesaid, that if
any person or persons holding lands in the said Province of Upper Canada
by virtue of any certificate of occupation derived under the authority of
the Governor and Council of the Province of Quebec, and having power
and authority to alienate the same, shall at any time from and after the
commencement of this Act surrender the same into the hands of his
Majesty, his heirs or successors, by petition to the Governor, or Lieutenant-
Governor, or person administering 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 the author-
ity aforesaid, that such surrender and grant shall not avoid or bar any
right or title to any such lands so surrendered, or any interest in the same,
to which any person or persons other than the person or persons surren-
dering 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 grrant shall be made subject to such right, title, and interest,
and that every such right, title, or interest shall be as valid and effectual as
if such surrender and grant had never been made.

XLVI. And whereas by an Act* passed in the eighteenth year of the
reign of his present Majesty, intituled "An Act for removing all doubts and
apprehensions concerning taxation 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 "that the King and Parliament of Great Britain 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^ onlv^ sy^h duties as i*^ ^?y *^fi fTPfdityt to fanr^'''^ for
the regulation of JcQmmjefQe, the net.produce -oi «ttch 4uUes tooe" always
paid ajid applied, to ^"d ^^^ ^^'^ "^** ol t^f Cftjf^^yi ^'^'^'nrfu r>^ Plantation,
in which the same shall be respectively . levied^, in anoh maimer as other
duties collected "by the authority of the respe«|Liv« Gtneral CcMirts or Gen-
eral Assemblies of such Colonies, Provinces, br Plantations are ordinarily
paid and applied" : And whereas it is necessary for the general benefit of
the British Empire, that such power of r^^lation of commerce should con-
tinue to be exercised by his Majesty, his heirs or successors, and the
Parliament of Great Britain, subject nevertheless to the conditions herein

^ See No. XXXin.

1774-1791] Constitutional Documents of Canada. 219

before recited with respect to the application of any duties which may be
imposed for that purpose : Be it therefore enacted by the authority afore- TkU Act not
said, that nothing in this Act cgliuiiied- shall oxtond, og ^ canrtnitd totoprey^ntdie
extend, le prevent or affect the rateuutioh (5t "any Taw' wHich hath been or^^^ct"
shall at anytime be made by his Majesty, hisheirs or successors, and the Parliament
Parliament of Great Britain, fox* establiishing regulations or prohibitions, ^•^^.*^'°«
or for im^QSJDihJsxxiQJf^OT collecting duties for the reputation of naviga- ^^^p^^
liou; ■ur'Tor the regulation of the commerce to be carried on between the duties for thar
said two Provinces, or between either of the said Provinces and any other"P?^**l°"*y .
part-of hfelilajestyV dominions, or between either of the said Provinces^^**^ce*cte.
and any foreign country or state, or for appointing and directing the pay- ^

ment of drawbacks of such duties so imposed, or to give to his Majesty,
his heirs or successors, any power or authority, bv 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. S*SplS3rto***

XLVII. Provided alvay;a*.and be it enacted by the authority aforesaid, the uae of the
that the net produce of all duties which. §hall be so imposed shaH mt allwapective
times-b^gea I ter -fae applied to and for the use of each of the said Provinces *^"*^'"®**'
respectively; and In such manner only as shall be directed by any law or
liMM nlilulr shall be made by his Majesty, his heirs or successors, by and
with the advice and consent of the Legislative Council and Assembly of
such Province. ?»■ M«j«{ty

XLVIII. And whereas, by reason of the distance of the said Provinces £^5'5lccUre
from this country, and of the change to be made by this Act in the Gov- the commence-
ernment thereof, it may be necessary that there should be some interval o^3J5"*J?^^*
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 aforsaid, that it shall and may be
lawful for his Majesty, with the advice of the Privy Council, to fix and
declare, or to authorize the Governor or Lieutenant-Governor of the
Province of Quebec, or the person administering the Government 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. Timea for

XLIX. And be it fui«*ker enacted by the authority aforesaid, that the^/^^"**
time to be fixed by his Majesty, his heirs or successors, or under his oriummonsand
their authority by the Governor, Lieutenant-Governor, or person adminis-«l«ction, etc.,
lering the Government in each of the said Provinces respectively, forSwrn aSt De-*^
issuing the writs of summons and election, and calling together the Legis- ccmber, 1792.
lative 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. Between the

L. Provided always, and be it further enacted by the authority afore- JJ^^Jf^l,
said, that during such interval as may happen between the commencement Act and the
of tills Act within the said Provinces respectively, and tiie first meeting fi"*"**^'?^
of the Legislative Council and Assembly of each of the said Provinces ^^^CoutJcTl
respectively, it shall and may be lawful for the Governor or Lieutenant- and Aasembly,
Governor of such Province, or for the person administering the Govern- |«"Po"nr
ment therein, with the consent of the major part of such Executive Council UJ^e?**^
as shall be appointed by his Majesty for the affairs of such Province, to
make temporary laws and ordinances for the good government, peace, and
welfare of such Province, in the same manner and under the same restric-
tions 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

'Graye dispntea arose between the two Provinces over duties on goods imported
vis the St. Lawrence. These disputes led to the passing of the Canada Trade Act hy
Ae British Parliament (3 George IV, c. 119). See Bradahaw, Self Government in
Cemadc

220 Constitutional Documents of Canada. [1774-1791

Province until the expiration 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 successors, by and with the advice and consent of the said
Legislative Council and Assembly.

f

FOURTH PERIOD

1791-1840

FOURTH PERIOD
1791-1840

The period of Canadian constitutional history after the passing
of the Constitutional Act, which divided the Province of Quebec
into two Provinces, up to the Act of Union of 1840 which re-united
them, is one of the most complicated. The documents are almost
endless and the movement of events with the causes behind them
is so full of minute detail that it is difficult to trace the issues at
stake and to select documents. As a consequence it has been found
impossible in this introductory note to refer to the exact points
which the documents selected illustrate. The broad facts of the
history, almost in the form of a chronicle, can be read in F. Brad-
shaw, Self Government in Canada, and how it was achieved, pp.
46-117 (London, 1903). On the other hand, there are certain
generalizations which it is possible to make. These will illustrate
the difficulties of the period and the story of constitutional devel-
opment.

Firstly, difficulties arose early over the question of supply and
continued to disturb each Province. The Governor had control
over certain crown-revenues, and he could always draw on the
military chest, which was regularly replenished by the British
Government. The Assembly had control only over such monies
as were raised by provincial legislation. Thus the Crown in
Canada was able at any time to carry on the administration with-
out a vote of supply. The history of the period is full of illustra-
tions of this constitutional difficulty, and as long as the Crown was
able to carry on the government in such a way fiiere was a farcical
element in representative institutions. This then was one of the
broad issues. It is true, as a study of the documents will show,
that the protagonists of popular control were often unbalanced
extremists ; yet behind the almost wearisome iteration of their de-
mands there lay the vital constitutional principle that control over
appropriation is essential to any real form of self-government and
of representative institutions.

Secondly, there was in the Constitutional Act no statement of
the respective legislative spheres which belonged to the British
and Provincial Parliaments. A superficial reading of the Act is
sufficient to prove that there were bound to be clashes. In Lower
Canada, the Assembly began with petitions for the redress of
grievances; but when the British Government turned a deaf ear
to these petitions, which apparently it alone could effectively
answer, the Assembly passed from point to point until it claimed
the power of altering the Constitution. This difficulty erected a
second barrier between the Crown and the popular house.

Thirdly, the Executive had no responsibility to the
Houses of Assembly. The difficulty was one of linking up the
executive authority with the elected chambers. As a matter of
fact no solution to that difficulty was found within these years.
The executive was financially and, worse still, constitutionally
independent. That there was a malignant disease, every one
seemed to know, but no one diagnosed it properly, least of all the
Houses of Assembly ; and the various cures suggested during the
period, such as reuniting the Provinces, or a federation of British
North America,* or an elective Legislative Council, contained in
reality no true cure. The Houses of Assembly talked violently
and grandiloquently of "responsible government," and in trying
to get it, without in the least understanding what it implied, they
frequently overstepped constitutional limits and were dissolved
time after time. Constitutionally, of course, the Governor was
as much within his rights in dissolving them as the King would be
in England in dissolving Parliament. There was, however, a vital
point of difference. The King would act on the advice of responsi-
ble ministers, and his act would be of nebulous, if regal, neutrality.
In Canada, on the other hand, the Governor had no responsible
ministers, and he was driven to act in the spirit of a political party
leader. Frequently the Executive and Legislative Councils were
used by the Crown as bulwarks against the popular Assemblies,
and almost generally appointments to them were confined to those
who supported the Governor's administration. The vitiating prin-
ciple constitutionally was that of an irrespofisible executive.

Reference has already been made to various proposed reme-
dies. A perusal of the petitions against union in 1822 will show
how difficult it would have been to balance the centrifugal and
centripedal forces which during this period rendered any larger
scheme outside practical politics. It is, of course, quite easy for
us to see where the Constitution of 1791 was weak, but at the time
no one could see how it was possible to reconcile cabinet and
responsible government in Canada with the sovereignty of the
Crown. Not a few, however, saw that the agitation in Canada
implied responsible government, and faced it at the moment with
a non possumus. It was only after the futile rebellions in both
provinces that any broader vision came. Two quotations* from
\jovA Durham's Report form the best commentory on the period :
"Representative Government coupled with an irresponsible Execu-
tive .... constant collision between the branches of the Govern-
ment; the same abuse of the powers of the representative bodies,
owing to the anomaly of their position ; aided by the want of good
municipal institutions, and the same constant interference of the
imperial administration in matters which should be left wholly to
the Provincial Governments."

"I know not how it is possible to secure harmony in any other
way than by administring the Government on those principles
which have been found perfectly efficacious in Great Britain. I
would not impair a single prerogative of the Crown ; on the con-

> Lord Durhcm*t Report (Edited Lucas, 1912), Vol. II, pp. 194, 278.

trary, I believe that the interests of the people of these Colonies
require the protection of prerogatives, which have not hitherto
been exercised. But the Crown must, on the other hand, submit
to the necessary consequences of representative institutions ; and
if it has to carry on the government in unison with a representative
body, it must consent to carry it on by means of those in whom
that representative body has confidence."

The period closes with Lord Sydenham's work. Liberal selec-
tions are made from his despatches. He began the new era, and
if he only succeeded in stamping his own strong personality on
the Government, yet he made possible the successful rule of Lord
Elgin, under whom full responsible government was set up in
Canada.

1791-1840] ConsHiuHonal Documents of Canada, 227

LVI

AN ACT INTROPUaNG ENGLISH CIVIL LAW INTO UPPER

CANADA. IN THE THIRTY-SECOND YEAR OF

GEORGE THE THIRD. 1792.

[Trans.: Doughty and Mc Arthur, Constitutional Documents (Canadian

Public Archives, 1914)]

An ACT to repeal certain parts of an Act passed in the fourteenth
year of His Majesty s Reign, intituled, "An Acf for fnaking 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 Controversy, relative to Property and Civil Rights.

Whereas, 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 Provincet of Quebec, in North America,** it was,
among other things provided, "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 accommodation of His Majesty's Canadian
subjects : and whereas, since the passing of the Act aforesaid, that part of
the late Province of Quebec, now comprehended within the Province of
Upper Canada, having become inhabited principally by British subjects,
bom and educated in countries where the English Laws were established,
and who are unaccustomed to the Laws of Canada, it is inexpedient tihat
the provision aforesaid contained in the said Act of the fourteenth year
of His present Majesty, should be continued in this Province — Be it en-
acted, 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 by virtue of and under the authority
of an Act* passed in the Parliament of Great Britain, intituled, "An Act
to repeal cert^n parts of an Act passed in the fourteenth year of His Ma-
jesty'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, throughout 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 otherwise to effect 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 to 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 after 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.

^The Qtiebec Act of 1774 (see No. XXV).
•Sec No. LV.

228 Constitutional Documents of Canada. [1791-1840

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 Council of the Province of Quebec, previous to the division oi
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 vaiy, or interfere, or be construed
to vary or interfere with any of the subsisting provisions respecting eccle-
siastical rights and dues within this Province or with the forms of proceed-
ing in civil actions, or the jurisdiction of the Courts already established,
or to introduce any of the Laws of England respecting the maintenance
of the poor, or respecting bankrupts.

LVII

AN ACT ESTABLISHING TRIAL BY JURY IN UPPER CANADA.
IN THE THIRTY-SECOND YEAR OF GEORGE THE THIRD,

1792.

[Trans. : Doughty and Mc Arthur.]

An Act to Establish Trials by Jury.

WHEREAS, the Trial by Jury has been long established and approved
in our mother country, and is one of the chief benefits to be obtained by a
free Constitution — Be it therefore 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
by virtue of and under the authority of an Act' passed in the Parliament
of Great Britain, 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," and by the authority of the same, That from and after
the first day of December, in this present year of our Lord, One Thousand
Seven Hundred and Ninety-Two, all and every issue and issues of fact,
which shall be joined in any action, real, personal or mixed, and brought
in any of His Majesty's Courts of Justice within the Province aforesaid,
shall be tried and determined by the unanimous verdict of twelve Jurors,
duly sworn for the trial of such issue or issues, which Jurors shall be sum-
moned and taken conformably to the Law and custom of England.

II. Provided always, and be it further Enacted by the Authority
aforesaid, That nothing herein contained shall prevent, or be construed to
prevent the said Jurors, in all cases where they shall be so minded, from
bringing in a special verdict.

* See No. LV.

1791-1840] Constitutional Documents of Canada. 229

LVIII

AN ACT FOR THE APPOINTMENT OF TOWN OFFICERS, UPPER

CANADA, IN THE THIRTY-THIRD YEAR OF

GEORGE THE THIRD, 1793*

[Trans. : Doughty and McArthur.]

An ACT to provide for the Nomination and Appointment of Parish and
Town Officers within this Province.

WHEREAS, it is requisite for the maintenance of good order and the
regular execution of the laws, that proper officers should be appointed to
superintend the observance thereof; 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 by virtue of and under the authority of an Act passed in the
parliament of Great Britain, 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," and by the authority of the same,
That it shall and may be lawful, as soon as conveniently may be, after the
passing of this Act, for any two of His Majesty's justices of the peace,
acting within the division in which any parish, township, reputed township
or place may be, to issue their warrant giving eight days previous notice
to the constable of such parish, township, reputed township, or place,
authorizing him on a day to be fixed by the said justices in the present year,
and on the first Monday in the month of March in every ensuing year, to
assemble the inhabitant householders, paying or liable to pay, to any public
assessment or rate of such parish, township, reputed township, or place,
in the parish church or chapel, or in some convenient place within the said
parish, township, reputed township, or place, for the purpose of choosing
and nominating the parish or town officers herein after mentioned, to
serve in their respective offices for the year next ensuing, at which meeting
the said constable shall preside.

II. And be it Enacted by the Authority aforesaid^ That it shall and
may be lawful for the said inhabitant householders, or the greater part of
them so assembled, to choose one fit and proper person from among the
inhabitants to be clerk of the said parish, town, or township, who shall
and is hereby required to make a true and complete list of every male and
female inhabitant within the limits of his parish, town or township, and
return the same to the justices acting as aforesaid, so as they may produce
the said list at the general quarter sessions in the month of April to be
holden, and the said clerk shall and is hereby required, to enter and record
all such matters, as shall relate to the said parish, town or township, and
shall appertain to his office, which records shall be faithfully and carefully
kept and preserved by such clerk, and by him delivered to his successor
duly nominated and appointed.

III. And be it further Enacted by the authority aforesaid, That it
shall and may be lawful for the said inhabitant householders, in manner
aforesaid, to choose two fit and proper persons, from among the said
inhabitants, to serve the office of assessors for the said parish, township,
reputed township or place, who shall assess all such rates and taxes, as
shall be imposed by any Act or Acts of the Legislature of this Province,
and be made payable by the inhabitants thereof.

IV. And also to choose and nominate in manner aforesaid, one fit
and proper person to serve the office of collector for such parish, township,
reputed township, or place, who shall and may, and is hereby authorized,
^rom time to time, to demand and receive from the inhabitant householders,

'Thb Act U the beginning of representative local government in Upper Canada.
The ecclesiastical parish was accepted as the local unit.

230 Constitutional Documents of Canada. [1791-1840

under the said assessment, such monies as may be due and payable from
the said inhabitants, in respect of the matters aforesaid, whidi collector
shall account for and pay over the monies so received by him, in such
manner as shall be directed by any Act or Acts of the said Legislature, that
may authorize the imposing and levying such rates and taxes respectively.

V. And also to choose and nominate in manner aforesaid, not less
than two or more tiian six persons, as shall be specified in the warrant to
be issued by the said justices, to serve the office of overseers of highways
and roads, to oversee and perform such things as shall be directed by any
Act to be passed, touching or concerning the highways and roads in this
Province, which said overseers shall also serve the office of fence- viewers,
and are hereby authorized and required, upon receiving proper notice, to
view and determine upon the heighth and sufficiency of any fence or fences
within their respective parish, township, reputed township, or place, con*
formably to any resolutions, that may be agreed upon by the said inhabit-
ants at such meeting to be holden, under and by virtue of such warrant as
aforesaid.

VI. And also to choose and nominate in manner aforesaid, a person
or persons to serve the office of poundkeeper, who is hereby authorized to
impound all cattle, and each and every horse, sheep and hog that shall
trespass on the lands of any person, having inclosed the same by such high
and sufficient fence, as shall have been agreed on in manner aforesaid, and
also to impound any stoned horse, more than one year old, that shall be
running at large upon the high-ways or commons, and to detain such horse
until the owner thereof shall have paid the sum of twenty shillings, one
half to be paid to the person taking such horse, the other half thereof to
the collector, towards the public stock of the district.

VII. And also to choose and nominate in manner aforesaid, two^ fit
and discreet persons to serve the office of town wardens for such parish,
township, reputed township or place; but as soon as there shall be any
church built for the performance of divine service, according to the use
of the church of England, with a parson or minister duly appointed thereto,
then the said inhabitant householders shall choose and nominate one per-
son, and the said parson or minister shall nominate one other person, which
persons shall jointly serve the office of church warden, and that sudi town
wardens or church wardens, and their successors duly appointed, shall be
as a corporation, to represent the whole inhabitants of the township or
parish, and as such may have a property in goods or chattels of or belong-
ing to the said parish, and shall and may sue, prosecute or defend in all
presentments, indictments or actions, for, and on the behalf of the inhabit-
ants of the said parish.

VIII. And be it further Enacted by the Authority aforesaid, That the
constable presiding at such meeting, shall and is hereby required, to cause
a list to be made out, containing the names of the persons chosen and
nominated to serve and execute the several offices herein before mentioned
in manner aforesaid, which list shall be signed by the said constable, who
shall forthwith communicate the same to either of the justices, having
signed the warrant by virtue of which such meeting was holden, and it
shall and may be lawful for either of the said justices, or for any justice
of the peace, acting within the division, and he is hereby authorized and
empowered to administer an oath of office, to each and every person or
persons so chosen and nominated as aforesaid, with seven days after such
meeting as aforesaid, in the following form :

'*You, A. B., do promise and swear, that you will faithfully, diligently
"and justly serve and perform the office and duties of
"for according to the best of your abilties^

"So help you God."

And that every person having taken such oath, shall be held to be
lawfully appointed to such office, for which he shall have been chosen and
nominated as aforesaid.

IX. Provided always, that any person so chosen and nominated to

1791-1840] Constitutional Documents of Canada. 231

serve any of the offices herein before mentioned in manner aforesaid, who
shall refuse or neglect to signify his consent to enter upon such service,
and to take the oath herein before set forth by the space of seven days
after such nomination as aforesaid, shall forfeit and pay the sum of forty
shillings for every such neglect or refusal, to be recovered upon proof
thereof on confession, or by the oath of one credible witness, before any
one justice of the peace, acting within the said division, to be levied by
warrant of distress, and sale of the goods and chattels of the party so
neglecting or refusing, and to be paid into the hands of the treasurer,
towards tiie public stock of the district, except in the case of forfeiture ot
any person or persons nominated to be overseers of the highways and roads,
and refusing to act, whose penalties shall be paid into the hands of the
commissioners of the highways and roads, and that it shall and may be
lawful, in case of refusal as aforesaid, for any two of his Majesty's jus-
tices, acting within the said division, to hold a special session for the pur-
pose of naming one or more person or persons to serve the office, that may
have been refused by the party chosen to serve the same, and fined in manner
aforesaid, and if the person or persons so named by the said justices, upon
being served with due notice thereof, which notice the constable is hereby
required to serve upon the person, or leave the same at his usual place of
abode, shall neglect or refuse by the space of seven days, after the service
of such notice, to accept the said office, and take the oath herein before

?Tescribed, he shall for every such neglect or refusal, forfeit the sum of
orty shillings, to be levied by distress and sale, and paid over in manner
herein before mentioned.

X. And be it further Enacted by the authority aforesaid. That it shall
and may be lawful for the justices of the peace, within the respective
limits of their commissions at their general quarter sessions in the month
of April assembled, or the greater part of them, to nominate and appoint
yearly and every year, a sufficiently discreet and proper person, to serve
the office of high constable in each and every district, and also to nominate
and appoint, such a sufficient number of persons, as in their discretion will
be necessary, to serve the office of constable in each and every parish, town-
ship, reputed township, or place, and the said constable and constables,
before they enter upon their office, shall severally take the following oath,
which it shall and may be law f til for any justice of the peace to admin-
ister—

"YOU shall well and truly serve our Sovereign Lord the King, in the
"Office of for the of

"for the year ensuing, according to the best of your skill and knowledge —
'"So help you God."

XI. Provided always, and be it further Enacted by the Authority
aforesaid. That no person having been appointed and served any of the
offices mentioned in this Act, shall be liable to be appointed, or serve the
same office, within three years from such appointment, and service, unless
he shall consent thereto.

XII. Provided also. That when any township, or reputed township,
shall not contain thirty inhabitant householders, it shall not be lawful for
the said justices to issue their warrant for calling a meeting therein, but
the said mhabitant householders shall be joined to and be reputed and taken
as inhabitants of the township adjacent thereto, which shall contain the
smallest number of inhabitants.

XIII. And be it enacted. That it shall apd may be lawful for the
justices of the Peace within the respective limits of their commissions,
at the General Quarter Sessions in the month of April to be holden,
assembled, or die greater part of them, to limit and appoint such fees and
perquisites as to them shall appear reasonable to be demanded and takeii
by every town clerk and pound keeper of the several parishes or townships
within their respective districts.

220 Constitutional Documents of Canada, [1774-1791

Province until the expiration 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 successors, by and with the advice and consent of the said
Legislative Council and Assembly.

i

FOURTH PERIOD

1791-1840

234 Constitutional Documents of Canada. [1791-1840

Several Members of the Upper and Lower House are supposed to be
actually under this disqualification.^

LXI
DUNDAS TO DORCHESTER
[Trans.: Doughty and McArthur.]

Whitehall, 17th July, 1793.

From
Mr. Secretary Dundas
My Lord

Having maturely considered the Suggestions' submitted to me by your
Lordship relative to His Majesty's North American Governments, I take
this opportunity previous to your Lordship's departure for Quebec of
conveying to you, my sentiments upon each of them separately, and in the
order in which they stand in a Copy of them hereto subjoined.

The first suggestion cannot be carried into execution without an Act
of Parliament; but I have great doubts as to the measure itself, and it
requires reasons more forcible than any which have yet occurred to me,
to convince me that such a confederacy amongst the distant dependencies
of the Empire, can either add to its own strength or the real happiness of
the di£Ferent Provinces.

I am, my Lord,

Your L's M. O., H. S.,

(Signed) Henry Dundas.

LXII

SIMCOE TO PORTLAND"
[Trans. : Doughty and McArthur.]

Kingston, Upper Canada,
December 21st, 1794.
My Lord Duke,

In the present situation of Affairs in this Country, I beg to offer for
Your Grace's immediate Consideration some important Objects which will
be affected by the Arrangement now under Contemplation between His
Majesty and The United States; these Objects relate entirely to the civil
Government.

A Principle on which I have considered this Government as most
wisely established, and which I have never lost sight of in its Administra-
tion, has been to render the Province as nearly as may be a perfect image
and transcript of the British Government and Constitution. In the pursu-
ance of this Object and in order to give weight and respectability to the
Legislative Council, which his Majesty and the Parliament had constituted
as a Branch of Government, I thought it proper, having divided the districts
into Counties to create Lieutenants, selecting them where practicable from
the Legislative Counsellors and giving to the Lieutenants as nearly as
circumstances would admit, the appointments or recommendation of the
Magistrates, and the nomination of the Officers of the Militia, as stated

* See Constitutional Act 1791, || 20*24 (No. LV) for the qualifications for fran-
chise and memberdiip of the House of Assembly. For the whole question of natnrali*
cation, see Douriity and McArthur, p. 107, note.

■ See No. LX.

* This despatch and the following document throw an interesting liriit on some of
Simcoe's characteristic enthusiasms in Upper Canada. (See Duncan Campbell Scott,
John Graves Simcoe, 1905.*) Portland was appointed Secretary of State for the Home
Department in July, 1794.

1791-1840] Constitutional Documents of Canada, 235

in the Grcnlar Letter', I beg to enclose to Your Grace — ^I have reason to
believe this arrangement will in due Progress answer the intention.

The Towns of Kingston and that on the River Niagara from their
situation must be places of great resort. I therefore beg to submit to
Your Grace, That I think, It would be for the public Interest and the
King's benefit, that These places should be incorporated and named the
Cities of Kingston and Niagara; I should propose that the Corporation
should consist of a Mayor and six Aldermen, Justices of the Peace ex
officio, and a competent number of Common Council, to be originally
appointed by the Clbwn, and that the succession to vacant seats might be
made in sudi a manner as to render the Elections as little popular as pos-
sible ; meaning such Corporations to tend to the support of the Aristocracy
of the Country.

I should propose that these Corporations should have maritime Juris-
diction, if such shall either at present or in future be necessary to take
place on the Lakes and River St. Lawrence — The whole Jurisdiction of
Lake Ontario might well be divided between Niagara and Kingston and
the intermediate Port of York,

The St. Lawrence might be divided between Kingston and Cornwall
or New Johnstown — Erie might be divided between Niagara and the Post
to be taken near to Long Point. From thence the Jurisdiction of Long
Point, might extend to the Isle Bois blanc, and from thence, that of
Giatham might begin and terminate at Cabots Head (Pennatangushene)
or Gloucester should comprehend all the Maritime Jurisdiction beyond that
on Lake Huron and Superior and the North Western territory.

It also appears, and possibly more eminently necessary, that I should
observe to Your Grace, the propriety of establishing, probably by Treaty
with the United States, some law to prevent Criminals of a certain descrip-
tion finding refuge in His Majesty's dominions and those of the States,
respectively. It appears to me that a vigilant Police is most necessary on
the limits of the two Countries for that express purpose; and perhaps.
It may be proper to enact stricter Laws on this Subject, and applicable to
Particular Spots, that nyght not be justifiable or necessary to be extended
over the other parts of die Province. The straits of Niagara and the Port
of Kingston are the general places at which strangers enter the Province,
and where People leave it, It seems therefore, that establishing a Corpora-
lion at these places with adequate jurisdiction may be of public Service in
these respects.

Great Britain from its insular situation (as far as I recollect) affords
no examples of English laws being applicable to boundaries respecting a
foreign Neighbour; and in particular, of communications by water; a
division on which must form such a boundary. The term debateable land,
when England and Scotland were separate Kingdoms seems to support the
propriety of my wish that so soon as possible the Laws may define and
comprehend for the purposes of internal Government both the land and
water under certain Jurisdictions.

I have to observe to Your Grace these proposed Corporations, should
have the right of "suing and being sued and sufficient powers for giving
efficacy to all internal regulations and by these means of promoting the
welfare of the Community, without any of those monopolies which exist in
European Corporations —

The Basis adopted for an equal Representation of the People of the
Province was Its population, ascertained by the Militia Rolls — This Prin-
ciple, liable from its own nature, and the situation of the Country to
fluctuate, will in a more particular manner become unequal, should Detroit
be relinquished to the United States — It therefore appears to me, season-
able that I should request Your Grace's directions on what established
Principle the Extension of the number of Representatives should hereafter
take place? and It may be worthy of your consideration whether in the
present peculiar Instance It may or may not be proper to give the Right

> Sec No. LXm.

236 Constitutional Documents of Canada. [1791-1840

of electing Members to the Inhabitants of the proposed cities of Niagara
and Kingston ; which certainly will add to their respectability — ^both, should
include a competent tract of Ground, and for all purposes, the former
should include Queenstownf where some Proprietors mean to build largely
the ensuing Year, and the present town of Newark,

In respect to existing circumstances, It appears to me of consequence.
That Niagara should be incorporated so soon as possible, were it only to
preserve its name in the King's Dominions. It is the policy of the United
States to call themselves solely Americans, not only with the view to melt
down in that general name every part of their Confederation, but to en-
force when time shall suit, their principle, "that all Colonies connected with
European Governments, or depending upon them are foreign, and invaders,
and that They themselves only are the Natives."

Having no Chief Justice, and being at a distance from the Attorney
General I have thought proper at the present Crisis to offer These ideas
to Your Grace In Hopes that should they be deemed worthy of attention,
Charters of incorporation with such powers may be forwarded to me from
England, before the meeting of the next Session; and I am to observe to
Your Grace, That as by Act of Parliament' the ensuing Session will be the
last of the present House of Assembly, It will be provident, to pass every
Bill, that may be necessary before it be dissolved, as it not be probable that
a more loyal or better disposed set of men will oe again reassembled.

It has been represented to me, that the Act of Parliament* which
established the Constitution of this Country, specifying that the Lands
should be granted in free and common soccage, is at variance with His
Majesty's Instructions which preclude my granting Lands without The
reservation of Mines which may be discovered ; and It is stated to me that
a Grant in free and common Soccage reserves only to the Crown, Mines of
Silver and Gold, '

I shall be glad of Your Grace's immediate directions on this Point;
in particular as I meant to submit to you whether the grant of Iron Mines
might not be made by the Government of this Country, there is every
probability that They may be usefully worked — ^And I presume that His
Majesty's Ministers do not mean to follow any system which may preclude
such rude Manufactures as may be necessary for the benefit of the Country.

* ♦ * * 4c ♦

I have the honour to be with great Res'pect and Deference.

My Lord Duke
Your Grace's

most Obedient and

most humble Servant

J. G. SiMCOE.

LXIII
SIMCOE TO LIEUTENANTS OF COUNTIES, 1794

Sir

Having thought it necessary for the public benefit to create Lieutenants
of those Counties within the Province which are sufficiently populous to
require such a Superintendency, I enclose to you a Commission under the
Great Seal of Upper Canada appointing you Lieutenant of the County
of

It may not be improper to observe that this high office under the
Constitution of Great Britain is generally conferred upon the Persons who
seem most respectable to His Majesty's Government for their property.
Loyalty, Abilities and Discretion in their several Counties, and who from
a combination of such Possessions and Qualities acquire that weight,

1 See Constitutional Act, | 27 (No. LV).
*Ihid, I 43.

1791-1840] Constitutional Documents of Canada^ 237

respect and public confidence which renders them the natural support of
Constitutional Authority.

If on the one hand this Office has been at all times bestowed by the
Sovereign with the Circumspection and Caution due to the Important
Trusts which it involves; on the other; it has been a principal object of
honourable Ambition which the British Constitution approves in the first
Men of any State making a due provision of Power for that legal Aristo-
cracy which the Experience of Ajges has proved necessary to the Ballance
and Permanency of her inestimable form of Government.

In Naming You, Sir, to this office on the first establishment of the
true British Constitution in her Colony of Upper Canada, I am influenced
by the Consideration of finding you already at the Head of the Civil Juris-
diction of the County in which you reside, and having the same Opinion
of Your Loyalty, and Character which occasioned Your Original Appoint-
ment, I am happy in adding my public Testimony to that of Lord Dor-
chester.

It is my wish, that the Magistrates whom you are now to superintend
may appear to you to be worthy to be continued in Office, but should there
be Improper persons in that Station, You will be pleased without hesitation
to give me the necessary Information.

A Commission will probably be issued soon after the meeting of the
Legislature, agreeably to the British Custom including Such persons in
each County as shall appear proper to be continued, or added, if any Addi-
tion shall seem necessary to the Several Lieutenants as Justices of the
Peace.

In regard to the Militia of your County, as it is to be supposed that the
Legislature will shortly frame a General Act for the Province, I should
not wish at present to make any Alterations in its Officers; You will be
pleased however to be prepared with such lists as may be necessary to fill
up any vacancies or to supply any Augmentation, should such appear
requisite — All Commissions are to be recommended by you, and if then
they shall be approved by me, they are to be signed as in the British Act

by you as Lieutenant I beg to observe that I consider all those

who keep Taverns, however respectable in their private Character ; as not
admissable either as Officers of the Militia or Justices of the Peace. You
will be pleased to take the customary Oaths with as much Publicity and
Solemnity as possible.

I am Sir etc.

(Signed) J. Graves Simcoe.

LXIV
PORTLAND TO SIMCOE

[Trans. : Doughty and McArthur.]

Whitehall, 20th May, 1795.
Lieut Governor Simcoe,

Sir,

mi * * * * *

Both the Measures' seem very unfit to be encouraged by the Parent
State in a dependent Colony — The Legislative Power being given up to
an Assembly of their own, it is only thro' the executive Power, vested in
the Person having the Government of the Province, that the Sway of this
Country can be exercised — Every kind of Authority that is not incon-
sistent with the Constitution given to the Province, ought, therefore, to
be concentered in his hands — Whereas the evident tendency of both these
measures, is to fritter down his direct Power, and to portion it out among
Corporations and Lieutenants, who, on many occasions, may be disposed

^i.e. The plans of creating Corporations and of establishing Lieutenants of Coun-
ties (sec Nos. LXII and LXIII). This despatch illustrates contemporary ideas of
colonial government.

238 Constiiuiional Documents of Canada, [1791-1840

A

to use it in obstructing the Measures of Government, and, in all events,
will require to be courted and managed, in order to secure the right direc-
tion of the Influence thus unnecessarily given them. I have entered pur-
posely more at large into these proposed Measures, because I observe that
your adoption of £hem arises from an idea, that by assimilating the modes
of the Government of the Province, to the modes of the Government of
England, you will obtain all the beneficial effects which we receive from
them — Whereas to assimilate a Colony in all respects to its Mother Country,
IS not possible, and if possible, would not be prudent. The one may have
many Institutions which are wholly inapplicable to the situation of the
other — Some there may be, which we permit to continue here only, because
they already exist, and are interwoven with other parts of the Government,
but which, perhaps, if we had a choice, we should not now be disposed
originally to introduce — Such, in the Opinion of many, are Corporations,
and separate Jurisdictions of all sorts. Others there are which may be
objectionable in a Colony, as tending to lessen the Authority which the
Parent State ought to possess over it, as long as that relation subsists
between them — Of this description I conceive to be all subordinate Powers
created in the Colony, beyond those which are absolutely necessary for its
internal Police — The Power of the Person having the Government, is
the Power of this Country; but such subordinate Powers as are proposed,
are not ours. We have no connection with, or direct Influence over, those
who exercise them — They are rather means and instruments of Independ-
ence. Having said thus much, it must depend on local circumstances and
further consideration, how far it may be expedient to attempt to undo
anything that has been already done; but I can see no ground that will
authorize me to encourage the further prosecution of either of the Meas-
ures in question.

i» * * * * *

I am, &c.

Portland.

LXV

MILNES TO PORTLAND*

[Trans. : Doughty and McArthur.]

Quebec, 1 November, 1800.
MY LORD

On my first taking upon myself the administration of the Affairs of
this Province I was extremely struck with the wavering state in which I
found the Interests of Government. I have since been at much pains to
discover the real Causes of this situation of things which I plainly saw lay
deeper than, I believe, is generally supposed by His Majesty's Ministers;
and I am so forcibly impressed with a persuasion that this Subject ought
to be attended to, that I feel it my Duty to lay before Your Grace, such
Remarks as have occurred to me respecting it, in order that Your Grace
may be fully apprized of the real State of the Country, and take such
Measures as you may think fit to strengthen the Executive Power in Lower
Canada.

However excellent in itself the new Constitution may be which His
Majesty has graciously been pleased to grant to the Province, I conceive
the Foundation of it must rest upon a due proportion being maintained
between the Aristocracy and the lower Orders of the People, without which
It will become a dangerous Weapon in the hands of the latter. Several
Causes at present unite in daily lessening the Power and Influence of the
aristocratical Body in Lower Canada: I cannot however but think that

^ This despatch illustrates the workings of the Constitutional Act of 1791. It i«
also valuable, as it throws light on the position of the Executive Govemment and the
House of AMembly in Lower Canada before the racial struggle began to complicate
the issues.

1791-1840] Constitutional Documents of Canada. 239

Measures might be adopted to counterbalance in some degree this Tend-
ency, and I shall hereafter have the Honor to point them out to your Grace :
but in order to make myself clearly understood I must first explain what
I consider to be the principal Causes by which the Influence of die Aristo-
cracy in this Country has gradually been reduced to it's present State.

The first and most important of these I am of opinion arises from the
manner in which the Province was originally settled; that is, from the
independent Tenure by which the Cultivators (who form the great Body
of the People and are distinguished by the appellation of Habitants) hold
their Lands ; and on the other hand from the inconsiderable Power retained
by those called the Seigneurs, and the little disposition they feel to encrease
their Influence, or improve their Fortunes by Trade. Hence bv degrees the
Canadian Gentry have nearly become extinct, and few of them on their
own Territory have the Means of living in a more affluent and imposing
Style than the simple Habitants who feel themselves in every respect as
independent as the Seigneur himself with whom they have no further Con-
nexion than merely the obligation of having their Com ground at his Mills,
paying the Toll of a Fourteenth Bushel, which they consider more as a
burthensome Tax than as a Return to him for the Lands conceded by his
Family to their Ancestors for ever upon no harder Conditions than the
obligation above mentioned, a trifling Rent, and that of paying a Twelfth
to the Seigneur upon any transfer of the Lands.

The Second Cause which I apprehend tends to lessen the Influence of
Government in this Province is, the prevalence of the Roman Catholic
Religion and the Independence of the Priesthood^: this Independence I
find goes considerably further than what was intended by the Royal
Instructions wherein it is particularly declared to be His Majesty's Pleasure
'*that no Person whatsoever is to have Holy Orders conferred upon him,
or to have the Cure of Souls without a License for that purpose first had
and obtained from the Governor," etc. etc But this Instruction has hitherto
never been enforced, by which means the whole Patronage of the Church
has been thrown into the hands of the Roman Catholic Bishop, and all
connexion between the Government and the People through that Channel
is cut off, as the Priests do not consider themselves as at all amenable to
any other Power than the Catholic Bishop.

A singular Instance lately occurred of this Independence: A Priest
at Terrebonne near Montreal interfered in the most indecent manner in
the late Election for the County of Effingham ; he exerted all his Influence
to prevent the Solicitor General from being chosen, and violently supported
a Man who had been expelled from the last House of^Assembly on account
of his having been convicted of a Conspiracy, and who was consequently
considered as a dishonored Person.*. Upon this man's being chosen the
Priest actually went so far as to perform High Mass in the Parish Church,
to return Thanks as he termed it, "for the reelection of this Martyr." In
justice to the Canadian Bishop I must add, that upon my Representation
he did every thing which was proper to be done on the occasion.

Another Circumstance which has greatly tended to lessen the Influence
of Government since the Conquest has arisen from the necessity which then
existed of disembodying the Militia : but as I am by no means of Opinion,
considering the Circumstances which took place a few years since, that it
would be either practicable or prudent to call out the Militia at this particu-
lar moment I shall not enter further into this Subject at present, though
I shall hereafter revert to the Militia even in its present State as a Means
by which a certain degree of Influence might still perhaps be established
in the several Parishes.

It may be unnecessary to observe to your Grace how much more
important the above Facts are become since the establishment of the new

^For a furtlier diacuasion of this point see Sir James Craig's despatch to Lord
Uverpool, 1 May, 1810 (No. LXXIII).

'i.e. Charles B. Bone, who, after being expelled from the House of Assembly,
raccessfully ran for the County of Elfiini^am against Solicitor-General Foocher in
1800. He was disqualified by Act of Parliament in 1802.

240 Constitutional Documents of Canada. [1791-1840

Constitution. In the time of the French Government an Ordinance, issued
in the name of the King, was sufficient to enforce the execution of any
Measure that was deemed expedient without any discussion taking place
upon the subject, or its entering into the Minds of the unlettered Habitants
to doubt for a moment the propriety of the Measure.

But since the establishment of the present Constitution in the year 1792,
the Case is very different every thing being previously discussed in the
House of Assembly ; and unless a certain preponderance can be maintained
in that House (which at present is by no means as firmly established as I
could wish) the Power of the Executive Government will insensibly become
nothing.

Very few of the Seigneurs, as I have already hinted, have sufficient
Interest to insure their own election or the election of any one to whom
they give their Support in the House of Assembly, and the uneducated
Habitant has even a better chance of being nominated (though he cannot
perhaps sign his name) than the first Officer under the Crown : There was
a moment when I even despaired of getting the Attorney General* into the
present Assembly; and though it is undoubtedly better composed than the
last, it is far from being so respectable a Body as Cxovemment might wish.

The Canadian Habitants are I really believe an industrious, peaceable
and well disposed People ; but they are, from their want of Education and
extreme simplicity liable to be misled by designing and artful Men, and
were they once made fully sensible of their own Independence, the worst
Consequences might ensue. They are in fact sole Proprietors of nearly all
the cultivated Lands in Lower Canada.

The Seigneurs and Ecclesiastical Bodies to whom the Lands were
originally granted having conceded the greater part of their Lands for ever,
with little or no reserve, to the Cultivator in small Parcels of from One to
Two Hundred acres retaining only as I have already observed the Property
and Profits of the Mills, a certain Proportion of their Produce which is
sometimes paid in kind and in various ways, and the Lods et Ventes ; and
this Species of Property attached to the Seignorial Rights is by the ancient
French Laws of Inheritance, which occasion frequent subdivisions of Prop-
erty, in a few Generations become quite inconsiderable, whereby the Situa-
tion of the Seigneur has in many instances been reduced below that of tiie
Vassel. Each Habitant cultivates as much Land as he can manage with
the Assistance of his own family, and as is necessary for its support; and
having thus within themselves from year to year all the Necessaries of
Life, there cannot be a more independent Race of People, nor do I believe
there is in any part of the World a Country in which Equality of Situation
is so nearly established. Except in the Towns of Quebec, Montreal and
Three Rivers, little or no difference is observable in the affluence of the
Canadians but what may in some Measure arise from the local Circum-
stances of more or less favorable Situation, a richer Soil, or a greater or
less degree of exertion.

The Counties are divided into Parishes each Parish chiefly extending
about Three Leagues along the Rivers St. Lawrence and Chambly, and to
each of which there is a Parochial Church; the principal Person in every
Parish is in general the Priest, and the next the Captain of Militia, and
it is through the latter that any Business is transacted for Government

Having? endeavoured to give your Grace some insight into the actual
State of this Country, which I could more fully enlarge upon if I was not
apprehensive of intruding too much upon your time till I have received
your permission so to do, I shall proceed to point out the means by which
I imagine the Influence of Government might be immediately extended to
the distant Parts of the Province, and though I am conscious this cannot
be effected without a certain expence to the Mother Country, I consider
that expence as inconsiderable when compared to the Sums it would require
to quell any disturbance that might for want of timely precaution take
place in the Province: the apprehension of such an Event though not

^Jonathan SewelL

1791-1840] Constitutional Documents of Canada, 241

immediate is strongly impressed on the Minds of some of the best Friends
of Government

I am well aware the chief Object to be depended upon to encrease the
Influence of the Crown, will be by means of the Waste Lands ; and in that
point of view the delay that has taken place in Uie Land Business is greatly
to be regretted and it becomes an Object of peculiar importance to Govern-
ment that no further delay may occur to prevent the clearing and settling
of the immense Tracts that are now in the hands of the Crown undisposed
of, as their being granted in free and common Soccage will in time (if
judiciously granted) form in this Province a Body of People of the Protes-
ant Religion that will naturally feel themselves more immediately connected
with the english Government; but as this cannot be expected to have any
immediate Effect, I am inclined to think that in the mean time much may
be done first through the catholic Priests, and secondly by means of the
Militia.

The present Catholic Bishop* is extremely well disposed to Government ;
he is allowed by His Majesty Two Hundred Pounds per annum as Super-
intendent of the Romish Church; in addition to which he receives from
Government a Rent of ilSO per annum for the use of the Bishop's Palace
at Quebec which is occupied by Public Offices; He has lately applied to
me for an encrease of this Rent, signifying at the same time that his Income
is very inadequate to his Situation and the Calls which are made upon it,
which I have reason to believe is a just Statement. This Application offers^
an occasion of attaching the Canadian Bishop more particularly to Govern-
ment, if by such an encrease of his appointments as His Majesty shall
graciously be pleased to allow his Situation was made easy, at the same
time requiring of him a strict attention to that part of His Majesty's
Instructions to the Governor which I have before mentioned*.

This I am of opinion would tend very much to increase that Consid-
eration which the Priests themselves ought to feel, and to encourage in
their Parishioners for the Executive Government, at the same time that it
would ensure the cooperation of the Canadian Bishop: But in order to
carry this point particular care must be taken to chuse a proper moment,
and if the Bishop should be found decidedly averse to make the Sacrifice
required of him, it ought perhaps to be defered till the Peace.

The Priests have a 26th of all the Grain, which may be valued at
Twenty Five, or Twenty Six Thousand Pounds a year, which alone must
make their Influence very considerable, and especially as the Religious
Bodies are in possesison of nearly One Fourth of all the Seignorial Rights
granted before the Conquest (excepting those of the Jesuits Estates latterly
taken into the possession of the Crown) as will appear by the Inclosure.

With regard to tiie Militia it will be more difficult to give Your Grace
a clear and distinct Idea of the Mode in which I am inclined to think use
may be made of this Body to support the Interests of Government through-
out the Province, and to disseminate Principles of loyalty amongst the
Canadians in opposition to that spirit of democracy which has lately gained
so much ground in many Parts of the World, but fortunately has not at
present made any material progress in Canada.

The Population of Lower Canada is computed as about One Hundred
and Sixty Thousand Souls, Nine Tenths of whom reside in the Parishes
before described, distinct from the Towns, and from these are drawn the
Canadian Militia which amount to 37,904 between the ages of 16 and 60.
In the Parishes here aluded to, there are 292 Captains of Militia who are
chosen from among the most respectable of the Canadian Habitants (the
£tat Major amounting to 16 being in general chosen from among the
Seigneurs) and here it is necessary to inform your Grace how far under
the dominion of France the Body of the People were regulated in all public
Matters by the Officers of Militia; the Captains of Militia being the Persons

'Biahop Denaut. The Bishop's palace was used by the Legislative CottncU for its
nectinn till 1838.

, ' For a similar scheme in 1810, see No. LXXIII, p. 266. Milnes' suggestion doubt-
IcM owed its origin to H. W. Ryland (see note on No. LXVIII).

P

242 Constitutional Documents of Canada, [1791-lJ

employed to issue and enforce the public ordinances and the Corvees,
who through the Authority thus delegated to them by Government ]
sessed considerable Influence in their respective Parishes.

Although under His Majesty's Government these Powers have i
great Measure been withdrawn, especially since the establishment of
new Constitution, there still remains in the minds of the Canadian
certain Consequence attached to the Character of Captain of Militia;
as I have before observed to your Grace, it is still customary on all pu
occasions to employ this useful Class of People to perform many Servi
for Government which they have hitherto done without other reward tl
merely that arising in their own Minds from the Honor and respectabi
of the Appointment; but this though sufficient to render it desirable is,
they feel, by no means an equal return for the considerable Portion of tl
time so employed: If then by means of an honorary and pecuniary rews
or by any Plan that may be approved of by the Executive Council, 1
Class of the Canadians could be brought to consider themselves as
immediate Officers of the Crown, and peculiarly attached to the Intel
of Government, there is no doubt that such an Influence from the Circt
stance of being equally diffused over the whole Province would effectd
tend to keep alive among the great Body of the People that Spirit of ^
and Loyalty for monarchical Government which I believe to be natural
the Canadians, but which for the want of an intermediate Qass to whi
they can look up, and from their having no immediate Connexion with I
Executive Power is in danger of becoming extinct.

That Loyalty is a lively principle in the Breasts of the Canadiani
have no doubt, if I may judge from the expressions of satisfaction whi
are shown by all Ranks whenever the Representative of His Majesty oi
passes through the Country: this I myself experienced (though at t)
time personally unknown) in the Tour I lately made through liie Provini

There are several other Means besides those I have already stated
which I am convinced, a proper Bias may be maintained in the Minds
the Canadians, so as I should hope would secure the Province against ^
internal Commotion or Disaffection, the Details of which I shall rese
until I shall receive your Grace's Sanction to trouble you further on tl
head, particularly as in order to give your Grace a complete Idea of
Subject and the extent of my Plan it will be necessary to solicit yi
attention while I lay before you a Sketch of the relative Expences of
Civil Department of Lower Canada, and the Military Expenditure of
Canadas, by which it will appear how little Proportion exists in the E
pences of those Departments, and what a considerable saving may hereaft
accrue to Government if according to the Plan proposed, and by a mo
liberal allotment to the Civil Expenditure such an Influence could i
attained over the Minds of the Canadians as might in the course of tid
not only secure the Province from any interior Commotion or disaffectio
but likewise insure the cooperation of the Inhabitants in the Defence of t|
Province against the Attempts of a foreign Enemy without the aid of suj
a considerable military Establishment as the Mother Country has hitherl
maintained in this part of His Majesty's Dominions.

The Deficiency of the Revenue, upon an average of the last Five yeai
of the Civil Expenditure, amounts as will appear in the Paper I have tl
honor to transmit, to il2,000 per annum, and the yearly Military expense
of the two Canadas, according to the best Information I can collect, I
about £260,000. This Expence would in the case of any Tumult or Insul
rection in the Country, or -Of a War with the neighbouring States, moj
probably be doubled its present amount; and this Consideration alotl
shews how infinitely important it is to the Mother Country that your Gn<
should be made acquainted, while there is yet time, with every means b
which the Influence of the Crown may be encreased, and the hands of tn
Executive Power strengthened. But there is another Consideration <>
perhaps greater importance than any above mentioned ; could such an Inflti
cnce be obtained throughout the Province by means of the Priests and th!
Captains of Militia as I have ventured to look forward to, that Influeno

' * 1791-1840] Constitutional Documents of Canada, 243

^^:, when fully established might also be employed so as at all times to ensure

a Majority in favor of Government in the House of Assembly, and to

..^ secure the election in that House of such Men as from their Education

^; . and Knowledge of Business are most likely to see the real Interests of the

;;^ Province in their true light, and not to be deluded by the falacious Argu-

-. . ments of any popular Speaker from giving their entire Support to the

. , Executive Government. The defect of such an Influence over the Elections

"^ ^ lessens the respectability of that Assembly in a very great degree, and

.. . particularly as from the absolute Want which has so long existed of the

^j Means of Education and the inability of the Canadians to support the

[:/ Expence that would attend sending their Sons to the Mother Country for

. that purpose, there are at present scarcely any rising Men, and but few

,' Men of talents among the Canadian Gentry.

From this and other Causes the Business of the House of Assembly

\j is transacted with so little System or regularity that the oldest Members

';, are some times unable to form a judgment of what is likely to be the result

y^ of their deliberations on the most common Subjects.

r^ While a due preponderance on the side of Government is so manifestly

^ , wanting in the Assembly it is considered by the Well wishers of Govem-

^ ment as a fortunate Circumstance tiiat the Revenue is not at present equal

to the Expenditure, & your Grace will immediately see the necssity on this

^^ account of preserving, in appearance at least, that disposition in a greater

' or less degree, as there is reason to apprehend that in case the Province

^ could be induced to Tax itself in a degree equal to the Calls of the Ex ecu-

'^ ti ve Government, the Right of regulation and control over the whole would

J probably be aspired to by the Assembly, which could not fail of producing

, the most injurious Consequences to the Colonial Government, rendering it

'^ from that moment dependent on the Will of a popular Assembly.

J The Burthen which is at present thrown upon the Mother Country

■;^ will be fully compensated for whenever the Sums that shall arise from the

^ Sale of the Waste Lands begin to come in, and particularly if (as appears

\ by the Dispatch of the 13th of July 1797 to Gen. Prescott to have been in

, contemplation) it should be determined to appropriate the Monies arising

^ from those Sales to the purchase of Stock in the English Funds, and the

J Interest of this Stock to go in aid of the Civil Expenditures of the Province

^ in such manner as the Lords Commissioners of His Majesty's Treasury

^ may direct

The Quantity of Land which from first to last will have have been at
. the disposal of Government is computed at about 150 Townships equal to
. Ten Million of Acres which have actually been applied for, including as is
, supposed the principal part of the ungranted Lands in Lower Canada that
, are deemed convenient for settlement and fit for cultivation.
^ Of the above about 35 Townships only are in contemplation to be-

J granted on the original Terms proposed in the year 1792 consequently 115
I Townships will remain for the future disposition of the Crown exclusive
^ of the Church and Crown Reserves consisting of Two Sevenths set a part

in the Townships already granted.
, The Wealth, Power and Influence that must accrue to the Mother

^ Country when those Lands become settled is an object of self evident
I magnitude, and must in time make a full return for whatever will be found
, necessary in the mean while to support and secure so valuable a Colony.

I flatter myself there can be no doubt that the liberality with which
I His Majesty has lately been pleased to provide the Means of Education in
. the Province will go a great way to secure the affection and loyalty of the
^ rising Generation who would otherwise be in danger of imbibing Principles
mimical to His Majesty's mild and paternal Government by the necessity
which has hitherto existed of their being sent to the neighbouring States
for education. The respectable footing upon which the Protestant Church
is about to be put in Quebec will likewise tend to encrease that Considera-
tion which ought to prevail for the Established Church.

When I began this Despatch I did not foresee the length into which
I have been inevitably drawn, but I trust I shall stand excused in the

244 Constitutional Documents of Canada. [1791-1840

opinion of your Grace by the motives that have actuated me in this research,
and I may truly say I have no other view than a full and consciencious
discharge of all the Duties that belong to the Situation which His Majesty
has been pleased to entrust to me.

I have the Honor to be
My Lord,
Your Grace's

Most obedient and
Most humble Servant

ROBT. S. MiLNES.

LXVI

PORTLAND TO MILNES

[Trans. : Doughty and McArthur.]

Whitehall, 6 January, 180L
Sir, —

The matters stated in Your Letter to me separate and secret of the
1st November* are so highly important to the King's Canadian Government
that I shall make them the subject of the separate Dispatch.

The prevalence of the popular influence in Lower Canada seems to be
attributed by you to three principal causes, viz. — ^first, the separate and
unconnected Interests of the Seigneurs and the Habitans, by which the
latter are become totally independent of the former, and are not likely to
be influenced by them in any respect — secondly — ^the Independence of the
whole body of the Roman Catholick Gergy, who are accountable to no
other authority than that of their own Bishop; and thirdly — the necessit}'
there has been of disembodying the Canadian Militia, in consequence of
that Country's having been conquered by His Majesty's Arms, and the
inexpediency of their being called out under the present circumstances.

As the separate and unconnected situation of the Seigneurs and Habi-
tans arises from the Established Laws and Usages of the Province in
regard to the property held in tiiese two descriptions of Persons, it is an
evil certainly to be regretted, but I fear it will be very diflicult, if not
impossible, to remedy ; and as the Canadian Gentlemen can derive no influ-
ence from the Landed possessions, it must necessarily be left to the particu-
lar exertions, ability and ambition of the Individual Seigneurs to emerge
from their present State of insignificance— all that can be done in this
respect, is to hold out motives for execution, and to give all possible
encouragement in those instances where any disposition of the kind is
found to exist — ^but before I proceed further I can not help expressing to
you my surprise that the establishment of the Canadian Battalion in Lower
Canada, the principal object of which was to draw the Canadian Gentle-
men from their Indolent and inactive habits and to attach them to the
King's service, should have met with no greater success — ^had any eager-
ness been manifested in completing this Battalion, it might have been
judged advisable to form a second and third of the same sort in case the
spirit and inclination of the King's Canadian Subjects appeared to call for it.

With respect to the Roman Catholick Clergy being totally independent
of the Governor, I must first observe that I am not aware of the causes
that have led to a disregard of that part of the King's Instructions, which
require — "That no person whatever is to have Holy Orders conferred upon
him or to have the care of Souls, without Licence first had and obtained
from the Governor." The resumption and exercise of that power by the
Governor and the producing such a Licence requisite for admission to
Holy Orders, I hold not only to be of the first importance, but so indispen-
sably necessary, that I must call upon you to endeavour to effect it by
every possible means which prudence can suggest — ^you will therefore

»No. LXV.

1791-1840] Constitutional Documents of Canada. 245

readily conclude that I must see with pleasure your proposal for encreasing
the Allowance to the Catholic Bishop adopted almost to any extent, if it
can prove the means of restoring to the King's Representative in Canada
that power and controul which are essentially necessary to his authority,
and which ia expressly laid down by the 44th Article of your Instructions
above alluded to.

The third and last cause of the preponderance of the popular influence,
viz., the situation of the Canadian Government with regard to its Militia
appears to me to carry with it, its own Remedy ; inasmuch as the Establish-
ment itself is capable of being converted into an Instrument of considerable
Weight and authority in the hands of the Executive Power, provided the
measure I have to suggest should meet the opinions and sentiments of the
Canadians themselves — according to your statement what seems to be
wanting is to put the Militia upon such a footing that its being called out
shall be so much for the Interest and advantage of those that compose it
as to render it favorable to the measure. With this view I have examined
your Militia Acts of May 1794 and May 1796, and the particular in which
they strike me as being defective is that they contain no Provision for the
Amiual Meeting of the Militia or even any part of it, except for two days
in the year for the purpose of being mustered; what I would propose there-
tore is (in case of its meeting with the approbation of the Legislature)
that a certain proportion of the Militia to be chosen by Ballot should be
called out to be exercised for 3 weeks or a month in each year during
which time the Officers and men who shall be called out should be allowed
the same pay and subsistence as His Majesty's Regular Troops. It would
of course be provided that the men who should be chosen by Ballot in any
one year, should not be ballotted for again until the residue of the militia
should have been called out; by which means all the Officers and men
would take their regular tour of duty & partake of the advantages arising
from their being called out.

The adoption of this part of our Militia Law (with such variations as
local circumstances may call for) will necessarily require that another part
of it should be adopted, viz., the permanent pay of an Adjutant to each
Regiment and of a certain number of non-commissioned officers, fifes,
Drums as in the militia of this Kingdom.

In amending the Canadian Militia Bill in the manner I have suggested,
Provision might also be made for such other Appointments as would be
necessary during the time of the annual exercise of that portion of the
Militia which may be called out What the number and description of those
appointments should be, must depend upon the number of militia men to be
called out and must therefore be regulated on the spot.

You will understand that I am only stating the outline of such amend-
ments to your Militia Laws, as I conceive to be most likely to secure the
objects you have in view, and to create and establish that interest and
connection which should subsist between the Militia and the Executive
Authority of the Province.

Should you be of opinion that these amendments will meet with the
concurrence of the Legislature, the sooner they are digested and put into
proper form with the Assistance of the Executive Council and the Law
Officers of the Crown, the better; and you will as immediately as possible
transmit to me an Estimate of the additional expence which will be created
by them, in forming which Estimate I am confident you will take care to
keep it as Low as the object to be attained by the adoption of the proposed
amendments will allow of.

These leading points relative to the Roman Catholick Clergy and the
Militia being carried, every future step which is made in the settlement of
the Province must, by making Grants of the Waste Lands of the Crown
to Protestants upon the conditions, and subject to the Regulations now
finally established and acted upon in the Land Granting Department neces*
sarily tend to lessen the degree of popular influence which is at present pos-
sessed by that description of His Majesty's Canadian subjects which con-
stitutes so great a proportion of the inhabitants of the Province at large.

246 ConsHtutiofiol Documents of Canada, [1791-1840

I need not add that I shall be anxious to receive your answer to this
letter, as well as the further details which you promise to communicate to
me.

I am, etc.

Portland.

LXVII

OBSERVATIONS ON THE GOVERNMENT OF CANADA BY

JOHN BLACK*

[Trans. : Doughty and McArthur.)

9 Oct, 1806.
To Field Marshall His Royal Highness Duke of Kent.

The following observations are humbly submitted to your Royal
Highness for the information of His Majesty's Ministers which I trust
will show that the existing laws and Constitution of His Majesty's two
Provinces of Upper & Lower Canada are unequal to the promoting of
those subjects so necessary for the good of this Kingdom to which the
Canadians are so well calculated essentially to contribute. By the Legis-
lature of Lower Canada, the goods bound through that Province to Upper
Canada are subjected to a Duty, notwithstanding they have each a separate
Government, an Upper and a Lower House of Parliament to Legislate for
themselves — this will ultimately lead to mischief although Lower Canada
accounts to Upper Canada for their proportion*.

The House of Assembly of Lower Canada is composed of Fifty
Members, and notwithstanding the Government and Commerce of the
Colony are in the hands of the English, still at the General Elections British
Influence can never get more than Twelve Members returned who have to
contend with the passions and prejudices of Thirty eight French; the
majority of whom are by no means the most respectable of the King's
Canadian Subjects; the cause of this is the British Act of Parliament
which gives to the Provinces their present Constitution — by that Act" the
following qualifications are required of the Electors (vizt.) in the Cities of
Quebec and Montreal, 'Rent to the Amount of ten pounds p. annum or real
property to the Amount of five Pounds p. annum, and in all the Counties
two Pounds property entitles them to a vote', but no qualification is required
by the Said Act for the Candidate, by which means immediately preceding
all General Elections not only the nefarious & the Political Bankrupt, the
Demagogue and the insidious and Ambitious title of Friend of the People
are all united in the Same Person, which makes the Country ring through-
out into the word "dont vote for an "English-Man, dont vote for a "Seig-
nior, a "Merchant, a "Judge or a "Lawyer, all of whom are represented
to have an interest in Taxing and oppressing the poor, in consequence of
which, a number of the representatives are contracted in their ideas &
Education, and of course inadequate to judge of the propriety of enacting
Laws which in critical Times prudence and foresight would dictate, such
as the Alien Act, the suspension of the Habeas Corpus, or any other
tending to strengthen His Majesty's Government

Another existing evil which I humbly submit to your Royal Highness
is regarding the Government of the Militia in Lower Canada, the English
and French Militia being kept in two distinct bodies, the one with the
English, the other with the French word of Command, is as impolitic as
absurd; for instance in Case of Insurrection Rebellion or Invasion by a
Foreign Enemy, the Officer commanding His Majesty's Forces would of
course give the word of Command and in the English Tongue, a great

1 Black was an Enc lishman who had resided in Canada for many years and was a
member of the Legislative Assembly of Lower Canada from 1796-1800. His "Obserra-
tions" supplement Afilnes' report (see No. LXV).

* See p. 219.

s See Constitutional Act, | XX. (No. LV.)

1791-1840] Constitutional Documents of Canada, 247

proportion, however, of the aid in which under such circumstances the
Country reposes speaks the same language and receives the same word of
Command as the assailants, the consequences of such a system are not so
difficult to forsee as they are to contemplate with Horror.

******

His Majesty's Dominions in America in their present disjointed state
are dangerously weak from the following reasons (vizt) one province is
not bound by Law to assist the other if attacked by an Enemy in case of
Treason raising her standard in the Country, or if attacked from without
by a Foreign Enemy, might not a misunderstanding take place between
the General commanding the Kings Forces and the General commanding
the Militia arising solely from this cause, similar to the differences which
occurred in Sepr., 1759, amongst the French Officers, who were jealous of
the Fame of General Montcalm and which contributed so much to the
nltimate subjugation of the Province.

Your Royal Highness will perceive that one Colony in the event of
an attack, as things are at present, not only receives no aid from the
others, but by the misunderstanding which it is possible might arise be-
tween the General and Governor, they might even become hostile to each
other at the moment of danger.

The Remedies which I would suggest for the Evils classed under the
different Heads is to unite the Provinces of Upper and Lower Canada if
it conveniently can be done, if not erect eight new Counties on the tiiree
Million acres of Land recently granted who would return two Members
each — ^to make the Parliament sit for seven years in lieu of four years,
and render a qualification necessary for every Member to the extent of
at least one hundred and fifty pounds p Annum in landed property, or a
permanent Salary to that amount — I should here wish to observe to your
Royal Highness, the impossibility the Country can prosper under the
present constitution which draws forth a majority of the most inflamed
of the wprser order, whilst the qualification proposed would draw forth
the Sense and Education of the Country.

The uniting the Provinces or erecting eight new Counties would bring
the English considerably nearer the French in point of Number, and as
it is but too evident in all Countries the Head of a Party will prostitu-
tioaally oppose His Majesty's Government untill they are called into power
or obtained some situation equal to their views.

By having a seven years Parliament Your Highness will perceive that
the evil of being obliged to provide for such scrambling Demagogues will
more seldom occur; either uniting the two Provinces or erecting new
Counties will add eight Members to the Legislative Council.

The Remedy for the evil complained of under the paragraph No. 6
with humble duty and submission to Your Royal Highness seems to re-
quire a measure calculated to unite the interests of the different Provinces,
which I conceive cannot be effected in any other way so well as by His
Majesty's Government appointing a Governor General and a Commander
in Chief invested in the same person for the four Provinces with a Lieu-
tenant Governor in each Province to give or withold the Royal assent to the
Laws, and Patronage would in that case be equal to keeping the Parlia-
ment in order, by which means Laws would be soon made for the Prov-
inces reciprocally to aid each other in time of danger, the Governor Gen-
eral and Commander in Chief I should conceive would be the proper per-
son to receive all communications. Civil and Military Post Master Gen-
eral, Etc., Etc., and should be Master of the Geography of the County,
the English, French and German Languages, it is also necessary he should
be well acquainted with the four Provinces and the Characters of those
in power at present, with the Manners and Customs of the French and
Germans also, if possible, as there are a considerable number of both in
british America.

All of which is humbly submitted to Your Royal Highness who I
hope will have the gracious and condescending Goodness to put a favor-

248 Constitutional Documents of Canada, [1791-1840

able construction on the humble efforts thus made for the good of my
Country, for whose welfare Your Royal Highness is well acquainted how-
much I have suffered during these last twelve years and upwards and if
I am so happy to give one single new idea, I shall consider it the hap*
piest moment in the Life of

Your Royal Highnesses, most devoted humble,
and most obedient Servant,

John Black^ Paul Street, Finsbury Sqre.
9 Octr., 1806.

LXVIII

OBSERVATIONS RELATIVE TO THE POLITICAL STATE OF

LOWER CANADA, BY MR. RYLAND*

[Trans. : Doughty and McArthur.]

May, 1808 (?).

There is reason to apprehend that the time is fast approaching when
the House of Assembly of Lower Canada will become the centre of sedi-
tion, and a receptacle for the most desperate demagogues in the Province;
nor does there at this moment appear to be any existing means, (except
such as arise from the known vigour and ability of the Governor in Chief,)
to counteract the projects which such a House of Assembly may form.

To remedy the evil it will require much wisdom, joined to a prepon-
derating English influence, both in the Legislative and Executive Councils.
It will equally require intelligence, firmness and capacity on the part of
His Majesty's Justices of the Provincial Courts of King's Bench, who may
eventually have to decide on points of the highest importance ari^ng out
of the wild, disorganizing pretensions of the Assembly.

It must be evident to every person who is acquainted with the actual
state of things here, that neither the Bench nor the Councils, as they are
at present composed, would be able to afford an adequate check to a bold,
systematical attempt on the part of the Assembly to obtain a mischievous
proponderance in the Provincial Legislature; much less could those bodies
be expected to co-operate in a general plan for assimilating the Colony in
its religion, laws and manners, with the Parent State.

It is humbly suggested that, preparatory to measures of a more par-
ticular nature, it would be advisable to add eight or ten members to the
Legislative Council, three or four of whom might be Canadians of the
most respectable character and families, and the remainder Englishmen of
the best stamp and abilities, that are to be found in the Province, and
whose attendance might at all times be depended on. It may be well de-
serving the attention of Government to consider whether it would not be
advisable to give a seat in the Council to two or more Military Officers oi
the higher ranks holding staff appointments in the Province, that may be
regarded as permanent

It is suggested that the two senior Judges at Quebec, (who are both
of them upwards of seventy-three years of age,) should be permitted to
retire on pensions; that, in appointing their successors, the utmost care
should be taken to select men of capacity and firmness ; Englishmen whose
natural ties and habits attach them to the laws and religion of the Parent
State.*

By English in here meant persons bom and educated in any part of
His Majesty's European Dominions.

^ Herman Witsius Ryland (1760-1838) was an Englishman who held several official
appointments in Canada. He was strongly anti-French and represented Sir James
Craig in England on an unsuccessful political mission. He had considerable influsnce
over Milnes (see No. LXV). His writings and letters are the best contempormry com-
ment on the ideals of the extreme Britira party.

1791-1840] Constitutional Documents of Canada. 249

^Mein. Subsequent experience hath deeply convinced me, that in-
finite advantage to the King's interests would be obtained by choosing
from among the practitioners at the bar at home, (and upon the recom-
mendation of the Lord Chief Justice), not only the Provincial Attorney
and Solicitor General, but the two Chief Justices (if two be necessary),
and at least one- third of the Provincial Puisne Judges, the latter of whom
should have seats in the Legislative (but not the Executive) Council. By
this means the Crown might secure to itself the support of firm, able,
upright and dignified characters, men attached by birth and education to
the Parent State and to Monarchical principles, and. there is no doubt
but it would in the end be found infinitely less expensive to secure the
services of such men by competent and liberal salaries than to incur the
risk of having the Province revolutionized through the want of them.
Above all things, however, care should be taken that these appointments
may not degenerate into a job, and that the places be not chosen for the
men, instead of the men being chosen for the places. Such a system of
patronage would only render matters worse.

With a view to the furtherance of the objects contemplated, it would
be advisable to establish a corporation for the advancement of learning,
agreeably to the Provisions of the Provincial Statute, 41 Geo. Ill, cap. 1/,
and to solicit His Majesty's decision with respect to the Jesuits and the
St Sulpician Estates'.

It will be seen on a perusal of the Act above mentioned, that a most
powerful means is thereby afforded for encreasing the influence of the
Executive Ck>vemment, and for gradually improving the political and reli-
gious sentiments of the Canadians.

Connected with the above objects, the settlement of the waste lands
of the Crown becomes a matter of the utmost consequence. The system
of associated companies, which was adopted for this purpose in the year
1793, may now be considered as abandoned; but the Royal Instructions
of August, 1807, to the present Ciovemor in (Thief, shew that it is not His
Majesty's intention to restrict or regulate the granting of the waste lands
in any other way than that which was prescribed by the Instructions of
1791 to Lord Dorchester.

This being the case, and the project afterwards brought forward of
selling the waste lands for the purpose of raising a revenue, having failed,
it is to be presumed that the (governor and Executive Council are left at
liberty to adopt such a system as they shall think proper, under the pres-
ent Instructions, for encouraging the settlement of the country ; and noth-
ing would so effectually contribute to this end as an Act of the Imperial
Parliament, empowering the Governor with the advice of the Executive
Council, in cases where the inhabitants of any township, (or several town-
ships collectively, to be formed into counties or districts,) shall amount
to a certain number of freeholders, (say one or two thousand, and up-
wards,) to issue a write authorizing the election of a member to repre-
sent such township, county or district, in the Assembly. Such an Act
would not only encourage the settlement of the waste lands, and attach
the inhabitants of the townships to His Majesty's Crovemment, by enabling
them to participate in the legislation of the Province, but it would provide
an effectual check upon the French or Roman Catholic party, which has at
this time an alarming preponderance.

It may be here remarked that the English settlers in the townships
are estimated at upwards of fourteen thousand, and that the division
of the Province, pursuant to Lieutenant Governor Clark's proclamation,
(under the Canada Act of the year 1791,) for the purpose of regulating
the election of members to serve in the Assembly, was made prior to the
erection and settlement of the townships, and secure the election of two

^ See correspondence in Christie, History of Lower Canada, VoL VI.

250 Constitutional Documents of Canada. [1791-1840

English members only throughout the Province, namely, one for the in-
ferior District of Gasp^, and one for the Borough of William Henry,
where the English inhabitants happen to have a majority of votes/

It is hardly possible to attach too much importance to this subject, or
to place it in too prominent a point of view, as it shews the absolute
necessity of an Act of the Imperial Parliament, if it is intended that there
ever should be any thing like an English influence in the inferior branch
of the Provincial Legislature, for it is not to be expected that a House
of Assembly, made up as the present, will ever suffer a Bill to pass for
the encouragement of English settlers, and much less one which would
afford such settlers the means of representation in that House.

H. W. R.

LXIX

CRAIG TO CASTLEREAGH*

[Trans. : Canadian Archives, Mss., Q. 107, pp. 306 ff.]

Quebec, 5th August, 1808.
My Lord,

The Canadian Party, hang so compleately together, and these People
have so much Influence among them, that it is to be expected ; while their
ignorance or their Presumption, for I know not to which to attribute it,
is such, that I shall not be surprized if they adopt some resolution which
may put me under the necessity of dissolving them; they either believe,
or affect to believe that there exists a Ministry here, and that in imitation
of the Constitution of Britain that Ministry is responsible to them for the
conduct of Government. It is not necessary that I should point out to
your Lordship the steps to which such an Idea may lead them.*

I have the Honor to be My Lord

Your Lordship's Most obedient humble servant,

J. H. Craig.

LXX

CRAIG TO CASTLEREAGH

[Trans.: Doughty and McArthur.]

Quebec, 5th June, 1809.
My Lord,

Inclosed your Lordship will receive the Speeches which I thought
proper to address to the Provincial Parliament both on the opening and
closing of that Assembly and it is my duty now to lay before your Lord-
ship the grounds upon which it was judge expedient that they, particu-
larly the latter, should bear the Complexion which will not escape your
Lordship's observation.

In my dispatch No. 29*, I gave your Lordship an Account of a party
which exists here and which is far from inconsiderable in strength, it

1 An error, however, as to Gasip^, where the majority of voters have always been,
and are of French origin. — [R. Christie.] , ,.,

' Robert Stewart, viscount Castlereagh, was appointed Secretary of State for War
and the Colonial Department in July, 1805. . . ^ . ^ ^ . . ,^

*For a contemporary account of Craig s rule in Canada, see R. Christie, Memoirs

.»w ^« -wp despatdi _ ,

ministry" m Canada in the constitutional sense of the term.
« See No. LXIX.

1791-1840] Constitutional Documents of Canada. 251

was with concern that I saw the number of Persons returned to the House
of Assembly who might upon good grounds be looked upon as their ad-
herents; and it was very early understood that they were preparing for
the adoption of every Measure whidi they considered as likely to Em-
barrass Government and shew their own power & importance. Their
first step was to elect Monsr. Panet for their Speaker. This I have rea-
son to believe was intended as a sort of experiment upon my temper &
firmness; if I had rejected Mr. Panet, they would have chosen another
instrument equally adapted to their views while it would have served as
a fair pretext for the ill humour that might be apparent in their further
proceedings; and on the other hand if I admitted Mr. Panet they sup-
posed I could only do so under the influence of intimidation, and they
should then consider themselves at liberty to go any lengths they pleas'd.
Upon a little reflection I chose the latter alternative, I thought the refusal
of Mons. Panet would be making him individually of more consequence
that I wish'd to have the appearance of attaching to the whole of the As-
sembly, & I thought what 1 proposed to say to them in my Speech would
do away the idea of my acting under the impression which they supposed,
at the same time that under the conviction of the Spirit by which they
were actuated, I was willing that, whatever took place, should arise solely
from themselves, I therefore approved of Mr. Panet on the principle of
the choice being a matter which concerned themselves more than me.

As I was well aware that great activity had been exerted by the
leaders of this Party in dissiminating their principles over the Province,
in which they had so far succeeded, that a Spirit of jealousy and Suspicion
had shewn itself in several parts, insomuch, that a Person elected a Mem-
ber, after using very unwarrantable Language with respect to the Views
of the Government and of the English, did not scruple to say, that if an
Englishman was elected for his Colleague, he would not attend the Par-
liament: I thought it right in my Speech upon opening the Session, to
advert to the dangers and disadvantages to the Colony, that might arise
from the prevalence of that Spirit, if permitted to gain ground; and this
is the part to whidi I alluded, as supposing it would do away the Idea of
my being any way apprehensive of their opposition, as it was a reflection,
which however general it was made in the wording of it, was obviously
levelled at them, and was generally so understood.

This however, altho' it was taken up by them & produced some warm
debates, had not the effect that I thought it would, & it very soon ap-
peared that they conceived themselves above all control. & were deter-
mined that their proceedings should be guided by their pleasure only set-
ting aside even all consideration for the Act of the Imperial Parliament
under which they hold their Constitution & every power with which lliey
are vested. My Speech upon closing them contains, almost, as complete
a history of their proceedings, as I could give to your Lordship, were I
to detain you by a more detaUed Account, except that I did not think it
necessary to allude to the indecent lengths to which their personal abuse
of each other was carried neither did I advert to their treatment of dieir
own Speaker to whom, the most violent and unbecoming Language was
used, altho' he on every occasion showed the most decided partiality to-
wards them, and this altercation was carried so far, that on die very day,
on which I so unexpectedly prorogued them they were prepared to have
voted him out of the Chair. Upon the same principle of these matters
concerning themselves only, and not being regularly before me, I ab-
stained from adverting to the extraordinary Circumstance, of a Member
having attempted to continue sitting, and having declared that he saw no
occasion for getting up, while a Message was delivering from me, altho',
such had been the invariable usage, and tho' such was one of their own
regulations. He was indeed over ruled, but the Circumstance did not
meet the reprcfhension that ought to have attended it Among their own
violent and unjustifiable proceedings, they seemed resolutely bent upoh
carrying their favorite points of expelling His Majesty's Judges from the

252 Constitutional Documents of Canada. [1791-1840

House*, and having failed last Session in carrying thro' an Act for ren-
dering them ineligible, which was thrown out in the Legislative Council —
by this time resolved to effect their purpose by a simple vote of their own,
this motion, however, after a full fortnight's altercation, was negatived
by a small Majority: this favourite measure of theirs was founded entirely
& solely, on the determined animosity that they bear to Mr. De Bonne,
the only Judge who is in the House. I mean, however, this motive as only
applying to the avowed Leaders of the party in the House, for I am
aware that very many of the best meaning Men in the Province are of
opinion that it would be better if the Judges were not under the necessity
of counting the people, as they are obliged to on the occasion of their
Elections. Upon the failure of this attempt to expel the Judges by vote,
they brought in a bill again to render them ineligible, but they had not
made any progress in it. The next point which occupied their attention
was the expulsion of a Mr. Hart, a Jew*, this they disposed of by a Vote
"that Ezekiel Hart professing the Jewish Religion cannot sit or vote in
this House." On both these occasions they proceeded with the utmost
violence, refusing to listen to any argument founded upon the Act of the
31st of His Majesty, & altho' they did not, as far as I can learn, explicitly
deny the Supremacy of the British Parliament or the force of that Act,
yet they tfpenly declared that they were the sole & only Judges of their
own proceedings, not to be controuled, or bound, by any other power. In
the case of Mr. Hart they called only for evidence of the mode in which
he had taken the Oath, which was proved to have been, precisely in the
same manner, as every other Member had taken it. They did not call
upon him to avow or deny his religion; they called for no evidence on
the Subject, and for any thing that appears on the face of their minutes
Mr. Hart may be a Christian; nay indeed his having taken the Oaths
on the New Testament would, prima facie, carry the evidence that he is
so; but even as a Jew, we are here decidedly, and the Executive Council
to whom I submitted the Subject, was unanimously of opinion that He
is eligible, provided he takes llie Oaths as required by the Acts of Par-
liament.'

In pursuing their plan of hostility towards the Judges, they appointed
a Committee, to enquire if any, & what inconveniences, had resulted to
the Public, on occasions where the Judges had been Candidates at Elec-
tions for Members of that House. This Committee was formed entirely
of the most violent of the party and accordingly nothing could exceed the
marked irregularity, partiality and injustice of their proceedings; these
were carried on in Secret, altho' they had not been appointed with that
intent; the testimony laid before them was entered very differently from
the way in which it was given, every circumstance that had the slightest
tendency to prove, that the Judges had not made use of the influence that
might be supposed to arise from their Situation, was carefully suppressed,
when it was possible to do so, but testimony of a contrary tendency, tho'
grounded upon hearsay, twice & thrice removed, was eagerly inserted
with every exaggeration that it would admit of, and individual opinion
at great length, without containing one particle of evidence, or one single
fact that could come under that description, was a prominent feature in
their report This was such as was calculated and evidently intended to
inflame the public Mind and excite discontent at the administration of
Justice so far as it is connected with the Object under review, and it was
smuggled into the House in direct Violation of their own regulations,
without being previously read by the Chairman in his place, so that no
opportunity was afforded to oppose its being received, while to complete

f 1 In 1808 the Legislative Assembly of Lower Canada passed a bill excluding judges
from sitting as members of the House of Assembly, following a resolution to that
effect passed by a Committee of the Whole House. (Journals of Assembly of Lower
Canada, 1808). The Legislative Council threw out the bill. In the following year,
dissolution disposed of a similar measure. For the Act of 1811, excluding judges, fcce
No. LXXX.

* See Journals, op. eit. 1808, 1809.

* See Doughty and McArthur, p. 357.

1791-1840] Constitutional Documents of Canada, 253

the Qimax of the irregularity & disregard to common decency, with which
this whole Matter was conducted, they entered upon their Journals, the
direct falsehood that the Report had been read by the Chairman in his
place, when he presented it. I have entered more particularly into detail
upon these Circumstances My Lord because they so strongly mark the
Complexion of the House, otherwise I might, as I have already observed,
have confined myself to the contents of my Speech as conveying all the
Information that I dare say Your Lordship will think necessary. All
this while publick business was completely at a stand, whilst Messages
from me, on objects of importance to the publick Welfare, and Bills sent
down to them from the Legislative Council for their Concurrence, lay on
their table for Weeks equally disregarded & unattended to. In the five
weeks which they had sat, they had in fact passed one Bill, for of the
five that were presented to me, three were the mere renewal of annual
Acts, to which they stood pledged by their address, and the fourth being
only to correct an error in a former Act, came equally under the descrip-
tion of requiring no discussion.

Altho' there was nothing in their proceedings, so far as they had
hitherto gone, that bore any appearance of particular opposition to His
Majest/s Government, or of personal hostility to myself yet it was im-
possible that I could view them with indifference. The Public Mind began
to be much agitated, by far the greater part, were laughing at, or calling
out shame upon them, but their partizans were busily employed in repre-
senting them as supporting the authority and importance of that part of
the Legislature, on which the happiness and prosperity of the Colony must
depend. I have no reason to t>elieve that these were very successful in
their labours, but it became necessary to show their futility. It was greatly
expedient to prevent the House from falling into the Comtempt, to which,
it was fast verging altho' it was not less so, to give a check to the ideas
of omnipotence, by which they themselves appeared to be inspired. The
.Sp^alcp^, sp<"^l^ing in a rp^mittfir nf tht whfflt Hftweti had said .tOSt^I
dare not dissolve .th^nL Add to these considerations, that the expulsion
of Mf.' Hart' appeared to me to be in direct violation of An Act of the
British Parliament, which I could not countenance, and on maturely re-
flecting on the whole, I determined not only to prorogue but to dissolve
them also. Having come to this determination I thought it might be as
well to prevent their coming to some violent or absurd resolution, which
was to be expected, if they had had any intimation of my intentions, and
I took my measures so, that they had not the slighest suspicion of them,
till the Salute was firing on my entrance into the House.

I am assured on all hands, and I have every reason to believe, that
this measure has given very general satisfaction, the English part of the
Community all view it as having become highly expedient not only from
the conduct of the House that was Dissolved, but from the general ten-
dency of all their proceedings for some time past, and even the thinking
part of the Canadians, allow it to have been called for by the circum-
stances. Mr. Panet has I believe said it is no more than they deserve.
I am even taught to expect that the effect will most probably be that few
or none of those who were at the head of the Party, will get in again,
certain it is, at any rate, that it will be impossible to collect a house that
can be worse composed, either as to good will or the information neces-
sary for carrying on the Public Business.

I have the Honor to be
My Lord

Your Lordship's
Most obedient

Humble Servant,

J. H. Craig.

254 Constitutional Documents of Canada. [1791-1840

LXXI

^ CASTLEREAGH TO CRAIG

[Trans. : £>oughty and McArthur.]

Downing Street, 7th Sept., 1809.
Sir,

I received & laid before the King your letter of the 5t!h of June last*
detailing an account of the Causes which had led you to dissolve the legis-
lative Assembly of Lower Canada after a severe censure of their Conduct

I have no doubt that in the Measure you have taken you have been
solely influenced by a Sense of your Duty to His Majesty & as you repre-
sent that it is approved by the English Part of tfie Community & the sen-
sible Part of the Canadians I shall entertain a hope that it may not be
attended with any prejudicial effect I am at the same time to impress
on you this Counsel', that if any unfortunate difference shall arise here-
after between you & the Legislative Assembly which may render it neces-
sary for you to advert to their Proceedings (which should always be done
cautiously) & in consequence thereof to prorogue & dissolve them you
will take care to use all such temperate & chosen Language as may not
leave it in the Power of the Legislative Assembly which may afterwards
be chosen to question the Propriety of your sentiments as affecting their
Privileges or the Constitution.

I am to express to you His Majesty's Approbation of your removing
Mr. Stuart from his office of Solicitor General and of your appointing Mr.
Bowen to succeed him: As Mr. Uniacke the Attorney General will have
arrived in the Province long before this letter reaches you, I shall trust
you will receive every necessary assistance from his zeal and abilities.

I have the honor, etc.,

Castlereagh.

LXXII

CASTLEREAGH TO CRAIG

[Trans.: Doughty and McArthur.]

Downing Street, 7th Sept, 1809.
Sir,

^ Having written to you officially upon the Subject of your letter re-
lating to the Dissolution of the Legislative Assembly, I think it at the
same time right to express to you my private sentiments.

Nothing appears to me more difficult or delicate to manage than a
Provincial Assembly constituted like that of Lower Canada, wherein al-
most all the Privileges of the House of Commons of Great Britain are
claimed or exercised, where there exist little Means of influencing the
Members and inducing them to coalesce with the Government, and wherein
from the example of the American States, and the very nature of a
popular Assembly, strong, active & turbulent Minds have great incite-
ments and opportunities to raise themselves into imaginary or real Im-
portance by opposing the Administration. And the Difficulty becomes
thus great from another peculiar circumstance that there is no means
whatever of punishing an Assembly but by Dissolution, & that this Method
when the conduct of the Assembly is popular, is sure to fail of success,
and to increase the Evil it is intended to cure.

It is therefore of the utmost consequence to take care that in any
difference which may arise between a Governor & a Provincial Assembly
he should not advert to any particular proceeding of the Assembly, diat

> See No. LXX.

'An interestinff lesaon from the Colonial OfBce on how to manage a ColoniaJ
House of Assembly). See also the following document.

1791-1840] Constitutional Documents of Canada. 255

is not clearly unconstitutional and illegal: And that, when the improper
opposition arises from Discussions of a mixed nature, where they can
plausibly plead their Privileges and Rights in favor of their Conduct,
however improper; no future allusion to such Conduct should be made
by the Governor on which the Assembly might fasten a Complaint^

The two Grounds of Complaint^ against the Assembly which you
specify are their Proceedings for preventing Judges sitting in the As-
sembly, & for endeavoring to expel a Member on the allegation of his
being a Jew, altho' he had taken the regular Qualification Oath on the
Gospels.

The first of these objects can never, as you admit, be considered in
itself as an improper or illegitimate one to pursue, however the Motive
giving rise to Discussion may be factious; nor am I by any means per-
suaded that the Regulation would be an unfit one in itself: And further
when the Bill which they had passed, had been thrown out by the Le^sla-
tive Council, the Assembly had a right, if they thought fit to appomt a
Committee to examine the inconveniences which arose from Judges can-
vassing at Elections.

So again with regard to the Endeavours to expel Mr. Hart for being
a Jew, it was obvious that a real Jew could not sit in the Assembly, as
he could not take an oath upon the Gospels — it was therefore competent
to the Assembly to inquire whether Mr. Hart had complied with all such
Requisitions as might be legally necessary to prove his bona fide conver-
sion to Christianity, and that he took the Oath without mental Reservation.

I state these Points, not from any doubt of the Assembly acting in the
spirit you represent, but to shew, that supposing the next Assembly may
meet with a similar Disposition & Temper to that for which you dissolved
the last: It is probable they will renew the discussion of measures against
which your Censure was pronounced & will make such assertions of their
Rights of free Discussion and Debate as may lead to more Embarrass-
ments than have yet arisen.

When you advert to the expressions in which you have conveyed your
Sentiments of the Proceedings of the Assembly you may naturally sup-
pose they have created some Sensation here, & that an anxiety has been
expressed as to the particulars of the Conduct which could require such
severe animadversion. I shall hope however that there will not be any
public Discussion on the subject, as the Topics are of such a nature as
might give the efforts of a Party hostile to you or to Government some
advantage.

What I would therefore recommend is, in Case, on the Meeting of
the New Assembly animadversions should be made on your Speech on
the close of the last, that as you will not be wanting in that firmness Your
Situation & character demand, so you will avoid any Expression, which
can be construed as touching in any degree, upon their supposed Privileges
k the general Freedom of Inquiry & Debate.

In regard to the Measure of excluding Judges from a Seat in the
Legislature there is no Repugnance felt here to the Measure, should you
at any time see it right to acquiesce in it — ^The Principle of exclusion here
extends to what are called the 12 Judges & to them only; for the Welsh
Judges, the Judsre of the Admiralty & Prerogative & the Master of the
Rolls adl sit in Parliament.

I have the honor, etc,

Castuerbagr.

« See No. LXX.

256 Constitutional Documents of Canada. [1791-1840

LXXIII

CRAIG TO LIVERPOOL*

[Trans.: Doughty and McArthur.]

Quebec, 1st May, 1810.
My Lord,

If my short dispatch No. 2 which I transmitted by way of New York
has reached Your Lordship, you will be in some degree prepared to re-
ceive the Report on the State of this Province, which I conceive it to be
my particular duty, under the events that have lately taken place and the
impression to which these have given rise in my mind, and in that of
very many of the best informed persons here, to lay before His Majesty's

Government.

« ♦ * 4c « «

In the consideration which may be given to the various objects, which
I may feel myself called on to submit to your Lordship, I must request
that the particular situation in which this Province stands, as being a
conquered Country, may never be put out of view, and I claim that it may
always be recollected that I speak of a Colony, the population of which, is
usually estimated at 300,000 souls, and which, calculating upon the best
data in our possession, I myself believe to exceed 250,000. Of these 250,000
souls about 20,000 or 25,000 may be English or Americans, the remainder
are French. I use the term designedly My Lord, because I mean to say,
that they are in Language, in religion, in manner and in attachment com-
pletely French — bound to us by no one tie, but that of a Common Gov-
ernment, and on the contrary viewing us with sentiments of mistrust &
jealousy, with envy, and I believe I should not go too far, were I to say
with hatred.

* * * * * r¥

So compleat do I consider this alienation to be, that on the most
careful review of all that I know in the Province, there are very few
whom I could venture to point out as (not) being tainted with it; the
line of distinction between us is completely drawn. Friendship (and)
Cordiality are not to be found — even common intercourse scarcely exists —
the lower class of people to strengthen a term of contempt add Anglois —
and the better sort with whom there formerly did exist some interchange
of the common civilities of Society have of late entirely withdrawn them-
selves— the alledged reason is that their circumstances have gradually de-
clined in proportion as ours have increased in affluence ; this may have had
some effect, but the observation has been made also, that this abstraction
has taken place exactly in proportion as the power of the French in Eng-
land has become more firmly established.

******

Among the objects which I deem it necessary to bring to your Lord-
ship's view, it is impossible for me to overlook the Clergy*, and the Reli-
gious establishments of the Country, the Act* of the 14th of His present
Majesty by which the free exercise of the Roman Catholic religion is
granted to the Canadians, expressly adds the condition that it shall be
subject to the King's Supremacy as established by the Act of the first of
Elizabeth— but neither has this, or one Article of His Majesty's Instruc-
tions to the Governors ever been attended to, the Appointment of the
Bishop seems to have been conducted loosely, and with very little cere-
mony, the Council Books oflFer no other Document on the occasion, than
that the person has taken the Oath pointed out by the Act of the 14th
Geo. Ill in lieu of the Oath required by the Statute of the first year of
the Reign of Queen Elizabeth, but without mentioning on what account

* Robert Jenkinson, Earl of Liverpool, succeeded Castlereagli as Secretary for
War and the Colonies in December, 1809.

»Cf. Milnes* despatch, 1 Nov. 1800. (No. LXV.)
» See Quebec Act. 1774, i V. (No. XXV.)

1791-1840] Constitutional Documents of Canada. 257

he takes it; of late he has been designated on that occasion as Roman
Catholic Bishop of Quebec, formerly he was only called Superintendant
of the Romish Church.

Altho' it does not appear upon the Records of the Council Board or
by any other Document, His Majesty does however nominate the Coad-
jutor, but this nomination appears to have been verbal. I observe in the
Return of the offices of emolument of this Colony lately made to your
Lordship's Office, the Bishop says it is cum futura successione, how that
can be, when it does not appear to be under any written document of any
sort, I do not know, unless it be in the Pope's subsequent confirmation,
which always takes place, it is however of such weight, that the succession
of the coadjutor to the Bishopric seems to be considered as a matter of
course, at least there is no appearance of there ever having been any inter-
ference on the part of His Majesty's Government.

This Bishop tho' unknown to our Constitution and confirmed, if not
appointed by a Foreign Power, has been suffered to exercise every Juris-
diction incident to the episcopal functions, he nominates to all the benefices
of the Province, and removes at his pleasure from one living, to another,
and it is not an unfrequent circumstance, for an offence, or a supposed
offence, to be punished by a degradation from a good Cure to one of
lesser emolument. His Patronage is at least equal to that of the Gov-
ernment, & it is so perfectly at his pleasure, that Government has no other
notice of it, than that he usually once a year delivers to the Governor a
list of such changes as have taken place during the preceding twelve
months; so complete does the Bishop consider his independance, & so
cautions is he not to perform any act which might be construed into an
acknowledgement of His Majesty's Rights that if a Proclamation is issued
for a Fast, or thanksgiving or any other object which involves it in an
Act of the Church, He will not obey it as an emanation from the King,
but He issues a mandate of his own to the same purpose, indeed, but
without the least allu»on to His Majesty's authority, or the Proclamation
which the Government has issued, In truth the Catholic Bishop tho' un-
acknowledged as such, exercises now a much greater degree of authority
than he did in the time of the French Government, because he has arro-
gated to himself every power which was then possessed by the Crown;
The Arms of England are nowhere put up in the Churches.

With the Cur^s themselves, no direct communication from the Gov-
ernment exists in any shape, a numerous and powerfull body, dispersed
in every comer of the Country, and certainly possessing a very consider-
able weight, and influence with the people, scarcely know, and are hardly
known to the Government, no one Act of Government since it has been
under my direction, has ever been addressed to a Cur6, nor has any one
instance of communication from a Cur^ ever reached me, perhaps an ex-
ception to the first part of this observation might be brought in my having
in the desire of circulating the Speech I made to the Parliament when I
dissolved it, directed a Copy to be sent to each of the Cur^s, the circum-
stance however will furnish no exception to the second part, for there did
not occur a single instance of a Curl even acknowledging the receipt of it.

« ♦ * * * *

Their attachment to France is equally undoubted, and it is now even
supposed to be not a little directed to the Person of Bonaparte, who since
the concordat, is considered among them as the Restorer of the Roman
Catholic Religion.

Of the Legislative Council it is not necessary to say much, it is cer-
tainly composed of every thing that is respectable in the Province, and I
believe the Members to be on all occasions animated by the best inten-
tions towards His Majesty's Service, & the public good; It is an Object of
great jealousy to the Lower House, who seem anxious to seize every op-
portunity of showing the little respect in which they hold it, It is thought
that an increase of numbers would add to their weight, at present they
seldom exceed five or six in the House.

0

258 Constitutional Documents of Canada, [1791-1840

To a People circumstanced as I have described these to be^ ignorant
and credulous in the extreme, having no one common tie of affection, or
union, viewing us with Jealousy, mistrust, and hatred, having separate &
distinct Interests, It has been thought proper to give a share in die Gov-
ernment of the G>untry, by a House of Representatives, in which they
must ever have the Majority; It is very far from my intention to ques-
tion the liberal views on which the measure was originally founded, but
it is my business to point out the consequences that have ensued from it

Your Lordship is aware that tho* the Constitutional Act has estab-
lished a qualification for the Electors, there is none required in the Repre-
sentation, I mean with respect to Property. The Numbers of English in
the House has never exceeded 14 or 15, in the two last Parliaments there
have been 12, in the present there are ten, some of these have of late come
from a pretty low step in the scale of society, t)ut in general they are com-
posed of two, or three Avocats, about the same number of Gentlemen
possessing Landed property, and the remainder of Merchants of Qiarac-
ter & estimation; Upon the first establishment of, the House, the few
Canadian Gentlemen that existed in the Country stepped forward, and
some were elected, but they, soon found that nothing was to be gained by
it, on the contrary, that their absence from home and their attendance at
Quebec, during three months of the year, was given at an expence that
very few of them could afford, and they gradually withdrew: now that
some of them have attempted to resume the stations they abandoned, they
have found it impossible; but at all times, their numbers were inconsider-
able: the House has ever been as it is now, in great proportion as to the
Canadian part, filled up with Avocats, and Notaries, shop-keepers, and
with the Common Habitants, as they are called, that is, the most ignorant
of Labouring farmers, some of these, can neither read nor write. In the
last parliament there were two who actually signed the Roll by marks, and
their were five more, whose signatures were scarcely legible, and were such
as to shew that to be the extent of their ability in writing.

I know not whether the excessive ignorance of these people, be not
more prejudicial than even any malevolence could be with which they
could be supposed to be actuated. In the latter case one might at least ex-
pect, that there would sometimes be division among them, but at present
they are compleatly in the hands of the party which leads the House, De-
bate is out of question, they do not understand it, they openly avow that
the matter has been explained to them the night before, by such & such
persons, and they invariably vote accordingly; It is in this manner at
their nightly meetings which arc- held for the purpose, that every ques-
tion is previously decided, and it is impossible that these people can ever
be set right, for those who judge right, never meet them out of the
House, they do not associate with them; There was lately in the House
a Habitant, who uniformly voted on every occasion against the prevailing
party, but with this single exception, I do not believe that during the
three Sessions that have been held, since I came here, there has been an
instance of one of the Members of that Class voting otherwise than with
the general Mass, that is, as directed: I mention this in order to point
out, the Compleat subjection in which these people are held, for if they
made use of their own Judgment, it is impossible, but that during so long
a period, some question must have arisen, on which tiiere must have been
a difference of opinion.

In such a House^ of Assembly as I have described. Your Lordship will
easily perceive that it is impossible that Government can possess any in-
fluence, they are certainly die most independant Assembly that exists, in
any known Government in the world, for a Governor cannot obtain
among them even that sort of influence that might arise from personsil
intercourse, I can have none with Blacksmiths, Millers, & Shopkeepers,
even the Avocats & Notaries, who compose so considerable a portion of
the House, are generally speaking, such as I can nowhere meet, except
during the actual sitting of Parliament, when I have a day of the week
expressly appropriated ts the receiving a large portion of them at dinner.

1791-1840] Constitutional Documents of Canada. 259

Of the Party who had the House, I have already had occasion to
speak in a former dispatch, and have been induced to enter into the Char-
acters of a few of them; They consist mostly of a set of unprincipled
Avocats, and Notaries, totally uninformed as to the Principles of the
British Constitution or parliamentary proceedings, which they profess to
take for their Model, with no property of any sort, having everything to
gain, and nothing to lose by any change they can bring about, only any
state of Confusion into which they may throw the Province: — ^That these
people have gradually advanced in audacity, in proportion as they have
considered the power of France as more firmly established by the Suc-
cesses of Bonaparte in Europe is obvious to every one, and that they
are using every endeavour to pave the way for a change of Dominion, and
a Return under that Government, is the general opinion of all ranks with
whom it is possible to converse on the Subject; Even the very few of the
better sort of Canadians themselves who have sufficient information to
be aware of the misery that would ensue on such an event, while the pres-
ent Government exists in that Country, and who notwithstanding their
natural affection towards what they still consider as their Mother Country,
would shrink from a Return under its rule at the moment, nevertheless
confess the obvious tendency of the proceedings that are going on here;
Unfortunately the great Mass of the people are completely infected, they
look forward to the event, they whisper it among themselves, an I am
assured that they have even a song among them, which points out Napo-
leon as the person who is to expel the English: with them the expectation
is checked by no sort of apprehension. They are completely ignorant of
the nature of the French System, they have not an idea that a change of
Rulers would produce any alteration in their situation, and tho' it you
argue with diem they are ready to admit that they are happy, and in a
State of prosperity as they are, they do not conceive that they would not
have been equally so had they remained Subjects of France.

It is scarcely possible to conceive the influence that the Ruling Party
in the House has acquired among the people, or the lengths to which those
have been carried by that influence, without the possibility of pointing
out one act, by which they have been either injured, or oppressed, they
have been taught however to look to His Maj sty's Government with the
utmost Jealousy, and distrust, they avow it, and they publickly declare,
that no officer of the Crown is to be trusted, or to be Elected into the
House, These, together with all English in general, and their own Seig-
neurs, are entirely proscribed ; It is only in the Cities, and Boroughs, that
they have any chance, there are only two instances, where long possession
of every extensive property has enabled the holders to retain their seats,
tho' it has been in both Cases with the utmost difficulty. It is now to La
Chambre, which is the usual expression, for they never even mention the
Council, that the people look up (on) as the Governors of the Country,
and yet such is the extraordinary effect of old impressions, that "de par
le Roi," at this moment would I believe be followed by immediate com-
pliance, without once reflectinp^ whether the order were warranted by Act
of Parliament or contrary to it

The great vehicle of communication between the leaders & the people
has been a paper called the Canadian*, which has been published & mdus-
triously circulated in the Country for these three or four years past; the
avowed object of this paper has been to vilify and degrate the officers of
Government under the title of Gens en place, and to bring into contempt
His Majesty's Government itself, under the affectation of the supposed
existence of a Ministere; The conduct of which was as much open to
their animadversions as is that of His Majesty's Ministers at Home.

Every topick tfiat is calculated to mislead & inflame the people has at
times occupied the pages of this paper, nothing has been omitted. The

* U Cancditn (tee No. LXXIX) wts founded m a weekly aewipeper la Noms-
ber, 18ML iu purpose being to defend the Frendi element in the Province awntt the
attacks of the Kai^Uh-epeeidnf commercial commnnitj which appeared in T'fttf Mf^cicrar.
Cnif seiied the prcM and arretted the proprietors of Lt CamsdUn in March, 1810.

260 Constitutional Documents of Canada. [1791-1840

various circumstances that brought on the abdication of James the 2d
have been pointed out with allusions as applicable to the Government
here, inferring a similarity in the occurrences of the present day; and as
if to inspire them with that confidence that might be necessary in assert-
ing their rights when the occasion should call for it, several Members
were employed in narrating the actions of the wars of 47 & 56 in which
Canadian prowess was held up in a very conspicuous point of view and their
advantages & victories dwelt upon in an emphatic manner. It need scarcely
be added that the History was derived from a very partial & exagger-
ated source.

In considering the probability of these people having in view their
return to their own Government, it may be urged that they have been
hitherto quiet & faithful subjects, during the long lapse of 50 years, in
which it would rather be to be supposed that their old attachment should
have gradually decreased, so that there should be the less likelihood of
their assuming now a disposition, of which they have hitherto shown no
indication; to all this however it may be replied, that no circumstance
whatever has occurred to awaken their attachment to their Mother Coun-
try, nor have any pains ever been taken to produce such a change, their
habits, language and religion, have remained as distinct from ours as they
were before tKe Conquest. Indeed it seems to be a favourite object with
them to be considered as (a) separate Nation; La Nation Canadienne is
their constant expression, and with regard to their having been hitherto
quiet & faithful subjects, it need only be observed that no opportunity
has presented them an encouragement to shew themselves otherwise.
From 1764 to 75 the Country was in a state of poverty and Misery, that
would not for a moment admit of a thought of revolt in which they could
expect no assistance, but even during that period there was a constant
intercourse with France; Young Men who sought to advance themselves
went to France, not to England, and some are now in the Province who
during that period served in the French Army: during the American
Rebellion it was a contest whether they should remain attached to the
Crown of England, or become a part of the American Republic, and to
say the best for them, their conduct did not manifest a very strong affec-
tion for the former, tho' the force the Americans had in the Province
was never such as to encourage them in an open display of any predilic-
tion for the latter, which however, I do not believe they entertained : their
object was to remain quiet; The French never turned their views this
way; In 1794 a strong Jacobin party^ shewed itself, and was with diffi-
culty kept under, but during all this period to which I have hitherto
alluded they had no foreign assistance to look to, nor any head to direct
them, to France they now direct their view for the former, and I am
pointing out those who I fear are preparing to offer themselves for the
latter, and certainly under the most formidable shape under which a head
could be found.

But independant of every view which may exist as to a change in
their political relation with, as a dependant on, the British Empire, the
composition of the House of Assembly as it now stands is to be con-
sidered as it affects the public good, and the general prosperity of the Prov-
ince and these my Lord, I fear can never be promoted to any extent by
it; Keligious prejudices, Jealousy, and extreme ignorance all forbid the
expectation, and these I am afraid must prevail among the Canadian part
of it for a long period to come.

Questions directly of a nature to affect either the protestant, or the
Roman Catholic Religion, have indeed never been brought before the
House; but there are many that appear to be perfectly unconnected with
the Subject, but which are nevertheless view'd by them either as affecting
some temporal right of their Clergy or as having some remote tendency

^Thit reference it to the political mission of Genet, the agent of the French
Republic in the United States. He made efforts to withdraw the French-Canadians
from their alleciance to Great Britain.

1791-1840] ConsHtuHonal Documents of Canada, 261

to promote the Establishment of the protestant interest, and to such it is
vain to expect that they should for a moment listen; this has been ex-
emplified in some remarkable instances, and that even in the Legislative
G>uncil, where in the case of a Bill brought into that House, which did
not seem to have the slightest relation to Religion, Canadian Gentlemen
otherwise I am sure most perfectly disposed to promote the Public wel-
fare, & who admitted the beneficial tendency of the proposed Act, never-
theless acknowledged they were withheld from giving their concurrence
by what they conceived a paramount duty, and it is to be remarked that
this question could by no construction whatever be supposed to affect any
right of the Catholic Bishop, or of the Clernr.

How the Act for the Establishment of Public schools was pennitted
to pass has always been matter of surprise — indeed the present Bishop
once observed in a very serious, and official conversation, "You say that
our Church never sleeps, you will allow however that we were asleep and
very profoundly too, when we suffered that Act to pass." It is observ-
able that the carrying the Act into effect, has very generally met with the
opposition of the Cur6 of the Parish in which it has been proposed to
establish a school.

The great object of their jealousy at this moment is, the progress of
the Townships — that is, in fact the introduction of Settlers of any denomi-
nation but Canadians, as having a tendency, which of all others, they are
most anxious to assert, to impede the complete Establishment of a Cana-
dian Nation ; These Townships are generally settled by Americans, a
proportion of whom are Loyalists who were under the necessity of quit-
ting their Country on the peace of 1784, but by far the greater Number
are of Americans who have come in and settled upon those lands since
that event, How far it may be good policy to admit of settlers of this
description is another question, the Canadians however are loud in their
Clamours against it; The circumstance of their being Americans, and the
principles generally attributed to these, afford them the pretext, while the
truth is, it would be equally repugnant to the idea they entertain of their
own Interests, and they would just have the same feelings upon it, were
the tract in question in a progress of settlement from Britain^ and Ire-
land; tho' in the latter case, it is probable they would not venture openly
to complain, as it is, the subject has been mentioned in the House of As-
sembly once, tmder the Idea of introducing an Act relative to it, and at
another time, under that of addressing the King upon it. This jealousy
has increased much since they are become more systematic in their oper-
ations, and will now totally prevent any measure that may be proposed
for the benefit of that part of the Country; two years ago they passed
An Act for the Establishment of a Turnpike road through a part of
it, at present, no hopes are entertained of getting them to consent to an-
other, tho' it would be highly beneficial to the City of Quebec, & en-
deavours are using to carry it into effect by other means.

The common people as may be supposed understand nothing of the
nature of the constitution that has been given them, or of that, of the
House of Assembly for which they elect Members, except inasmuch as
they begin to look up to them as the Governors of the Country; It is a
fact, that in one part of the Province whole Parishes have hitherto con-
stantly declined giving any votes at all, they say, they do not understand
it, but they suppose it is to tax them in the End; the cry of many of
them now is, they wish La Chambre (the usual expression) at the Devil,
they were very well before, and they have never had a moment's peace

since that took place.

* * * 1^ * *

It may not be useless in order to bring the whole under one view,
that I should now present a summary of the various objects which it has
been my intention to submit to the consideration of His Majesty's Minis-
ters, and to the support of which, the argument and detail to which I have
alluded are meant to lead.

They are — 1st That this is already a powerful Province in so far as

262 Constitutional Documents of Canada. [1791-184(i

depends upon numbers of Inhabitants, and that in the short period of 2i
or 25 years these will probably exceed half a million. J

2d. That the great Mass of this population, indeed that proportion
that admits of no balance from the other part, so far from being united td
us by any bond of affection, views us with mistrust, jealousy and hatred.

3d. That they are, and consider themselves as french, attached to
that nation from identity of Religion, laws, language, and manners, Thii
is general, and runs thro' all Ranks and descriptions, the exceptions as ]|
believe being very few.

4th. That this people immersed in a degree of ignorance that is
scarcely to be exceeded, and credulous in the extreme are particularly
open to the arts and delusions that may be practiced on them by factious,
and designing Men. I

5th. That they are at this moment compleatly in the hands of a party
of such factious and designing Men.

6th. That the whole Proceedings of this Party are calculated to alien-
ate the people from any attachment they might be supposed to entertain
for a Government under which they cannot but confess they have enjoyed
the most perfect security, liberty and prosperity, and to pave the way for
their return to their ancient connection with that which they esteem the»«-
Mother Country.

7th. That there is reason to fear that they have been successful in
their attempts, and that the People do look forward to a change in their
Government.

8th. That the Clergy under the general influence of attachment to
France are further from religious motives decidedly our Enemies.

9th. That the Party who have the lead in the Country have also the
compleat command of the House of Assembly, and are therefore placed
in a situation particularly favourable to their views, and of consequence
in the same proportion dangerous to His Majesty's Interests.

10th. That from the composition of the House of Assembly, it is
likely that it will ever be in the hands of any party who may have a view in
taking the direction of it; and that Government possesses no influence
by which such view, whatever it may be, can be counteracted.

11th. That from prejudice, jealousy and ignorance, it is little to be
expected that the House as at present constituted will accede to measures
that may advance the real prosperity of the Colony.

12th. That the Gorvemment is equally destitute of all influence over
the Clergy with whom it has scarcely a connection, and that this influence
is entirely in the hands of an individual who holds his power under the
confirmation at least of a foreign authority, which authority is now under
the compleat direction of our inveterate Enemy.

♦ « « ♦ « 4c

The first and most obvious remedy that presents itself, is to deprive
them of the constitution, as they term it, that is of that representative
part of the Government which was unquestionably prematurely given
them — ^neither from habits, information or assimilation, with the Govern-
ment of England, were they prepared for it, nor was this circumstance
of their unprepared state unforeseen by many of the best informed of
the Canadians themselves, who opposed its being granted to them. It was
in fact brought about by the English part of the Inhabitants, who in their
Enthusiasm for the Constitution which they so justly Esteemed as it
exists in their own Country, could not conceive |that any inconvenience, or
any thing but happiness, and prosperity, could result from its establish-
ment elsewhere. The since Catholic Bishop Denaud a very worthy Man,
observed at the time to an English Gentleman who was very warm on
tiie subject, (tho* now quite the reverse) "You do not know my Country-
men, they are not at all prepared for the Constitution you wish to give
them, once let the rein loose, and be assured they will never know when
to stop."

I am perfectly aware my Lord of the delicacy of such a measure as

1791-1840] Constitutional Documents of Canada, 263

is here alluded to, and of the possible difficulty that might attend it; It
is not however I assure your Lordship without giving the subject the ut-
most consideration in my power, or without giving due weight to the Im-
portance of such an opinion, that I venture to say, that nothing short of
that measure will afford just grounds of hope of retaining the province
under the subjection of Britain, or of the preservation of its tranquility,
and the furtherance of its prosperity; The first object will always be to a
certain degree precarious, 250,(X)0 people decidedly animated by a foreign
attachment, must always be subjects of doubtful continuance. Time may
possibly alienate that foreign attachment, but religion is one great bar to
the hope, and no one step has ever yet been pursued that could foster the
expectation: but however precarious our hold may be, is it not incum-
bent on us to do away a measure, of which the consequence was certainly
not foreseen, but from which every facility, and eveiy advantage is given
to the attempt to deprive us of that hold; that Spirit of independence,
that total insubordination among them, that freedom of conversation by
which they communicate their Ideas of Government as they imbibe them
from their Leaders, all which have increased wonderfully within these
last five or Six Years, owe their origin entirely to the House of Assembly,
and to the intrigues incident to Elections. They were never thought of
before; In the Assembly too, the leaders of any party who may have a
revolution in view will always be found, and from them faction will ever
spread; The People are always taught to look up to the House on every
occasion, and to consider it as the tutelary Genius that watches over the
welfare of the Country, they will very soon consider obedience as a duty,
and will be lead to Mutiny before they are aware that they are committing
a Crime.

Having already observed to your Lordship, that I am aware of the
delicacy, and difficulty of the measures alluded to, I have only on that
head to add that here I do not think it would meet with much of the lat-
ter; The English are decidedly for it, among the Canadians themselves
it is considered as far from improbable, nor is it without its partisans.
That it would however occasion considerable clamour, and that attempts
might be made to create disturbances upon the occasion, I have no doubt
but for the latter, the people are at this moment unprepared, and a very
little previous precaution would be sufficient to prevent serious danger.

Next to this great measure, that which is most generally looked up
to, is the Reunion of the Two Provinces, so as to Balance the Canadian
Party in the House. Of the success of diis measure I confess I have
doubts. It would produce a heterogeneous mixture of opposite principles
and different interests, from which no good could be expected, and if it
did not avert, I should apprehend it might accelerate the evil. I am more
inclined to keep the Province of Upper Canada as a foreign, and distinct
population, which may be produced as a resource against that of this
Country in case of necessity, It must always be interested in opposing
revolution of every sort here, the great distance and general poverty of
the people, appear to me, further obstacles to such a measure scarcely to
be overcome.

It has been suggested that by a new Division of the Province new
Counties might be formed in that part now distinguished by the gen-
eral name of the Townships, from whence Members might be furnished
with the same view of Balancing the Canadian Party; this seems to me
more practicable, at least than the proposed re-union of the Provinces,
besides being in itself a measure that is in some sort required in Justice
to the Inhabitants, who begin to complain of not being represented: the
Canadian part of the Electors so infinitely outnumber them tho' confined
to a much less extent of Country that they can never succeed, the only
exception is the County of Bedford which is almost entirely composed of
Townships, and from this County till the present election an English
Member, has usually been sent, on this occasion it is a Canadian Member,
with this exception not one Member has ever been r^rned from this
very large tract.

264 Constitutional Documents of Canada, [1791-1840

But without the intervention of the Imperial Parliament, conferring
on the Governor, and Council the Powers of altering the existing division
of the Counties, and making a fresh one in proportion to the increasing
numbers of Inhabitants, it will be impossible to e£Fect even this measure;
no consideration could I am convinced be offered to induce the present
House, or any House that can be formed, to entertain, the proposal for
a moment.

Short of the decisive step of taking away the House altogether, one
or other of these two measures either of reuniting the Provinces, or of
forming a new division of the Counties seems to offer the only option,
from which a hope can be entertained of rendering that House less cap-
able of doing mischief; when I say this, I mean as offering the only ex-
pectation of ever effecting a Balance, to the Canadian Party, but under any
shape in which it may be thought proper to continue the House, the enact-
ment of a qualification with respect to the Representatives seems to be
indispensably necessary, It really My Lord appears to me an absurdity,
that the Interests of certainly not an unimportant Colony, involving in
them, those also of no inconsiderable portion of the Commercial concerns
of the British Empire, should be in the hands of six petty shopkeepers, a
Blacksmith, a Miller, and 15 ignorant peasants who form part of our
present House, a Doctor or Apothecary, twelve Canadian Avocats, and
Notaries, and four, so far respectable people that at least they do not
keep shops, together with ten English members compleat the List; there
is not one person coming under the description of a Canadian Gentleman
among them.

The qualification that I think best adapted to the circumstances of the
Country, would be one hundred pounds Currency, clear annual revenue
arising from Land actually the property of the person presenting himself,
for twelve Calendar Months previous to the day of election, or two thou-
sand pounds Currency in personal property clear of all debts or demands.

With respect to a qualification for the Electors, tho' I am clear that
such would be advantageous, and that the present one as established by
the Constitutional Act is of little use, yet I feel much greater difficulty
in proposing an alteration, forty shillings yearly value of their lands,
scarcely excluded one farmer in a thousand, in fact, nearly every head of
a family possesses a farm, and every farm is of a value exceeding that
amount; the farms in general run so nearly of the same value, or vary
only on account of being in a more or less favorable part of the Prov-
ince, that any qualification under the general average, would bear the
right of suffrage very near where it now is, and if it were established at
a higher rate, it might perhaps narrow the right below its fair limits;
It undoubtedly would be desirable that the very lower class should be
excluded, but I think the number is not yet so great as to induce the risk
of what would be a greater inconvenience, to effect their exclusion, for I
should consider as such the reducing the number of Electors within too
narrow bounds.

In the meantime however an opportunity appears to me to present
itself by which much may be done towards keeping the House itself within
proper bounds; by shewing it, that its proceedings are watched, and that
it will not be suffered to outstep those limits by which its subordination
to the Imperial Parliament is established, while it would tend to manifest
that subordination to the people, and perhaps lessen the confidence they
may possess in their leaders, by shewing them that they are not all power-
ful, and that they may be in the wrong.

The House by rendering a certain class of His Majesty's subjects
ineligible to a seat, by a vote of their own, has clearly violated the Act
of the British Parliament by which they themselves exist, and should this
assumption of theirs be submitted to, they will successively vote every
class of His Majesty's servants to be ineligible, I do not speak this hy-
pothetically My Lord, as what they may do, I mean it Literally as what
I firmly believe they will do. I have not a doubt that much good would
result from a retaliatory act of the Imperial Parliament forbidding the

1791-1840] ConsHtuHonal Documents of Canada. 265

Governor to permit the House to proceed to any business, of any sort
whatever, and directing him to prorogue, or dissolve them, as he may see
occasion, whenever they attempt to proceed to any vote, or any other mo-
tion, except that of rescinding their resolve, and expunging it from their
Journals, It would be done without a moment's hesitation. It would teach
them caution in future, and it would make them view their situation in a
different light from what they do now.

This correction proceeding from Parliament would certainly be the
most effectual; If however from reasons which are beyond my compe-
tency in judging, it should not be thought advisable to move such a meas-
ure in the Imperial Parliament, It might perhaps be nearly as affectual, if
I were authorized to recommend it in His Majesty's Name, should His
Majesty in His wisdom permit me so to do, In this case I presume the
message to be delivered would be prescribed to me, otherwise, I should
express His Majesty's confident hope and expectation that they would
see the expediency of proceeding immediately, and in the first step to a
measure required of them, upon every principle of Justice to the people,
and of deference to the Imperial Parliament, and in the event of their
attempting to enter on any other business whatever, or even admit of a
motion oSier than what might be necessary for the purpose of carrying
His Majesty's recommendations into effect, I would immediately prorogue
them, and should they show the same spirit of resistance a second time,
which is not to be expected, I would dissolve them again. Should I adopt
this course as of myself, under His Majesty's instructions tho' without
His name, I fear it would produce infinite confusion and an endless con-
troversy; they would certainly resist it in the first instance, how far they
would carry their resistance it is impossible to say — ^but tho' they might
comply at last and probably would, they would accompany that compli-
ance with resolutions and proceedings that would only tend to keep us at
variance, and to impede all public business; and after all, the effect upon
them, and upon the people, would fall infinitely short of what might be
expected in either of the other ways to which I have alluded.

In adverting to the little means of influence that the Governor pos-
sesses, I am at a total loss how to propose any (except in the obvious in-
stance to which I shall shortly allude) by which it may be increased. The
Militia furnishes little or none, the great body of the officers, that is those
of the Country Companies, is composed of Habitants, but a Shade re-
moved above the others in intelligence, tho' they are chosen from the most
respectable among them. They are generally speaking the first to whom
the Agents of the Party address themselves, and they are represented to
me as among the most disaffected of the Province, as Credulous as their
Comrades they listen to, and believe what is told them, while under the
same infatuation of mistrust of every body of an Order higher than them-
selves, there are no means of disabusing them; I am certain if I were to
dismiss every officer against whom information has been given me, I
should change one third of the Militia of the Province.

Unfortunately My Lord, the great source of not only the most ex-
tensive but also of the most powerful and useful influence is in the hands
of an individual who is himself as I am assured, (and that from no bad
authority) at this moment a Suffragan of an Archiepiscopal See in France ;
I have already adverted to the power exercised by the Bishop in the ap-
pointment and removal at his pleasure of the Clergy of this province.

Upon careful enquiry into the subject, I find that previous to the
Conquest, the Bishop did exercise the right of appointment, In 1667 a
Royal Edict gave the right of patronage to the Seigneurs or founders of
the Church, but a subsequent Edict of 1699 gave it to the Bishops, but in
OrdtT to render this matter more clear I shall enclose a Memorandum
given me on the subject by the Chief Justice\

His Majesty's Right to the nomination is clear and incontestable, so
much so that were a Habitant to refuse to pay his tythes, The Church

* Sec Doughty and McArthur, p. 399, note 2.

266 Constitutional Documents of Canada. [1791-18^

might excommunicate him, but for want of that nomination, it is h
that the Cure could not in any of His Majesty's Courts of Law com
him to pay ; The resumption of this right appears to me to be indispensa
to any hopes that may be entertained of retaining the dominions of
Colony, and this I confess seems to me also to be the moment for a£Fe<
ing that resumption; It may be accomplished now, twenty years heti
it will be more difficult if not impracticable, but the truth is the dang
presses, this influence is universally believed and I believe it myself,
be now silently working against us; I do not know that the propose
change would turn its current, but I am sure it would lessen the force i
it very much. ■

The Person who at present exercises the Episcopal functions^, is n|
I think of a turbulent disposition, but he is a Man of great ambition, a^
some art, I doubt whether the former is not such as to preclude any g^re
hope of succeeding with him by a negotiation voluntarily to resign t]
Post he now holds, I am inclined to believe that he himself would prefi
that his submission should bear the appearance of an Act of necessi^
under the power of an Act of the Imperial Parliament, or of the ju
exercise of His Majesty's Right, at the same time however, if whether
be accomplished by negotiation, or otherwise. He comes into it -with
good^race, I Imagine it will be thought reasonable that his allowan<
should be increased. He has now only i200 a year, it would not be ami
to hint to him, that his Salary would be increased to the extent that H
Majesty in the exercise of His Liberality might think proper to perm
On this very important subject, permit me My Lord to refer to a lett
from Sir Robt. S. Milnes together with a Memorial from the Bfshop, copi<
of which I enclose; From some circumstances that occurred at Uiat mi
ment, no instructions were sent here in consequence, otherwise there
no doubt that the measure might have been effected.

As to the Cures themselves, it is understood that they are at prese
rather uneasy at the power exercised over them, and the obvious amelior
tion of their situation, would I think soon reconcile them to the chang
It would be proper to give them a free hold in their livings, of which thc|
could not be deprived unless it were in consequence of the sentence of th
Bishop, who on a complaint against a Cure referred to him by the Grtjvern
ment, should be empowered to call into his assistance his Grands Vicairei
and to examine into it, from which sentence however, the party shoul
have his appeal in His Majesty's Courts (it is thought that it would b|
dangerous to give him the right of enquiry into Complaints without theij
being referred to him by the Government, the removal from a living to i
better, to be of course at the pleasure of the Crown. It must be recoil
lected that the appointment of the Grands Vicaires, must also rest wit]
the Crown, at present they are named by the Bishop without even thi
Ceremony of presenting them to the Governor.

The resumption of the Lands held by the Seminary at Montreal wouU
in like manner tend to an increase of the influence of Government, an<j
would to a certainty lessen that of the self created community, in whos<
possession they now rest, the right is incontestable, and they are so sensible
of it, that they make a rule of dropping all claims by which the discussion
might be brought into Court, The Majority of the present Members oi
the Institution are french emigrant Priests, and are not amongst the least
dangerous persons in the Colony; the Person at the head of it particularly
is of that description, a very able, but a very artful designing Man, whose
predeliction for France is not doubted: the Estate under proper manage-
ment would probably produce ten thousand pounds a Year, and four would
be an ample allowance to them to carry on their Establishment; The
Seminary of Quebec is also in the possession of large property, to which
they have an undoubted Claim, and the two together, form an ample
provisk>n for the Education of their Youth.

I will not detain your Lordship any further by a word more of apology

1 Mons. Plessis.

1791-1840] Constitutional Documents of Canada. 267

for the extreme length of this dispatch, the occasion has seemed to me to
require it, and I am yet sensible of the very deficient manner in which 1
have treated the subject, which I have felt it to be my duty to undertake;
to remedy this deficiency, I have confided my dispatch to Mr. Ryland my
Civil Secretary, this Gentleman has been in office here seventeen years,
during the greater part of which, he has been in the Station he now holds
under my administration. He possesses my entire confidence and I am
persuaded is most perfectly qualified to give every Information that your
Lordship may desire, my motive indeed for sending him is that your
Lordship may have a more perfect, and detailed account than it is possible
to convey in a letter however long it may be.

I have the Honor to be,
My Lord,
Your Lordship's most obedient humble Servant.

J. H. Craig.

I * LXXIV

I OBSERVATIONS OF CHIEF JUSTICE SEWELL ON THE UNION
\ OF THE PROVINCES

t [Trans. : Doughty and McArthur.]

', May it please your Excellency.

I You have been pleased to call for my sentiments upon the present

situation of Canada, and I have now the honor to submit them to your

I consideration and superior Judgment.

The Political Evils which we labour under arise in my apprehension

, from two principal causes, 1st From French predilections in the great
Mass of the Inhabitants, and 2dly From want of Influence and power in
the Executive Government, from the former, arises that distinction between
the Government and the People, which is daily and too visibly productive
of mutual distrust, jealousies, and even enmity, and from the latter a total
inability to produce the means by which the effects of that distinction may
be counteracted. What must be the result, if things remain as they are is
obvious, No hopes can be entertained, that French predilections can be
obliterated from the minds of His Majesty's Canadian Subjects, and if
they be not counteracted, they will continue to augment until by some
crisis, force will be required and the future state and condition of Canada
will dien be decided by a recourse to arms.

The great links of connection between a Government and its subjects
arc religious (religion) Laws, and Language, and when Conquerors possess
the same religion, and use the same Laws and the same Language as the
Conquered, the incorporation of both into one political body is easily
effected : 6ut when they are at variance on these points, experience seems
to have demonstrated in Canada, that it cannot at all be effected while
this variance subsists. Obedience may be rendered by conquered subjects
under such circumstances, but it is the obedience of a Foreigner to a Gov-
ernment which in his estimation is not his own, and as he views it as an
alien power, there is no attachment, no affection in his mind towards it,
and consequently no disposition to unite with those who constitute the
Government or its natural subjects. Every favor conferred is considered
to be no more than what is due to them, or as a matter obtained from
persons who would not have conceded so much if it had been possible for
them to retain it. No Confidence exists, and he is in a continual belief,
That more is meditated by the Government, in every of its measures, than
meets his Eye. At the conquest of Canada, the conquerors were English-
men and Protestants. They spoke the English Language and no other, they
were attached to the English Laws, and fostered in their minds a natural
antipathy against Frenchmen. The English Subjects of the present day
who are settled in Canada, having no cause to be dissatisfied with the

268 Constitutional Documents of Canada. [179M840

religion the Language or the Laws of their Mother Country, and having
no cause to be better pleased with France than their Forefathers, are now
precisely what the conquerors of Canada were; on the other hand the
People of Canada at the Conquest were FrenchmeUp and Roman Catholics,
They spoke the French Language, and no other, they were attached to
French Laws, and fostered in their minds a National antipathy against
Englishmen, since that period. By the Statute 14, Geo. IIL c. 83* the Laws
of France have been enacted, and declared to be the Laws of Canada. And
the Roman Catholic Religion has been established in the Province, and as
it has not been thought adviseable, by any Act of Parliament or other means
to attempt the general introduction of the English Language, The French
Tongue universally prevails, even in the Courts of Justice and in the Legis-
lature, the Canadians therefore in those several Respects, are also precisely
what they were at the conquest. They are still Frenchmen, their habits
(the fruits of their Religion, and their Laws) are still the habits of French-
men, and so much in opposition to the habits of our own people, tho' there
is no intercourse between them ; I fear I may add with truth that the anti-
pathy of Canadians, and English Subjects against each other, is mutually
as great as ever.

It seems, Sir, to me, impossible that the incorporation of two such
Extremes can ever be effected, and to this I add, that no change in the
Laws or religion of the Country can be even expected until the Majority
of its inhabitants are Englishmen, in principle, and that while the number
of English settlers remains so small in comparison to that of the Cana-
dians, a change in Language, cannot be looked for. Yet the Province must
be converted into an English Colony, or, it will ultimately be lost to
England.

I am led from these considerations in the first instance to conceive
il indispensably necessary to overwhelm and sink the Canadian population
of (Sky English Protestants, and this I believe to be practicable; I do
not mean that subjects can or ought to be procured from England to the
extent required for this purpose, but they may, and I think ought to be
procured from the neighbouring States, For although it may be feared by
some that they would not be good Subjects, I have myself no such fears;
I believe that once settled in the Province they would have no wish to
return to their former system of Government, an expectation justified by
Che conduct of those who are already settled in the country. It is besides
only in the case of a War with the Northern States of America that the
disaffection of such settlers is to be dreaded, and this is an event to be
contemplated probably as a remote contingency. We should also remember
that the great fear of the Northern States is the Existence of a nation of
Frenchmen upon their Borders, and that in all probability the introduction
of other settlers by appeasing this apprehension, by increasing .our connec-
tions with them, and particularly our commercial intercourse, would have
a tendency to pursue the good understanding which subsists at present for
a longer course of years than otherwise might be expected, and possibly
until the original Settlers shall be succeeded by a new Generation of British
Born Subjects; But let the weight of these observances be what it may,
such settlers it is certain would be the descendants of Englishmen, profess
the same religion, and speak the same language, and would therefore be
more easily assimilated, and become better subjects than those which we
now possess, and if to people the Country with such Characters is to incur
a risk, the risk incurred will be less than that which we must incur by
suffering the Province to remain in its present state.

The Waste Lands of the Crown afford sufficient means for the accom-
modation of a much greater number of Settlers than is required, But their
dispersion through the settled parts of the Country is desirable upon many
accounts, and to effect this would require the aid of Parliament. All the
Grants of the French Government were made under the feudal System,

* Sec No. XXV.

» ObWously for "by."

1791-1840] Constitutional Documents of Canada. 269

and all the lands so granted, are now so held by the Lords of the several
Seigneuries in Canada, and their respective Tenants. To such Tenures
all Englishmen and Americans have an utter aversion, and the consequence
is that all the Seigneuries in the Province are entirely settled by Canadians,
most of the Seigneurs however, would be glad, to take a fixed price for the
fee simple of their farms, and in consideration of that Price to exonerate
them from the pa3rment of all rents, mistaken fines; and other feudal
Burthens for ever. But as the Law now stands, this cannot be done, and
an Act of Parliament for the conversion of Tenures similar to the Act
which was formerly offered to the consideration of the Provincial Legis-
lature would be required, and as such, an Act must necessarily proceed
upon the principle of a mutual agreement between the Lord and the Tenant,
and provide for the payment of the King's Quint upon the purchase. It is
evident that no Injury could accrue to the Tenant, to the Lord or to the
Crown.

In the present state of the Legislature of Canada, three fourths of the
House of Assembly are Canadians, and of that proportion of the whole
nearly of the lowest Class, The fruits of Universal Suffrage, Four fifths
of the whole also are Roman Catholics, and under the guidance of a Priest-
hood which is established by Law, but denies that the right of Supremacy
is or can be vested in the Sovereign. From such a House, Laws calculated
in principle to counteract French predilections, or, to increase the Power
or influence of the Crown must not be expected, and almost any alteration
in it must necessarily be tor the better. The Introduction of English
Settlers of itself will increase the number of English Members but the
augmentation of their number would be greatly promoted by an Act requir-
ing a qualification as well for Members as for Electors. The Character of
tne Canadian is Idleness, and inactivity, of the English Settlers Industry
and perseverance. The Canadians also divide their real property among
their children in equal proportions ad infinitum, while the English Settlers
observe an opposite Conduct, and almost universally place their younger
sons upon new lands reserving the patrimonial Estate to the Eldest. Gener-
ally speaking therefore, the English Settlers will possess property of greater
value than the Canadians, and if qualifications comparatively high are
required, The nomination of Members to the Lower House will ultimately
rest with the English Settlers. The Number also of Persons qualified to
be Members will increase among them, while among the Canadians it will
be diminished.

The present Exigencies of the Colony however require measures more
immediately calculated to produce a change in the Legislature than those
to which I have alluded, and in my mind, none would be more efficacious
than an incorporate union of the two Provinces of Upper and Lower
Canada under one Governor General, and one Legislature, leaving to the
Upper Province its present Executive Government, but rendering it subor-
dinate, and liable to the control of the Governor General, and to both, all
laws in force in each respectively. At the time of the Union; subject to
such alterations, and r^^lations from Time to Time, as circumstances to
the Parliament of the United Kingdom, or to the Provincial Legislature of
the United Provinces may appear to require. By the addition of the
Representations of Upper Canada to the Legislature of this Province, The
English Interest in the House of Assembly would be much increased, and it
might be made to preponderate by diminishing the number of the Repre-
sentatives for the Lower Province, and augmentin^^ the Number for the
Upper Province. The Importance, The respectability, and the weight of
the Legislative Council, would be materially augmented, The Influence of
the Roman Catholic Priesthood in the Legislature would be annihilated.
The Strength, The Power, and The Resources of both Provinces would be
consolidated. The Commercial Jealousies and dissatisfactions which have
arisen from the peculiar geographical situation of the two Provinces, from
the independence of their respective Legislatures, and the danger of their
acting in opposition to each other, with those consequences (to this time
prevented by temporary compacts between the two) would effectually be

270 Constitutional Documents of Canada. [1791-1840

done away, The Influence of the Governor General would be augmented by
an extensive patronage (which ought to be increased by every means) and
the designs of the Imperial Government would be more easily carried into
Execution in both Provinces, because there would be but one Legislature to
consult

It is obvious if a union of the two Provinces should be adopted, that
some alteration in the Courts of Justice would be necessary. But as detail
in the several matters upon which I write would carry me far beyond the
bounds to which I am limited in a letter, I refrain from it in the present
instance. As this however i;. a subject immediately within my own depart-
ment, I shall beg your Excellency's permission to refer to a report^ upon the
Courts of Justice in this Province submitted by me when Attorney General
to Sir Robert Milnes and dated.

And to add that if it be thought expedient to erect a Court of King's
Bench in this Province with the Powers then pointed out, It would in my
opinion be right to vest in the same Court, a Control to a certain extent
over the Courts of the Upper Province.

Among the means to be adopted for encreasing the power, and influence
of the Crown, I know of none which after those which I have mentioned,
would be so immediately efficacious, as to increase the Patronage of the
Governor, resuming and exercising the King's Right to appoint Incumbents
to all the Roman Catholic Livings in Canada, under the sanction of a
declaratory Act of the Imperial Parliament. But as His Majesty's Rig^ht
to make such appointments may be doubted, because antecedent to the
conquest, that Right was vested in the then Roman Catholic Bishop of
Quebec, I shall beg leave to lay before your Excellency the grounds upon
which in my opinion it is now vested in His Majesty.

At the Erection of the Bishoprick of Quebec in 1670 after great
contestations between the Courts of Versailles and of Rome, It was deter-
mined that the Bishop of Quebec should hold of, and be dependent upon the
See of Rome, with the title of "Vicaire du St. Siege Apostolique" and in
consequence of this agreement, though the Bishop was immediately nomin-
ated by the King of France he received from him a Commission, His
powers were derived to him entirely from the Pope, and given by his Bulle
upon which he was admitted to take the Oath of Allegiance and installed
in his Bishoprick by Royal Letters Patent.

By the 6th Article of the Capitulation of Quebec* "The Bishop was to
exercise his functions with decency until the possession of Canada should
be decided," And in the same spirit By the 29tn and 30th and 31st Articles
of the Capitulation of Montreal* and the answers, every demand made for
the continuation of the Bishops authority was rejected. Under the Capi-
tulations therefore the exercise of the Episcopal Functions could not be
claimed after the Treaty of 1763 by which the possession of Canada was
decided. The Treaty of 1763 permits the Canadians "to profess the wor-
ship of their religion according to the rites of the Church of Rome as far
as the Laws of Great Bri/tain will permit."* And the Statute 14 Geo. Ill
cap. 83 — declares that they may have, hold, exercise and enjoy the free
exercise of the Religion of the Church of Rome subject to the Kingr's
supremacy declared and established by the Statute 1 Eliz. cap. 1* Since
therefore the Titular Roman Catholic Bishop of Quebec according to the
original Creation of the See of Quebec "holds of and is dependent upon the
See of Rome," and at this moment as heretofore derives his entire authority
from the Pope, without any Commission or power whatever from His
Majesty, It is now clear that the Statute of Elizabeth which is formally
but unnecessarily recognized by the Statute 14th Geo. Ill Cap. 83, to be
in force in Canada has annihilated, not only his power, but his office. The
16th Section having especially prohibited all exercise of the Popes author-
ity, and of every authority derived from him not only in England, but in
all the Dominions which the Crown then possessed or might thereafter

> ThU Report is aa yet unfound. (Doughty and McArthur, p. 403, note 1.)

* See No. I.

• See No. n. « See No. III. • See No. XXV.

1791-1840] Constitutional Documents of Canada. 271

acquire. Yet upon a point of so much importance I am desirous of
strengthening my own opinion by that of others, and with your Excellency's
permission will therefore cite a paragraph from the Report of the Advocate
General (Sir James Marriot) to His Majesty in the year 1773 upon the
affairs of Canada. It is in Uiese words "that the Benefices (in (Canada)
heretofore in the gift of the Bishop are vested in your Majesty only cannot
be doubted in Law, because there being no Bishop by Law, Tlie Patronage
of the said Benefices is devolved to Your Majesty's Crown of Course."

I must state as alarming facts, that the education of all the Canadian
Youth of the Country male and female, and of a considerable proportion
of the English is entirely in the hands of Roman Catholic conventual
Institutions. That in the Seminary of Montreal every teacher is a native
bom subject of f ranee and a Member of the Brotherhood of St. Sulpice.
And that in the Seminary of Quebec — The last Superior was and the
present is also a Native of France. Such Institutions in eveiy Country are
Nurseries of Bigotry and of Aversion to the Civil Power, with us in addi-
tion of these evils they are the foster parents of french Predilictions, and
of a Natural Antipathy against England and her heretical (Government

Of these Establishments by far the most important and most extensive
is the seminary of Montreal, whose entire property most unquestionably
has been vested in the Crown since the period of the Conquest It is not
however necessary for me to enter into any proof upon this point, or to
state the means by which this property can be resumed because it is not
in my power to add anything to a Report upon the Subject submitted by
mc to Sir Robert Milnes dated 2d July 18Q4.

Nor will I trespass upon your Excellency's time by any remarks upon
the advantages to be derived from the influence of (government in the
Education of the rising generation. I have only to observe that I enumerate
the resumption of this property and the application of its Rents and issues
to the purpose of Education throughout the Province under Masters ap-
pointed by the Crown, among the means by which French Predilictions
may be prevented and the power and Influence of the Crown eventually
increased.

In the course of this letter I have hitherto had the honor of offering
to your Excellency's consideration those objects only which constitute in
my view the greater alterations and amendments in the Constitution, and
Government of the Province, more immediately and indispensibly necessary,
and a further detail of the whole with the measures which in my humble
Judgment it will be right to adopt in the Execution of all, or any of them,
I shall be ready to lay before your Excellency if at any time you should be
pleased to direct me so to do.

I beg leave to add that much Injury to His Majesty's Government,
and to the public peace and tranquillity of the Province, may be prevented,
by an Act of the Imperial Parliament to regulate printing and Printers in
Canada similar to the English Statute of the 38th (ko. Ill cap. 78.

I have the honor to be with perfect Respect

Sir
Your Excellency's

most obedient
most humble servant

(Signed) J. Sbwell.

272 Constitutional Documents of Canada. [1791-1840

LXXV
MR. RYLAND TO SIR J. H. CRAIG, K.B.

[Trans. : Christie, A History of Lower Canada (Public Documents)

Vol. VI (Montreal, 1866).]

LONDON, Thursday, 23rd August, 1810.

DEAR SIR,—

* ♦ ♦ * * *

I went according to appointment to Dovming Street, at 2 o'clock, and
after remaining some time with Mr. Peel, was sent for to the adjoining
office.

Lord Liverpool began the interrogation by enquiring whether I thought
a high and decisive tone, at the next meeting of the House of Assembly, or
a mild and conciliatory language would produce the best effect? I answered
that I could have no hesitation in giving it as my opinion that you could
not be instructed to hold too high a language on the occasion, and that if
the Government appeared in any degree to give way, I was apprehensive
the worst of consequences might ensue. His Lordship then repeated
the same question he had before put to me in private, whether the members
opposed to Government might not be brought over by the hope of being
employed? This question, I must confess, caused me rather a warm sensa-
tion ; but I answered with coolness, that this system had already been acted
upon in several remarkable instances, and that I could not but attribute to
it, in a great measure, the line of conduct which the leaders of the demo-
cratic party had adopted; that their original object certainly was to force
themselves into place ; but the patronage of the Governor was very limited,
and there were but few places to give away. I then repeated an observation
I had made in my first interview with Lord Liverpool, concerning Bedard
in particular, as the chief leader of the anti-government party, who has
now so committed himself as to render it impossible he should be employed.
I dwell the more particularly on these first objects of enquiry because they
mark the system which the Ministry seem inclined to adopt, and which in
my judgment, would be the most disgraceful to Your Excellency's adminis-
tration, and most injurious to the interests of the Crown, that a weak mind
could devise.

A number of questions were put to me by almost every member present.
At first they seemed not aware that the Act of Parliament obliged you to
call the Legislature together once a year*, but on this point I soon put them
right. They questioned me concerning the Provincial revenue, and seemed
to think that the supplies depended very much on keeping the House of
Assembly in good humour. On this head I observed that the casual and
territorial revenue, joined to the permanent duties already established by
Acts of the Imperial or Provincial Legislature, produced, if my recollec-
tion served me right, upwards of £30,000 a year, and that these revenues
might be expected to increase with the increasing population and commerce
of the country; that the usual annual expenditure did not exceed £40 or
£45,000 a year, and that the difference, which you were authorized to
receive from the army extraordinaries, could not, I conceived, be considered
as a material object to this countrv: I added, that if we were under a
necessity of looking to the House of Assembly for supplies, then indeed it
might be found expedient at all hazards, to secure a majority. I made
some further observations which it is not necessary to repeat, and they
seemed at last perfectly to understand, and acquiesce in the opinion that,
as far as the Provincial revenue and expenditure were concerned, there
was no urgent necessity for humouring the House of Assembly. They
then went into a discussion of the temporary Acts, and I explained to the
i>est of my ability the nature of the Alien Act, the American Intercourse

» See No. LV.

1791-1840] Constitutional Documents of Canada, 273

Act, and the Act for the better preservation of His Majesty's Government
I spoke of a renewal of the first as very desirable, though not absolutely
necessary ; that as far as related to alien enemies coming into the Province,
1 was persuaded Your Excellency would have no hesitation in taking upon
yourself to dispose of them as you might think best. But that it was to be
wished that you had certain powers given you with respect to persons who
had resided in the French Dominions or in countries under the control of
France, etc, etc The American Intercourse Act they evidently did not
understand. I endeavoured to explain how it took its rise under Mr. Ja/s
Treaty*, certain articles of which were considered by the Provincial Gov-
ernment as being still in force ; that if it was not renewed the Prohibitory
Acts of the Colonial Legislature, whose operation was suspended by it,
must take effect, etc. I doubt whether the gentlemen present had a clear
conception of the subject, for they read a clause in an Act of the Imperial
Parliament as applying to the case, which did not appear to me at all
applicable; but I declined entering further into it, wishing to bring their
attention to a matter of much greater importance, I mean the act for the
better preservation of His Majesty's Government.

I found from what had passed that they had read the memorandum
I had given to Mr. Peel, concerning it. They again asked me if I thought
the Assembly would renew it? and I answered I felt persuaded they would
not They enquired what was the proportionate number of English and
Canadian members in the former and present House of Assembly; whethei
the English were always with the Government? I said that in all cases of
great importance they were, with one exception, which was that of a Mr.
Stuart, formerly the Solicitor General', who had joined the democratic
party, and whom you had in consequence dismissed from his office, and that
the English influence at Montreal had succeeded in preventing this man
from being returned at the last election. They then entered into a string
of questions concerning the description of people of which the present and
former Houses were composed; the nature and tenure of the estates held
by the habitants, their education and prejudices; the reasons why men of
property and consequence were not oftener elected, etc. I forgot neither
the blacksmith, nor the men who attested the roll by their marks, nor the
▼iews and proceedings of the subtle demagogues who wished, for the most
mischievous of purposes, to establish a right in the majority to disqualify,
by a vote of the House, any class or description of His Majesty's subjects
from being returned to serve in it*

Lord Liverpool renewed the questions he had put to me in private, as
to the probable effect of calling the House together every year, and pro-
rowing them again the moment they manifested a disposition to do mis-
chief; to which I answered as I did before, that under such circumstances
the Colony would in a manner be without a Legislature ; that the gradual
amelioration of the laws would be prevented, and that the mercantile and
great landed interests must essentially suffer from such a state of things.
His Lordship asked me if I thought five or six-and-twenty English mem-
bers would be a sufficient proportion ; I said certainly, but that I did not
see how such a number could possibly be obtained but by a re-union of the
two Provinces. Lord Bathurst and Mr. Pervical particularly enquired
whether I thought that the Assembly at the next meeting, might be alarmed
and intimidated into better behaviour? I answered that I certainly thought
they might ; that the party were sensible of your vigotir and firmness, that
they already entertained apprehensions from your having sent me to Eng-
land, and that if they found you had the decided approbation and support
of His Majesty's Government, they would hardly dare to persist in the same

* See the Jay Treaty, 1794.

'And subsequently Sir James Stuart, Baronet, Chief Justice of Lower Canada,
decidedly the first Lawyer in the Proyince, and one of the most eminent Jurists of his
day.— R. Christie.

'There is in this section of Ryland's letter evidence that he was well acquainted
vith Craig's despatches to England, and that Craig had tutored him on the part which
tw had to play oefore the Cabinet. _

R

274 Constitutional Documents of Canada. [1791-1840

line of conduct that was pursued by the last House, although the present
was, if possible, even worse composed; but that, till some radical change
was made, so as to give to the King's Representative more influence, and
to bring into the House a greater proportion of English members, I did
not think the evil could be radically cured.

I must not omit to mention that several enquiries were put to me
respecting the Militia, which gave me occasion to inform them that the
Militia Act would expire at the end of the war, that four or five hundred
only, in the towns of Quebec, Montreal and Three Rivers, learned the use
of arms. One gentleman observed that he supposed the Militia were under
the command of the Inspectors sent out from England. This was to me
rather a puzzling observation, as I do not recollect those ofiicers having
ever come into contact with that bod/ : I said that the Militia were under
your command, as Governor in Chief of the Province, but that I feared
circumstances were such as to render it impossible for you at this time to
turn them to any good account*.

In speaking of the number of regular troops in Canada (which they
wished to learn from me I) I took occasion to mention the advantage we
had gained by the exchange of the 96th for the 8th Regiment In short,
Sir, during the three-quarters of an hour that I remained with the Council,
an infinite number of questions were put to me, which it is scarcely possible
I should, nor do I imagine you would wish me to detail One gentleman ,
only kept silent ; this was the master of the Rolls', who, you know, was in' *
office in Canada some thirty years ago: he appeared to me to be lying
perdu for the purpose of taking advantage of any incorrectness I might
fall into, or of availing himself, after I was gone, of the intimate knowledge
he had acquired of Canadhin affairs by a short residence in the Province,
when I was a boy. To this gentlemen's suggestions I am inclined to
attribute the namby pamby system of conciliation; or, rather, that desperate
line of politics which would make it necessary for a firm and dignified
Representative of His Majesty to apologize to a band of contemptible
demagogues for having frustrated their attempts to overthrow the constitu
tion of their country, v

If I do injustice to Sir William by my surmises I shall be most truly
sorry for it, and I trust that my suggestions will on no account go beyond
yourself.

I have the honor to be.

Dear Sir,

Your Excellency's most devoted and most faithful
humble servant,

H. W. Ryland.

P.S. Since I came to town I have had repeated interviews with tome
of the principal merchants concerned in the trade to the British Nordi
American Colonies, to whom I suggested the propriety of their coming
forward at this moment to oppose the attempts of the French faction in
Lower Canada, to overwhelm ue English interests of that Province. The
result has been a communication from the Committee of Merchants here
to the Earl of Liverpool, of that part of the letter from the Committees .
of Trade at Quebec and Montreal, which relates to your Excellency's
administration, and I have now the satisfaction of enclosing a copy of
their Secretar/s letter to His Lordship, on the subject

I was anxious that this should be sent in before the departure of the
September packet, as I am confident it will have a considerable effect on
His Lordship's mind, by shewing how decidedly the whole of the mercantile
interests concerned is with Your Excellency. Other measures (of whidi
I shall have regular information) are contempleted ; and should die

* Nerer — their appoiiitmeiitt were mere military ainecnres at the expense of th«
Mother Coiintry. — H Chriitie.

* It waa said that in fact Sir James Craig held the MBitia in ntter eontempt.—
R. Christie.

* Sir WiUiam Grant.

1791-1840] Constitutional Documents of Canada. 275

Minister be inclined to brin^ forward anything in Parliament relative to
Canada, I have reason to believe he will be very strongly supported out of
doors. At the same time that I mention these circumstances to Your
Excellency, I beg you to be assured that I shall be very careful of com-
mitting myself with these gentlemen, or of going one step beyond what you
would fully approve.

LXXVI

MEMORIAL FROM BRITISH MERCHANTS TO LORD LIVER-
POOL, 3 SEPTEMBER, 1810

[Trans.: Christie, op, cit.]

The Memorial of the Committee of Merchants interested in the Trade
and Fisheries of His Majesty's North American Colonies,

HUMBLY SHEWETH :

That your Memorialists, from the communications which have been
made to them by their correspondents in Lower Canada, are much alarmed
at the conduct adopted by the majority of the House of Assembly of that
Provincc-

That your Memorialists do not presume to state to Your Lordship
the proceedings which have taken place thereon, as they have reason to
believe His Excellency the Governor Gc»ieral, Sir James Craig, has trans-
mitted to Your Lordship official advices on die subject.

That your Memorialists apprehend the system which has recently been
acted upon by the majority of the House of Assembly will, if permitted to
be continued, render insecure the property of the British inhabitants of the
Province, operate as a discoura^^ement to other British subjects settling
there, 'and endanger the tranquility and safety of the Colony.

That your Memorialists have long felt the existing laws of Lower
Canada did not afford adequate protection to the British residents there,
in as much as those laws are French, and are inapplicable to the present
state of tiie Colony. And your Memorialists conceive it to be their duty
candidly to state to Your Lordship, that so long as the present constitution
of the Province remains unaltered, and especially with respect to the man-
ner in which the House of Assembly is constituted, the Colony will not
improve either in its agriculture or trade, from the baneful influence which
predominates therein, notwithstanding^ the great encouragement which has
been given by His Majesty's present Government to the Province ; and your
Memorialists regret that so far from a correspondent feeling being evinced
by the Canadians towards Great Britain, the majority of the House of
Assembly appear determined to oppose the judicious recommendation of
His Excellency the Governor General who has uniformly shewn, by the
various Acts of his Government, his great anxiety to promote the true
interests of the Province.

That your Memorialists regret to observe, the conduct of the majority
of the House of Assembly shews they are ignorant of the principles of
British Jurisprudence, and evinces a narrow minded and illiberal policyi
ill-calculated to conciliate the minds and affections of the people to His
Majesty's Government, whilst at the same time their conduct has been
most disrespectful to the King^s Representative in Lower Canada, whose
power they not only seem desirous to infringe, but likewise to assume the
functions of the other branches of the Legislature of the Colony, of which
they only constitute a part.

Under the circumstances, and from the vital importance of the Colony
to the maritime interests of Great Britain, your Memorialists appeal with
jrcat deference to Your Lordship, in the hope that His Majesty's Govern-
ment will take into their early consideration the political state of Lower
Canada; that they will support His Excellency the Governor General in

276 Constitutional Documents of Canada. [1791-1840

the measures he has been obliged to adopt, and that they will condescend
to recommend to the favorable consideration of the Imperial Legislature
such alterations in the constitution of Lower Canada as will promote and
secure the British interests in that Province.

And your Memorialists will ever pray, etc., etc

(Several signatures of business firms follow.)

London, 3rd September, 1810.

LXXVII

MR. RYLAND TO SIR J. H. CRAIG, K.B.

[Trans.: Christie op, cit,]

LONDON, Tuesday, 11th September, 1810.

DEAR SIR, — ^Just as I was about to set off for the country yesterday,
I received a note .... informing me that .... Lord Liverpool would be
glad to see me. . . . He has had the goodness to read to me his public
despatch to Your Excellency, the purport of which is nearly such as I
expected. His Lordship candidly stated the reasons why His Majesty's
Ministers could not, without stronger grounds, venture on bringing the
affairs of Canada before Parliament He particularly remarked that Lord
Grenville, as father of the Canada Act of 1791, would rally his whole
strength in support of his own Child ; that an outcry would be raised con-
cerning the oppressed Canadians, etc., etc. In short, Sir, I felt persuaded
that, as matters stood, you would not think it decorous or expedient for
me to offer any observations in opposition to what His Lordship has stated
in his despatch as the reasons for not adopting, at this time, the more
decisive measures which you have proposed. His Lordship had the good-
ness to observe, that there were several points which did not require legis-
lative interference, particularly the ecclesiastical affairs of the Province,
and he gave me full liberty to call his or Mr. Peel's attention to them at

any time, saying, that they should be taken up in the course of the winter.'

* * * nf ft *

LXXVIII

LIVERPOOL TO CRAIG

[Trans. : Doughty and McArthur.]

Downing Street, 12th Sepr., 1810.
Sir,

Your dispatches have received all the consideration to which they are
entitled from the very important Information contained in them — ^And
from the very dear and able manner in which you have discussed the dif-
ferent Topics connected with it.

I proceed now to communicate to you the Sentiments of His Majesty's
Government, upon the Points which you have brought under their consid-
eration, in the order in which they appear to arise.

It is much to be regretted that the Constitution established for the
Province of Lower Canada, by the Act* of the British Parliament of the
year 1791, should appear to have so entirely disappointed the expectations
of those who introduced it, and that the Conduct of the Assembly should
afford such strong ground for concluding that the Constitution was not
only repugnant to the established habits and prejudices of the Canadians,
but likewise ill-calculated to produce those benefits to the English Settlers
which they were led at the time to suppose would result from it

But even supposing that His Majesty's Government should feel the

* See page 280 for these "points."
» No. LV.

1791-1840] Constitutional Documents of Canada. 277

objections to the Constitution of Lower Canada, as established at present
—and the Inconveniences which you describe to arise from it, as strongly
as you dOy yet it would be a question of great delicacy and difficulty, how
far, under the present Circumstances it would be justifiable to interpose
by the Authority of Parliament for the purpose of abolishing or even of
altering it

The Act of the 31st of the King does not profess itself to be temporary
or experimental — It contains in it no Clause, by which the Right of rarlia-
ment to alter the Constitution is specially reserved. It appears clearly from
the 14th Clause, that it was the intention of Parliament that in ordinary
cases at least, such alterations as Circumstances might render necessary
should be made by the Assemblv of the Province, in concurrence with the
Council and Governor — And uio' the Parliament of the United Kingdom
under its right of general legislation for all parts of the Empire, must be
considered as unquestionably possessing within itself, the inherent Right
of altering the Constitution of any of its Colonies or Settlements, if it shall
be found necessary for the safety or prosperity of the Empire, it would
probably be thought by Parliament to require a very strong practical case,
to justify the exercise of such a right in the case of Canada, after such an
Act as that of 1791 — And notwithstanding the Evil Spirit which has made
its appearance, and is too evidently gaining ground in the Province notwith-
standing the intemperate Proceedings of the Assembly on more than one
occasion, His Majesty's Government doubt very much whether upon the
Information they at present possess, such a Special Case could at this time
be laid before Parliament as would induce Parliament after having so
recently established the Constitution, to interfere by its Authority for the
purpose of altering it

His Majesty's Government are convinced that an Appeal on this Sub-
ject to Parliament, at the present time,. would be highly inconvenient, and
as it might even be attended with very mischievous consequencesS They
are clear that unless it should become absolutely and indispensably neces-
sary, it ought to be avoided. This opinion receives additional weight f rotn
the consideration that such a diversity of sentiment appears to prevail
amongst the best informed Persons in Canada as to the nature of the
Reform which it would be most expedient to adopt, and as to the efficacy
of the different Remedies if adopted.

In such a state of things, it would be in vain to calculate with any
degree of confidence what might be the determination of Parliament — And
the most fatal Effects might be produced in Canada from the ferment which
would be excited by discussions in Parliament upon this Subject, if they
were not followed by the most decisive and effectual Measures, and sup-
ported by such a general concurrence of opinion as might reasonably ensure
a perseverance in them.

I come then to the next Question, What under the Circumstances
above stated is the course most fitting to be adopted.

His Majesty's Government have no difficulty in delivering it as their
opinion that the most advisable course, if practicable would be to endeavour
to obtain for Government by a frank exposition of the liberal and bme-
ficial views of His Majesty, and by every Measure of conciliation — the
support of the Assembly as at present constituted — His Majesty's Govern-
ment understand that the English Representatives in the Assembly, as far
as their numbers extend, may be considered as generally favorably aisposed
towards Government — And they most earnestly recommend that every
Endeavour should be used by personal communications, to conciliate the
most moderate amongst the Canadians, and to reconcile them to the fair
support of the Government against the violent designs of the disaffected
and factious, as the best means of promoting the Prosperity of the Province
and of averting Measures to which Government may otherwise be indispen-
sably compelled to resort.

>Cf. No. LXXVn.

278 Constitutional Documents of Canada. [1791-1840

If however every Effort of this nature should prove abortive they do
not see that there exists any such necessary dependence of the Executive
Government in Canada upon the House of Assembly, as need prevent your
adopting consistently with the most strict and rigid adherence to every
legal form — a firm, temperate but persevering resistance to all the En-
croachments and usurpations of the Assembly.

It is provided by the 31st of the King that the Assembly should be
called once every year^, and it is impossible not to acknowledge that by
such a Provision the Parliament intended to secure to the Colony the
important Benefits which cannot fail to result from the Opportunity which
is thereby afforded of collecting the Sentiments of the Community, and of
providing by occasional legislation such Improvements as from time to
time may be rendered necessary.

These are undoubtedly most important considerations which ought
never to be lost sight of in the view which is to be taken of this Subject,
but notwithstanding these considerations there does not exist any absolute
necessity as in the case of the Parliament of the United Kingdom, that the
Assembly should continue sitting, after it had been once convened.

It would indeed have been wholly inconsistent with the nature of a
Colony, and its necessary connection with the Mother Country, that the
Executive Government should have been placed in the same state oi
dependence upon a local Legislature, as most usefully subsists reciprocally
between tlie Crown and the Parliament of the United Kingdom.

In Canada therefore, the Executive Government is not dependent upon
the Assembly^ either for the Supplies requisite for defraying the Expences
of the Civil Government of the Province nor for the Military force essen-
tial for its security and protection*.

The Military Force which is judged necessary for these purposes is
provided from home, and I understand that the permanent Revenue of the
Province, together with what it has been usual to draw from the Military
Chest is fully sufficient for all the Expences of the Civil Government

The Executive Government therefore, in Canada, is in no way neces-
sarily dependent upon the House of Assembly — All Laws to regulate the
Commercial Intercourse between Canada and other parts of the World,
may according to the Constitution, be passed by the Imperial Parliament\

There may indeed be some Laws which have been passed by the Legis-
lature of Lower Canada for a limited time, the Expiration of which, might
prove inconvenient to the Government With respect to the Alien Law,
this observation applies only to a limited extent — for as long as the War
continues, the Crown and it& Representatives have a clear and undoubted
Right by common Law, to send all alien Enemies out of the British
Dominions, without the necessity of any Legislative Act for that purpose.

The Expiration of the Law for the safety of the King's Government,
by suspending the Habeas Corpus, might be some inconvenience, but it does
not appear to be of a sufficient magnitude to counterbalance the advantages
which would arise from the course of proceeding now proposed, compared
with that of any other which has been hitherto suggested.

With respect to Laws for internal Improvement, the want of them will
be much to be regretted by the Government and by all who are interested
in the welfare of the Province. The Inhabitants of the Province must feel,
in Uie first instance, the inconvenience arising from the interruption of all
Legislative Proceedings of this nature, and it is to be hoped that they will
be led to ascribe it to its true cause — the factious and intemperate Conduct
of their own Representatives.

If this Sentiment once gains ground amongst the Inhabitants of the
Province it may operate more powerfully than any other Measure in bring-
ing them to a due sense of their Interest and their duty.

His Majesty's Government therefore altho' they^ see much that is

* See Constitutional Act, | 27 (No. LV).

* A contemporary and official clear-cut statement of the exact place of the AasenUy
ia the scheme of Gorernment.

* See Constitutional Act, | 46 (No. LV).

1791-1840] Constitutional Documents of Canada. 279

deeply to be regretted in this state of things, see no reason why the Execu-
tive Government should feel itself essentially embarrassed in its course of
Action upon the present occasion. If the Assembly on being convened
annually, as by the Law is necessary, should adopt any violent or intem-
perate Proceedings^ the Governor should prorogue or dissolve them.

That Prorogation or dissolution with whatever inconvenience it may
be attended to uie Province, must be ascribed to those whose misconduct
rendered it necessary.

It will be of infinite importance that it should not be resorted to, till
the cause of it should be evident to the whole Province — And the more
active the friends of Government may be in endeavouring to bring forward
useful, and therefore popular Measures— the more ground the Province in
general will have to regret the Prorogation or dissolution of the Assembly.
His Majest/s Government earnestly recommend to you the Prorogation
rather than the dissolution of the Assembly, unless there is reason to believe
from a change in the temper of the People, that a more favorable' Assembly
will be elected.

A Prorogation has equally the effect with a Dissolution of quashing
every Procei^ing of the Assembly — And it is not at all desirable that
the Province should be kept in a continual state of ferment by Annual
Elections, when by Law they are only necessary, once in four years.

I have etc

Ljvbrpool.

LXXIX
STATEMENT BY RYLAND TO MR. SECRETARY PEEL

[Trans. : Christie op. cit,]

11th February, 1811.

The Assembly of Lower Canada, ever since the establishment of the
present constitution, has been constantly endeavouring to acquire privileges
beyond what was evidently intended by the Act of Parliament of the 31st
of His MajestyS to be given to that body. But the disorganizing tendency
of these attempts did not become apparent till towards the beginning of the
year 1807, when a party was formed under the auspices of a few individuals
of desperate fortunes, ^hich soon obtained a preponderating influence in
the House. Funds of a very suspicious oriain were provided for the estab-
lishment of a press, and a paper intituled "Le Canadien"* was published
weekly in French, at a very low price, and circulated with uncommon
industry throughout the Province. The chief object of this paper, though
concealed under frequent professions of loyalty and devotion to His
Majesty's person and Government, was to villify and bring into contempt
the King's Representative, to persuade the mass of the people that the
House of Assembly was superior to, and independent of the other branches
of the Legislature, and to excite in the breasts of the French Canadians,
the bitterest enmity against the English part of the community.

With a view of trying how far the House would be permitted to go,
motions were frequently made implying a right in the Assembly to super-
intend and control the Executive power, and more particularly to decide by
their own resolves on the privileges to which that body might lay claim.

The right of prohibiting, not only individuals, but certain classes of
His Majesty's subjects, from being elected Members of the Assembly, was
attempted in the Session of 1809 to be carried by a simple resolve of the
House, and such was the nature of the proceedings on the occasion, that
the Governor, with the unanimous advice of the Executive Council, judged
it expedient suddenly to prorogue the Provincial Legislature, and soon
afterwards to dissolve the House of Assembly.

* See No. LV. > Sm No. LXXHI.

280 Constitutional Documents of Canada, [1791-1840

By the time of the general election, however, the influence obtained by
the French party through the means of the paper above mentioned, became
so powerful as to secure even a more decided majority in the House than
it had before, and in the subsequent Session of 1810 after two Bills only
had been passed, the Governor found it expendient again to have recourse
to a dissolution.

It is to be remarked that, in the same Session of 1810, a resolve was
proposed and carried by the leading democratic members, "That the House
"of Assembly ought to vote, during that Session, the necessary sums for
"defraying the Civil expense of the Government of the Province."* This
was followed up by separate addresses to the King, to the Lords, spirituai
and temporal, and to the Commons of Great Britain, in Parliament
assembled, declaring the intention of the House of Assembly to take upon
itself "to pay the Civil expenditure of the Provincial Government"*

The real motive for this measure was too obvious to escape the atten-
tion of the most superficial observer ; indeed, the party did not hesitate to
boast to their adherents out of doors, that after having once obtained the
right of managing the Civil expenditure, their intention was, to reduce the
salaries of the public ofticers to such a standard as the House should judge
proper, and finally to exercise an unlimited control over the Executive
power.

These extraordinary circumstances induced the Governor in Chief to
make a special representation to the Earl of Liverpool of the state of the
Province, and to send home his Secretary (Mr. Ryland) with his des-
patches, "in order that he might be at hand to afford every explanation and
"every information in his power, that His Majesty's Ministers might require
"concerning the several objects on which he had written."

Mr. Ryland reached London the first week in August, between which
time and the closing of the September mail he had the honor of repeated
interviews with the Earl of Liverpool, who entered very minutely into the
several matters submitted to him by Sir James Craig, the Governor in
Chief.

The Governor having recommended an interference on the part of the
Imperial Parliament for the purpose of checking the efforts of a party
whose proceedings had all the appearance of being directed by French
influence, this subject was taken into immediate consideration, and Mr.
Ryland was desired to attend a meeting of the Cabinet Ministers* for the
purpose of answering enquiries concerning the political state of Lower
Canada.

Previous to the closing of the September Mail, the Earl of Liverpool
did Mr. Ryland the honor of communicating to him a despatch* to Sir
James Craig, from which it appeared, that His Majesty's Ministers did not
judge it expedient to make the affairs of Lower Canada a subject of Parlia-
mentary discussion. At the same time His Lordship was pleased to intim-
ate, that there were several objects of great importance proposed in the
letters from the Governor in Chief, which did not require Legislative
interference, although essentially connected with the power and influence
of the Crown in Lower Canada, and^ these His Lordship expressed an
intention of bringing under discussion in the course of the winter; but the
distressing event of His Majest/s indisposition has hitherto prevented
these matters from being taken into ultimate consideration.

The principal points here referred to are:

First. — The assumption, on the part of the Crown, of the patronage
of the Romish Church, as directed by the Royal Instructions, but hitherto
neglected to be carried into execution by the several Governors of the
Province. Sir James Craig's opinion with respect to the most el^ible
means of carrying this measure into effect was stated in a letter to Mr.
Secretary Peel, dated the 4th of August last

Second. — A decision respecting the estates formerly possessed by the

* Ryland quotes from The Journals of the House of Assembly, 10 Feb., 1810.

* The address is given in Doughty and McArthur, p. 366.
« See No. LXXV. • Sec No. LXXVIII.

1791-1840] Constitutional Documents of Canada, 281

Jesuits in Lower Canada, and those which, at the time of the conquest of
the Province, were held by the Society of St Sulpicians at Paris, commonly
called the Montreal Seminary Estates. This extensive and very valuable
property, the right to which is indisputably vested in the Crown, would,
under able management, not only afford ample means for the purposes of
public education, but the surplus monies arising therefrom, if added to the
casual and territorial revenue of the Crown, and to the permanent duties
already established by Acts of the Legislature would, there is reason to
believe, soon render the Provincial funds, that are at the disposal of the
Crown, adequate to the payment of the ordinary expenses of the Civil
government, and preclude the necessity of having recourse either to the
House of Assembly, or to the Military Chest (as hitherto has been custom-
ary), to make good the yearly dificiencies.

Third. — The adoption of a system for the more speedy settlement of
the waste lands of the Crown, by which means the English population, the
agriculture, commerce, and revenues of the Province might be rapidly
increased.

By the plan adopted in Upper Canada for the settlement of the waste
lands, a population of upwards of eighty thousand inhabitants has, within
the last sixteen years, been added to that Colony, whilst in the Lower
Province the increase from this source, during the same period, has not
amounted to twenty thousand.

Should the Earl of Liverpool deem these matters of sufficient import-
ance to claim the immediate attention of Government, Mr. Ryland is led
to hope (from his having held the Situation of Governor's Secretary in
Lower Canada ever since the return of Lord Dorchester to that Province
in the year 1793, and the knowledge his official duties have given him of all
which has passed concerning them) that he might be enabled to afford
some assistance towards brinp^ng them to a final conclusion ; and he would
be happy to be employed durm^ the remainder of his stay here in any way
in which His Lordship may think it possible for him to contribute to the
accomplishment of the important objects which the Ck>vernor in Chief of
His Majesty's North American Provinces had in view in sending him to
England.

H. W. R.

LXXX

AN ACT DISQUALIFYING JUDGES FROM SITTING IN THE
HOUSE OF ASSEMBLY OF LOWER CANADA

[Trans. : Doughty and McArthur.]

AN ACT for declaring Judges to be disabled and disqualifying them,
from being elected, or from Sitting and Voting in the House of Assembly.

(21st March, 1811.)

Whereas it is expedient to make effectual provision for excluding
Judges of His Majesty's Courts of King's Bench within this Province from
being elected or sitting and voting in the House of Assembly of this
Province, Be it therefore 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 Lower Canada,, constituted and assembled by virtue of
and under the authority of An Act of the Parliament of Great Britain
passed in the thirty-first year of His Majesty's Reign, 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." And
it is hereby enacted by the authority of the same that from and after the
passing of this act, no person who shall be a Judge of either of His Ma-
jesty's Cx>urts of King's Bench within this Province, shall be capable of
being elected or of sitting, or voting, as a Member of Assembly in any
Provincial Parliament

282 Constitutional Documents of Canada. [1791-1840

LXXXI

MEMOIRE" AU SOUTIEN DE LA REQUETE DES HABITANS DU

BAS-CANADA. A SON ALTESSE ROYALE LE PRINCE

REGENT, HUMBLEMENT SOUMIS A LA CONSIDER-

DERATION DE MILORD BATHURST, MINISTRE

D'ETAT POUR LES COLONIES*

[Tran».: Christie, op. cit.]

N.B. — A printed copy of this Memoire is supposed to have accom-
panied a general address that was forwarded to England in the year 1814;
and there is every reason to believe that the said printed paper was trans-
mitted by the Secretary of State to Sir George Prevost, who put it into
the hands of several persons, but without mentioning from whom he re-
ceived it, and it is very certain that the Memoire itself was communicated
only to a very few select persons, the people at large knowing no more of
it than they did of what was then passing in the moon.

[H. W. Ryland.]

Nous regardons notre constitution actuelle comme celle qui est la plus
capable de faire notre bonheur, et notre plus grand d^sir serait d'en pou-
voir jouir suivant I'intentiott de sa Majesti et de son Parlement; mais mal-
heureusement, la mani^re dont elle a M administrte, jusqu'ici, lui donne
un e£Fet bien oppose k cette intention.

Ce mauvais e£Fet est une suite de la maniire dont se sont form^ les
partis de cette province.

Lorsque notre constitution nous a iii donn^e, les anciens sujets (d6-
nomm^s Anglais dans le pays, de quelques nations q'ils soient) etaient en
possession des places du gouveniement Si quelques Canadiens y Etaient
admis, c'etait sur leur reconmumdation, et ils Etaient choisis du nombre de
cenx qui leur Etaient d^vou^.

Depuis la constitution^ les choses ont continue sur le meme pied, les
anciens sujets ont continue d'etre en possession des places, et sont devenus
le parti du gouvemement; le canal des recommandations est continue le
meme. et il n'a 6te admis aux places, comme auparavant que quelques
Canadiens dont le d^vouement ^tait connu.

Comme les Canadiens composent la masse du peuple, la majorite de
la Chambre d'Assembl^e s'est trouv^ compos^e de Canadiens, et les Ang-
lais, avec quelques Canadiens d^vou^s, ont form^ la minority ; et comme
les Canadiens de la minority, librement 61us par le peuple, ne se trou-
vaient pas avoir le d^vouement n^cessaire, ils n'ont pu avoir part aux
places. Les membres qui ont ^t^ fait Conseillers Ex^cutifs ont ^t^ pris
dans la minorite, le parti du gouvemement s'est trouv£ li^ avec la min-
orite de la Chambre d'Assembl^e, et la majority c'est-a-dire la Chambre
d' Assembles elle-meme, i, laquelle est attach^ la masse du peuple, re-
gard^ comme un corps etranger, k peine reconnu du gouvemement et
des autres branches de la legislature, a ete laiss^e dans I'opposition cooune
destin6e k etre men6e par la force ; et effectivement les gens du parti ang-
lais, qui avaient manqu^ de succ^s dans les efforts qu'ils avaient faits
pour que la constitution leur fut donn^ k eux seuls, et que les Canadiens
n'y eussent aucune part, se trouv^ent, 6tant devenus le parti do gouv-
emement, avec un moyen d'empecher les Canadiens d'en jouir autrement
qu'ils ne le voulaient eux-memes.

A chaque fois que les Canadiens ont voulu proposer quelque chose
qui n'etait pas conforme aux id6es de ce parti, ils se sont trouv6s en op-
position avec le gouvemement, et ont et^ traits de mauvais sujets et de
gens oppos^ au gouvemement Le gouvemement n'a aucune communi-

*Tkit it one of the earliett •tateaenti of the case for the majori^ ia Lover
Caaada. It mutt be compared with "The Ntnety-two Kesolutioiia** (tee No. CXIV).
It coataisa aa early auneatioB for aoasc Und of "rcsponalUe gotcnuBcat.''

1791-1840] ConsHtuHonal Documents of Canada. 283

cation avec la majority de T Assemble que par le moyen des conseillers
et gens en place de la minority, qui, £tant rivaux de la majority, sont peu
propres a la bien repr^enter.

II est en leur pouvoir de faire telles representations que bon leur
semble de ses mesures, de ses sentimens et de ses intentions, et n'^tant
point de la majority, ils sont plutot comme des ESP IONS employes par
le gouvemement pour 6pier cette majority, que comme les membres par
Icsquels un corps communique reguli^rement avec son gouvemement. Les
plans et projets du gouvemement sont prepares par les conseillers de la
minority, avec les autres conseillers, sans la participation des membres
de la majorite, et sont ensuite apportes i la Chambre pour etre passes par
la majorite, et la majorite n' a alors d'autre alternative que de les passer
ou de se trouver en opposition avec la minority, c'est-a-dire avec le gouv-
emement, et d'etre traits comme, on traiterait des rebelles au gouveme-
ment Le style des gens du gouvemement, avec des talens le plus souvent
assez mediocres, et n'ayant qu'un lustre et un m^rite qui leur est Stranger,
peat facilement etre imaging. Les divisions de la Qiambre d'Assembl^e
deviennent nationales; les Anglais d'un c6t6 formant la minority, a la-
qnelle est li^ le gouvemement, et les Canadiens de Tautre formant la nu-
jorite, i laquelle est attach^ la masse du peuple; la chaleur de ces divi-
sions nationales passe de la Chambre d'Assemblee dans le peuple, tout le
pays se trouve devis^ en deux partis; le parti anglais du gouvemement
d*an cote, et la masse du peuple de Tautre. Cette apparence des Canadiens
Catholiques Franqais en opposition avec leur gouvemement, augmente con
tinuellement contre eux les pr6jug6s de la partie vulgaire du parti anglais,
qui les traite de bonne foi de la maniire la plus r^oltante pour en peuple
qui se sent loyal ; et ainsi plus les Canadiens veulent jouir de leur consH-
tuiion, plus ils donnent mati^re au pr^texte sur lequel le parti anglais
fonde son interet comme parti, savoir, celui du peu de confiance qu'on
doit avoir dans les Canadiens.

Les gouveraeurs qui ne connaissent les Canadiens que par les gens
du parti anglais qui sont dans les emplois du gouvemement, sont frapp^s
de les voir continuellement opposes au gouvemement et aux Anglais, et
ne peuvent s'empecher de contracter bientot Its memes pr6jug6s qu'eux,
qu'ils font sans doute passer au gouvemement de la m^re-patrie; de sorte
que I'effet naturel de Texercise de la constitution par les Canadiens, est
d'enflammer la division entre les Anglais et eux, de les faire regarder
ici comme de mauvais sujets toujours opposes k leur gouvemeipent et
aux Anglais, et de donner une mauvais^ id6e d'eux au gouvemement de
Sa Majeste, en Angleterre.

A chaque fois que les Canadiens, encourages par l^idie de leur con-
stitution, ont essaye d'en jouir, ils ont itk terrasses, comme opposes au
gouvemement; ils ont encore le coeur bris6 de traitemens qu'ils ont
6prottv^s sous I'administration du gouvemement precedent. II leur semble
etre le^ jouets d'une contradiction Strange, comme si d'un c6t£ une con-
stitution leur eut ixh donn^e, sans doute pour en jouir, et que que de
I'autre il eut et6 plac6 un gouvemement expr^s pour les en empecher, ou
au moins pour empecher qu'ils ne puissent le faire, sans paraitre mauvais
sujets. Ils sont plus mal que s'ils eussent et6 prives d'avoir part k la con-
stitution, et qu'elle eut ixi donn^e aux anciens sujets seuls; car ils ne
seraient pas plus priv6s d'en jouir, et elle ne serai t pas un moyen de les
rendre odieux k la m^re patrie.

II leur parait impossible que I'administration soit plac6e dans les mains
d'un parti qui les regarde comme leurs rivaux, sans que I'effet direct soit
de les tenir continuellement, et comme expr^s, en opposition avec leur
gouvemement Ce parti a interet de les faire passer pour d^loyaux; il a
mtiret de les gouvemer de maniere k les faire paraitre tels; de mani&re
meme i les rendre tels pour qu'ils le paraissent

L'effet d'une telle administration qui tient continuellement le peuple
en opposition avec son gouvemement ne pent etre que bien mauvais.

L'administration elle-meme ne pent etre propre k attacher le peuple
an gouvemement; elle parait, au contraire celle qui seraijfc la plus propre

284 Constitutional Documents of Canada. [179M840

a faire du peuple le plus loyal un peuple de mauvais sujets. Les maximes
sur lesquelles ce parti soutient son int^ret corrompent les id6es avantage-
uses que les Canadiens ont de leur constitution, et tendent a la leur faire
paraitre sous un jour sombre et odieux.

D'apr^s ces maximes, les interets du Gouvemement seraient regardes
comme opposes i ceux du pays ; les Canadiens comme moins attaches aux
interets de la m^re-patrie, parce qu'ils sont plus attaches i leur pays, et
les gens du parti anglais comme les seuls a qui les interets du Gouveme-
ment de Sa Majeste puissent etre confies, parce qu'ils ont moins d'afiFection
pour le pays. Cette colonic serait regardee plutot comme une proie qu'on
a besoin de tenir par force, que comme une d^pendance de Tempire qui
lui est attach^e par son propre bonheur, comme les autres parties.

Ce n'est pas I'intention de la m^re-patrie que tout soit sacrifie dans
le pays, pour que les places soient donnees a un parti plutot qu'a un autre ;
et cependant il se trouve que tout k ete sacrifie pour que les places fussent
donnees k ce parti. C'est pour que toutes les places de conseillers fussent
donnees i ce parti, qu'aucun des membres de la majority de TAssemblee,
pas meme I'orateur, n'a pu etre conseiller, ce qui est la cause de tout le
d^ordre qui parait dans I'exercice de notre constitution. Nos lois de pro-
pri6te sont tombees dans Toubli, pour que nous eussions sur le banc des
ju^es de ce parti qui les i^oraient II y a un juge en chef et deux juges
puisnes pour juger les actions "/^r goods sold and delivered!' et quelques
autres actions mercan tiles, et il n'y a qu' un juge canadien pour toutes les
lois qui assurent les proprietes des sujets canadiens de Sa Majeste.

Nos r^les et nos formes de proc6der sont tombees dans I'oubli pour
avoir sur le banc des juges de ce parti qui les ignoraient; le d^faut d'ex-
perience qui ne se doute jamais des difficultes, a sugg^r^ aux juges qui se
trouvaient dans la Legislature, (I'ancient Conseil L^islatif) d'en cr^er de
nouvelles pour n'avoir pas la peine d'apprendre les anciennes.

Les nouvelles se sont trouv6es imparfaites, il a fallu en faire de
nouvelles encore, qui se sont encore trouv6es imparfaites; il a fallu enfin
abandonner aux cours de justice la pouvoir d'en faire k discretion, et
ainsi, elles ont tou jours £t6 dans une fluctuation continuelle par le besoin
de changer continuellement ; toujours nouvelles, toujours sujettes a inter*
pr^tations, k des cas impr^vus, i etre enfreintes lorsqu'il 6tait trouve
equitable de les enfreindre, et I'administration de la justice a 6te arbitraire
faute'de r^les certaines et connues pour la procedure, et tout rem^e est
impossible, soit qu'on s'addresse k la L^slature ou k I'Extoitif, parce
que par une suite du mal dont nous nous plaignons, et pour avoir partout
les gens de ce parti, qui ne peuvent suffire k tout, les juges sont dians les
Conseils L^islatif et Ex^utif.

La defense de la Province ne pent etre que consid6rablement afiFaiblie
par I'existence des partis tels qu'ils sont dans le pays. Un gouvemeur ne
pent avoit pour lui le parti anglais, le parti du Gouvemement, sans adopter
toutes ses idees, ses prejugees et ses plans contre les Canadiens; il ne
peut se rendre les Canadiens tant soit peu favorables, sans exciter contre
lui la haine de tout ce parti si puissant par ses clameurs qui corrompent
tout dans le pays, et pour ses communications en Angleterre, qui font
paraitre continuellement precaire et incertain le sort de ceux contre qui
ils se plaignent. ^

II y aura bien peu de gouvemeurs qui auront assez de talent pour
lutter contre tant de d^savantages, et une vertu assez sublime pour faire
ce qu'ils croiront de leur devoir pour le plus grand int^ret de la mere-
patrie, au risque de succomber sous les rapports faits contre 6ux aupres
du Gouvemement de la m^re-patrie et de paraitre I'avoir mal servi ; tandis
qu'il serait si facile de suivre la m^thode qui procurerait des applaudisse-
ments et des rapports favorables, en donnant pour excuse le peu de con-
fiance qu'il y a i placer dans les Canadiens.

Les Canadiens formant la principale population du pays, et celle dont
le Gouvemement peut tirer quelque ressource dans le besoin, il serait
juste qu'ils eussent le moyen d'etre connus par eux-memes, et qu'H ne fut
pas abandonn^ au parti qui leur est oppos6, quelque respectable qu'il soit.

1791-1840] Constitutional Documents of Canada, 285

de les repr^senter sous les couleurs que bon lui semble. Tous les con-
seillers et gens en place qui sont appeles pres du Gouverneur, etant de ce
parti, le Gouverneur n'a aucun moyen de connaitre les Canadiens que par
cux.

Si un gouverneur a voulu etre juste et entendre les deux partis, il a
6te oblige de le faire comme k la derobee par des moyens irreguliers, et
n'a put le faire sans avoir Tair de negliger les conseils qui lui 6taient
donn£s par les conseillers et officiers du Gouvemement, pour se conduire
par des conseils obtenus c;a et la des particuliers, et sans exciter par
la, avec quelque apparence de plausibilite, la jilousie et la haine des
premiers et de tout le parti.

S'il est juste que les Gouvemeurs connaissent les deux partis, et
qu'ils ne re^ivent point les accusations contre les habitans du pays, sans
les entendre, il est juste que ces derniers aient aussi un moyen regulier
d'etre entendus par des conseillers et gens en place, pris d'entreux, et que
ces conseillers ne soient pas nommis d'aprh les recommendations qui pets-
sent par le Canal ordinaire.

La Chambre d'Assemblee offre un moyen d'en obtenir d'une maniere
rq^uliere, sans que ce soit sur les recommandations de ceux du parti ang-
lais. Si le Gouvemement avait lepouvoir d'appeler au conseil les principaux
membres de la majorite de la Chambre d'Assemblee, il aurait par la un
moyen d'entendre les deux partis, et de n'etre point oblige de ne con-
naitre Tun que par les informations revues de I'autre, il ne serait plus
prive des connaissances et des conseils qu'il pourrait tirer des anciens
habitans du pays, et necessite de n'ecouter que ceux qui viennent du parti
oppose, qui n'est pas celui ou il y a le plus de connaissance du pays, ni le
plus d'interets conformes a ceux du pays.

Apr^s avoir entendu les deux partis, il serait en ^tat de decider sur
les mesures qu'il a a prendre, et de transmettre des informations justes
en Angleterre.

II ne serait pas oblig^ de suivre les conseils donnes quand il ne les
trouverait pas justes, il aurait seulement I'avantage d'en profiter lorsqu'ils
le seraient.

II ne serait pas expos6 i se trouver si souvent en opposition avec la
Chambre d'Assemblee.

II y aurait un lieu oti les deux partis pourraient s'entendre et se con-
dlier sur leurs plans et leurs projets, et bien des oppositions inutiles qui
ne viennent que de ce que les projets ont ete concertes separ6ment, et de
ce que I'amour propre de ceux qui les ont faits se trouve engage k les
soutenir, seraient otees; il n'y aurait plus de moyen d'indisposer le Gouv-
emement, tant ici qu'en Angleterre, contre la masse du peuple du pays.

Le peuple se lierait plus avec le Gouvemement. Le Gouvernement
qu'il ne regarderait plus comme compost de gens qui sont remplis de
prejuges contre lui, et qui lui sont toujours opposes, lui inspirerait plus
de confiance et de respect. II n'arriverait plus que des plans seraient
appuyes par le Gouverneur apres que les debats en auraient fait apercevoir
les erreurs d'une maniere palpable, a la face de tout le public ; il n'arriverait
plus qu'on verrait les Gouvemeurs s'appuyer de bonne foi sur des raisons
donnees par la minorite dans I'assemblee, et dont tout le faible aurait
et^ montr6 dans les debats. L'amour propre blesse d'un conseiller de la
minorite n'aurait plus d'nteret de faire reparaitre appuye du Gouverneur,
un principe ou une mesure dont I'absurdit^ aurait It6 publiquement d^-
couvertc. La partiality de communications entre I'Assemblee et le Gouv-
emement par le moyen d'un conseiller attache k la minorite, dont l'amour
propre est int6ress6 a faire valoir le parti qu'il a pris souvent au hazard,
ou par esprit de rivalit^ sur une question imprevue, et k att^nuer et deguiser
la force des raisons employees contre lui, cesserait d'etre une source de
m^sintelligences entre le Gouvemement et la Chambre d'Assemblee. La
sensibilite des membres de I'Assemblee ne serait pas si souvent blessee
par I'apparence de partialite du Gouvernement, pour un membre de la
minorite contre toute I'Assemblee, et cette branche de la Legislature ne
serait pas ramenee si. souvent au sentiment de sa propre degradation, en

286 Constitutional Documents of Canada. [1791-1840

se voyant jugee et souvent injuriee sur le rapport int6ress6 d'une des
membres de la minority, et expos^e i I'insolence irritee d'un de ces mem-
bres soutenu par le Gouvemement dans les vains efforts qu'il fait contre
die.

Et enfin le moyen d'influence du Gouvemement sur la Chambre
d'Assembl^e, ne serait plus par des insinuations malignes, des injures et
des menaces qui rebutent et qui jettent le feu de la discorde entre les
deux partis dans TAssemblee d'ou il passe au dehors.

S'il etait possible qu'un nombre de places de conseillers ou ^auires
places d'honneur et de Profit, fut accordi 6 ceux qui ont le plus d'influence
sur la majoriti de la Chambre d'Assemhlie, qu*elles dipendissent entidre-
ment de leur succis d /y maintenir, et qu'tl fut certain et bien connu
qu^il n*y aurait aucun autre moyen de les obtenir, il y a lieu de pr^sumer
que les deux partis se reuniraient bien vite dans la Chambre d'Assemblee,
que cette division nationale si contraire au but du Gouvemement dis-
paraitrait tant dans I'Assemblee qu'au dehors, et que cette apparence hon-
teuse d'opposition entre les Canadiens et leur Gouvemement, qui fl^trit le
peuple du pays et le fait paraitre sous les couleurs odieuses si peu meritees,
d'un peuple de Rebelles, cesserait de gater une des plus belles dependances
de I'Empire dans TAmerique.

Les id6es que ceux du parti anglais s'efforcent d'entretenir, que les
Canadiens sont moins propres k remplir des oflices de confiance parce
qu'ils sont trop interesses pour leur pays, et qu'ils ont moins d'interet et
d'affection pour la mere-patrie, sont peu justes. Un Canadien est plus
attadi^ i son pays qu'a toute autre partie de TEmpire, comme un Ecossais
est plus attache a TEcosse, comme un Anglais est plus attach^ a I'Angle*
terre, il n'en est pas pour cela moins capable d'occuper des offices de con-
fiance dans son pays. L'honneur ou meme le risque de perdre sa place
n'infiuera pas moins sur lui que sur un autre, en supposant le faux principe
de la difference entre les intlrets de la m^re-patrie et ceux du pays.

Un anden sujet doit etre, il est vrai, plus attach^ a TEmpire; mais
aussi il a moins d'aversion pour le peuple et le Gouvemement des Etats-
Unis, et si tout est mis en calcul, il en r^sultera qu'un Canadien est beau-
coup plus fortement attache aux interets de la mere-patrie, relativement
a la conservation de ce pays.

Les Canadiens incapables de se proteger eux-memes, n'ont point
d*autre ressources que dans la protection de la m^re-patrie. Ce pays une
fois perdu, ils n'ont plus de patrie ou ils puissent tourner les yeux; un
Anglais a encore sa patrie.

Si les Canadas passent sous la domination des Etats^Unis, leur popula-
tion sera submergee par celle des Etats-Unis, et ils deviendront nuls, sans
aucune influence dans leur Gouvemement ; incapable de proteger leur reli-
gion, qui ne fera que les rendre odieux i toutes les autres sectes qui abon-
dent dans les Etats-Unis, et qui, quoique tol6rantes entr'elles, s'accordent
toutes k detester la leur.

Tous les p^res de famille attaches a leur religion ne peuvent penser
qu'avec horreur k laisser en mourant leurs enfans sous une pareille domi-
nation. Tant que le pays demeurera sous Tempire Britanique, ils n'ont
pas les memes dangers k craindre, ils n'ont pas k apprehender qu'une popu-
lation enemie de leur religion, emigre des domaines de la m^re-patrie; ils
ont esp6rance que leur population sera tou jours la plus considerable du
pays, et qu'avec une constitution telle que leur a accordee la m&re-patrie,
ils auront le moyen de conserver leur religion, et tout ce qui leur est cher,
pourvu que la mere-patrie veuille bien les laisser jouir de cette constitution
sans qu'elle serve k les rendre odieux, et pourvu que I'encouragement
donn^ k la population americaine dans ce pays par I'administration du
parti anglais, cesse d'amener le mal qu'ils ont a craindre.

Ceux du parti anglais sont opposes k leurs interets, en ce qu'ayant
beaucoup plus d'affiniti avec les Americains par leurs moeurs, leur reli-
gion, leur langage, ils encouragent la population americaine, comme un
moyen de se debarrasser des Canadiens qu'ils regardent toujours comme
one population etrangfre, conmie une population fran^se Catholique,

1791-1840] Constitutional Documents of Canada. 287

avec les memes prejug^s que la classe du peuple, dans la mire-patrie, a
contre les Frangais et les Catholiques, ils ne peuvent s'empecher de se
regarder cotnme dans un pays Stranger, dans une province oh la popula-
tion canadienne (frangaise) domine; une colonie peupl6e d'Americains
leur parait plus une colonie anglaise, et ils ne s'y regarderaient pas autant
comme dans un pays Stranger. Ces effets sont encore augment6s par la
drconstance, que la plus grande partie, pent etre» des officiers du Gonv-
ernement est devenue personnellement int^ress6e i Tintroduction de la
population americaine dans ce pays, par les concessions des terres de la
Couronne, qui leur ont tt€ accord6e8, dans le voisinage des Etats-Unis;
ainsi U farii anglais est opposi au parti canadien, justement sur le point
qui toucne a sa vie et i son existence comme peuple.

La seule chose qui reste aux Canadiens dans leur situation actuelle,
est I'espoir qu'ils ont que la m^re-patrie trouvera enfin que leurs int^rets
concourent avec les siens pour la conservation du pays, qpt Tengloutisse-
ment de la population canadienne par la population am^ncaine, sera Ten-
gloutissement de la domination de la m^re-patrie sur le pays, et que la
perte de la vie politique des Canadiens, comme peuple naissant, sera aussi
la perte de la vie politique de tout le pays, comme colonie britannlque.
Ils espirent que ces choses seront apergues de la m^re-patrie, et qu'on y
concevra une assez bonne opinion de leur int^ret, sinon de leur fid^lite
pour les juger dignes de jouir de leur constitution, en commun kvec les
autres sujets de Sa Majeste sans aucune distinction, et s'ils n'ont pas ce
bonheur, ils se voyent par leur situation actuelle destines 4 devenir, aux
yeux de la m^re-patrie, un peuple odieux et continuellement soupgonn^s,
en attendant qu'ils soient engloutis dans le gouffre qui les attend.

Nous supplions Votre Seigneurie d'etre persuadee que les sujets cana-
diens de Sa Majesty sont de vrais et fideles sujets; ils ont d6j^, sous les
armes de Sa Majest6, conserve leur pays dans un temps ou les autres sujets
de Sa Majeste leur ced^rent en fidelity, ils sont encore actuellement sous
les armes de Sa Majesty pour le d^fendre, si leurs faibles efforts peuvent
etre un ttooignage suffisant de leur fidelity, ils esp^rent que Son Altesse
Royale voudra bien prendre leur situation en consideration, et leur accorder
tel remMe qu'elle jugera convenable.

LXXXII

REMARKS (BY C. J. M.)* ON A PUBLIC DOCUMENT* THAT

ACCOMPANIED AN ADDRESS TO HIS ROYAL HIGHNESS

THE PRINCE REGENT FROM THE ROMAN CATHOLIC

INHABITANTS OF LOWER CANADA, FORWARDED

IN NOVEMBER, 1814

Entitled "Mtooire au soutien de la requete des habitans du Bas-Canada, i
oon Altesse Royale le Prince Regent"

"Humblement soumis k la consideration de Milord Bathurst, Ministre
d'Etat pour les Colonies."

[Trans.: Christie, op, cit.^

It is thought that this interesting document was produced by the com-
bined efforts of the leading Roman Catholic characters in the several
Provincial Parliaments held from 1809 to 1814 inclusive.

The sentiments expressed have been principally a^wed by those
leaders, and uniformly pursued in the House of Assembly.

The document, though accompanying the address, was not, however,
to the subscribers ^[enerally, nor can be considered as being correctly a
substantial part of it

It would seem intended by this memoir to represent to His Majesty's

'Cklef Justice Monk, of tke Kiag't Bench for the Pietriet of MontrcsL
* See No. LXXXI.

288 Constitutional Documents of Canada. [179M840

Ministers the conflicts of parties in the colony, their rise, and the occa-
sions that produced them, with their attendant pernicious consequences,
and to point out the means of avoiding existing and growing evils.

The document, when analysed, will present, under different heads,
features of no small interest, when it is considered in respect to the sources
from which they have proceeded, and the ends to which they are directed.

1st The Roman Catholic Canadians are rightly said to constitute
the great mass of the people of Lower Canada, it is asserted that their
delegates to the House of Assembly represent the whole people.

And it is argued that all the representations of their interests by those
delegates — ^it would seem, by referring to passed proceedings in the Legis-
lature— ^become the rights of the people.

2nd. To resist those rights so represented, is "to do injustice to the
"Canadian people. It not only excites conflicts between the legislating
"powers of Government, but manifests an injustice that will justify the
"discontent of the people, declared and enforced by their representatives."

3rd. Throughout this whole document there pervades a continued
libel upon, and an accusation of injustice, in the exercise of the prerogative
in this Colonial Government. The officers, the servants of the Crown, are
held up as a combined faction "of spies," struggling to support a Gov-
ernment adverse to the interest and rights of the people. And this is
argued to be manifested by the Government not having appointed into the
councils and offices of Government those leaders of the people influencing
the majority of the Canadians, and from whom intelligence and support
can alone be attained to His Majesty's Government.

4th. By this memoire every Roman Catholic Canadian character that
has been promoted to the King's Council, or offices of his Government,
are held up as persons devoted to support the adverse interests pursued
by the Government minority against that of the Canadian people; and
this minority is represented as English subjects, or rather Protestants,
who are using constant devices to represent the Canadians as a disloyal
people, — "a people and country rather considered as a prey, useful to be
retained by force, than as a dependance of the Empire."

5th. The appointment of His Majesty's old subjects as judges is held
up as an injustice to the new subjects, the Canadians. These subjects are
indirectly vilified as being persons unqualified ; and the proceedings of the
Courts of Justice are represented as the result of ignorance, and uncer-
tainty, and injustice. The errors of lay characters placed in those Courts
some twenty or thirty years passed, are by allusions applied to the judges
of the present day; and the Courts are falsely and grossly vilified. The
purpose is plain: to degrade and weaken the main support of His Ma-
jesty's Government.

6th. It is stated that every Governor is shackled by those unfaithful
servants, who are represented as a factious minority, that ensnare or impel
the Governor to follow their Counsel, or to be by them unfavorably repre-
sented in England as joining with disloyal Roman Catholics, the leaders
of the Canadian people.

7th. That the only means of knowing the two parties, and to pre-
vent the Governors being ensnared by the minority above stated, would
be that of a power lodged with the Governor to select from the majority
of the House of Assembly (the leaders,) and place in the Executive
Council such characters of those who might convey a true knowledfi^e of
the interests of the country, in place of being restrained to the minority,
"Anglais," who neither possess the knowledge, the confidence, nor the in-
terests of the people and country.

The piece concludes with calling to remembrance the loyalty of the
Canadians in 1775, at a time that the King lost his other colonies. That
at present they were under arms to defend the country, and their efforts
would show at> least their zeal and fidelity, and a hope that His Royal
Highness would take their situation into consideration, and grant them a
suitable remedy.

1791-1840] Constitutional Documents of Canada. 289

The main substance of this public document, proceeding from the
mass of the Roman Catholic Canadian people. His Majesty's subjects, or
by those entrusted to convey to His Majesty's Government the sentiments
and feelings of those subjects, in respect to tlie Government of Lower
Canada, may be reduced to a few prominent features that claim a serious
consideration, and such order as may correct the errors and confusion (to
say the least) that the opinions contained in that memoire, when fostered
and pursued, cannot fail to produce.

The whole scope of this memoire appears, and repeated exertions in
the Assembly show that the leaders in that body consider the adminis-
tration of His Majesty's Government, and tiie policy of its measures, to
pertain to them of right. That the exercise of any powers by the prero-
gative that is repugnant to their sense of those rights, must msure oppo-
sition and discontent: and that these will be generated by the Canadian
people even into hatred; extended from the King's servants to the source
of the power exercising such measures.

It betrays the most consummate ignorance of the rights of the Crown
in the Government of a British colony. It assumes rights in the Legis-
lative power the most dangerous to tranquil, constitutional, and good
government It exhibits libels the most detracting to the King's adminis-
tration through all its various powers, and it avers falsehoods the most
seditious that can promote the various ends contemplated, — that of trans-
ferring the Executive power and prerogative of the Crown to the Legis-
lative, the representatives of the peopl^.

The compilers of this revolutionary project would assume and believe
that the Governor, representing the Crown, possessed the power and right
to pass by or reject all the official duties of the King's servants as shackles
upon his authority, that arose from ignorant or factious characters; and
in place of those to take up the leaders in the House of Assembly, who
could there secure a majority, and adopt their opinions and measures as
being ^one calculated for the interest of the Canadian people, and as the
only means of obtaining places of profit, honor, and power, and the means
avowedly suggested to those ends cannot escape notice.

In estimating the charges against the servants of Government, "la
minority Anglaise," it will be proper to see and consider in the Legisla-
tive proceedings what have been their opt>osition to the various measures
pursued in the Assembly by the leaders of that House, for enlarging the
rights of the Canadian people.

The foul aspersions against the King's servants for their supposed
constant representations against the Canadian, or new subjects, as a dis-
loyal people, must be referred to the jealousies of suspecting minds.

It will be seen, only in the evidenc of facts, how far such representa-
tions, if made, could have afforded grounds of suspicion, that such repre-
sentations had at any time been made against the zeal, fidelity and loyalty
of the Canadian subjects, and the Records of His Majesty's Courts of
Justice will prove no inconsiderable source of evidence as well as to form
a just opinion in respect to the character of the new as well as of the old
subjects.

^Cf. Lord Liyerpool's opinion (p. 278).

290 Constitutional Documents of Canada, [1791-1840

LXXXIII

A BRIEF REVIEW OF THE POLITICAL STATE OF THE PRO-
VINCE OF LOWER CANADA DURING THE LAST SEVEN

YEARS. BY MR. RYLAND.*

[Trans.: Christie, op, cit.]

May, 1814.

Several important measures were at the same time suggest^ to the
Secretary of State as being calculated to strengthen the ]£cecutive Gov-
ernment in the Province of Lower Canada, to augment considerably the
territorial revenue of the Crown, and to put an effectual check upon the
disorganizing projects of the Assembly. Some of these would have re-
quired the interference of the Imperial Parliament; others, which were
also of great moment, needed only the sanction of His Majesty to be
carried into immediate effect; but the distressing event of His Majesty's
indisposition, which occurred within a short time after Mr. Ryland's
arrival in England, was an insurmountable obstacle to the accomplish-
ment of the measures proposed.

Under these discouraging circumstances, Sir James Craig met the
newly elected Assembly at the close of the year 1810. In the preceding
month of March, four persons, three of whom were then Members of the
Assembly, had been committed to prison in Quebec, by virtue of an Execu-
tive Council Warrant (under authority of the Act for the better preserva-
tion of His Majesty's Government,) they being charged on oath with
having been guilty of treasonable practices. Two of those persons were
again elected ; one of them, Mr. Bedard', was still under confinement, and
it was not supposed that the Governor could obtain a renewal of the Act
above mentioned. He hesitated not, however, to recommend its renewal
in his speech at the opening of the session. The Assembly in their ad-
dress manifested a reluctance to the measure; but the Bill, being first
passed in the Legislative Council, obtained the unanimous concurrence of
the Assembly on the twelfth day of the session.

An attempt was afterwards made to obtain the release of Mr. Bedard,
and an Address to the Governor on the subject was proposed and voted,
and immediately passed over, the House proceeding to the orders of the
day.

From this period the most perfect unanimity prevailed between the
several branches of the Provincial Legislature and all attempts on the
part of the Assembly to violate the privileges of the subject, or entrench
on the prerogatives of the Crown, ceased. Such was the effect produced
by the firmness and capacity of the person who at that time administered
the Government of Lower Canada! The demagogues who, during the
space of three years had convulsed the Province by their incendiary
speeches and publications were heard of no more. Those persons whose
attachment to the Government and Constitution had been sh^en by the
false reasonings of the "Canadien'' became sensible of their error; and it
may truly be said, that at the moment when the ill-health of Sir James
Craig compelled him to relinquish the Government, and return to Eng-
land, the political state and disposition of the Colony were such as every
loyal subject could desire; and in this state and disposition was the
Province found by his successor, Sir George Prevost.*

Previous to his arrival in Canada this officer had received the fullest
information of all the steps that had been taken by his predecessor, and

* The first part of this document is omitted, as it is identical from "The Assembly
of Lower Canada" to "several objects on which the Governor has written" with No.
LXXIX.

* For documents relating to the Bedard case, see Doufhty and McArthnr, pp. 379 ff.
' Ryland was not a persona grata with Prevost and his criticism mnst be rccctred

with caution. Prerost's goTcmment was too conciliatory to suit the Ideals
Ryland represented.

1791-1840] Constitutional Documents of Canada. 291

of all the measures that had been recommended by him to His Majesty's
Ministers for the puipose of counteracting the proceedings of the As-
sembly, and for securing to the Crown a greater degree of influence in
the Province. But, unhappily, there existed in the mind of Sir George
Prevost a rooted prejudice against the late Governor in Chief; and there
is but too much reason to believe that he entered on the administration of
this government with no unwillingness to throw discredit on the memory
of the latter, and with a determination to pursue, at all hazards, a line
of politics diametrically opposite in every respect.

Within a few weeks after his arrival in Canada, Sir George Prevost
took upon himself to recommend to His Majesty's Ministers the new
modelling of the Executive Council. By the Royal Instructions of 1791,
the number of members (exclusive of the Lord Bishop of Quebec, who
receives no salary,) is limited to nine, to whom three honorary members
were added in the year 1794, on the recommendation of Lord Dorchester
to supply the places of those who reside in the District of Montreal. By
the same Instructions it is ordered, that, in case of a vacancy, the Gov
emor shall transmit, through the medium of the Secretary of State, "the
names and characters of such three persons as he may esteem the best
qualified for fulfilling the trust of such Executive Councillor," — ^a proof
that great precaution and deliberation are judged necessary in the choice
of persons who are thus called upon to advise the Crown I On the pres-
ent occasion, however, no less than seven additional persons were recom-
mended for seats in the Executive Council, before the Governor had been
long enough in the Province to acquire an accurate knowledge of the
talents and character of any one of them! — a measure which naturally
impressed the public with a belief that he was determined to put down
the Council which, under the most trying circumstances, had supported
his predecessor, and that he hoped, by new modelling the Board, to render
it subservient to that line of politics which he himself had resolved to
pursue ; and there is no doubt but this measure greatly encouraged the
party in the Assembly, which, under the preceding administration, had
disturbed the tranquillity of the Province; a more direct encouragement,
however, was held out by the Governor's seizing with avidity the first
occasion to prefer to places of trust and emolument those individuals who
had been at the head of the party above mentioned.

In the month of February, 1812, Sir George Prevost first met the
Provincial Parliament. He so far followed the footsteps of Sir James
Craig on this occasion as to recommend a renewal of the temporary Act
for the better preservation of His Majesty's Government; but though the
maligners^ of the latter were the avowed admirers of the new Governor,
they manifested no disposition to acquiesce in the measure he had recom-
mended, and the Bill, after being first passed in the Legislative Council,
was finally lost in the Assembly by the introduction of amendments tend-
ing essentially to alter its nature and effect.

In consequence of the declaration of war on the part of the American
Government, an extraordinary session of the Provincial Legislature was
held in the month of July, 1812, and a law was then passed, on grounds
suggested by the Executive Council, authorising the issue of a certain
quantity of Army Bills as a circulating medium to supply the want of
specie, and making the same a legal tender. It will not appear surprising
that the Assembly readily gave in to a measure, which, by placing the
public purse in a certain degree under their control, greatly facilitated the
accomplishment of the projects so long contemplated by certain leaders in
that House.

In this session the Governor sent to both Houses a message declaring
the authority vested in him by the King's Commission, under certain cir-
cumstances, to proclaim Martial Law, and proposing to them to pass an
Act to^ modify that power. Of this extraordinary message the Assembly
took little notice at the time, but the Legislative Council returned a re-
spectful answer expressive of their readiness to concur in the measure
proposed.

292 Constitutional Documents of Canada. [1791-1840

As soon as the Act to authorise the circulation of Army Bills was
passed, the Provincial Parliament was prorogued; and a short time pre-
vious to the next meeting, at the close of the year 1812, Mr. Bedard, the
gentleman before mentioned, whose publications under the preceding ad-
ministration had been presented by the Grand Juries of Quebec and Mon-
treal as seditious libels, was promoted by Sir George Prevost to a seat
on the Bench, being appointed Provincial Judge for the District of Three
Rivers, and thus associated with the Chief Justice of the Province, who,
in his capacity of an Executive Councillor, had, in the year 1810, con-
curred in his commitment to the gaol of Quebec, on a charge of treason-
able practices! A more plain and palpable indication of the system upon
which Sir George Prevost intended to conduct the Government could not
be given, and it soon became evident that it was perfectly well understood
by all those restless spirits who aimed at place and preferment through
faction, turbulence and disorder.

The governor, having, in his speech at the opening of this session,
merely expressed his satisfaction at not having been under the necessity
of having recourse to Martial Law, his message relative to that subject,
in the preceding session, was now taken into consideration by the As-
sembly, and a string of violent and insulting resolutions, contumeliously
declaring that he possessed no authority to proclaim Martial Law, was
passed upon it. Every project for increasing the privileges of the As-
sembly, at the expense of the other branches of the Legislature, was re-
newed. Occasion was taken to command the attendance of the officer^
of the Legislative Council at the bar of the Assembly, without leave being
previously asked for the purpose ; and though this order was. in the first
instance resisted, it was, upon a repetition, acquiesced in (and as was
believed) through the private interference of the Governor himself, five
members only, the Lord Bishop of Quebec being absent through indis-
position, adhered to the preceding unanimous resolve on this subject, and
protested against this gross violation of the privileges of the House.

Another measure of great importance, as connected with the system
of colonial politics, deserves to be particularly noticed. Previous to his
arrival in Canada, Sir George Prevost had been fully informed of all that
had taken place under the administration of the two preceding Governors,
relative to the assumption, on the part of the Crown, of the patronage
of the Romish Church. He knew that the late Romish Bishop, Monsieur
Denaut had, through Lieutenant Governor Milnes, transmitted a petition
to the King, submitting himself and his Qergy to His Majesty's pleasure;
he knew that Sir J. Craig, when he sent home his Secretary*, particularly
instructed him to press this important matter upon the attention of His
Majesty's Ministers, and that the Law officers of the Crown, to whom
the question was referred, had unanimously reported their opinion* that
the right of presentation to Roman Catholic Church livings in Lower
Canada is legally vested in His Majesty. Sir George Prevost was more-
over fully apprized of the character of Bishop Denaut's successor; and it
was very certain that, by adding to the power which this prelate already
assumed, an income which might have been made the price of his relin-
quishing that power, a greater degree of influence in the Province would
be secured to him than His Majesty's Representative could ever hope to
possess.

There seems, however, to have been in the mind of the Governor one
predominant desire, that of acquiring, by every species of concession, a cer-
tain share of personal popularity, without a prospect of any determinate
or solid advantage arising therefrom, to His Majest/s interests. He
recommended, therefore, that the allowance granted to Mr. Plessis. as
Superintendent of the Romish Church in the Canadas, should be raised
from two hundred to one thousand pounds sterling a year, but it does not
appear that he stipulated lor the relinquishment of any one of the pre-
late's illegally assumed powers, in return for so liberal a boon I

1 See No. LXXIII.

*For the opinion, dated 3 July, 1811, lee Doughty and McArthur, p. 424.

1791-1840] Constitutional Documents of Canada. 293

On receiving from the Governor a communication of the Secretary
of State's letter, authorising the above allowance, Mr. Plessis availed
himself of this opportunity to claim that, in the warrant to be issued for
the payment of it, the appellation of Superintendent of the Romish Church
"should be exchanged for that of Roman Catholic Bishop of Quebec," a
title which the Provincial Government had hitherto steadily refused such
a recognition of, but which the present Governor hesitated not to give, in
violation of the King's Instructions, and in direct opposition to His Ma-
jesty's Letters Patent establishing the See of Quebec\

From this period the machinery by which Sir George Prevost flattered
himself he should be enabled to guide the helm of the Provincial Govern-
ment may be considered as complete. In compliance with his recommen-
dation, an unprecedented addition had been made both to the Legislative
and Executive Councils, so that those bodies could no longer be said to
be the same that supported the measures of his predecessor. The persons
whom the latter had removed from oflice, or punished as being promoters
of sedition, were, with only one exception, (Mr. Stuart) re-established
or selected for places of trust and emolument and to these chiefly did the
Governor look for advice, treating with marked neglect those servants
of the Crown who had hitherto been regarded as the principal support of
the Provincial Government.

In return for the solid favors conferred upon him, the Romish Bishop
bestirred himself to procure a public address to be presented to the Gov-
ernor, in the month of December, 1813, on his arrival at Quebec from
Montreal. The Provincial Parliament meeting soon afterwards, another
address was obtained from the Assembly, in which they grossly censured
the late, and applauded the present Governor of the Province, conclud-
ing, as the Speech from the Throne led them to do, by expressing an
earnest wish that the period for His Excellency's return to Europe might
be very remote.

It will be proper now to review the proceedings of an Assembly,
meeting, as the majority conceived, under the most auspicious circum-
stances, and conducted by a party to which the Governor of the Province
had openly attached himself. Assured of such powerful support, this
faction proceeded, without loss of time, to execute the long contemplated
scheme of subverting the constitution and bringing into contempt all the
established authorities of the Colonial Government.

It is known that, about this time, Mr. Bedard, the Judge, came to
Quebec for the purpose of advising the measures to be pursued, but,^not
having a seat in the Assembly, the principal management was left to an
Anglo-American barrister named Stuart', who had been a pupil of the
present Chief Justice when he held the situation of Attorney General.
This gentleman obtained from Lieut. Governor Milnes the appointment
of Solicitor General, from which he was dismissed by Sir Jas. Craig, in
consequence of his pursuing a line of conduct which the latter considered
utterly inconsistent with his duty as a servant of the Crown.

The first measure of importance brought forward by the party was
"A Bill for disqualifying the Chief Justices, and Justices of the Court of
King's Bench, from being summoned to the Legislative Council, or sit-
ting or voting therein." This Bill, as must have been foreseen, was
thrown out by the Legislative Council without obtaining a second reading ;
but it served a purpose the party had in view, which was, to impress the
mass of the people with a disrespectful idea of the Judges, preparatory
to a grand attack upon the whole judicature of the Province, which imme-
diately followed.

This paper would be extended to too great a length by entering

*In June, 1817, Plessis was appointed to the Legislative Council by Goyemor-
ueneral Sherbrooke, with the approval of Lord Bathurst. His official style was de-
oAed by Bathurst's despatch as ''Bishop of the Roman Catholic Church of Quebec"
(Doujhty and McArthur, p. 556.)

■ See p. 273.

294 Constitutional Documents of Canada. [1791-1840

minutely into the proceedings of the Assembly during this session. The
Journals both of the Legislative Council and of the Assembly are in the
press, and when published, they will hardly fail to open the eyes of all
men to the alarming situation in which the^ civil administration of Lower
Canada is now placed.

On the 2nd Februanr, a Bill of a most insidious nature was sent up
to the Legislative Council, intituled, "An Act for the more effectual estate
lishment of Schools for teaching of the first rudiments of education in
the country parts of this Province." This Bill, had it passed into a law. ^
would have completely set aside the very important Act of the 41st of
His Majesty, intituled, "An Act for the establishment of Free Schools,
and the advancement of learning, etc." It would have transferred to elec-
tive corporate bodies, to be established in every parish throughout the
Province, the powers that are granted by the last mentioned Act to the
Crown; it would have enabled those corporations to hold property in
mortmain to the value (collectively) of upwards of nine hundred thou-
sand pounds, and have proved the most effectual means for insurrection
and revolution, that the minds of its authors could have devised; yet was
the Governor heard to express a desire that this Bill might pass the Legis-
lative Council!

On the 10th of February, a Bill was sent up to the Legislative Council,
intituled, "An Act for appointing an Agent in the United Kingdom of
Great Britain and Ireland," and Mr. Bedard (the person before noticed
as having been under confinement on a charge of treasonable practices,)
was named in the Bill as such Agent, and a salary assigned to him of
£2000 per annum.

Early in the session a Committee had been appointed, "to consider if
it were not fit and expedient humbly to address His Royal Highness the
Prince Regent on the state of the Province*," and the Bill for the ap-
pointment of an Agent having been rejected by the Legislative Council,
this address (in which were introduced expressions of great personal
regard for the Governor) was now voted, together with one to His Ex-
cellency, praying that he would be plea'sed to transmit the address to His
Royal Highness by such messenger as he should see fit to appoint for
that purpose, and to advance a sum not exceeding one thousand pounds
to defray the expense, etc., which the Assembly pledged itself to make
good. To this address the (Governor replied verbally "that he would
accede to the request of the House by appointing a proper person or per-
sons to present the said address to His Royal Highness the Prince Regent*"

Thus encouraged the Assembly voted a second Address to the CjOv-
ernor, praying that he "would order an advance not exceeding one thou-
sand pounds, in addition to the sum already voted, provided he should
appoint two persons to present the Address. To whidi the Governor re-
plied, that he would accede to the request as soon as there was an appro-
priation for the service mentioned in the Address," and a message was
afterwards sent by His Excellency to the Assembly to the same purport

These proceedings having in the meanwhile been taken into consider-
ation by the Legislative Council as encouraging an attempt on the part of
the Assembly to appoint an Agent for the Province, without the concur-
rence of the Council, several resolves were passed thereon concluding with
the following, viz.:

"Resolved, that this House views with equal astonishment and con-
cern the acquiescence of His Excellency the Governor in Chief in the
vote of the Assembly, which requests him to appoint a messenger for the
purpose above mentioned; an acquiescence which they cannot but con-
sider to be an unequivocal abandonment of the Rights of this House, and
a fatal dereliction of the first principles of the constitution."

The appropriation of two thousand pounds was afterwards introduced
into a Bill, intituled, "An Act further to continue for a limited time the

^ The history of this petition and of the attempt to appoint Bedard as agent In
England can be found in Journals of the House of Assembly of Lower Canadag 1812.

1791-1840] Coiutitutional Documents of Canada. 295

levying the duties imposed by the Act of the 51st of His Majesty, and for
other purposes/' which Bill was amended in the Council by striking out
that appropriation, and so returned to the Assembly, which refused to
pass it as amended.

It had long been a favourite project with the Assembly to interfere
with the salaries, and to lower the consequence of persons holding civil
appointments under the Crown, and a Bill was now, for the second time,
brought forward for ^is purpose, by which Bill the salaries and allow
ances from the Government were to be diminished in the following pro-
portions, viz.: £15 per cent, on £1500 and upwards, il2 per cent on
£1000 and upwards, £10 per cent on £500 and upwards, and £5 per cent on
i250 and upwards, per annum.

To give this measure an air of plausibility the Bill was intituled
''An Act to grant to His Majesty a duty on the income arising from civil
offices, and on pensions to be applied to the defence of the Province in
the present war with the United States of America."

It is to be observed, that the permanent revenues of the Province
are not adequate to the payment of the civil list, and the dificiency is made
good from the military chest, it may therefore be said that by lowering
the salaries of the officers of Government so much less money would be
required from the exchequer of Great Britain; but this could not fairly
be called a Provincial Aid towards carrying on the war. The whole saving
under this Act would not have exceeded £2500 per annum; but those
officers of Government who now have the utmost difficulty to subsist on
their salaries would by this measure have been reduced to the extreme
of distress. A special exemption was made in the Bill in favor of the
Governor or person administering the Government, and also of officers
holding commissions or staff appointments in the Militia, (as the major
part of the framers of the Bill did,) and yet the pay and allowances of
the field and staff officers of the Militia are even on a more advantageous
footing than those of the regular forces, and greatly exceed in value the
generality of the appointments under the Civil Government. This Bill was
of course rejected by the Legislative Council as it had been in the pre-
ceding session.

Thus frustrated in various particulars the Assembly proceeded with
vigor to the accomplishment of their principal design, the crying down
the several Courts of Justice, and finally, voting articles of impeach-
ment^ against the Chief Justice of the Province and the Chief Justice of
the Court of King's Bench for the District of Montreal.

A violent and most libellous Address was voted to His Royal High-
ness the Prince Regent, accusing those Judges by name, of treason, per-
jury and oppression, and praying that they might be dismissed from their
offices. This Address together with one to the Governor in Chief, pray-
ing that His Excellency would be pleased immediately to suspend the said
Chief Justices; also the resolves of the Assembly, in which the whole of
the Judges of the Court of Appeals and Courts of King's Bench, collec-
tively (with the exception of Mr. Bedard) were criminated and charged
with having exercised unconstitutional and illegal powers, were ordered
to be published in a separate pamphlet*, and copies were furnished for
the Provincial newspapers, by which means a strong impression was made
npon all classes of people throughout the Province to the unspeakable
detriment of the Judges in the public opinion, and of the administration
of Justice in the King's Court — ^yet had there not been any evidence be-
fore the Assembly, beyond what was contained in the established rules of
practice, nor had any complaint whatsoever been preferred by the public
against those rules or against the Judges individually or collectively!

It is deserving of notice, that, during the whole of the session, sel-

^ Chief Jtutice Sewell and Cbief Justice Monk. Documents connected with their
utpeachment are in Doughty and McArthur, pp. 471, £F.

*Proceedinqs in the Assembly of Lower Canada on»...the Impeachment of Jona-
rnan Sewell ana James Monk. (Printed by order of the House: English and French,

296 Constitutional Documents of Canada, [1791-184C

dona more than hall the number of members of which the House is com-
posed attended; and amongst these, the most respectable, including the
English members, finding themselves outnumbered, gave way to the tor-
rent, and seldom spoke or voted. All men were astonished that no steps
were taken by the King's Representative to check these revolutionary
proceedings, more especially as the principal movers of them were persons
whom he himself had recently appointed to offices under the Crown. But
it is now suggested that it was necessary to give way to the Assembly,
lest the Act to authorise the further issue of Army Bills should be lost;
an Act containing clauses unconstitutional and unprecedented, but in the
formation of which it appears that (after all his sacrifices) the Governor
had not sufficient influence to guide and direct the House! These events
may possibly lead His Majesty's Ministers to consider whether it would
not be advisable to set aside the Provincial Statute by an Act of the Im-
perial Parliament, pledging the faith of Government as a security for
the redemption of such Army Bills as the Commander of the Forces may
find it necessary to issue for the public service ; and there can be no doubt
but such an Act would be far more satisfactory to the inhabitants of these
Provinces, and far more advantageous to the interests of the Crown than
that which has now been obtained at the risk of so much future mischief.

It will be seen by the Governor's speech at the close of the session
into how much difficulty and discredit he had brought himsell. In the
course of their proceedings both Houses had passed resolves severely
animadverting on his conduct; and he now availed himself of the oppor-
tunity publicly to reprimand both the Houses in his turnl

A few days after the prorogation, the Provincial Parliament (having
completed the term of four years) was dissolved, and Writs were imme-
diately issued for a general election.

Thus has ended an Assembly which was called together for the first
time by Sir J. Craig, which in it first session, and under what were then
represented as very irritating circumstances, was (after manifesting some
symptoms of dissatisfaction) induced to receive from the Legislative
Council, and unanimously pass a Bill for the suspension of the Habeas
Corpus Act, and which from that period to the end of their Session
cordially concurred in every measure that could tend to promote the
peace, happiness and prosperity of the Province !

A few words will suffice with respect to the future prospects of this
Cx>lony. Immediately after the prorogation the most respectable English
members publicly declared their determination not to offe^ themselves as
candidates at the ensuing general election. That election is now over,
and the returns are precisely such as were expected under the impression
produced throughout the Province by the proceedings of the late Assembly.
From the time that the Assembly began its attacks on the Courts of Jus-
tice, the licentiousness of a press recently established at Montreal (from
whence papers in the French and English languages are published week-
ly) has appeared to have no bounds; every odium that can be imagined
is attempted in these publications to be thrown on the memory of the
late (jovernor in Chief, on the principal officers of (jovemment, and on
the Legislative Council; and the poison thus distributed is left to work
its effect on the mass of the people without any check or interference on
the part of the Crown : thus is the disorganizing party encouraged to pro-
ceed; thus is it led to hope, that any future (Governor may be deterred
from exercising that vigor which the preservation of His Majesty's (gov-
ernment may require.

The new Assembly will have in it all that was bad in the last, to-
gether with a great accession of the most violent, unprincipled and worth-
less characters in the Colony, scarcely a man of respectability would
stand forward as a candidate at the late general election, and the British
and commercial interests may now be considered as excluded from the
Assembly. Still however the country is not lost. It is not yet in a state
of insurrection against His Majesty's Government, it may still be pre-

1791-1840] Constitutional Documents of Canada, 297

served to the Crown without having recourse to the bayonet. But the
remedy must be immediate.

Should His Royal Highness the Prince Regent be pleased to entrust
the administration of this Government to a man of high rank, of known
and established character for prodence, firmness, dignity and ability; a
man accustomed to Parliamentary business, not to be terrified by the
clamours of the ignorant, nor appalled by the projects of the vicious:
such a man would readily find means to convince the Assembly of its
msignificance when disposed to do mischief; and, by making it manifest
that all his measures had for their object the public good, he could not
fail of restoring to the Province a state of tranquility and happiness.*

H. W. R.
Quebec, 12th May, 1814.

LXXXIV

OPINION ON THE PRIVILEGES OF THE HOUSE OF ASSEMBLY
AND ON THE CASTING VOTE OF THE SPEAKER OF

THE LEGISLATIVE COUNCIL.

[Trans. : Doughty and McArthur.J

2 Lincoln's Inn, 30th December, 1815.
My Lord,

We have had the honor to receive your Lordship's letter of the 20th
Instant, transmitting to us two papers containing questions which have
arisen on the construction of the Act of 31st Geo. 3rd, Chap. 31', respect-
ing the Government of Canada; and desiring us to take the same into
our consideration, and to report to you our opinion thereupon in point of
Law ; we have accordingly considered the same, >and as to the questions
stated in the paper No. 1 which we have returned with our report, first
"Whether by the several Clauses referred to the Assembly of Lower
"Canada is entitled to any privileges under that Statute," we beg to report
to your Lordship that we consider the Members of the Assembly of Canada
entitled to such Privileges as are incidental to, and necessary to enable
them to perform, their functions in deliberating and advising upon, and
consenting to Jaws for the peace, welfare and good Government of the
Province.

In answer to the second question, "Whether the Assembly is entitled
'*to all the Privileges to which the House of Commons of the imperial
"Parliament are entitled under their own peculiar Law, the Lex Parlia-
"mentaria,"

We beg to report, that we think they are not so entitled. The Privi-
leges of the High Court of Parliament composed of the King, The Lords
spiritual, and temporal, and Commons of the Realm, are founded on the
antient law and Custom of Parliament and we conceive arise from the
supremacy, or as it is sometimes called, the omnipotence of this High
Court, when the Parliament or great Council of the Nation thus composed
sat together in one Assembly; Tho* the period when the two houses
separated in their sittings, is not ascertained, yet whenever that event
took place, each house retained certain privileges and powers; The Lords
the judical power; the Commons the power of accusation and impeach-
ment, and to both remained the right to pass bills of Attainder, and of
pains and penalties to be assented to or rejected by the King, and each
retained the original right of asserting, deciding upon, and vindicating
the mighty privileges of their separate houses, but still we apprehend as
constituent parts of our great Council or High Court of Parliament by

* Prevost's account of the eycnts referred to in this document ought to be read.
The dispatches are in Doughty and McArthur, pp. 462 ff, 465 £F, dated 18 March and
4 September, 1814.

* Constitutional Act, 1791 (No. LV).

298 Constitutional Documents of Canada, [1791*1840

virtue of their united Supremacy. To measure by this standard the privi-
leges of Legislative Assemblies created either by the King's Charter, oi
by Act of Parliament, for the purpose of enacting Laws for the peace,
welfare and good Government of any particular Colony, or district, part
of the Dominions of the Crown of the United Empire, would be to give
to subordinate bodies the mighty power of supremacy. The King, by his
charter, could not,* we apprehend, grant such powers, and tho' Parliament
might, if it should deem it expedient, bestow them, yet unless it has so
specifically done, such powers cannot belong to them as incident to their
Creation and Constitution. If these powers and privileges belong to
colonial Legislatures as arising from or by analogy to the Law and cus-
tom of Parliament, they must belong as well to the Legislative Council
as to the House of Assembly, and then the judicial power in the last
resort upon matters arising in the Colony, would be in the Legislative
Council; the right to impeach would be in the House of Assembly; and
the right to try and adjudge such impeachment would belong to the
legislative Council; they would each have a power with the assent of his
Majesty to enact Bills of Attainer, and of pains and penalties; it is how-
ever clear that by the Statute the Legislative Council have no judicial
powers, belonging to them, neither have the House of Assembly any power
of Impeachment in the legitimate sense of the word, however they may
use the term in any accusation or complaint they may make, either to his
Majesty in Council or in any petition ihey may present to the Parliament
of the United Empire.

This claim to possess the same privileges as belong to the House of
Commons has sometimes been asserted by certain colonial assemblies, as
was done in the year 1764 by the House of Assembly of Jamaica, but we
apprehend it has never been admitted or recognized, tho' in that particu-
lar instance it appears to have been thought expedient, so far to comply
with their complaint, as to direct the succeeding Chancellor of the Island
to vacate and annul the proceedings which had given offence to the House
of Assembly. That the House of Assembly of a Colony is not entitled to
the same privileges, nor has the same power in vindicating them as belong
to the House of Commons of the imperial Parliament has been the opin-
ion of very great and eminent Lawyers in former times. — Such was the
opinion of the late Lord Camden, when Attorney General, as expressed
in these words, "Our house of Commons stands upon its own laws, the
"lex Parliamenti, whereas Assemblies in the Colonies are regulated by
"their respective Charters, Usages, and the Common Law of England, and
'%ill never be allowed to assume those privileges which the house of
"Commons is entitled to justly here upon principles that neither can nor
"must be applied to the Assemblies of the Colonies." Such appears also
to have been the opinion of Lord Mansfield and Sir Richard Lloyd, and
the same is to be collected from an opinion given by Sir Simon Harcourt
and Sir Edward Northey in the year 1704, and from the opinions of other
persons of Eminence, on Cases on which this question has individually
arisen. Thirdly, it is enquired if the House of Assembly are not entitled
to the privileges founded upon the lex Parliamentaria to what extent they
are entitled? We beg leave to observe that as no particular privilege is
stated, as that, to which claim is now made, it is difficult to give a precise
answer to this question, or to point out the privileges to which they are
by Law entitled, otherwise than by giving a general outline. —

The House of Asesmbly of Upper Canada has not existed long enough
to have established privileges by usage; the Act of Parliament has not
delineated any, and we therefore conceive the outline to comprize and to
be confined to such only as are directly and indispensably necessary to
enable them to perform the functions with which they are invested, and
therefore may be fairly said to be incidental to their constitution. We
mention some of these as examples; personal liberty, eundo, redeundo et
morando, or freedom from arrest, in civil Cases; a power to commit foi
such Acts of contempt in the face of the House of Assembly as produce
disturbance and interruption of their proceedings, the freedom of debate

1791-1840] Constitutional Documents of Canada. 299

upon the subjects of the Laws to be enacted or considered; they think also
they would have the power of expelling a Member convicted by any com-
petent Tribunal of a crime of an infamous nature, and as to this latter
instance, we are warranted by an opinion of Lord Mansfield and Sir
Richard Lloyd in the year 1755. The right of regulating and ordering
their own proceedings in their Assembly consistently with the Statute must
necessarily be incident to them, and as to the privilege of deciding upon
the right of sitting either in legislative Council, or the house of Assembly,
this can no longer be a question of privilege, because such right is in
certain cases given by the 31st of Geo. 3d. Ch. 31 to the Legislative Council
as to their Members and is enacted by the Provincial Statute of the 48tli
Geo. 3d Chap. 21 as to the houses of Assembly.

As to die question stated in the paper No. 2 which we have also
returned with this Report "whether the course of proceeding therein
"described is the legal course of proceeding in the legislative Council of
"Lower Canada under the Statute of the 31st of Geo. 3rd. Ch. 31," we beg
to report to your Lordship that we conceive the true meaning of a casting
vote to be that of a second vote given to some Member of the constituted
body in case there shall be an equality of votes including such members
original vote: the phrase however is also in common parlance used as
descriptive of the vote of some particular member or officer of such Body,
who by its constitution has no vote in the original deliberation or decision
of the question proposed, but whether it is to be understood in one sense
or the other must be decided by the Charter or Act of Parliament con-
stituting the body, if it be extant ; or by antient and immemorial usage if
no such Charter or Act can be found : — The ancient and immemorial usage
of the house of Commons, manifesting the Law and Custom of Parliament,
is the foundation of the practice of the Commons' House of Parliament,
which does not, and cannot apply to the Legislative Council of Canada —
To decide the present question resort must be had to the Act of the 31st
Geo. Ill, Ch. 31, for neither in the regulation of their own proceedings,
nor in any other respect can the Legislative Council act against the pro-
visions of that Statute. If the Parliament had meant that the person who
should be appointed Speaker should be thereby deprived of any of his
rights or franchises as an individual Member, and should not vote unless
the other Members (exclusive of himself) were equally divided, we are of
opinion the Statute would have been penned in very different terms ; there
IS nothing in the Clause referred to which divests the Speaker of any of
the rights belonging to him as a Member of the Legislative Council separ-
ate and distinct from the Office or Character of Speaker. Tho' the Legis-
lative Council is not confined to any definite number yet it may frequently
happen that the number of which it is composed, or the number which may
attend, will be an even number; Upon such occasion if the Speaker were
excluded from giving an original vote, a majority might exist on a question
on which he might think with the ifiinority, and by that means he would
be deprived of the exercise of his right or franchise. To prevent the
inconvenience of equal division, when his vote is included, it was, that the
Statute gave the casting vote to him on an equality of Voices, — and we are
of the opinion that the giving the casting vote in terms was meant to give
a vote or power of voting superadded to his original vote as an abridge-
ment or in derogation of his original and inherent right of voting as
Member. We therefore report to your Lordship that we are of opinion
that the proceeding stated in the paper No. 2 is the legal course of pro-
ceeding, and that the Legislative Council has put a right construction on the
Act of Parliament.

We have the honor to be

My Lord,

Your Lordship's most

obedient Servants

W. Garrow

.^ « S. Shephbbo

To Rt Hon Earl Bathurst

300 Constitutional Documents of Canada, [1791-1840,

LXXXV
SHERBROOKE TO BATHUR6T

[Trans. : Doughty and McArthur.]

Castle of St. Lewis

Quebec 15th July 1816
My Lord.

On my arrival here I received communication of Your Lordship's
dispatch^ of the 12th July 1815, marked ''Separate and confidential" instruct-
ing Sir Gordon Drummond under particular circumstances to dissolve the
Assembly; And having given to it the serious and attentive consideration
it deserves, I feel it my duty to submit to Your Lordship the sentiments
which have arisen in my mind on a perusal of it, and to request to be
informed from Your Lordship how far I am to consider it as applying to
the Government of my conduct under similar circumstances.

It is not for me my Lord to remark on the risque of embarrassment
and the possible evils that may arise from restraining the discretion of a
Governour in those delicate and dif&cult circumstances which must often
occur in the management of a popular Assembly; and in which, if left to
himself, he might find means from his knowledge of the views and charac-
ters of the different parties to carry on the Public business without coming
to extremities; These considerations, I am persuaded, had been fully
weighed by His Majestys Government before they in their wisdom gave
that instruction to which I have alluded, — and by the very imperative terms
of which I should have conceived myself debarred of all choice or dis-
cretion, if it had been addressed to me.

But, as at present situated, I feel myself entitled to bring before Your
Lordship's view, that the measure adopted by Sir Gordon Drummond in
consequence of that command, — if it was intended to have its effect by
changing for the better the Representation of the lower House, has entirety
failed in its operation as far as I have been able to learn since my arrival ;
and not only so but has in no small degree aggravated the evil by causing
much irritation both among the Representatives and in the country ; and by
leading to the general re-election of the same members, or, in Uiose few
instances where a change has taken place, it is believed to be for the
worse, by the exclusion of the most moderate of the Canadian members of
the former House.

I cannot here avoid submitting to Your Lordship my humble opinion,
that, in this Country, where there is no room for the exertion of a Salutary
government influence such as exists in England the strong measure of a
dissolution must in almost all possible circumstances of the country produce
rather evil than advantage; And can never have that effect which may be
given to it in England by the exertion of the different means that may be
brought into action there for the correction of popular opinion and for
securing to the Crown a stronger influence in Parliament

But notwithstanding this opinion, which, with the most respectful
deference, I thus submit to Your Lordship, you will not doubt that I shall
be ready to carry into full execution the strongest measure that His
Majesty's Government shall think proper to prescribe.

There does not appear any necessity for calling together the Assembly
before the usual period, — at the commencement of the winter ; And I shall
hope to receive before that time the pleasure of His Majesty's Government,
(if it should still be thought necessary to give specific instructions) as to
the course I am to pursue in case the House of Assembly recur as Uiere is
scarcely a doubt that they will, to the subject which has lately led to a
dissolution of that body. I have the honour to be.

My Lord etc.

J. C. Sherbrooke.

^ Bathurst had informed Drummond that he must dissolve the Assembly before it
had time to embody resolutions in shape of specific charges such as impeachments.
(Doughty and McArthur, p. 472.)

1791-1840] Constitutional Documents of Canada. 301

LXXXVI

RIGHT OF HOUSE OF ASSEMBLY TO INITIATE ALL MONEY

BILLS

[Trans. : Doughty and McArthur.]

Resolutions of the Legislative Council of Upper Canada

Saturday, 2l8t March. 1818.

1. Resolved, that in making amendments to a Bill sent up froni the
Commons House of Assembly, intituled "An Act to make further provision
for regulating the trade between this Province and the United States of
America" this House acted upon the principle that its concurrence was
necessary to pass the same, which it could not, in the exercise of its judg-
ment and discretion, without amendment.

2. Resolved, "that the Commons House of Assembly having hitherto
rejected all Conference on the subject of Money Bills, no course remains
to the Legislative Council but implicitly to submit to its judgment and
reason, or to reject wholly the offered Bill; unless the House of Commons
v,-ill continue as it has heretofore in many cases done, even during the
present Session, to reject the amendments of the Legislative Council with-
out notice, and re-enact the matter, so as to receive the concurrence of the
otlier branches of the Legislature.

3. Resolved, That this House does not consider the necessary amend-
ments to a Money Bill as a breach of the Privileges of the Commons House
of Assembly; nevertheless as it is so considered by that House in the said
Resolution, the Legislative Council will forbear all amendments to Bills
for raising or levyii^g money, and merely withhold its assent to the same.

Resolutions of the House of Assembly, Upper Canada

23rd March, 1818.

1. Resolved, that the Commons have never questioned the principle
either of constitutional right of necessity of the concurrence of the Legis
lative Council in passing Bills, huj iff insist t^^^ fVi^ ^v^mica ^i ita jfiHg^mAnt
and discretion on all BilU-^wwting aidg> aad supplias-to Hi.s Majesty, ot/
impu&hTg''t>bf!T)ens upon the people is by uniformly aidmowledged precedent
confined to assent, without making any amendments, or to the rejecting
totally such Bills; and that the admission of a contrary principle upon
the paft of the Commons would be surrendering a constitutional right
always exercised by this House, and from time immemorial by the Com-
mons of Great Britain, which this House will never consent to.

2. Resolved, that the foregoing resolution is equally applicable to
meet the reasoning of the first part of the second resolution of the Legis-
lative Council, and that in all cases when this House have rejected amend-
ments of the Legislative Council without notice, and re-enacted the matter
so as to receive the concurrence of the other branches of the Legislature,
this House have done so from the most conciliatory disposition and regard
for the interests of the Province, wherever the same could by stramed
construction be admitted; but in no instance where the amendments have
been made to a Bill the direct object of which has been the raising, levying,
or appropriating money.

3. Resolved, that the first part of the third resolution of the Legis-
lative Council, avowing that they do not consider the necessary amend-
ments to a money Bill as a breach of the privilege of the Commons House
of Assembly; cannot be considered by this House without weakening that
right which, in the true spirit of our constitution, solely and exclusively
appertain to this branch of the Legislature.

4. Resolved, that it is the opinion of this House that the collected
consideration of the three resolutions of the Legislative Council require
the foUowinp^ avowal.

That this House consider it as their constitutional right to commence

302 Constitutional Documents of Canada, [1791-1840

all money Bills, either granting aids and supplies to His Majesty or impos-
ing any charge or burthen whatsoever upon the people, and to direct, limit,
and appoint in such Bills the ends and purposes, considerations, limitations,
and qualifications thereof, and that such grants, limitations and dispositions
ought not to be interfered with by amendments in the Legislative Council,
because such has never been permitted by the Commons of this Province,
nor is it the usage and practice of the British Parliament.

Resolutions of the Legislative Council or Upper Canada

Tuesday, 24th March, 1818.

The Honorable the Legislative Council, on consideration of the Resolu-
tion of the House of Assembly, delivered yesterday at the Bar of this
House,

1. Resolved, that the Legislative Council and House of Assembly of
the Province of Upper Canada are co-ordinate branches of a Limited
Legislature, constituted by the Statute enacted in the thirty-first year of
His Majesty's Reign.

2. That all powers, immunities and privileges of either branch are
derived from that Statute, and extend to their respective advice and con-
sent to His Majesty, to make laws not repugnant to that Act for the peace,
welfare, and good Government of the Province.,

3. That in adopting the order and course of proceeding to advise and
consent to laws, this House does not assume the powers, authority and
privileges of the Upper House of Parliament, grown out of the practice
of ages, and unsuitable to the circumstances of this Colony.

4. That the House of Assembly, adopting as its type the Commons
House of Parliament, and claiming all the powers, immunities and priv-
ileges thereof, is not justified by the words or spirit of the Constitution,
more than the Legislative Council would be justified to assume for itself
and its members the powers, immunities and privileges of the Upper House
of Parliament.

5. That the origin of all supplies in either House or exclusively in
the House of Assembly must be indifferent so long as either house retains
the power of rejection, that the exercise of the right to amend an original
Bill is equally indifferent except that without the exercise of that right,
or the resort to amicable conference between the two Houses time is wasted
and the Public service delayed.

6. That the House of Assembly did by Resolutions delivered at the
Bar of this House declare that it would not accede to any conference on
the subject of a money Bill.

7. That the amendments made to the Bill intituled "An Act to make
further provision for regulating the Trade between this Province and the
United States of America," by the Legislative Council, were to conform
to a national regulation of t^ade imparted to both Houses by His Majesty's
Government to reduce the burthen of the people of whom the individuals
of this House are a part only distinguished by the duty imposed on them
in their Legislative capacity to protect defend and support the interest of
the whole.

8. That having no means of interchanging opinion with the House of
Assembly, but by way of conference or amendments, the Legislative Council
does not consider it reasonable that such amendments should be treated
as a breach of privilege, and that having declared by its resolutions trans-
mitted to the House of Assembly that it would forbear amendments to
money Bills such resolution ought to afford reasonable satisfaction to that
House (even if its privilege had been violated) and restore the course and
harmony of proceeding in the Public business.

Resolutions of the House or Assembly of Upper Canada

26th March, 1818.

1. Resolved, nem. con. that this House^ in persisting in their right to
reject all amendments made by the Legislative Council to Bills for raising
and appropriating moneys, and to decline all conferences thereon, are

1791-1840] Constitutional Documents of Canada. 303

assttming to themselves no new privilege; but are only adhering to the
form of proceeding which has been maintained from the first establishment
of the Provincial Legislature, and in which they have taken for their guide
the representative form of constitution in the Mother Country, by which
Ihat of this country is modelled, and by which the Legislative Council have
in all their proceedings equally governed themselves ; whatever it may suit
their present purpose to disclaim.

2. Resolved, nom. Con., that as this House desire to make no innova-
tion, so they are determined to suffer none, but will persist in maintaining
in all their deliberations those rules which they have found established, and
which, being coeval with their constitution, they consider it would be as
inconsistent with their duty as it is repugnant to their inclination to aban-
don.

3. Resolved, nem. con., that the gracious Speech of His Majesty's
Representative, John Graves Simcoe, Esquire, at the opening and proroga-
tion of the first Parliament of this Province, and the answers thereto, be
entered on the Journals of this House; that part of the Journals having
been destroyed by the enetny in the late war.

LXXXVII

ACT RESPECTING ELIGIBILITY OF PERSONS TO BE
RETURNED TO THE LEGISLATIVE ASSEMBLY

J

[Trans.: Doughty and McArthur.]

An Act to repeal an Act passed in the thirty-fifth year of His Majesty's
Reign, entitled. "An Act to ascertain the ELIGIBILITY of PERSONS
to be Returned to the HOUSE of ASSEMBLY," and also to repeal
an Act passed in the fifty-fourth year of His Majesty's Reign, entitled,
"An Act to repeal and amend part of an Act passed in the thirty-fifth
year of His Majesty's Reign, entitled 'An Act to ascertain the eligibility
of persons to be Returned to die House of Assemblv," and to make
further and more e£Fectual provision for securing the freedom and
constitution of the Parliament of this Province.

(Passed \st Aprils 1818, Province of Upper Canada.)

WHEREAS, it is most desirable that the eligibility of persons to be
proposed as Candidates for the Representation of the several Towns,
Ridings and Counties in the Province, in the Commons House of Assembly,
should be clearly and expressly defined : and whereas the provisions of an
Act passed in the thirty-fifth year of His present Majesty's Reign,
entitled "An Act to ascertain the eligibility of persons to be returned
to the House of Assembly/' and also of an Act passed in the fifty-
fourth year of His Majesty's Reign, entitled "An Act to repeal
and amend part of an Act passed in the thirty-fifth year of His Majesty's
Reign, entitled, "An Act to ascertain the eligibility of persons to be
returned to the House of Assembly," have not attained that object: Be
it therefore 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 by virtue of
and under the authority of an Act passed in the Parliament of Great
Britain, entitled, "An Act to repeal certain parts of an Act passed in the
fourteenth year of His Majesty's Reign, entitled, 'An Act for the making
more effectual provision for 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, each of the said Acts respectively shall be and the same are hereby
repealed.

II. And be it further enacted by the authority aforesaid. That from
and after the passing of this Act, no person or persons, of what condition

304 Constitutional Documents of Canada. [1791-1840

soever, having been a bona Rde resident in any country not being under His
Majesty's Government, or who shall have taken the oath of adlegiance to
any other State or Power, shall be eligible to be proposed, chosen or
elected, as a Representative or Representatives of any City, County, Riding
or Borough, or other place of any description now or hereafter sending a
Representative or Representatives to the House of Assembly of this Pro-
vince, until such person or persons shall have resided in this Province for
and during the space of seven years next before the election at which any
such person or persons shall be proposed, elected or chosen as a Repre-
sentative or Representatives as aforesaid.

HI. And be it further enacted by the authority aforesaid. That if any
person or persons as aforesaid, not having resided in this Province for
seven years as aforesaid, shall propose or offer himself or themselves as a
candidate or candidates to become a Representative or Representatives of
any County, City, Riding or Borough, or other place now or hereafter
sending a Representative or Representatives, and shall be thereof convicted
by the oath of one credible witness, shall forfeit and pay the sum of two
hundred pounds, to be recovered by any person who shall sue for the same,
in His Majesty's Court of His Bench in this Province, by action of debt,
bill, plaint or information, wherein no essoigne, privilege, protection or
wager of Law shall be allowed, and only one imparlance.

IV. And be it further enacted by the authority aforesaid, That if any
person or j)ersons as aforesaid, not having resided in this Province for
seven years as aforesaid, whether such person or persons shall have pro-
posed or offered him or themselves as a candidate or candidates or not
tor any County, City, Riding or Borough, or other place of any description
now or hereafter sending a Representative or Representatives to the House
of Assembly of this Province as aforesaid, shall presume, upon such choice
or election to obtrude or present himself or themselves into the said House
as a Representative or Representatives, as aforesaid, he or they shall for-
feit and pay the sum of forty pounds, over and besides the foregoing
penalty, if such person or persons shall have incurred the same, for every
day that he shall so obtrude or present himself or themselves, to be recov-
ered by any person or persons who shall sue for the same in His Majesty's
Court of His Bench, by action of debt, bill, plaint or information, wherein
no essoigne, privilege, protection or wager of Law shall be allowed, and
only one imparlance.

V. And be it further enacted by the authority aforesaid, That from
and after the passing of this Act, no person or persons, of what condition
soever, shall be eligible to be proposed, chosen or elected as a Representa-
tive or Representatives of any County, City, Riding, Borough or other
place of any description, now or hereafter sending a Representative or
Representatives to the House of Assembly of this Province, unless he shall
be possessed of an unincumbered freehold, in lands or tenements, in fee
simple, in this Province, to the assessed value of eighty pounds, lawful
money of this Province.

VL Provided always, and be it hereby enacted by the authority afore-
said. That every person who, from and after the passing of this Act, shall
appear as a candidate, or .shall by himself or any others be proposed to be
elected to serve as a Member for any County, City, Riding, Borough, or

' any part or place now or hereafter sending a Member to the House of
Assembly of this Province, shall, and he is hereby enjoined and required,
upon reasonable request to him to be made, at the time of such election, oi
before the day prefixed in the writ of summons for the meeting of Parlia-
ment, by any other person who shall stand a candidate at such election or
by any two or more persons having a right to vote at such election, take a
corporal oath, in the following form, or to the following effect: "I A. B.
do swear, that I truly and bona fide have such a freehold estate, over and
above all incumberances that may effect the same, and am otherwise quali
fied according to the provisions of Law, to be elected and returned to serve
as a Member in the Commons House of Assembly, according to the tenor

. and true meaning of the Act of Parliament in that behalf, and that I have

179M840] Constitutional Documents of Canada. 305

not obtained the same fraudulently for the purpose of enabling me to be
returned Member to the Commons House of Assembly of this Province,
so help me God.''

VII. And be it further enacted by the authority aforesaid, That if any
of the said candidates, or persons proposed to be elected as aforesaid, shall
be guilty of false swearing in such oath, such candidate or candidates, or
person or persons as aforesaid, shall on conviction thereof, receive and
suffer the like pains and penalties to which any other person convicted of
wilful and corrupt perjury is liable by the Laws and Statutes of this
Province.

VIII. And be it further enacted by the authority aforesaid. That the
oath aforesaid, shall and may be administered by the Sheriff for any such
County as aforesaid, or by the Mayor, Bailiff, or other Officer or Officers
for any County, City, Borough, Riding, Place or Places aforesaid, to whom
it shall appertain to take the poll or make the return at such election for
the same County, City, Borough, Riding, Place or Places respectively, or
by any two or more Justices of the Peace within this Province, and the
said Sheriff, Mayor, Bailiff or other Officers, and the said Justices of the
Peace respectively, who shall administer the said oaths, are hereby required
to certify to taking thereof, into His Majesty's Court of His Bench within
three months after the same, under the penalty of forfeiting the sum of
two hundred pounds, to be recovered wiUi full costs of suit, by action of
debt, bill, plaint or information, in His Majesty's Court of His Bench in
this Province, and if any of the said candidates or persons proposed to be
elected as aforesaid, shall wilfully refuse upon reasonable request to be
made at the time of the election or at any time before the day upon which
such Parliament by the writ of summons is to meet, to take the oath hereby
required, then the election and return of such candidate shall be void.

IX. And be it further enacted by the authority aforesaid, That no fee
or reward shall be taken for administering any such oath ,or making,
receiving, or filing the certificate thereof, except two shillings and six-pence
for admmistering the oath, and five shillings for making the certificate, and
five shillings for receiving and filing the same, under the penalty of one
hundred pounds to be forfeited by the offender, and recovered as aforesaid.

X. And be it further enacted by the authority aforesaid, That one

moiety of all fines and penalties that shall be incurred under this Act shall

be immediately paid into the hands of the Receiver General for the use of

His Majesty, His Heirs and Successors towards the support of the Civil

Government of this Province, and shall be accounted for to His Majesty,

His Heirs and Successors, through the Lords Commissioners of His

Majesty's Treasury for the time being, in such manner and form as His

Majesty, His Heirs and Successors shall please to direct, and the otlier

moiety to the person who shall sue for the same.

T

I

306 Constitutional Documents of Canada. [1791-1840

LXXXVIII

SHERBROOKE TO BATHURST

[Trans. : Brymner, Report of Canadian Archives, 1897.]

Calverton near Southwell, Notts., 14th March, 1822.

My Lord, — I have been honoured with your Lordship's private and
confidential letter of the 11th inst., the contents of which shall not transpire,
and in reply to your question "Whether the Union^ of Upper and Lower
Canada would have a beneficial effect," I answer, that if these Provinces
continue in the same state they were in at the time I relinquished the
Government, an Union would be very desirable, provided it could be estab-
lished on proper principles, so that the undue influence of the Assembly
should be somewhat controlled and the power of the Crown increased.
But if such a measure were to be attempted considerable difficulties must
be expected before it could be reconciled with the jarring interests of the
inhabitants and the variety of wild opinions so generally entertained.

Your Lordship's description of the persons usually returned to the
Legislative Assembly of Lower Canada is perfectly correct And the
mischiefs arising from this cause are incalculable. I also agree that tiie
Assembly of Upper Canada appears more tractable at present. But when
I consider the vicinity of the latter Province to the United States, the
population continually flowing in from thence, the constant communication
and intermarriages between the families on both sides of the line, the num-
ber of Americans who purchase the best of the lands as soon as they are
cleared and every other description of property in Upper Canada worth
having ; and when I look to the loose demoralising principles introduced by
those people, I very much doubt whether reliance can be placed on a con-
tinuance of this tractable disposition.

I am fully aware my Lord of the evils arising from that ascendancy
which the Catholics of Lower Canada exercise to the prejudice of what-
ever relates to the Protestant interest, but I suspect a very erroneous idea
prevails in this country of the state of religion in Upper Canada. It might
be supposed that the generality of the inhabitants bemg called Protestants
were either of the communion of the established Church or of the Kirk of
Scotland. Whereas the greater part are Methodists and Sectaries of ever}'
description. And I am sorry to add there are many who appear to have
no sense of religion whatever.

Circumstances have materially changed since the separation of the two
Provinces, and I could not avoid remarking when I was in Upper Canada,
that in many instances a stronger bias prevailed in favour of the American
than of the British form of Government. Whereas the Catholics in Lower
Canada have a rooted antipathy to the Government of the United States,
and have no dread equal to that of one day falling under its Dominion.
This trait of character I venture to press on your Lordship's attention, as
whatever may be the fate of the Upper Province, the Americans will never
be able to establish themselves in Lower Canada whilst this feeling is
cherished.

In giving my candid opinion of the state of the two provinces, I shall
be happy if I have in any degree answered the expectations your Lordship
has done me the honour to express. And I have only to assure you of my

^In both Provinces disputes/ between the varioas diyisions of the Government
became so pronounced that efficient government seemed impossible. In Lower Canada,
race and religion complicated the political situation. In 1822, the British Government
proposed to solve the problem, and Sir Robert Horton. Under Secretarv for the
Colonies, introduced a bill for the union of the two Canaaas. It was fiercely opposed
by the French-Canadians, and the English-speaking Canadians did not receive it with
unanimous enthusiasm. As a consequence, the bill was withdrawn. The financial
part, however, was passed under the title Canada Trade Act (3 George IV, c. 119)
(see p. 219). This Act led later on to further disputes, as it was claimed that it was
contrary to the Tax Repeal Act, 18 George III, c. 12 (see No. XXXIII). In the
following documents will be found the abortive Act of Union and the points of view
of various interested parties.

1791-1840] Constitutional Documents of Canada. 307

willingness at all times to attend to your Lordship's commands. In repeat-
ing that I shall not fail to hold your Lordship's communication confidential.
I must request that my answer may be looked upon in the same light; and
have the honour to be, my lord,

Your Lordship's, very obedient and
Faithful humble servant,

J. C. Sherbrooke.

LXXXIX

PROPOSED ACT OF UNION, 1822

[Trans.: Canadian Archives, Q, 160.]

A Bill [as amended by the Committee] for uniting the Legislatures of the
Provinces of Lower and Upper Canada,

WHEREAS in the present situation of the Provinces of Lower and^*^"^^*'
Upper Canada, as such with relation to Great Britain as to each other, a
joint Legislature for both the said Provinces would be more likely to pro-
mote their general security and prosperity than a separate Legislature for
each of the said Provinces, as at present by law established ;

Be it therefore enacted by the KING's most Excellent Majesty, by|PS"«^o'
and with the advice and consent of the Lords Spiritual and Temporal, andc. 31, as pro-
Commons, in this present Parliament assembled, and by the Authority of videsaLcgis-
the same, THAT so much of an Act passed in the thirty-first year of the{*JS»"«/^
leign of his late Majesty King George the Third, intituled, "An Act to ProTincS*of
"repeal certain parts of an Act passed in the fourteenth year of his Lower and
"Majesty's reign, intituled, 'An Act for making more effectual provision J^pJTJ*"***'
"'for the Government of the Province of Quebec in North America, and
"'to make further provision for the Government of the said Province,'"
as provides for the composing and constituting within each of the said
Provinces respectively, a Legislative Council and Assembly, and for the
passing of laws by the Legislative Council and Assembly of each Province,
shall be and the same is hereby repealed, except in so far as the same or
any of the provisions thereof, may by this present Act be continued or
applied to the purposes of the joint Legislature to be constituted in manner
hereinafter mentioned: Provided also, that so much of 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," as is repealed by the said Act passed in the
thirty-first year aforesaid, shall be deemed and taken to be, and shall remain
repealed.

And be it further Enacted, That from and after the passing of this ^^*^JJ^o^.j^^
Act, there shall be within the said two Provinces, and for the same jointly Legislative
one Legislative Council and one Assembly, to be composed and constituted Council, and
in manner hereinafter described, and which shall be called "The Legislative J^^^^^^^^.
"Council and Assembly of the Canadas;" and that within the said Pro- both Pr<?
vinces, or either of them. His Majesty, His Heirs or Successors, shall havevinccs.
power, during the continuance of this Act, by and with the advice and
consent of the said Legislative Council and Assembly of the Canadas, to
make laws for the peace, welfare and good government of the said Pro-
vinces, or either of them, such laws not being repugnant to this Act, nor to
such parts of the said Act passed in the thirty-first year aforesaid, as are
not hereby repealed; and that all such laws being passed by the said
Legislative Council and Assembly, and assented to by His Majesty, His
Heirs or Successors, re-assented to in His Majesty's name by the Governor-
in-Chief in and over the said provinces of Lower and Upper Canada, or
in case of the death or absence of such Govemor-in-Chief, by the Lieuten-
ant Governor of the Province of Upper Canada for the time being, or in
case of the death or absence of such Lieutenant Governor, then by the
Lieutenant Governor of Lower Canada for the time being, or in case there

308

Constitutional Documents of Canada. [1791-1840

Joint Legisl*-
Htc Cotiacil
to consist of
the present
Members of
both Councils.

Other Persons

maybe

summoned.

aucn Fersons
only shall be
summoned as
directed by
31 G. 3.

Governor to
appoint and
remove the
Speaker of
the Legisla*
tire Council.

Joint Assem*
bly to consist
of the present
Members of
bothf and to
continue until
1 July 1825,
unless sooner
dissolved.

Act of Upper
Canada,
60 G. 3, to
continue in
force.

shall be no Lieutenant Governor at such time resident in the Province of
Lower Canada, then by the person administering the government thereof
for the time being, shall be and the same are hereby declared to be, by
virtue of and under the authority of this Act, valid and binding to all
intents and purposes whatever within the said two Provinces.

And be it further Enacted, That the present members of the Legislative
Councils of Lower and Upper Canada shall, by virtue of this Act, and
without any new or other commissions for that purpose, constitute together
the Legislative Council of the Canadas, which said members shall take
precedence in the joint Legislative Council according to the date of the
instruments by which they were originally summoned to the Legislative
Councils of the two Provinces respectively ; and that it shall also be lawful
for His Majesty, His Heirs or Successors, from time to time, by an instru-
ment under his or their sign manual, to authorize and direct the said Gov-
crnor-in-Chief, or in case of his death or absence, such other person, and
in such order respectively as is hereinbefore directed, to summon to the
said Legislative Council, by an instrument, under a seal to be transmitted
by His Majesty to the Governor-ia-Chief, or under any other seal which
the said Governor-in-Chief shall be by His Majesty directed to use for the
purposes of this Act, and which shall be called the Great Seal of the
Canadas, and shall be applied only to the purposes directed by this Act,
such other person or persons as His Majesty, His Heirs or Successors,
shall think fit ; and that every person who shall be so summoned to the said
Legislative Council, shall thereby become a member thereof.

And be it further Enacted, That such persons only shall be summoned
to the said Legislative Council, as by the said above-mentioned Act, passed
in the thirty-first year aforesaid, are directed to be summoned to the Legis-
lative Council of the said two Provinces respectively ; and that every mem-
ber of the said Legislative Council shall hold his seat for the same term,
and with the same rights, titles, honours, ranks, dignities, privileges and
immunities, and subject to the same provisions, conditions, restrictions,
limitations and forfeitures, and to the same mode of proceeding, for hear-
ing and determining by the said Legislative Council all questions which
shall arise touching the same, as are in the said Act, passed in the thirty-
first year aforesaid, mentioned and contained, with respect to the members
thereby directed to be summoned to the Legislative Council of the two
Provinces respectively.

And be it further Enacted, That the Governor-in-Chief, or in case of
his death or absence, such other person, and in such order respectively as
is hereinbefore directed, shall have power and authority from time to time,
by an instrument under the Great Seal of the Canadas, to constitute appoint
and remove the Speaker of the said Legislative Council.

And be it further Enacted, That the members at present composing
the Assemblies of the said two Provinces shall, together with such new
members as shall or may be returned for either of the said Provinces
respectively in manner hereinafter mentioned, form and constitute the
Assembly of the Canadas, and shall be and continue until the first day of
July one thousand eight hundred and twenty-five, unless sooner dissolved;
and that in case of a dissolution of the said Assembly, or of vacancies
occurring therein, members shall be returned from the same counties and
places, and in the same manner, and in the same numbers, except as herein-
after otherwise provided, as now by law they are returned within the two
Provinces respectively.

AND whereas an Act was passed. by the Provincial Legislature of
Upper Canada, in the sixtieth year of the reign of his said late Majesty,
intituled, "An Act for increasing the Representation of the Commons of
"this Province in the House of Assembly," BE it therefore further En-
acted, That the said Act, and all the provisions therein contained, except
as hereinafter otherwise provided, shall remain in full force and effect.
and shall be applied to the representation of the said Province of Uppe^
Canada in the joint Assembly, in like manner as the same were applicable

1791-1840] Constitutional Documents of Canada, 309

to the representation thereof in the Assembly of the said Province of
Upper Canada before this Act was passed.

And be it further Enacted, That it shall and may be lawful for thecoreniorof
Governor, Lieutenant Governor, or person administering the government Lower Canada
of the said Province of Lower Canada for the time being, from time to^JJ^^^^^ouT
time as he shall judge expedient, from and out of that part of the said of the Town-
Province of Lower Canada which has been erected into townships sincesbip'tobc
the number of representatives for the said Province was settled by Pro- the A«Smbl|?
clamation, to form and erect new counties, by instrument or instruments
under the Great Seal of the said Province, each such new country to consist
of not less than six townships; and that when and so often as any such
new cotmty shall be formed and erected as aforesaid, the Governor, Lieu-
tenant Governor, or person administering the government of the said
Province of Lower Canada, shall issue a writ for the election of one mem-
ber to serve for the same in the assembly; and that whensoever the said
Governor, Lieutenant Governor, or person administering the government
as aforsaid, shall deem it expedient that any such new coimty, or any
county heretofore erected within the said Province of Lower Canada, and
at present represented by only one member, shall be represented by two
members, he shall in like manner issue writs for that purpose: Provided
always, that no subdivision of any counties now erected or to be hereafter
erected within either of the said Provinces, except as hereinbefore provided
with respect to the said townships, shall extend or be construed to extend
10 increase the number of representatives for such counties : Provided also,
that the number of representatives for each province shall not exceed
sixty.

And be it further Enacted, That no act by which the number of repre-NP'^S*®
sentatives of either Province shall be altered, shall hereafter be passed by^^^i^^f
His Majesty, by and with the advice and consent of the said Legislative Representa-
Council and Assembly, unless the same shall have been passed by two-thirds ^^^^^.
at least of the members present at the question for the second and third ^Xwo-t&rda
reading of the same in the said Legislative Council and Assembly respec-of both
lively. Honaca.

And be it further Enacted, That all and every the provisions and Proviaiom of
regulations respecting the appointment and nomination, duties, privileges'^ G. 3, ig
and liabilities of returning otficers for either of the said Provinces respec-^^g^^re-^
tively, and respecting the eligibility, qualification and disability of persons main in force,
to sit as members in the said Assembly, or to vote on the election of such
members, and respecting any oath to be taken by candidates or voters at
such elections, and respecting all other proceedings at such elections, and
respecting the times and places of ^holding such elections, as are contained
in the said abovementioned Act, passed in the thirty-first year aforesaid,
except is so far as the said provisions and regulations are hereby in any-
wise altered, shall remain and continue in force in both of the said Pro-
vinces; and that all and every the provisions and regulations respecting
the objects above enumerated, or any of them, which are contained in any
Act or Acts of the provincial Legislatures, which are now in force in
either of the said Provinces respectively, shall remain and continue in force
within such Province, except as the same are hereby in anyways altered,
until othrwise provided for by the joint Legislature.

And be it further Enacted, That when and so often hereafter as it Governor may
may be necessary to summon and call together a new Assembly for the saidJJJ""'^*"*^
two Provinces, it shall and may be lawful for the said Govcrnor-in-Chief,"^**^ ^*
or in case of his death or absence, then for such other person, and in such
order respectively as is hereinbefore directed, by an instrument under the
said Great Seal of the Canadas, to summon and call together the said
Assembly as hereinafter expressed and provided.

And be it further Enacted, That Writs for the election of members ^^^{j^^,
to serve in the said Asesmfoly, shall be issued by the Governor, Lieutenant for the eleo-
Govemor, or person administering the government of the Province within tion of Mem-
which such members shall be chosen respectively, in the same manner ^^^^S^ttdbr
directed to the same officers, and returnable within the same period, as insi Geo. 3.

310

Constitutional Documents of Canada. [1791-1840

Pualificatioii
m future to
be real Pro-
perty, to the
value of ISOO
•terling.

Oath to that

esecL

i<

«

Peraoaa awcar-
in^ falsely
full ty of
perjury.

Trials of

contested

Elections.

Governor may
sufflfflon Two
Members of
the ExecutiTe
Council of
each Province
to the
Uy.

Joint Legisl^
tureto he
summoned,
not later than
1st September
1824, and once
every twelve
Months after-

and by the said Act made and passed in the thirty-first year aforesaid, is
directed and provided.

And be it further Enacted, That on the first general election of mem-
bers for the said Assembly, which shall take place from and after the
passing of this Act, and on all subsequent elections, whether general or for
particular places, in cases of vacancy, which shall be holden in either of the
said Provinces, no person shall be capable of being elected, who shall nof
be legally possessed to his own use and benefit, of lands and tenements
within one or other of the said Provinces, of the value of Five hundred
pounds sterling over and above all rents charges and incumbrances which
may affect the same, such lands and tenements being by him held in free-
hold, in fief or in roture ; and that every candidate at such election, before
he shall be capable of being elected; shall, if required bv any other candi-
date, or by the returning officer, take an Oath in the following form, or to
the following effect;

"I, A. B. do Swear, That I am legally and bona fide possessed to my
"own use and benefit, of lands and tenements within the Province oi

Canada, of the value of sterling, over and

above all rents charges and incumbrances which may affect the same ;
"and that the said lands and tenements are by me held in freehold, in fief,
"or in roture [as the case may be] ; and that I have not obtained the same
"fraudulently, for the purpose of enabling me to be returned Member to
"the Assembly of the Canadas; and also that I am otherwise qualified,
"according to the provisions of law, to be elected and returned to serve as
"a Member thereof."

Provided always, That nothing in this Act contained shall be construed
to affect any Act now in force in either of the said Provinces respectively,
relating to the qualification (other than as respects property) of any can-
didate or voter at elections.

And be it further Enacted, That if any person shall knowingly^ and
wilfully take a false oath respecting his qualification, either as candidate
or voter at any election as aforesaid, and shall thereof be lawfully con-
victed, such person shall be liable to the pains and penalties by law inflicted
on persons guilty of wilful and corrupt perjury in the Province in which
such false oath shall have been taken.

And be it further Enacted, That whenever hereafter any question shall
arise touching the validity of the election or return of any person in either
Province to serve in the Assembly, such question shall be tried in the Joint
Assembly, according to the mode of proceeding now established by law in
that Province in which the disputed election or return shall have been
made, until a uniform course of proceeding shall be duly established for
both Provinces.

And be it further Enacted, That it shall and may be lawful for the
said Governor-in-Chief, or in case of his death or absence, then for such
other person, and in such order respectively as is hereinbefore directed, if
at any time he shall deem it expedient, to summon and authorize, by an
instrument under his hand and seal, two members of the executive G)undl
of each Province to sit in every Assembly with power of debating therein,
and with all other powers, privileges and immunities of the members there-
of, except that of voting.

And be it further Enacted, That the said Legislative G>uncil and
Assembly shall be called together for the first time at some period not
later than the first day of September one thousand eight hundred and
twenty-four, and once afterwards in every twelve calendar months, and
that the said Govemor-in-Chief, or in case of his death or absence, such
other person, and in such order respectively as is hereinbefore directed,
shall and may convene the first and every other session of the said Legis-
lative Council and Assembly, at such places within either Province, and at
such times, under the restrictions aforesaid, as he shall judge most con-
ducive to the general convenience, giving due and sufficient notice thereof,
and shall have power to prorogue the same from time to time, and to dis-

1791-1840] Constitutional Documents of Canada, 311

solve the same by proclamation or otherwise whenever he shall deem it
necessary or expedient .

And be it farther Enacted. That every Assembly hereafter to be s"m- jw«™«
moned.and chosen, shall continue for five years, from the day of the return ^ontinae five
of the writs for choosing the same, and no longer; subject nevertheless Ye»r».
to be sooner prorogued or dissolved by the said Governor-in-Chief, or in
case of his death or absence, by such other person, and in such order
respectively as is hereinbefore directed.

And be it further Enacted, That all questions which shall arise in the Majority of
said Legislative Council or Assembly, except in the cases herein otherwise J^^^o
provided, shall be decided by the majority of voices of such members as
shall be present; and that in all cases where the voices shall be equal, the
Speaker of such Council or Assembly shall have a casting voice.

Provided always, and be it further Encated, That no member either Oathpre-
of the Legislative Council or Assembly shall be permitted to sit or votejcrftedby
therein, until he shall have taken and subscribed the oath prescribed for^[^^^°
that purpose by the said Act passed in the thirty-first year aforesaid, before
a person duly authorized to administer the same, as in and by the said Act
is directed.

And be it further Enacted, That any Bill which shall be passed by Royal Aasent
the Legislative Council and Assembly shall be presented for His Majesty's Jj^^]*|«d
assent to the said Govemor-in-Chief, or in case of his death or absence, „ prescribed
to such other person, and in such order respectively, as is hereinbeforeby3lG. 3.
directed, who shall, according to his discretion, declare or withhold His
Majesty's assent to such Bill, or reserve such Bill for the signification of
His Majesty's pleasure thereon, subject always to the same provisions and
regulations wi& respect to Bills which may either be assented to, or from
which His Majesty's assent may be withholden, or which may be reserved
as aforesaid, as the case may be, as in and by the said Act, passed in the
thirty-first year aforesaid, are contained and enacted with regard to such
Bills respectively.

And be it further Enacted, That all laws, statutes or ordinances A^lL*^ now
which are in force at the time of passing of this Act, within the said^^^*^^^^^^.
Provinces or either of them, or in any part thereof respectively, shalUept a* hereby
remain and continue to be of the same force, authority and effect in cachjjgf**^ or
of the said Provinces respectively as if this Act had not been made, except
in as far as the same are repealed or varied by this Act, or in so far as
the same shall or may be hereafter by virtue of and under the authority
of this Act repealed or varied by His Majesty, His Heirs or Successors,
by and with the advice and consent of the said Legislative Council and
Assembly.

And be it further Enacted, That all rights, privileges, immunities PriTileges of
and advantages which are at present legally exercised and enjoyed byjjjlg^**®
the members of the Assemblies of Lower and Upper Canada respectively,
shall continue to be exercised and enjoyed by them as members of the
said Assembly of the Canadas, in as full and as ample a manner as here-
tofore: Provided always. That no privilege of the said Legislative Council
or of tlie said Assembly, shall extend or be construed to extend to author-
ize the imprisonment of any of His Majesty's subjects not being members
of the said Legislative Council or of the said Assembly, or officers or
servants of the said bodies respectively, until an Act be passed declaratory
of the rights and privileges of the said bodies in. this respect

And be it further Enacted, That from and after the passing of this Henceforth
Act, all written proceedings of what nature soever of the said Legisla- 1}' ^"^^f^
tive Council and Assembly, or either of them, shall be in the £>»^/w/»anS*afterS*
language and none other; and that at the end of the space of fifteen Years, all
years from and after the passing of this Act, all debates in the said Legis-P^fcjJ^fj^'**
lative Council or in the said Assembly, shall be carried on in the EnglishjStm^
language and none other.

AND whereas by the said Act of the Imperial Parliament of CPr^a^Persoiupro-
BrUain, made and passed in the fourteenth year aforesaid, intituled, "Anfg^»*"*-
"Act for making more effectual provision for the government oi tbetheOrar&ol

\

312 Constitutional Documents of Canada, [1791-1840

gonicnotto "Province of Quebec, in {forth America" it was, amongst other things,
be affected, declared, That His Majesty's subjects, professing the religion of the
church of Rome of and in the said Province of Quebec, might have hold
and enjoy the free exercise of the said religion, subject to the King's
supremacy as in the said Act mentioned, and that the clergy of the said
church might hold receive and enjoy tiieir accustomed dues and rights
with respect to such persons only as should profess the said religion; BE
% it therefore further Enacted and Declared, That nothing in this Act con-
tained, nor any Act to be passed by the said joint Legislature, nor any
resolution or other proceeding of the said Legislative Council or As*
sembly, shall in anywise affect or be construed to affect the free exercise
of the religion of the Church of Rome by His Majesty's subjects pro-
fessing the same, within either of the said Provinces, but the same may
continue to be exercised, and the clergy of the said church and the seversd
curates of each respective parish of the said Province of Lower Canada,
now performing the clerical duties thereof, or who shall hereafter, with
the approbation and consent of His Majesty, expressed in writing by the
Governor or Lieutenant Governor, or persons administering the govern-
ment of the said Province of Lower Canada for the time being, be thereto
duly collated appointed or inducted, may continue to hold receive and
enjoy their accustomed dues and rights in as full and ample manner, to
all intents and purposes, as heretofore, and as is provided and declared
by the said last-mentioned Act
^SoMoi^ And be it further Enacted, That all the provisions, regulations and

31 G. 3, to restrictions made and imposed in and by the said Act, passed in the
extend'to Acts thirty-first year aforesaid, with respect to any Act or Acts containing
& the^Ioint ^^^ provisions of the nature tlierein particularly mentioned and specified.
Legislature, ^h^ll and the same are hereby declared to extend and apply to each and
every Act which shall be passed by the said Legislative Council and As-
sembly, and which shall contain any provisions of the nature in and by
the said last-mentioned Act set forth and specified.
Accounts, ftc.. And l)e it further Enacted, That all and every the accounts, returns,
be^re^e papcrs, and documents, which by any Act now in force in either Province,
Legislatare. are directed to be laid before the Legislature thereof respectively, shall,
under the penalties therein provided, be in like manner transmitted and
laid before the Legislature of the Canadas, during the continuance of
such Acts,
offi**^** of And be it further Enacted, That the officers and other persons rc-

Legisiatareto reiving salaries or allowances in respect of services rendered by them in
continue till the Legislatures of their respective Provinces, shall continue to receive
othwwiiie such salaries and allowances as heretofore, until otherwise provided for
provided for. j,y ^y j^^ ^j^j^^j^ ^^^^ ^^ passed by His Majesty, His Heirs or Suc-
cessors, with the advice and consent of the Legislative Council and As-
sembly of the Canadas,

xc

CONSIDERATIONS BY J. B. ROBINSON' TO BATHURST

[Trans. : Brymner, op. cit,, p. 39.]

The following paper was submitted to Lord Bathurst by Mr. Robinson,

Attorney General of Upper Canada.

23 Apl., 1822.

Considerations upon the expediency of giving an united Legislature
to the two Provinces of Canada by an Act to be passed during the present
session.

The reasons which led to the division of the Province of Quebec,
were that the inhabitants of the two portions of the Province now form
ing Upper and Lower Canada differed in language and religion and had

^John Beverley Robinson, Attorney-General for Upper Canada. At page 2,
Brymner prints a somewhat different copy of this document.

1791-1840] Consiitutiotiol Documents of Canada. 313

been accastomed to different systems of jurisprudence. These reasons
remain not materially weakened in any respect, for the accession to the
population of« Upper Canada by emigration since the division, has been
almost entirely of persons strangers to the French Laws and language,
and principally of the Protestant faith, while in Lower Canada the inhabi-
tants are at this moment in the proportion, it is stated of 19 in 20 com-
posed of Canadian French.

Whatever weight, therefore was due to these arguments for a separa-
tion at the time it toc^ place, is yet undiminished, and it may be added
that the subsequent general disposition of population through a territory,
the extremes of which are from 12 to 1,5(X) miles asunder furnishes an
argument of inconvenience against uniting tiiem now under one Legisla-
ture, which probably did not exist in a sufficient degree to form an induce-
ment for the separation.

These circumstances, however, though entitled to consideration as
materially affecting the welfare and convenience of the two Provinces
whose increase in population and opulence it is desirable to facilitate by
giving to them the most convenient form of Government for the local
wants; are none of them it must be confessed of that paramount nature
that they ought to stand in the way of the proposed union if it be clear
that sudi union is necessary to increase the value of those colonies to
the mother country or to provide in the most effectual manner for their
own security and welfare.

For my own part, I do not know in what manner any of those «nds
is expiEtfed to be answered by the proposed union. The Provinces have\
gone on hitherto advancing by very rapid strides^ in population and im-
provement, their inhabitants well satisfied with the footing on which their
Government was placed by the 31st Geo. 3rd, c. 31*, and sensible themselves
of no evil or inconvenience growing out of the system established by that
statute, so far as my knowledge extends, except that within these few
last years difficulties have arisen in adjusting the proportion of duties and
regulating the commercial intercourse between the two Provinces, which
matters had hitherto been arranged by amicable agreement but which it
has now been found necessary to refer to the decision of the Imperial
Parliament, an exigency foreseen as the probable consequence of the
separation when the 31st Geo. 3rd was passed and for which a power
of providing a remedy by the intervention of British Acts is in terms
reserved by that statute.

If, however, although the legal and constitutional right of the Im-
perial Parliament, to control both Provinces in these respects is un-
doubted these differences between them with respect to their cAmmercial
and financial regulations cannot in point of fact be adjusted in any other
manner than by an Union of the Legislatures, that would of itself be a
sufficient reason, for while these points are unsettled the Governments
and Legislatures of both Provinces are subject to be involved in irritating
Jiscussions which may tend to much evil, and what is more imm^didii^ly
pressing the Province of ^ Upper Canada is atsolllt^* unable l&s wa^t
cA tlMji fnntfg'Whic'h remain locked up in the treasury of Low£r Caaada
to pfty-^Mf Creditors or to support the current expenses of her Govem-
mfxtt. Bttt 1 nitrst declare I see no reason for supposing that an Union
of the Legislatures is required on this ground, for I submit, in the first
place, that such an Union would by no means get rid of the principal
point of disagreement — the claims of Upper Canada for the past. Those
claims must necessarily remain, the amount must, be ascertained and their
payment to Upper Canada provided for by some' Act of the British Par-
liament, notwithstanding an Union, and indeed, as far as respects the
claims of Upper Canada for Duties already received to her use, and to
be expended when paid, solely for her benefit some difficulty as regards
the exclusive appropriation of them would be created by an Union. Then
in regard to the future regulations of the intercourse between the two

> Sec No. LV.

314 Constitutional Documents of Canada, [1791-1840

G)lonies the measures humbly prayed for on the part of Upper Canada
are such as it is conceived no reasonable objection can be urged against
At all events the Imperial Parliament can well judge of their expediency
and whether they are such as both Provinces ought to be content to
acquiesce in, and if either Province be not patient under regulations
enacted by a sense of justice due to the other, it will then, I submit, be
time, as far as the desired end is to remedy these difficulties, to project
an Union as the only other method of attaining a necessary object

Believing then, as I certainly do, that an Union is not absolutely
necessary on this ground, it is next to be considered whether there is
anything in the present situation of the two Provinces which calls for a
measure so important in its nature, and which may be attended with cir-
cumstances of particular inconvenience to each. In remarking upon the
inducements which occur to me, I can only speak hypothetically, for it
may be that His Majesty's Government are induced to the contempla-
tion of an Union by considerations of policy altogether different from
those which present themselves to me. I know that the Legislature of
Lower Canada have refused to make provision for the expences of ad-
ministering Justice and supporting the civil government of their Province
in any other manner than by an annual vote, a system of proceeding to
which His Majesty's Government object, as being contrary to the spirit
of that constitution of which they are ready to avail themselves of the
privileges, and as placing every officer of the civil government, even those
entrusted with administration of Justice, in a state of the ^most dangerous
dependence upon the pleasure of the popular branch of the Lejgislature.
I am aware too that the greatest embarrassments are felt in conducting
the government of that Province, from the refusal of the Assembly to
place the civil establishment on any other footing. There may no doubt
be other points also, on which the Assembly of Lower Canada, consisting
principally of people of French extraction and Catholics, exhibit at least
an indifference to objects which in a British Colony it is desirable to ad-
vance, and cherish prejudices which confine them to a narrow line of
policy and make them hostile to improvements which would advance the
welfare of the colony, and render it a more important part of the Brit-
ish Dominion.

Of these inconveniences it is impossible to say decidedly, until they
are more specifically pointed out, how far they might be expected to be
removed by an Union of the Legislatures, but as to that first mentioned,
namely, the embarrassment felt at present in Lower Canada from the
refusal of the Legislature to make more permanent provision for the
Civil List I confess I do not see that it would be removed by such a
measure, for supposing the Canadas to be joined according to their present
scale of representation, if every member from Upper Oinada should con-
sent to a permanent provision for the civil list, it would still not be car-
ried, and without expressing any opinion upon the question as it now
stands in Lower Canada, I do not by any means think it safe to anticipate
that the members from Upper Canada, would generally support the pro-
vision in the terms in which it was required to be made.

As to any inconvenience that may be felt from the entire prepon-
derancy of a French Canadian interest in the Legislature of Lower Can-
ada, I do not see that the certainty of their being counteracted by an
union, is either near enough or clear enough to make it adviseable on that
ground. It would be long before the influence of the members from
Upper Canada would be an overruling influence and I think it doubtful
wfiether, when it did become so, they would be disposed to exert it in
changing the internal municipal policy of the other Province, contrary
to the wishes of nine-tenths of its inhabitants, and which, whether wise
or not, was endeared to them by long use, and had been so far respected
by the British nation that they had been hitherto left to change or retain
it as they might prefer.

That an union of the provinces might add to their strength, by pro-
ducing a more perfect community of interest and feeling, by sobjecting

1791-1840] Constitutional Documents of Canada. 315

their militia to an uniform system of discipline, and by placing their
means of defence against a foreign enemy more conveniently and effec-
tually at the disposal of the Government that it might in time by the
gradual operation of the natural consequences of such an union make
the whole colony more completely British in their system of laws, in
their education, in their feeling and in the general temper of all their
public acts — that it would produce an uniform regulation of trade
throughout the territory, and insure the interest of every part being made
subservient to the welfare of the whole and that it would necessarily
put an end to all future difliculties about duties and drawbacks by sharing
among all the enjoyment oi that in which they have all an interest, are
general advantages which though some of them are rather indefinite as
to the extent and uncertain as to the period in which they might be felt,
might I think be rationally expected.

On the other hand I am doubtful of the prudence of disturbing the
present system of things in the prospect of these rather indefinite and
distant advantages and at the hazard of the inconveniences which have
suggested themselves to me and which I will shortly state.

At present things are proceeding pleasantly and prosperously in
Upper Canada. In Lower Canada th^y are not, but I do not think an
union would remove in the least the difficulties existing* there and it
might have the bad effect of involving one province in the troubles of the
other.

The number of representatives in Upper Canada is at present less
than in the Lower Province, and would no doubt continue so for many
years. The latter consists, with very few exceptions of Canadian French
and I am apprehensive that an union of the two provinces would be re-
garded with such extreme jealousy and repugnance by the great body of
the people in Lower Canada, that on future occasions they would even
more studiously endeavour to exclude Englishmen from their Assembly,
and confine their confidence to those who would sedulously guard their
old system of things from innovation, smd for many years I fear the
people of Upper Canada would find it difficult to obtain any appropria-
tion of revenue to purposes of public improvement within their province
or to gain sufficient attention in their local interests from an assembly
of whom the greater number would be unfriendly to their religion and
unacquainted with their laws and jealous of their influence. If these con-
sequences should follow they would retard the now rapidly increasing
prosperity of Upper Canada at the most critical moment. Perhaps the
apprehension is groundless, I state merely my own impression. Upper
Canada, it is true, contains at present much less population than the Lower
Province the one having been first settled by Europeans only forty year
ago, and the other more than two hundred: but it is well known, that in
extent of land capable of cultivation, in the excellence of its soil and
climate, and consequent capability of production the former possesses al-
most unrivalled advantages, and it would be much to be lamented that
these should be prevented from developing themselves, by being placed
under the control of persons little acquainted with our agricultural inter-
est, and even averse to the system of tenures and of laws under which
the province has so surprisingly flourished.

That it would be thus controlled at least for many years to* come I
take to be certain, especially if the Legislature should be convened at
Montreal, for I fear in the present state of Upper Canada, it would be
difficult to find gentlemen who could so completely abandon their own
pursuits, as to attend an annual Legislative Session of three months at
so great a distance from their homes. It could not be expected that
the attendance of Members from the Upper Province would be by any
means so numerous even in proportion, as from the Lower, and I see
great reason to apprehend that in any question in which the interests of
the two Provinces may come into competition, such, for instance, as the
proportion of Revenue to be expended in Upper Canada there would be
little chance for some time to come of a fair decision. I fear this the

316 Constitutional Documents of Canada. [1791-1840

more from the conviction that the mass of the people of Lower Canada
would feel extreme annoyance at the Union, looking upon it as a scheme
to give to the English population an undue ascendancy and would be for
some time little disposed to unite cordially with us forgetting all dis-
tinctions.

It perhaps deserves also to be considered how far it is politic upon
/ national grounds to unite two colonies now distinct, thereby involving on
all occasions the politics of one with those of the other, giving to them
the means of making common cause in any unfortunate dissension which
might arise, and rendering any disagreement a cause of irritation and of
I difficulty in two governments, whereas oUierwise it might but affect the
tranquillity of one.

Several other considerations of less importance naturally suggest
themselves in weighing the probable consequences of an Union of the
Legislatures. My desire has been to state such as appeared most worthy
of notice, and in doing this I beg not to be understood as presuming to
speak the sentiments of the Government, or of the Legislature of Upper
Canada, for I am neither authorized nor prepared to state their opinions
upon the expediency of an Union which was never within my knowledge,
contemplated by either.

The representations from that Province with which I am charged
were not intended I am certain to point specifically to that end, and indeed
the measures which I have taken the liberty of proposing, and which are
under the consideration of His Majesty's Government are wholly of a
different nature. I can not even pretend to say how far an Union would
be agreeable to the people of Upper Canada generally. I have reason to
think t,he majority of their present representatives are unfavourable to it,
from a conviction that it would not be beneficial, though some of that
body, for whose opinion I have much respect think otherwise. I will take
the liberty of remarking further, that the Act by which the Province of
Quebec was divided and the present separate government established, was
the result of great and long deliberation, and if the change of system so
matured should prove disagreeable to the inhabitants of both or either of
the Provinces, it may be expected that they will feel more deeply in pro-
portion as it shall appear to have been hastily decided on, and without
an opportunity having been afforded them of making known their senti-
ments. The people of Canada have been ever treated by Great Britain
with a mildness and degree of parental indulgence that would make them
more sensible to any apparent want of consideration even of their feel-
ings. Another matter occurs to me upon which it is necessary to guard
against any erroneous impression. The French Inhabitants of Lower
Canada, I am firmly persuaded, are as peaceably disposed, as much in-
clined to submit to authority, and as loyally attached to the British Gov-
ernment, as any portion of His Majesty's subjects, and whatever trouble
their representatives may give by refusing to make a permanent provision
for the Civil List, or upon questions of Revenue, or of any kind between
themselves and the Executive Government is not to be ascribed to the
proponderance of French influence over the English, but to that desire
which is found in all assemblies to assert to the utmost the share of
power which they think the constitution gives them, a disposition which
I fhink the descendants of English, Irish and Scotch will be found as
likely to persevere in, as the descendants of Frenchmen. It is not my
desire by anything I have said, to lead to a conclusion that the Legis-
latures should not be united, unless that inference shall appear to be the
sound deduction from the consideration I have stated. I have set down
what presented itself on both sides, anxious only that the decision may
be made on sure grounds, and not formed upon erroneous conceptions or
expectations which are not likely to be fulfilled.

1791-1840] Constitutional Documents of Canada. 317

XCI

PAPINEAU TO WILMOT

[Trans. : Brymncr, op. cU.]

Montreal, 16th December, 1822.

Sir, — ^You may have been informed that the strongest and most de-
clared opposition to the Union of the Legislatures of Lower and Upper
Canada, lately proposed in the Imperial Parliament has been manifested
throughout this Province and Upper Canada.

This circumstance alone must attract the notice of every member of
the Honourable the House of Commons who was present at the Debates,
that took place on the bill alluded to introduced in the last Session of
Parliament when it was asserted by the movers and supporters of the
Bill, that the proposed law would be received with satisfaction by all His
Majesty's subjects in the Canadas, which assertion must have been
grounded on misrepresentation made by persons entertaining the hope that
the measure would be carried before the sense of the people in these
Provinces could be made laiown to Parliament. They have been thwarted
in their expectation by the justice and wisdom of the Honourable the
House of Commons.

The opportunity afforded to these colonies to express their sentiments
on the subject, has been used in both Provinces, and petitions to His
Majesty and the two Houses of Parliament against the Union 'of the
Legislatures are now receiving signatures. These Petitions will make
known the feelings and dispositions of His Majesty's Canadian subjects.

The committee appointed at a general meeting of the district of Mon-
treal have considered it expedient that the members of the Honourable
the House of Commons should be apprised of the measures now adopt-
ing here and beg to request that you will be pleased to consider this their
communication as having no other motive or tendency than to intreat
your attention, and to solicit your justice as a member of that House,
where the dearest interests of this country may become the subject matter
of discussion.

The committee does not deem it necessary to enter into a detail of
facts which would sufficiently characterize the motives of the friends of
the projected Bill, but merely wishes to dispel the odious aspersions on the
great body of the people in this Province contained in several communi-
cations intended for England. Such as assertions that the opposition
manifested in this Province on the part of the Populations so stigmatised
is the effect of prejudices alone, alluding to their supposed attachment to
France and to French principles; calling them foreigners; (foreigners in
their native land!). The Bill in question, say these friends of the Union
being so well calculated to Anglify the country, which is to be ultimateh
peopled by a British race.

The very style of these communications will it is hoped produce
quite a different effect from that intended. It will be easily perceived on
which side prejudices lie. No doubt these aspersions on the character of
those whom they invidiously denominate French Canadians were intended
to produce irritation from which an advantage was expected to be de-
rived, but they had no other effect than that of producing contempt for
such attempts against the liberties of the country. You will have occa-
sion to observe that the representations of the majority of His Majesty's
subjects in this Province will be such as should ^e expected from men
who are attached to British principles and to a British constitution.

The preposterous calumny against the Canadians of French origin, as
to their supposed attachment to France requires no other answer than
what is derived from their uniform conduct during the wars, and the
loyalty evinced by them on every occasion. They are not foreigners in
this the land of their birth; they claim rights as British subjects, in com-
mon with every other subject of His Majesty in these colonies. These

318 Constitutional Documents of Canada, [1791-1840

are^ their birth rights, and yet it was expected by the projectors of the
Union Bill to deprive them of these rights, which were so solemnly se-
cured to them by the Act of the 31st of His late Majesty, after the ela-
borate discussion that then took place, and in conformity with the just
and liberal views of the most enlightened politicians of those days.

By what they call Anglifying the country is meant the depriving the
great majority of the people m uiis Province of all that is dear to men ;
their laws, usages^ institutions and religion. An insignificant minority
wish for a change and are desirous of ruling against every principle of
justice by destroying what they call the Canadian influence, that is to
say the influence of the majority of men entitled in the same rights as
themselves, of the great mass of the natives: this eagerness to domineer
has produced their present exertions to obtain by unjust means that which
they should not and cannot reasonably expect if the matter be correctly
understood. For it might be asked what right should that minority ex-
pect to have which would be subversive of the equal protection due to all
His Majesty's subjects, as well in colonies, as everywhere else? Has
Great Britain ever entertained any such policy towards its Colonies? Is
it just or reasonable or even sound policy, that she should on this occa-
sion, wound the feelings of a loyal population for the purpose of satisfy-
ing the prejudices of a few? Great Britain wants no other Anglifying
in this Colony than that which is to be found in the loyalty and affection
of its Inhabitants, no other British race than that of natural bom sub-
jects loyal and affectionate. Such are inhabitants of both Provinces; and
it is the humble expectation of the Canadians, that on this occasion so
momentous to them, their interests will be advocated by every liberal
mind, as it is their belief and confidence that they will continue to enjoy
the benefits of that constitution to which they manifest so strong an at-
tachment and which they consider as the safeguard of their rights and
liberties.

I have the honour to be, sir,

' Your most obedient and very humble servant,

L. J. Papineau, President.
To R. J. Wilmot, Esq., M.P.

XCII
PETITION FROM MONTREAL FOR UNION, DECEMBER, 1822

[Trans.: Brymner, op. cit.]

TO THE KING'S MOST EXCELLENT MAJESTY:

The Petition of the Subscribers, Your Majesty's dutiful and loyal Sub-
jects of British birth or descent, Inhabitants of the City and County
of Montreal in the Province of Lower Canada :

MOST HUMBLY SHEWETH :

That Your Majesty's Petitioners learnt with the most lively satisfac-
tion, that the measure of uniting the provinces of Upper and Lower
Canada under one Legislature had been submitted to the consideration
of the Imperial Parliament in its last Session, and have been impressed
with the sentiments of the most respectful gratitude for the attention
which has been bestowed on this measure of vital importance to both
Provinces.

Under the agreeable anticipation that the evident policy and urgent
necessity of a Union of the Provinces will induce a renewal of the meas-
ure, in the next Session, Your Majesty's Petitioners most respectfully beg
leave to submit the principal considerations that render them in the highest
degree anxious for the adoption of the proposed Union.

Your Majesty's Petitioners in all humility represent that the division
of the late Province of Quebec into two Provinces, must be referred to

1791-1840] ConsHtuHonal Documents of Canada, 319

as a measure which has been most prolific of evil. At the time the divi-
sion took place upwards of thirty years had elapsed from the Conquest
of the country, by Your Majesty's Arms; and notwithstanding the un-
limited generosity which has been displayed towards the conquered, by
confirming to them their Laws and Religion, by admitting them to a par-
ticipation in the Government and in all the rights of British Subjects,
and by continued demonstrations of kindness towards them, no advances
had been made in effecting a change in the principles, language, habits
and manners, which characterize them as a foreign people, ^uch change,
as well from past experience as from the known operation of the feelings
common to mankind, could not be expected while the conquered people
were permitted exclusively to regulate their own Government, and thus
cherish and maintain the national peculiarities, which it was equally the
interest of the Parent State and of the Colony, should be gradually
effaced by an intimate union with their fellow subjects of British origin.
On this account it seemed evidently necessary in framing a new Constitu-
tion of Government that the representation should be so regulated as to
ensure a fit and reasonable influence of British feeling and principles on
the conduct of the Colonial Legislature. The measures for this purpose
were at the time facilitated by the increase of the British population which
had taken place, and by the settlements which had been formed by Ameri-
can Loyalists in the Upper Districts of the late Province of Quebec; in
consequence of which a sufficiently numerous body of persons of British
origin might, under a proper system of representation, have been intro-
duced into the Colonial Legislature without offending against any prin-
ciple of Justice, and certainly in strict conformity with the dictates of
sound policy. Had this course which was anticipated at the time by the
French Canadian population and would then have been cheerfully ac-
quiesced in by them, been pursued. Your Majesty's Petitioners are con-
fident that the Province would now have been, in all essential particu*
lars, an English Province. Unfortunately Your Majesty's Petitioners in
common wttii their fellow subjects of British origin, have to lament, that
instead of adopting the policy which has been mentioned, the measure of
dividing the Province was unexpectedly and to the utter surprise of the
persons who had petitioned for a change in the Constitution, without
imagining, that it was to be accompanied by any such measure resolved
on; by which the English population in Lower Canada was rendered in-
efficient from the comparative smallness of their numbers, and the whole
power of the representative branch of the Government was given to the
French Canadians. It is a fact also, not unimportant to be stated, that
both the British and Foreign Canadian subjects who had united in a
joint petition to the Imperial Parliament, praying for a change in the
Government, concurred through their agent, in petitioning, and were
heard by Counsel, against the division of the Province; but their efforts
were unavailing.

It is from this impolitic measure your Majesty's Petitioners state with
confidence that the political evils under which Lower Canada has since
laboured have principally resulted as their primary cause. The French-
Canadian population for a short period of time after the adoption of the
present constitution, partly from incapacity to exercise the political powers
with which they had become invested, and partly from some remaining
deference for their Enp^lish fellow subjects; used their ascendancy with
moderation; but this disposition was not of long continuance, and soon
yielded to the inveterate anti-British and anti-commercial prejudices, by
which they have not ceased to be actuated. The consequence has been,
that persons of British origin, with the exception of a very small number,
who have been elected rather for the sake of appearances than from any
regard for their qualifications, have been excluded from the House of
Assmbly. The proportion of English Representatives for many years
past, has hardly ever amounted to one fourth of the entire number; and
at the present time, of fifty members who represent Lower Canada only
ten are English. This branch of Government may indeed be said to be

320 Constitutional Documents of Canada. [1791-1840

exclusively in the possession of the uneducated peasantry of the country,
under the management and control of a few of their countrymen, whose
personal importance, in opposition to the interest of the country at lar^e
depends on the continuance of the present vicious system. As illustrative
of the spirit by which this body has been actuated, it will not be deemed
irrelevant to mention that since the establishment of the present constitu-
tion, no person of British origin has been elected Speaker of the Assembly,
although if regard had been had to ability, knowledge and other qualifica-
tions, a preference must have been given to persons of that description.

The composition of a Legislative body, such as that which has been
described, under the influence of the prejudices of a foreign people, with-
out the requisite ability for the discharge of its functions, and from which
persons, who by their knowledge, their property and their respectability
and influence in society, would constitute its most eligible members stand
excluded, certainly cannot be deemed fit for regulating the concerns of a
British Province of so much importance as Lower Canada, consistently
with the interests of the Province itself or those of the mother country.
And if to those causes of disqualification be added the most marked
repugnance to every measure calculated to assimilate the Inhabitants of
the coimtry, witii their fellow subjects in other parts of the Empire and
to promote its commercial prosperity, it is impossible not to observe in
the constitution of the Assembly of Lower Canada, the fertile source of
all the evils complained of. Hence it is indeed, that the ever recurring
differences between the several branches of the Legislature have prin-
cipally arisen: — ^Hence it is that the powers of the Executive Government
for the improvement and advancement of the Colony, have in a great
measure become paralysed and utterly inefficient: — ^Hence it is that the
extension of British settlements has been impeded and the increase of
British population by the tide of emigration which for some years past
has flowed so copiously into the Province, been prevented: — Hence it is
in fine, that all commercial enterprise and improvement have been crippled
and obstructed, and the country remains with all the foreign characteris-
tics which it possessed at the time of the conquest, that is, in all particu-
lars French.

The experience which your Majesty's Petitioners have had of these
evils and the prospect of still greater, if an effectual remedy be not ap-
plied, have rendered the proposed Union of the Provinces to them, a
matter of the most intense interest They will therefore it is hoped, stand
excused, if on a question involving their dearest interests as well as those
of their posterity, as British subjects, they speak the language of truth
without reserve. In doing so they feel themselves constrained, on this
part of the subject, to declare that in their humble apprehension the adop-
tion or rejection of the Union will determine whether this Province is
to be in fact as well as in name, a British Province, or whether under
the disguise of British dependence for some time longer, it is to be for
ever French. In assuming the latter to be the consequence of not adopt-
ing the Union, Your Majesty's petitioners are grounded on the most ex-
clusive facts. The French population of Canada, at the time of the con-
quest, was estimated at sixty thousand; and it is supposed may now
exceed Three hundred thousand. The whole of this population, though
with the exception of an inconsiderable number bom under the English
dominion, is as strongly marked by the characteristics of their foreign
origin, as to language, manners, habits and dispositions, as they were at
the time of the conquest. Without a union this population must retain
its present ascendancy in the government of the country, and will not of
course, of its own accord cease to be French. Its progressive increase
under the fostering protection of Great Britain would therefore necessarily
lead to the result, which without a Union is anticipated. And your Ma-
jesty's Petitioners cannot omit to notice the unreasonable extent of poli-
tical rights which has been conceded to this population to the prejudice
of their fellow subjects of British origin together with a sense of their
growing strength, has already had the effect of realising in the imagina-

1791-1840] Constitutional Documents of Canada. 321

tion of many of them their fancied existence as a i^eparate nation under
the name of the "Nation Canadienne;" implying pretensions not more
irreconcilable with the rights of their fellow subjects than with a just
subordination to the Parent state. Your Majesty's Petitioners would re-
spectfully submit whether a system of government which has had such
effect and which in its ulterior consequences, must expose Great Britain
to the mortification and disgrace of having at immense expence, reared
to the maturity of independence a foreign conquered colony, to become
the ally of a foreign nation and the scourge of its native subjects and
their descendants, ought to be persisted in?

In respectfully representing the considerations requiring a Union de-
rived from the foreign character of a great part of the population of
Lower Canada and its inimical disposition of everything British, Your
Majesty's petitioners have only stated those groun<)s for the measure to
which their situation and past experience have given peculiar force and
urgency. But if those were even excluded from view, and the Popula-
tion of both Provinces were entirely homogeneous, the necessity of uniting
them for their common interest as well as that of the mother country
would still be unquestionable. It is a consequence of the relative geo-
graphical situation of the Provinces, that Upper Canada is entirely
dependent on Lower Canada for the means of communicating with the
Parent state and other countries; it is only through Lower Canada, that
the Upper Province can receive its supplies or export its surplus com-
modities.

The port of Quebec is the entrance common to both. This being
situated in Lower Canada the inhabitants of Upper Canada can have
neither free ingress into nor egress from, their country, except in so far
as it may be permitted by the Government of Lower Canada. This Your
Majesty^ Petitioners humbly represent is a cause for the Union of the
Provinces perpetual in its operation, and which cannot be counteracted
without a long series of inconveniences and disasters to both. If while it
may still be done, the population of the two Provinces be not gradually
assimilated and identified in their interests, by a Union, the differences
between them from the causes now in operation and the collisions to which
they will give rise, must have the effect of rendering the inhabitants of each
a separate and distinct people, with the most hostile feelings towards each
other, requiring only a fit occasion to urge them into measures of actual
violence. In liie progress of things towards this conclusion, the inhabi-
tants of Upper Canada would imperceptibly be induced to form connec-
tions with their American neighbours and being unnaturally disjoined
from Lower Canada, would seek to diminish the inconveniences arising
by a more intimate intercourse with the adjoining states, leading inevitably
to a Union with that country. The actiial tendency of things to this re-
sult, while the Provinces continue under separate Legislators, it is to be
observed, is likely to be much promoted, by the artificial means of com-
munication by canals, which have been lately formed at immense expence
in the State of New York, affording to Upper Canada, if the outlet at the
port of Quebec should be rendered inconvenient to her, an easy communi-
cation to American seaports and her disposition to avail herself of this
communication will obviously be increased while the Lower Province con-
tinues in its character to be French.

Some of the circumstances arising from the division of countries,
thus united by nature. Your Majesty's Petitioners be^ leave to represent,
have been practically exhibited in the disputes respecting revenue between
the two Provinces. Upper Canada relies on the revenue to be derived
from import duties for the payment of her civil expenditure. The nature
of her local situation precludes her from conveniently or effectually levy-
ing these duties within her own limits, it is at the port of Quebec only
that she can levy them: — ^but this is in another Province, and while she
has a separate Legislature, -beyond the authority of her Government.

The consequence has been that till the recent interposition of the
power of the Imperial Parliament, she has been dependent on the f/ood

15

322 ConstitutiofuU Documents of Canada. [1791-1840

will of the Legrislature of Lower Canada, for a proportion of the duties
levied at the port of Quebec, and has been virtually subject to taxation
by the Legislature of another Province, without her concurrence or con-
sent. It is in the nature of things impossible to determine what proportion
of the duties in question ought to be allowed in Upper Canada, regard
being had to strict Justice between the Provinces. And it has been urged
that the claims of natural justice, on the part of Upper Canada, would
only require for her, either a free transit for goods imported for that
•Province, or the payments to her of the duties actually levied on such
importations at the port of Quebec Your Majesty's Petitioners will not,
on tiiis occasion, presume to canvass the merits of the conflicting rights
of the two Provinces on this subject, but will only observe, that if the
Provinces be not united under one Legislature, no system which human
fngenuity can devise, will be found effectual or satisfactory in obviating
this ground of difference between them or exclude just cause of complaint
by one or other of the parties concerned.

In what respects the Regulations, recently established by an Act of
the Imperial Parliament, for settling the differences now referred to,
Your Majesty's Petitioners while they acknowledge the beneficent views
which have dictated them, feel it incumbent on them respectfully to state
that these regulations if considered in any other light than as a temporary
expedient, would not be found reconcileable with the just rights of the
Lower Province or of its Legislature, and would be productive of great
evils. Your Majesty's Petitioners cannot omit to observe that the pro-
portion of duties allowed to Upper Canada is greater than, if regard were
had to her present consumption of dutiable articles imported at Quebec
she should be considered fairly entitled to, nor can they pass over in
silence, the extreme inconveniences and injury that would be occasioned
by the restrictions imposed on the power of the Legislature of Lower
Canada, as a permanent measure, nor the inadequacy of Arbitration to
regulate, as proposed, the important interests in question. With the most
perfect submission, Your Majesty's Petitioners be^ leave to express their
belief that neither of the Provinces would be satisfied for any length of
time with the arrangement referred to; and that the advancement and
improvement of both would be most injuriously retarded by the incapacity
under which the Legislature of each would labour to provide, by its own
authority, a revenue adequate to its wants.

While Your Majesty's Petitioners thus humbly represent the convic-
tion they feel that the Regulations above referred to must create dissatis-
faction, and be found inadequate for the purpose intended, they cannot
but observe in this inadequacy the strongest reason for adopting the
remedy of a Union by which the evil intended to be palliated by those
Regulations would not only, by the removal of its cause, be extinguished
for ever, but a multitude of other evils be removed and prevented. In
adverting to the injurious consequences arising from the division of th»
late Province of Quebec, Your Majesty's Petitioners cannot omit to notic*
more particularly the effect that measure has had in preventing the in
crease of the British Population in Lower Canada, and the development
of its resources. The preponderance of the French Population in thf
Legislature has occasioned obstacles to the settlement of British Emi-
grants that have not been surmounted ; so that the vast increase of Brit-
ish population to have been expected from this cause has been, in a gen-
eral degree, prevented. The injury sustained in this particular may be
easily appreciated when it is observed that, since the late American War,
upwards of eighty thousand souls (that is a number equal to one- fourth
of the actual French population) have found their way to this Province,
from Great Britain and Ireland, and of these scarcely one-twentieth part
remains within its limits, the rest, with the exception of a small number
who have settled in Upper Canada having been induced by the foreign
character of the country in which they had sought an asylum, and the
discouragements they experienced, to try their fortunes in the United
States. The loss thus sustained is not confined to those who left the

1791-1840] CofuHiuHonal Documents of Canada. 323

country, but comprises their coxuiections and friends who would have fol-
lowed them. In the same proportion as the increase of British Popula-
tion has been prevented, has the Agricultural and Commercial prosperity
of the country been retarded and obstructed ; as it is to the enterprize, in-
telligence and persevering industry, of that population that both Agricul-
ture and Commerce must be principally indebted for their advancement.
On this head it may be fairly advanced that, had not the impolitic division
of the late Province of Quebec taken place, and had a fit plan of Repre-
sentation been adopted, the British Population would now exceed the
French, and the Imports and exports of the country be greatly beyond
their present amount

The injury thus produced to the interests of the Mother Country and
those of the Colony, by the French character which now belongs to this
Country, and the predominance of French principles, Your Majesty Peti-
tioners humbly represent, without a Union of the Provinces, must be
aggravated by the augmented influence of those causes arising even from
a recent Act of liberality on the part of the Mother Country towards her
Colonies. According to the Colonial system recently adopted, a direct
intercourse between Lower Canada and France is now permitted, the im-
mediate effects of which will unquestionably be to give increased strength
of these national prejudices which during sixty years of interdicted com-
munication with France have remained unabated, and to render more in-
veterate the causes of disunion between Your Majesty's subjects in Lower
Canada ; which effects as well as others more remote, affecting the stability
of Your Majesty's Government, can only be counteracted by the proposed
Union of the Provinces under one Legislature.

Your Majesty's Petitioners, without trespassing on Your Majesty's
patience by a longer detail of the injurious consequences produced by
the division will b^ leave to specify succinctly the benefits to be expected
from a Union of the Provinces. By this measure, the political evils com-
plained of in both Provinces would be removed. The French popula-
tion in Lower Canada, now divided from their fellow-subjects, by their
national peculiarities and prejudices and with an evident disposition under
the present system to become a separate people wduld be gradually as-
similated to the British Population of both Provinces, and wiSi it moulded
into one people of British character, and with British feelings. All op-
position of interest and cause of difference between the Provmces would
be for ever extinguished: an efficient Legislature, capable of conciliating
the interests of the Colony with those of the Mother Country, and pro-
viding for the security and advancing the agricultural and commercial
prosperity of the country, would be established by means of which the
mtemational improvement of both Provinces would not only be rapidly
promoted, with the consequent benefits thereto arising from Great Britain,
but their strength and capacity to resist foreign oppression be greatly
increased : — the tie of connection between the Colony and the Parent State
would be strengthened and confirmed, and a lasting dependence of the
Canadas on the latter be ensured, to the mutual advantage of both.

Under a full conviction that these important and lasting benefits will
be realized by a Union of the Provinces Your Majesty's Petitioners humbly
pray that an Act for uniting the Provinces of Upper and Lower Canada
under one Legislature, may be passed, with such provisions for rendering
the measure effectual, as in Your Majesty's wisdom may appear expedient

And Your Majesty's Petitioners,
As in duty bound,

Will ever pray,
etc., etc, etc.

Montreal, December, 1822.

324 Constitutional Documents of Canada, [1791-1840

XCIII
PETITION IN FAVOUR OF THE UNION OF THE PROVINCES

[Trans.: Brymner, op, cit]

TO THE KING'S MOST EXCELLENT MAJESTY:

The Petition of the Undersigned Seigniors, Magistrates, Members of the
Clergy, Officers of Militia, Merchants, Landholders and others. In-
habitants of the City and District of Quebec, Province of Lower
Canada :

HUMBLY SHEWETH:

That your Petitioners have learnt with the greatest satisfaction, that
Your Majesty has taken into your Gracious Consideration the State of the
Provinces of Upper and Lower Canada, with a view to adjust certain
differences relating to matters of Revenue complained of by the Province
of Upper Canada; and as it appears that Your Majesty's Government in
the course of its inquiry into the sources of these differences, has become
satisfied of the necessity of some change being made in the Constitution
of these Provinces, but has postponed the adoption of final measures in
order to give time to the people thereof to express their sentiments. Your
Petitioners beg leave humbly to approach Your Majesty with a statement
of various Evils under which they have laboured for some years and from
which they have no hope of relief except by the interposition of Your
Majesty and the Imperial Parliament

The experience of thirty years has now demonstrated the impolicy of
the Act of the British Parliament, 31, Geo. Ill, Cap. 31, by which the
late Province of Quebec was divided into the Provinces of Upper and
Lower Canada. To this Division Your Petitioners ascribe the present in-
effective state of the Legislature and the want of those necessary meas-
ures for diffusing throughout the whole population of the cotmtry feel-
ings becoming their character as British subjects, and introducing that
general spirit of improvement which encouraged by the commercial sys-
tem, universally pervades and invigorates other British Colonies. This
division has created a difference of interest between the Provinces in
matter connected with Revenue highly injurious to both, inevitably pro-
ducing a spirit of dissension and animosity, and infusing into the Legis-
latures principles of a narrow and selfish policy adverse to the general
development of their resources, and in an especial manner to the improve-
ment of the channels of intercourse between them, and it is essential here
to notice that nearly the whole of the Revenue of the two Provinces arises
from duties levied on Merchandize imported at the port of Quebec under
Laws enacted by the Legislature of the Lower Province. It has also, from
the control which the geographical situation of the Lower Province enables
it to exercise over the trade of the Canadas placed the export trade of
the Upper Province at its mercy being subject to such regulations and
restrictions at the Shipping Port, as its Legislature may chose to impose.
From this circumstance, and from the feeble attempts made to improve
the grand natural channel of the Canadas strikingly contrasted with the
enterprise and energy evinced by the neighbouring State of New York
in the rapid formation of Canals, together with the indifference mani-
fested on this subject by the Legislature of the Lower Province; Your
Petitioners have just reas3n for alarm, that if a similar system be per-
sisted in, it may tend in a most injurious degree to increase tiie Com-
mercial Intercourse of the Upper Province with the United States and
divert the enterprise and trade of its inhabitants into a foreign channel
and from these causes Your Petitioners not only apprehend the imme-
diate loss of beneficial Trade, but that the gradual effect would be to
interweave the interests of the Upper Canadians with those of the neigh-
bouring States, thereby alienating their minds from the people of uiis

1791-1840] Constitutional Documents of Canada. 325

province and weakening their afiFection for Your Majesty's Goveminent»
notwithstanding their present known and tried loyalty.

The Legislature of this Province has for a long time past been agi-
tated by dissensions and their deliberations so much interrupted thereby,
that Trade, Agriculture, Education and other objects of general interest
have been neglected. There exists no Law for the Registry of Lands and
Mortgages, so necessary for security in commercial transactions, no In-
solvent Debtor's Act, and your Petitioners have looked in vain for a Law
to provide for the unrepresented state of the Townships, a fertile and
valuable portion of this Province settled by Inhabitants of British origin;
of these Legislative Enactments and many others necessary to quidcen
the enterprise and industry of a commercial country, your Petitioners en-
tertain little hope, until a Reunion of the Provinces shall have weakened
the influence which has hitherto prevented their adoption in our statute
book. The existence of this influence, your petitioners chiefly attribute
to the impolitic division of these Provinces which instead of rendering
it the interest, as it is the duty of every Individual of the community to
concur in measures to assimilate the whole population and to allay the
jealousies naturally existing between the several classes, has unavoidably
presented to the individuals, who first attained a majority in the Legis-
lature, a temptation to perpetuate their own power by adopting a course
directly opposite. To the same influence, may be traced the small encour-
agement which has been held out to the settlement of the vacant lands of
this Lower Province by British population, and consequently that upwards
of eighty thousand souls (a number equal to one- fourth of the actual
French population), who since the last American war have emigrated to
this Province from Great Britain and Ireland, scarcely one-twentieth part
remain within its limits.

Your petitioners have observed with gratitude, the disposition which
your Majesty's Government has evinced by the Act of the present year
of your Majesty's, cap. 119,^ to apply a remedy to the existing political
evils of these Provinces, but it is their humble opinion that the Provisions
thereof are insufficient; that numberous circumstances concur to render
vain any attempt permanently to regelate to the satisfaction of both Pro-
vinces the division of the Revenue collected at the Port of Quebec unless
united under one Legislature; and further they humbly beg leave to ex-
press their fears, that some of the provisions of this Act although dictated
by the necessity of regelating the conflicting claims of the two Provinces
may afford a pretext for others for imputing to the Imperial Parliament
a disposition remote from the intentions and views of your Majesty's
Government.

Having thus stated the evils under which they have suffered your
Petitioners feel the fullest confidence in the justice and wisdom of your
Majest/s government, and being satisfied that the subject will receive the
most serious and deliberate consideration, would have felt much hesita-
tion in presuming to suggest remedies; but as the Re-union of the two
Provinces has been proposed in the Imperial Parliament, they beg leave
to express their entire acquiescence in the adoption of that measure upon
such principles as shall secure to all classes of your Majesty's Subjects in
these Provinces their just rights and protect the whole in the enjoyment
of existing Laws and their Religion as guaranteed — such a Union would
in the opmion of your Petitioners afford the most effectual remedy for
existing evils as it would tend gradually to assimilate the whole popula-
tion in opinions, habits and feelings, and afford a reasonable hope that the
wisdom of the United Legislature would devise a system of government
of more consistency and unity, and of greater liberality to all classes than
has hitherto been experienced — a Union on the Equitable Principles humbly
suggested by your Majesty's Petitioners, will necessarily include a repre-
sentation proportionate as near as possible to the numbers, wealth and
resources of the different classes of inhabitants of these Provinces, will
require no innovation in the Laws or Religion of the Country nor pro-

' See p. 30C, note.

326 Constitutional Documents of Canada. [1791-1840

scription in Debate or Motion in the Legislature, of the language of any
portion of the Inhabitants, in every class of whom, bravery and loyalty
have been evinced as fellow soldiers in defence of the Provinces.

May it therefore graciously please your Majesty that a Bill for the
Union of the two Provinces of Upper and Lower Canada, on the equitable
terms prayed for by your Petitioners, do pass into Law and the Constitu-
tion established thereby be preserved inviolate to your Petitioners and
their posterity.

And your Petitioners as in duty bound will ever pray.

QUEBEC, December, 1822.

XCIV

PETITION FROM THE EASTERN TOWNSHIPS FOR UNION'

[Trans. Brymner, op. cit]

To the Honorable the Knights, Citisens and Burgesses, representing the
Commons of the United Kingdom of Great Britain and Ireland in
Parliament assembled.

The Petition of the subscribers. His Majesty's dutiful and loyal sub-
jects, of British birth or descent Inhabitants of the Townships of Dun-
ham, Stanbridge, St. Armand, Sutton, Potton, Stanstead, Bamston, Bar-
ford, - Hereford, Farnham, Brome, Bolton, Hatley, Compton, Clifton,
Granby, Shefford, Stukely, Orford Ascott, Eaton, Newport, Bury, Hamp-
den, Milton, Roxton, Durham, Melbourne, Windsor, Shipton, Stoke, Dud-
swell, Simpson, Kinsey, Grantham, Wickham, Wendover, Brompton, and
other townships and places situated on the South East side of the River
St. Lawrence in the Province of Lower Canada,

Humbly Sheweth,

That your Petitioners have learnt with the most heartfelt satisfac-
tion and Uie most profound gratitude that a Bill was introduced in the
Honorable the House of Commons, at the last Session of the Parliament
of the United Kingdom, for uniting the Provinces of Upper and Lower
Canada under one Legislature; a measure to which the Inhabitants of
the Townships of Lower Canada look forward as the' only effectual
means of terminating the difficulties and troubles under which they have
laboured in times past, and of preventing the evils with which a con-
tinuation of the present state of things would threaten them for the time
to come. That the situation of the Inhabitants of the Townships is dif-
ferent from that of any other portion of the British Empire, and is likely
to prove most unfortunate and disastrous for themselves and their pos-
terity, unless the legislative aid of the land of their ancestors be extended
to relieve them — as will be briefly shown in the following statement The
Province of Lower Canada, according to its present condition may be
separated into two parts, viz.: First the Seignories or French Lower
Canada, which comprehends a narrow tract of land on each side of the
River St. Lawrence, varying in breadth from ten to Forty miles — and
secondly, the Townships or English Lower Canada which comprehends
the remainder of the Province, and is more extensive and capable of
containing a far greater population than the Seignories or French Lower
Canada. The Seignorial part of Lower Canada whose population may be
considered as about half filled up, is inhabited chiefly by Qinadians, whose
origin and language are French, but contains besides these a population
of about 40,000 Inhabitants of British origin. The Townships or English
Lower Canada are peopled wholly by inhabitants of British birth and
descent and American Loyalists amounting at present to about 40,000
souls, who have no other language than that of their British ancestors,
who inhabit Lands granted under the British tenure of free and common

^ For the lUstory of the Eastern Townihipe, lee Bradahaw, pp. eU., pp. St, 71, 7S.

1791-1840] Constitutional Documents of Canada. 327

soccage who have a Protestant clergy for whose maintenance a portion
of those lands is set aside, and who, notwithstanding, are subject to French
Laws, (the custom of Paris) of which they know nothing, compiled in a
language with which they are unacquainted.

In addition to the evil of subjection to foreign laws in a foreign
langus^e, the Townships, or English Lower Canada, labour under the
further difficulty of having no courts within their own limits for the ad-
ministration of those foreign laws, but are compelled for the most trifling
legal redress, to resort to the Courts established at the Cities of Quebec,
Montreal, or Three Rivers in Seigniorial Canada, at a distance frequently
from 100 to 150 miles, thro' a country where the travelling, by reason of
the inadequacy of the laws regarding communications, is frequently diffi-
cult and dangerous, and to complete the measure of dieir grievances, the
Townships are de facto without any representation whatever in the Pro-
vincial House of Assembly in Lower Canada. Their complaints to the
Provincial Assembly have been always treated with contempt or indiffer-
ence, nor can Your Petitioners account for their being placed, as it were
almost out of the pale of Civil Government, by a neglect so different from
the course pursued in the Legislatures of the British Provinces, except on
the supposition that the French Canadian House of Assembly has not been
desirous that emigrants from Britain or of British origin should have
inducements to seek an asylum or become settlers in Lower Canada. If
such indeed were the object it has not failed of partial success; as of the
many thousand Emigrants who, within the last few years, have arrived
from Great Britain, scarcely one thousand have settled in the Townships
of Lower Canada ; but greater numbers of them have gone into the United
States, considering possibly, that they should there find themselves in a
less foreign country, than in this British Colony under its present cir-
cumstances and under the foreign aspect of the Representative branch of
its Legislature.

Your Petitioners will not enlarge upon the general statement they
have given of their condition, by entering into the detail of the numerous
hardships and difficulties with which they have had to contend altho' sen
sible that the recital would call forth commiseration. They will content
themselves with stating, that as settlements under these English Tenures
have been commenced, as immense tracts still remain to be settled, and
as the population of Lower Canada is trifling compared to the amount
which it is capable of attaining, there can be no sound reason for rearing
up any portion of the Province, so as at its maturity to consitute a nation
of foreigners or for continuing a system calculated to deter Britons and
their descendents from settling upon the waste Lands of the Crown. To
the management of Colonies as in the management of Youth, prudence
would seem to dictate that the lasting interests of the future maturity,
not the momentary inclinations of the present condition should be con-
sidered of the deepest import.

Already within a recent period nearly a hundred thousand Emigrants
of British birth have made Lower Canada a place of transit, who, if the
foreign aspect of the Legislature had not urged them to take an abode else-
where, might have augmented strength and means of the English popu-
lation in Uie province. But notwithstanding the past checks to colonial
increase, tmless similar causes are allowed to operate hereafter, future
Emigrants and their descendents joined to the English already established
here, may ultimately form a great majority of the inhabitants, and render
the country in fact, as it is in name, a British Colony, and in die attain-
ment of this happy result no injury could be done to the just rights of
others; nor could even any prejudices be affected, except those delusions
circulated and fostered by demagogues, "that the Canadians of French
extraction are to remain a distinct people," and that they are ''entitled to
be considered a nation" prejudices, from which it must follow as a
necessary consequence that the Province of Lower Canada (of which not
one shcUi part is settled) should be deemed their national Territory

\

328 Constitutionat Documents of Canada, [1791-1840

where none but those willing to become French ought to be allowed to
establish themselves — prejudices which however absurd they may appear
will obtain strength and influence; if not speedily and completely dis-
couraged and will be found not only incompatible with colonial dut^ and
allegiance, but also dangerous to the future safety of the adjoining colonies
and subversive of the rights of all the Inhabitants of the Townships, as
well as of all the English settled in Seignorial Canada, thro' whose hands
the entire trade with the Mother Country is conducted.

Your Petitioners, the Inhabitants of English Lower Canada,^ had al-
ways flattered themselves that no laws would be imposed or continued on
that portion of the country having a tendency to compel them to resemble
a foreign nation and to deprive them of the characteristics of their Brit-
ish Origin; and their confidence on this occasion was increased by their
recollection of the promises of His late Majesty to give English laws to
his subjects settling in Canada by the exception (an exception never yet
enforced in practice) contained in the Quebec Act of 1774, declaring that
the Provisions of the Act establishing French laws "should not extend to
lands to be thereafter granted" in "Free and common soccage" a tenure
which exists exclusively in the Townships.

Your Petitioners felt, and they trust it is a feeling which cannot fail
to meet with sympathy in the hearts of their countrymen and the country-
men of their ancestors in Britain, that the knowledge of their native
English Language ought to be sufficient to enable Uiem to learn their
rights and to perform their duties as faithful subjects, while they resided
under British tenures in what is at least in name a British Colony. They
felt that one great and glorious object of Nations rearing up and pro-
tecting colonies must be the establishment of a people who should perpe-
tuate in after ages the honoured resemblance of the Parent State; and
they felt that it could neither be consistent with the dignity nor the In-
terests of Great Britain, to rear up a colony to be hereafter in language
and in laws a representative of France while France was exempted from
all the expense of its protection. They considered the Townships of
Lower Canada, now inhabited solely by settlers of British birth and origin,
spealcing only the English Language and having a Protestant clergv upon
whom one seventh of the land is bestowed — sls possessing a sacred claim
upon the British Government for protection against the painful* and
humiliating prospect that their posterity might be doomed to acquire the
language and assume the manners and character of a foreign people, and
they also considered that the right of the Townships to Representation
in the Provincial Assembly would not have been withheld from them in
any other British Colony, nor perhaps even here had not their language
and descent been British.

Your Petitioners would gladly limit their solicitations to one point-
that of being allowed a Representation in the Provincial Parliament, pro-
portioned to the consequence and growing importance of the extensive
Districts they inhabit, — ^if a sober view of their future safety would per-
mit them to confine themselves to that object; but it is possible that even
this sacred and inestimable privilege might, when accorded, be deprived
of much of its advantage and efficiency towards procuring the settlement
of the wild lands by Emigrants from Britain, in consequence of the influ-
ence of the majority of French Canadians which would still be found in
the House of Assembly of Lower Canada who, in the midst of professions
of attachment to the Mother Country, seek to preserve themselves a separ
ate and distinct people. To secure and preserve to the colony and to the
Mother Country, the full benefit which would be likely to arise from the
establishment of principles calculated to produce a gradual assimilation of
British feeling among all the Inhabitants of whatever origin it would be
essentially necessary that a Legislative Union between the Provinces ot
Upper and Lower Canada should take place.

There are many reasons in addition to the one Your petitionee have

1791-1840] Constitutional Documents of Canada, 329

just assigned, which ttodcx^lbft-T. ggightiiw Umon-^f th* Xwo. Provints
indispensabTe for their coQUDon prosperity, and which cause that measure
td'Be most earnestly desired by all the inhabitants of both, who are not
influenced by national prejudices which ought to be extinguished, or by
local or private interests which are unwortihy to be weighed against the
general benefits to be obtained from the Union.

Your Petitioners humbly represent that no arguments can be urged
against the Union by the French Canadians, which will not when analized
be resolvable into this real meaning, that they desire to remain a separate
people thereby ultimately to become a French Nation, or as they have
denominated themselves the "Nation Canadienne." The Canadians with-
out owing any of their increase to Emigration, have more than twice
doubled their numbers since the Conquest, and altho' they might, without
any injustice or deprivation of actual rights, have been by this time
assimilated to their British fellow-subjects, they are nevertheless at this
day, with but a few individual exceptions as much foreigners in charac-
ter as when this event took place — ^and must ever continue so, were the
present state of things to be permanent — ^The present crisis therefore offers
this alternative to Great Britain, either by. uniting the Provinces to hold
out inducements to the French to become English, or by continuing the
separation to hold out inducements to the English in Lower Canada to
become French, and the question is not whether a country already peopled
is to renounce its national feelings and characteristics as the French
Canadians may endeavour to represent, but whether a country for the
most part waste, and to be hereafter chiefly peopled by a British race is
to assume the character, language and manners of a foreign nation.
Should the latter course be preferred. Great Britain will be rearing up a
people of foreigners, to become at no distant period from their rapidly
increasing population a scourge to its adjoining Colonies, whereas if the
Union be adopted, it would ultimately remove national prejudices and
hostility, derived from difference of origin and consolidate the population
of both Provinces into one homogeneous mass, animated by the same
views for the public interest and the same sentiments of loyalty towards
their Common Sovereign.

The geographical situation of the two Provinces and the relations
which nature has established between them absolutely and indispensable
require their union under one Legislature for they have but one outlet
to the sea and one channel of communication with the Mother Country^
The only key of that communication, the only seaport is in the possession
of Lower Canada and with the only means by which for a length of time
in a new country, a revenue can be raised for the support of government.
To place or to leave the only key of communication the only source of
revenue exclusively in the hands of a people like the French Canadians
anti-Commercial in principle and adverse to assimilation with their Brit-
ish fellow subjects, must be extreme impolicy nor can the checks upon
the imposition and repeal of import duties provided by the Act of the
last Session of the Imperial Parliament be more than a temporary remedy
in as much as Upper Canada is thereby only entitled to a species of veto
and has no initiative or deliberative voice in the enactments — nor indeed
can human wisdom be adequate to devise such a system of revenue upon
imports, while the Provinces shall remain separate, as will not give unfair
and unequal advantages to the one or the other and of necessity produce
irritation and enmity.

Your Petitioners further humbly state that the French Canadians
have been long admitted to the enjoyments of the freedom and the rights
of British Subjects, rights far more extensive than the utmost they could
have hoped for had they continued Colonists of France; but rights and
duties are reciprocal; wherever the former exist the latter are obligatory;
and while the freedom and protection of Britain are bestowed upon Cana-
dians it can neither be unfair nor ungenerous to require in return, the ex-

330 Constitutional Documents of Canada. [1791-1840

istence of such an amended constitution as shall encourage a portion oi
our Brethren from Britain, to establish themselves and their posterity
upon the Crown Lands in Lower Canada. From a union of the Provinces
no individual could reasonably complain of injury, no right would be taken
away, no just pretensions would be molested, save only such as might be
found in those who cherish visionary views of the futut-e existence of a
Gallo-Canadian nation which the union would at once and for ever dispel.

To discover with certainty what are the real feelings which excite
opposition to the Union (however diversified the pretexts assigned may be)
it would only be requisite to consider whether if the population were all
of the same origin in Provinces situated as the Canadas are with respect
to each other, any objections to the measure would be made? The answer
is obvious; there would be none. And if the real motives of opposition
on the part of our French Canadian fellow subjects, whether openly avowed
or speciously disguised, arise from the intention of continuing or con-
stituting separate people, which would perpetuate among us the disastrous
national distinctions of English and French, they form the strongest pos-
sible reasons in favour of the Union. Your Petitioners had humbly hoped
that the guardian care of the parent state would under Providence secure
her colonies in this part of the globe from the ultimate danger of those
national animosities and distinctions which have existed for so many ages
and proved such fertile sources of evil to Britons in Europe and entertain-
ing as they do the most perfect confidence that the salutary measure of
the Union of the Canadas would in the most equitable and beneficial man-
ner secure their posterity from the evils they have mentioned, they humbly
conceive that the honour as well as the humanity of the mother Country,
requires it to be effected, while it is yet easily practicable before the
population shall be formidable in numbers and before continually recurring
exasperations shall have rendered animosity bitter and hereditary.

Your Petitioners therefore most humbly pray that an Act be passed to
authorize the Provincial Executive Government to divide the townships
of Lower Canada into counties entitled to elect members, so as equitably
to provide for the interests of their future population according to the
extent of their territory and also to unite the Provinces of Upper and
Lower Canada under one Legislature in such manner as may allow of
Representation proportioned in some measure to territorial extent, which
thereby w^l provide for the growing state of the country and also of
necessity be ultimately proportioned to wealth and population and your
Petitioners as in duty bound will ever pray, etc., etc.

xcv

MINORITY RESOLUTIONS OF LEGISLATIVE COUNCIL OF
LOWER CANADA IN FAVOUR OF THE UNION OF

THE PROVINCES

[Trans. : Christie, op, cit. Vol. III.]

First — Because the union of Upper and Lower Canada, under one
legislature, would afford satisfactory, constitutional, and effectual means
of removing those fiscal difficulties which have hitherto existed, and which,
under the present order of things, must continue to exist, and excite jeal-
ousy and disaffection between the provinces.

Secondly — Because such union would encourage the introduction of a
numerous population from the parent state, and give to the province of
Lower Canada, a British character.

Thirdly — Because such union would greatly increase the physical
strength of both provinces, and facilitate above all other measures, their
power of resisting a common enemy.

Fourthly — Because such union, by encouraging the settlement of the
waste lands (as well seignorial as others) would greatly augment out

1791-1840] Constitutional Documents of Canada. 331

commercial resources, increase the value of all real property, and give an
impetus to the prosperity and improvement of both provinces, which would
render them one of the most valuable appendages of the British Empire.

(Signed) John Richabdson. Jamks Ibvine.

Herman W. Ryland. Roderick McKknzie.

Charles W. Grant. Wm. B. Felton.

XCVI

PETITION FROM LEGISLATIVE COUNCIL OF LOWER CANADA

AGAINST UNION

[Trans. : Brymner, op, ct/.j
A LA Trbs Excellente Majeste du Roi

Qu'il plaise d Voire Majesti: Nous les fideles et loyaux Sujets de Sa
Majesty le conseil Li^gislatif du Bas-Canada, Assemble en Parlement Pro-
vincial, demandons tr^s humblement la permission d'approcher du Trone
avec les sentiments de la plus vive reconnoissance envers Votre Majeste,
de ce que, dans sa solicitude et condescendance paternelles, Elle a bien
voulu commander i Son Excellence le Gouveureur en Chef, d'in former cette
Chambre i Vouverture de la pr^sente Session, que les Minis tres de Votre
Majesty avoient propose au Parlement Imperial certains changements a
I'Acte de la 31i^me Annee du Regne de feue Sa Majesty, George Trois,
de glorieuse mtooire, ch. 3Ume, dans la vue principalement, d'unir en une
seule les Legislatures du Haut et du Bas-Canada, mais que cette mesure
avoit M retiree et remise i la Session prochaine, aux fins de donner
occasion au peuple de ces Provinces de faire connoitre ces sentiments i
ce sujet

Encourages par les bienfaits sans nombre qu'il a plu k Votre Majeste
de r6pandre dans cette colonic, et par cette nouvelle preuve de Sa bien-
veillance, et appel^s ainsi solennellement i donner notre humble opinion,
nous croirions manquer i notre devoir envers Votre Majesty, envers la
Province, et envers nous-memes, si, avec la soumission la plus humble et
la franchise la plus respectueuse, nous nerepr^sentions pas i Votre Majesty
que notre constitution, telle qu' elle a €ti heureusement ^tablie par la 31^me
Ann^ de feue Sa Majesty, George Trois, de glorieuse m^moire, en avan-
<;ant la prosp^rit^ et le bonheur de cette Province, i garantir la tran-
quillity et le bienetre de toutes les classes des sujets de Votre Majeste, et
a resserr6 les liens qui les attachoient i la M^re Patrie.

Que, tout au contraire, I'union des deux L^islatures du Haut et du
Bas-Canada en une seule, sera, dans notre opinion, la source inevitable de
plus grands maux, produira dans les esprits des doutes et des craintes
provenant des discussions et de la discordance qui naitra n^cessairement
de la difference des r^lements municipaux, du langage, des Loix, de la
Religion, des Institutions et des Int^rets locaux consolid^s dans les deux
Provinces par les Statuts Provinciaux, et rendus matntenant n^cessaires au
bonheur de chacune, et que cette Union excitera la jalousie et le m^on-
tentement dans un Peuple fortement attach^ i sa presente Constitution.

Comme Conseillers de Votre Majesty choisis par elle-meme dans cette
Province nous croirions manquer i un devoir solennel, si nous ne sou-
mettions pas tr^ humblement i Votre Majeste notre opinion fixe et deter-
niin6e que Tunion des deux Legislatures dans une seule ne pourra que
tendre directement i affoiblir et embarrasser Tadministration du gouvem-
ment de Sa Majesty et finalement cr^er des mecontentements dans I'esprit
des fiddles sujets de Sa Majesty dans cette colonic.

Nous suppljons done instamment Votre Majesty qu'il lui plaise de
▼ouloir bien detoumer de cette Province, une mesure qui a excite une
Mhume si g6nerale et nous paroit I'avant-coureur de tant de malheurs.

Par Ordre,

J. Sbwell^

Orateur.

332 Constitutional Documents of Canada. [1791-1840

XCVII

RESOLUTIONS OF ASSEMBLY OF LOWER CANADA AGAINST
THE UNION OF THE TWO PROVINCES

[Trans.: Christie, op, cit.]

That this house participates in the surprise and grief fdt by a very
large majority of his Majesty's subjects in this province, on learning that
his Majesty's ministers ha\'e proposed to parliament alterations in the act
31, Geo. III., cap. 31, chiefly with a view of uniting the two legislatures of
Upper and Lower Canada.

That the constitution conferred on the province by the said act, and
the separation of this Province from Upper Canada were, on the part of
the Imperial Parliament, an act of justice as well as beneficence towards
the inhabitants of both provinces, by giving to each the means of preserv-
ing entire the rights and privileges which were guaranteed and secured to
them by the faith of government

That the passing of the said act hath been one of the most effectual
methods of making laiown to the inhabitants of this province, the ma^^nani-
mity of the British character, and hath for ever secured to his Majesty's
government the inviolable confidence, affection and fidelity of all classes
of his Majesty's subjects in this colony.

That the said act, modelled on the constitution of the Mother Country,
by some of its greatest and wisest statesmen, establishes powers sufficient
to remedy abuses, redress injuries, allay discontents and provide for the
general welfare of the province.

That not only do the reaons which occasioned the passing of the said
act still exist in full force, but they have even gained additional strength
from the happy experience therein acquired by the inhabitants of this Pro
vince and from their regarding the same with reason as the unchangeable
foundation of their laws, their institutions, and most dearly cherished
rights.

That were the proposed alterations adopted by parliament, the result
would be that the two provinces having laws, civil and religious institutions
and usages essentially different, would be subjected to one and the same
legislature, whose decisions would alternately endanger the laws and insti-
tutions of either province— That there would thence result well-founded
apprehensions respecting the stability of those laws and institutions, fatal
doubts of the future lot of these colonies, and a relaxation of the energy
and confidence of the people, and of the bonds which so strongly attach
them to the mother country.

XCVIII

PETITION AGAINST PROPOSED UNION

[Trans. : Brymner, op. cit.]

A LA Tres Excellente Majeste du Roi :
La Petition des Soussignes, Seigneurs, Magistrals, Membres du Qerg6,
Officiers de Milice, Marchands, Tenanciers, et autres Habitants de la
Province du Bas-Canada.

Expose Humblement:

Que c'est avec la plus profonde douleur et les plus vives alarmes que
vos Petitionnaires ont appris que dans la demi^re session du Parlement des
Rojraumes-Unis il avoit €t€, de I'approbation des serviteurs de Votre
Majeste. introduit dans I'honorable Chambre des Communes, un Bill pour
alt^rer I'heureuse Constitution de Gouvemement ^tablie en cette Province
par le Statut de la aiime Geo. IIL. chap. 31.

Que I'ev^nement d'une convocation prochaine du Parlement, pouvant
faire perdre a la Legislature de cette Province I'occasion que les Communes
dans leur sagesse et leur justice ont bien voulu donner au peuple de cette
Province d'exprimer i Votre Majesty et aux deux Chambres du Parlement,
ses sentiments sur un sujet d'une si haute importance, Vos Petitionnaires

1791-1840] Constitutional Documents of Canada, 333

croient qa'il est de leur devoir envers Votre Majesty, et en vers eux-memes,
de mettre sans d^lai au pied de Votre Trone, leurs tr^s humbles representa-
tions au sujet de ce Bill.

Qu'aucune des autorit^s constituees en vertu du dit Statut^ ni aucune
partis des sujets de Votre Majeste en cette Province n'avaient' jamais
soUicite publtquement qu'il y fut fait aucun changement, mais au contraire
toutes les classes du Peuple de cette Province ont constamment manifeste
un attachement inviolable a cette constitution, et ont tout recemment encore
expos^ avec ardeur, leur vie et leurs fortunes pour sa defense et celle du
gouvemement de Votre Majesty, tel qu'6tabli par le dit statu t

Que ce Statut ne fut apcorde aux sujets de Votre Majeste en cette
Provmce, conform6ment k la promesse Royale, contenue dans la Proclama-
tion de 7 Octobre 1763, que sur un Message de feu Sa Majesty, recom-
mandant au Parlement, la division de la Province de Quebec apr^s plu-
sieurs Petitions pour et contre sa passation, de la part des differentes classes
dont il devait aflecter les interets et apr^ que les P^titionnaires eurent £te
entendus i la barre de la Chambre des Communes, et en cons^uence tous
vos sujets en ces parties de Vos Domaines Tout requ et avec raison Tout
regard^ comme un Pacte solonnel, par lequel Tautorit^ Supreme de TEmpire
leur donnait une garantie legale et permanente de la conservation de leurs
libertes, de leurs proprietes, et de leurs droits les plus chers.

Que ce Statut modele sur la constitution de la Mere Patrie par
quelques-uns des plus grands et des plus sages de ses hommes d'Etat ^tablit
des pouvoirs suffisants pour reformer les abus, r^parer les torts, appaiser
les mecontentements, et promouvoir le bien g^^ral de la Province, sans
exiger T intervention de la L^islature Supreme, intervention qui, lorsqu'-
elle a ^t^ exercee, s'est trouv6e si pemicieuse en chargeant des mecontente-
ments purement locaux et temporaires, et en m6sintelligences dangereuses
entre les colonies et la M^tropole.

Que malgr^ divers obstacles et difiicult^s que les ressorts et Taction
de la Constitution ^tablie par le dit Statut font ^raduellement disparoitre,
la population de cette Province s'est accrue aussi rapidment que celle des
Etats-Unis, sans recevoir une augmentation proportionelle par I'^migration,
le revenu public s'est trouv^ i peu pres suflfisant pour subvenir k toutes ses
depenses n^essaires et son commerce ainsi que son agriculture, meme dans
ces temps si difficiles ont fait des progr^ considerables.

Que d'apr^s ces considerations Vos Petitionnaires ne peuvent que
prevoir que si ce Bill introduit i Tinsu des habitants de cette Province, et
si contraire i leurs voeux, passoit en loi, outre les maux qu'ils ont i
craindre de ses dispositions, ils demeureroient, eux et leur post^rit^, sans
assurance suflfisante de conserver ce qui leur resteroit de droits et de
liberty, que d'apr^ un pareil exemple sur des representations secretes et
partiales, ils seroient a chaque instant exposes i perdre et qui d'ailleurs
demeureroient k la disposition d'une Legislature Coloniale ill^galement
constituee, ^rang^e aux interets, aux sentiments et au bonheur de la
grande majority des sujets de Votre Majeste dans cette Colonic.

Que les diff^rends qui se sont eleves entre cette Province et celle du
Haut-Canada, relativement i leur revenu, et qui ont ^te publiquement
allegues comme le principal motif de I'introduction de ce Bill, ne sont pas
une suite de la division des deux Provinces, mais proviennent uniquement
de causes temporaires, tou jours faciles i faire cesser, soit par des Acts de
leurs L^islatures respectivcs suivant lesquels chaque Province se bomeroit
k percevoir son propre revenu, chacune d'elles donnant libre passage et
toutes facility au Commerce de Tautre ou par des r^lements faits dans
le Parlement du Royaune-Uni, suivant la 46-eme Section du dit Statut, de la
31eme Geo, III Chap. 31, et apr^ avoir entendu les deux parties.

Qu'on ne sauroit se promettre de TUnion des L^islatures des deux
Provinces de voir terminer d'une mani^re juste et efficace ces diffirends,
puisqvc cette mesure laisseroit aux parties en litige a prononcer elles-meme
sur kurs propres pretentions et donnerait necessairement lieu (quelle que
fut celle qui Temport&t) k des injustices et k des discordes nuisibles aux
'mVtrits de la Mire Patrie et funestes k cetix des deux Provinces.

334 Constitutional Documents of Canada, [1791-1840

Qu'une telle Union feroit renaitre ces dissensions resultant de la dif-
ference de langage, de religion, de lois et d'int^ret locaux qui agiterent la
Province de Quebec, et que sa division en deux gouvemements s^pares si
heureusement fait cesser ; et qu'une Legislature ainsi constitu^, ne saurait
parvenir aux fins utiles d'une L^islation eclairee, qu'il ne pourroit resulter
que des lois fondees sur des renseignem^ents insuffisants et nuisibles aux
droits, aux interets, aux sentiments et a la situation de ceux pour qui elles
seroient faites.

Que la situation geographique, la difference de climat, et etendue des
deux Provinces, dont quelques parties peuplees sont a plus de quinze cents
milles les unes des autres forment ainsi que la difficulte des communications
dans les. pays nouveaux des obstacles insurmon tables a TUnion projet6e et
que les sacrifices qui en resulteraient aux membres pour se rendre a leurs
places, et aux constituants pour communiquer leurs besoins locaux au
si^e de la Legislature, priveroient certainement une grande partie des
sujets de Votre Majeste, dans Tune et I'autre Province de leurs justes droits,
ct de toute participation dans la legislation de leur pays.

Que c'est avec la douleur la plus reele que vos Petitionnaires voyent
sans pouvoir se le dissimuler, que les dispositions principales de ce Bill,
se dirigent contre les plus chers interets de cette partie des sujets de Votre
Majeste, qui forment les neuf dixiimes de la population de cette Province.
Et surtout qu'il y ait et6 introduit a T^ard de la langue et des 6taJ>lisse-
ments religieux d'un si grand nombre de vos sujets, des clauses qui doivent
faire naitre parmi les habitants de cette partie de vos domaines, des
jalousies et des pr6jug6s, funestes k leur repos et a leur bonheur, et qui
paroissent incompatibles avec la dignite, la sagesse et la justice du gou-
vernement de Votre Majeste.

Que la clause de ce Bill qui inter dit dans V Assemblee projetee Tusage
de la Langue Fran^ise, la seule que parle et entend une si grande majoritc
des habitans de cette Province, leur ferait perdre indirectement le droil
d'etre ^lu a cette Assemblee equivaudroit en effet pour eux a une privation
absolue d'un des plus grands avantages qu'aient les sujets de Votre Majeste,
g^eroit et restreindroit leurs franchises et libertes, et diminuant le nombre
des personnes propres i les representer efficacement, et feroit des personnes
qualifiees une classe privilegiee au sein d'une Colonie Britannique.

Que ce Bill en accordant au Haut-Canada dont la population n'est au
plus qu'un cinqui^me de celle du Bas, autant de Membres qu'i cette demi^re
pour la representer dans TAssembl^e Reunie, dtabliroit en faveur de la
minorite, une preferance humiliante aux habitants de cette Province, con-
traire a leur droits, comme sujets Britanniques, et dangereuse pour leurs
interets.

£t que vos Petitionnaires jaloux de conserver la part que leur assure
la division des deux Provinces dans le pouvoir constitutionnel, de faire les
lois que les concernent, ne peuvent aussi que d^sirer que leur co-sujets de
Haut-Canada, continuent a jouir d'un pareil avantage commun i toutes les
autres Colonies de Votre Majeste.

Qu'outre ces sources fatales de discorde, d'injustice et de confusion,
ce Bill contient relativement a Tapprobation des subsides lev^s sur le peuple
de cette Province, et a d'autres objets des dispositions contraires aux droits
de naissance de vos Petitionnaires comme sujets n^s Britanniques, et a la
d^laration expresse du Parlement

Qu'il plaise done i Votre Majesty que le dit Bill ne passe pas en loi,
et que I'Heureuse Constitution et la Forme de gouvemement de cette
Province, ^tabli par le dit Statut soient conserves intactes a Vos Petition-
naires et i leur post^rit^.

Et les Petitionnaires de Votre Majesty ne cesseront de prier.

Bas Canada, \B22

N.B. La Petition aux deux Chambre est mot pour mot la meme, a
Texception de ces differences de forme et de diction que le style Parle-
mentaire exige suivant que Ton adresse au Roi, aux Lords ou aux Com-
munes.

1791-1840] ConstitutioncU Documents of Canada, 335

XCIX

PETITION FROM KINGSTON, ETC., FOR UNION

[Trins.: Brymncr, op. cit,]

TO THE KING'S MOST EXCELLENT MAJESTY.

The Petition of Sundry Inhabitants of the Town of Kingston and
County of Frontcnac in the Midland District and Province of Upper
Canada,

Most humbly Sheweth:

That Your Majesty's Petitioners availing themselves of the oppor-
tunity graciously afforded them by the postponement of certain measures
lately entertained in the Imperial Parliament, on the subject of uniting
the Legislatures of the Canadian Provinces, beg leave with humility and
deference to present at the Throne, their reasons and motives, for pray-
ing the immediate furtherance of that Union.

Not that your Petitioners are insensible to the value of that excellent
Constitution which this Province received in the Thirty-first year of the
Reign of our Late Most Beloved Sovereign, by which under the wise and
fostering administration of the present Lieutenant Governor they acknowl-
edge with gratitude, that this favoured portion of Your Majesty's Domin-
ions enjoys much happiness and prosperity.

But that nevertheless this Province of Upper Canada being from its
geographical situation dependent on the sister province of Lower Canada
for a channel whereby to import or export the various articles of its Com-
crce; and no adequate provision having been made on the division of the
province, for its free use of that channel, numerous unhappy disputes
have of late years arisen, as touching its due proportion of Revenue aris'
ing from Duties on Articles imported to the manifest injury of its faii
and equitable claims, as has been fully laid before Your Majesty's Minis*
ters by a Comniisssioner appointed by the Provincial Parliament for thai
express purpose.

That Your petitioners tho' they hail with all gratitude the measures
which the parental and considerate wisdom of Your Majesty's Govern*
ment has already devised, in the Canada Trade Act, for the remedying
of these evil, yet humbly suggest their anxious fears that this Act does
'^ot go to their root.

They have too much reason to be assured that every impediment will
still be thrown in the way of fair and equitable adjustment; and that ai
often as the right of objecting to Revenue Laws is exercised by Uppei
Canada; great and unpardonable offence will be given to the Legislature
and people of Lower Canada, and that, in short, the misunderstanding
now unfortunately existing on this subject between the provinces, will be
kept up and thereby national prejudices and antipathy already violent will
become so inveterate, that the Union of the Legislature, which your peti-
tioners conceive must be the ultimate remedy, will in time be difficult, if
not altogther impracticable.

Your petitioners further beg leave to suggest that the Canada Trade
Act will not effectually remove the causes of complaint which exist from
the nature of the present state of things, viz., the want of a cordial co-
operation between the provinces in improving the navigation of the St.
Lawrence, an object of the first importance to Upper Canada, but which
without the concurrence of Lower Canada cannot be accomplished; to-
gether with the other numerous obstacles to the better regulations of
Tnide and Commerce, which the mutual jealousy of the two separately
existing Legislatures rather tends to increase than to diminish.

That from the sketch which your petitioners have received thro' the /

medium of the public prints of the lately entertained Union Bill they are /

fully confident that it is sufficient to obviate effectually, the present exist-
ing causes of jealousy and distrust,, to harmonize the mutual feelings of
the two people, and to produce to both provinces an abundant increase

/

336 Constitutional Documents of Canada. [1791-1840

of strength, wealth and happiness ; securing to each all the essential privi-
leges of their present constitutions; or if affecting as is the opinion of
some persons amongst us, the Elective franchise, and freedom of par-
liamentary proceedings; yet your petitioners rest contented, that in these
and all other matters consistent with sound policy, Your Majesty 'will
lend an indulgent ear to whatever may be the general wish of your faith-
ful Canadian subjects.

And therefore your petitioners humbly request that Your Majesty
will be graciously pleased to recomend your Ministers to further the pro-
jected Union in the Imperial Parliament, in such way, and under such
terms as may be deemed most expedient to our Mutual Wants and neces-
sities and most conducive to the happiness and prosperity of both provinces.

And your petitioners as in duty bound will ever pray.

PETITION FROM WENTWORTH AGAINST UNION

[Trans.: Brymner, op. cit,]

To the Honourable the Commons of the United Kingdom of Great
Britain and Ireland in Imperial parliament assembled.

The Petition of the Inhabitants of the County of Wentworth in the
District of Gore and Province of Upper Canada most respectfully sheweth.
That your petitioners, His Majesty's dutiful and loyal subjects many of
whom emigrated to this province at an early period of its existence as
such (for the purpose of enjoying the blessings of British government)
immediately drew forth the Paternal care and solicitude of His late Ma-
jesty George the third, who in the thirty-first year of His Reign by and
with the advice of the British parliament gave to Canada a Constitution
a transcript of their own and at the same time for good and sufficient
reasons divided Canada into two provinces; the Upper Province being
principally settled by subjects of His Majesty who were accustomed to
British Laws and using the English language.

Every circumstance that has arisen during the period elapsed has
tended to unfold its benefits by bringing its enactments into practical
operation, raising our admiration of, and attachment to a constitution so
well adapted to our feelings and contributing so largely to our happiness.

Conscious that our gratitude and attachment to His Majesty's gov-
ernment had been manifested on every proper occasion, it was with deep-
est regret and almost astonishment that we received the heads of a bill
brought before Your Honourable House during its last session for alter-
ing the said Act of 31st Geo. 3rd, Ch. 31. Altering the same so as to
destroy our liberty altogether, without our consent, or even our knowledge
and without any misconduct on our part amounting to a forfeiture.

We beg leave to assure Y^ur Honourable House, that, the proposed
alterations could only have originated in misrepresentations of the grossest
nature and from utter ignorance of the localities of the Country and the
Wants, Circumstances and feelings of the people.

It was thought proper in the present Constitution to leave the quantum
of property possessed by Representatives to be assigned by the Provincial
Legislature which has been done so as to secure the respectability of the
assembly without circumscribing too far the choice of &e Electors; but
raising the qualification of members to £500 Sterling agreeably to the Bill
before your Honourable House at its last session, would have the effect
of disfranchising the electors altogether, some Counties not being able
to select such qualified persons out of dieir whole population. Landed
property likewise being made answerable for demands against the owners,
in cases where Chattels would only be liable in England, causes real estate
in this province frequently to change possessors. We would rather there-
fore resign the Representative Branch altogether, than to have the House
of Assembly established on such principles, and to be told of every Act

1791-1840] Constitutional Documents of Canada. 337

with which we could not accord, that it was our own when we might, and
frequently would be under the necessity of choosing men for our Repre-
sentatives, no other way qualified, than by holding large tracts of wild
iand which is in effect one of the greatest nuisances in the province.

The lengthening the duration of each Parliament to five years is to
us particularly objectionable as extending too far the period before which
the Representatives could again meet their constituents, and the vesting
of the Executive government of each province with power to introduce
Two Members into the Assembly without the exercise of the elective fran-
chise, is we believe, without a precedent, and would give an undue influence
to the Executive which in our opinion already possesses enough for all
the proper purpdses of government; for in Uiis Country officers under
the government are not excluded from tiie legislature as in England, by
whom every wish of the Executive may be made known and ably sup-
ported, as has been constantly the case.

The requisition likewise made upon the Legislature to make perma-
nent provision for the administration of Justice and support of the Civil
Government, would at once render that power a nominal and unsub-
stantial one, and deprive the House of Assembly of the only proper and
effectual check necessary to balance die otherwise overwhelming force of
the Executive. For our own short history has taught us that times of
plenty are times of profusion, and by granting a permanent supply, the
House of Assembly will part with the power to accommodate the expen-
diture to the amount their resources may enable them to grant, to curtail
enormous contingencies, or to afford compensation to services that may
imperatively call for reward. The propriety of this observation has be-
come more evident by the experience of a few years for from 1812 to
1816 an unusual quantity of money was in circulation in this province,
and as might be expected, abundance in receipt produced extravagance
in expenditure, both public and private. The reverse has been great and
sudden, for we have experienced and do still experience a period of de-
pression beyond parallel, during which, all the usual means of the country
have scarcely been equal to the nett supply of an increased expenditure.

We proceed humbly to state our objections to an union of the Legis-
latures of the Canadas on any terms.

The population of this province is chiefly composed of subjects who
have emigrated from Great Britain and Ireland, or from His Majesty's
late American Colonies and their descendants, who from a sameness of
origin, Language, Customs and Government, easily unite, commix and
become one people.

While His Majesty's subjects, our Brethren of Lower Canada sprung
from a distinct origin, speak a different language, profess a different form
of Religion, are wedded to their own peculiar manners and customs and
each Legislature having enacted, adopted and retained Laws suitable to
their own usages, customs and local wants; and these two provinces hav-
ing been separated into different governments for more than thirty years ;
your petitioners do not believe that two bodies so heterogeneous and dis-
cordant in all their parts as the Legislatures of Upper and Lower Canada
must necessarily be can unite, cement and become one so far as to render
equal advantages to both, which each has a right to expect from its own
separate Legislature; and if an ascendancy should be given to the Repre-
sentation of Upper Canada over that of Lower Canada, to which we do
not feel entitled from our population it would be offering injustice to
our Brethren of the Lower Province, with whom we have no desire to
quarrel nor by any measure to break in upon their rights and peace; and
should the advantage be on the part of Lower Canada we must be at their
mercy, and we have no right to expect that attention to our interests
which our wants and circumstances require, the only ground of difference
heretofore existing between us being an account ot our Quota of the
Revenue which having been put in an amicable train of adjustment by
the prompt and timely interference of the British Parliament and His

Majesty's Government at once does away with every semblance of rea-

V

338 Constitutional Documents of Canada. [1791-1840

sonable argument that might be offered by those anxious for a reunion:—
and also the extent of Territory would be so great that were it inhabited
by the same people throughout, it must necessarily present such varied
local interests that the wants of some parts of so extensive a colony will
be more liable to suffer from neglect, from ignorance or from clashing
interests than a less extent of territory would be.

To sum up all, Your Petitioners are of opinion that the different
origin of the population of the two Provinces, the difference of their
languages, habits, manners, customs and Religions, together with their
varied interests, will necessarily produce efforts for ascendancy, create
jealousies, strifes, animosities and contentions, which may break out in
consequences of an alarming nature, and all, without answering any one
desirable object which we can foresee, or that may balance the least oi
the evils that appear to us so obvious.

Wherefore, We his Majesty's faithful subjects most earnestly beseech
Your Honourable House to abstain from placing us in a situation so
perilous, so contrary to our wishes, and as we fear so destructive of our
best interests, and that Your Honourable House would forebear passing
the said or any other Bill, of a like nature into a Law for uniting the
Legislatures of Upper and Lower Canada, at any future Session of the
Imperial Parliament.

And Your Petitioners as in duty bound will ever pray.

(329 signatures are attached.)

CI

LORD DALHOUSIE'S SPEECH PROROGUING THE LEGISLA-
TURE OF LOWER CANADA*

[Trans.: Christie, op. cit.]

9th March, 1824.

Gentlemen of the legislative council, gentlemen of the assembly, — 1
am now to close a session of the provincial parliament, the result of
which I am much afraid will prove to be of little public advantage; at
the same time your long and laborious attendance is entitled to my best
thanks;, but before I prorogue this parliament, I think it important to the
country that I should here, as his Majesty's representative, express my
sentiments upon the general result of your proceedings during the several
sessions in which I have met you : I declare those sentiments in an earnest
desire to attract the serious attention of every member of this parliament,
of every man who values the prosperity of Canada, and I trust I know too
well the principles of the British Constitution, to express myself in any
manner inconsistent with that respect which one branch of the legislature
owes to another, or with those rights and privileges which belong to each
respectively.

A claim has been made to an unlimited right in one branch of the
legislature, to appropriate the whole revenue of the province according
to its pleasure, including not only that part of it heretofore granted to
his Majesty, and which is appropriated by acts of the provincial parlia-
ment to specific purposes, and subject to such distribution as the king
may see fit, but even that ^rtion also of the revenue which is raised by
the authoritv of the Imperial Parliament, appropriated to defmy the ex-
penses of the administration of justice and of his Majesty's civil gov-
ernment in this province, and directed by an act* passed in the British
parliament, long before the establishment of the present constitution in
this province, to be so applied, under the authority of the lords com-
missioners of his Majesty's treasury; this claim, made by one, has been
formally denied by the other two branches of the provincial pariiament;

' Dalhotute's speech and the followinf documents (Nob. CII, CIII, CIV, CVII)
illustrate the difficulties which arose orcr the disposal of the revenue.

» See No. XXVI.

1791-1840] Constitutional Documents of Canada. 339

nevertheless it has been persisted in, and recourse has been had to the
unusual proceeding of withholding the supplies, except upon conditions
which would amount to an acknowledgment of it constitutional validity.

This subject has occupied every session from the first to the last, and
is now transmitted to those which shall follow. It has caused incalculable
mischief to the province; and now* leaves it to struggle under difficulties,
while every inhabitant of it must see that the encouraging aid of the
legislature is alone wanting to arouse powerful exertions and draw forth
those resources, which, without that aid must, in a great measure, be dor-
mant and useless within its reach. But, gentlemen, I see with infinite
satisfaction, that notwithstanding these unfavorable circumstances, Canada
is powerfully advancing in improvement, and that the differences which
continue to disturb the legislature, have not interrupted, in the smallest
degree, that general contentment which the people enjoy under the paternal
care and protection of his Majesty.

In former years, when the supplies necessary for the support of his
Majesty's government and the honor of his crown in this province, were
not granted, I averted the unhappy consequences which must have resulted
from a strict adherence to the letter of the law ; and I trust that my con-
duct, on these occasions, will be justified and approved, where alone I
am responsible : but as my advice has been unavailing to prevent this result
at the present period, I shall interfere no further; adhering now to the
letter of the law,' I shall guide the measures of the executive government
l^ that rule, and according to my best judgment, lamenting that the public
must feel those consequences which have so long impended over it, and
which I can no longer avert.

Gentlemen of the legislative council, — I feel myself called ui>on to ac-
knowledge the calm, firm and dignified character of your deliberations
and conduct in the discussion of the public business, and I take it upon
me, in a sense of duty, to thank you in his Majesty's name, for the sup-
port you have uniformly given to the measures I have from time to time
recommended to you for the good of the province.

I fervently pray that the wisdom of your proceedings may make a
just impression upon the loyal inhabitants of the province, and lead theri
to that temperate and conciliating disposition which is always best cal-
culated to irive energy to public spirit, to promote public harmony, and
ensure public happiness ; these are the great advantages which result from
a wise exercise of the powers and privileges of parliament.

CXI

BATHURST TO BURTON
[Trans.: Christie, op. cit.]

Downing Street, 4th June, 1825.

Sir, — I have received your two despatches of the dates of the 24th
and 30th March ultimo. In the first of these despatches you state that
"you inform me with infinite satisfaction that the differences which have
"so long subsisted between the legislative bodies on financial matters, have
"been amicably settled, and that I shall perceive by the draft of a bill
"which you enclose, that the assembly have decidedly acknowledged the
"right of the crown to dispose of the revenue arising out of the 14th Geo.
"Ill," etc".

I regret to say that it is not in my power to consider this arrange-
ment as in any degree satisfactory. The special instructions which had
been given by his Majesty's command 't&'tlic go n ei uui -generaT, In my de-
spatches of the 11th Sept.. 1820, and 13th September, 182U had imposed
on him the necessity of refusing all arrangements that- went in any degree
to contprQjniia hhm intcglhy Of the revenue known by the name of the

> Sec No XXVf.

340 Constitutional Documents of Canada, [1791-1840

permanent revenue; and it appears to me, on a careful examination of
Ai IRfti^Ures which have been adopted, that they are at variance with
those specified and positive instructions.

The executive government had sent in an estimate in which no dis-
tinction was made between the expenditure chargeable upon the perma-
nent revenue of the crown and that which remained to be provided for
out of the revenues raised under colonial acts. In other words, had the
whole revenue been raised under colonial acts there would have been no
difference in the manner of sending in the estimates.

The estimate was given at £65,000 sterling, of which the assembly ap-
pear to have voted £58,074, as "amount of votes," and £3,537, specially voted
by Provincial acts ; and they refuse to incur any expenditure for £3^90 for
different items. Instead of the king's permanent revenue having certain
fixed charges placed upon it, of which the assembly were made cognizant,
the revenue was pledged, together with the colonial revenue, as the ways
and means of providing ifor the expenses of the year. The assembly hav-
ing calculated the amount of the permanent revenue and of the taxes
received under colonial acts proceeded to vote, from the unappropriated
revenues, "such sum or sums as might be necessary to make up ^nd com-
plete a sum not exceeding £58,074 sterling," and the extent of which must
necessarily depend on the amount of the taxes received from the perma-
nent revenue.

The consequence of this arrangement is, ttiat the permanent revenue
will not be applied for the payment of such expenses as his Majesty may
deem fit, but on the contrary, for the payment of whatever expenses the
colonial legislature may think necessary, and the only money to be raised
under the king's revenue being thus appropriated, no means remain for
the liquidation of those expenses formerly carried on the king^s revenue,
and many of them specially authorized by his Majesty, which have been
rejected by the assembly in this instance. The appropriation of the per-
manent revenue of the crown will always be laid by his Majesty's com-
mand before the house of assembly, as a document for their information
and for the freneral regulation of their proceedings. They will therein
see what services are already provided for by the crown, and what re-
mains to be provided for by the legislature ; and they will be thus assured
that the proceeds of the revenue of the crown, (whether more or less, and
from whatever source derived,) will exclusively and invariably be ap-
plied, under the discretion of the king's government, for the benefit of the
province.

With respect to items rejected by the assembly, I shall feel it ray
duty, after having given attention to each individual article, to give special
instructions to the governor-general on his return', to direct the payment
of those which it may be thought expedient to continue.

As the bill is limited to one year, I shall not think it necessary to
recommend to his Majesty to disallow it, but confine myself to instructing
his Majesty's representative in the province of Lower Canada, not to sanc-
tion any measure of a similar nature.

I have, etc.,
' " (Signed) Bathurst.

cm

RESOLUTIONS OF ASSEMBLY OF LOWER CANADA, 1826

[Trans.: Christie, op, cit.]

I. That it is the opinion of this committee that it is expedient to
adhere to the determination of the house, as recorded in its votes and
proceedings on the civil expenditure of the government of this province,
in 1810, 1819, 1821, 1822, 1823, 1824, 1825, and during the present session.

> Lord Dalhousic was absent from the Province from June, 1824, to September,
1825. lieutenant-GoTemor Burton was administrator in his absence.

1791-1840] ConsHtutional Documents of Canada. 341

to vote upon all the necessary sums for paying: the said expenses, and to
renew its resolutions of the 12th March, 1821, 12th Jan., 1822, 7th March,
1823. 2d March, 1824, and 13th March, 1826, in so far as they are opposed
to the exclusive application of any part of the public revenue, to particu-
lar services, without the consent of this house.

II. That the Statute of the 18th Geo. Ill, chap. 12\ has not con-
ferred any new rights upon the inhabitants of the British colonies, but it
is a declaratory act, the enactments whereof recognize and consecrate
the constitutional maxim, that the colonies having a representation have an
unalienable right not to be taxed without the consent of their representa-
tives, and that to the Legislaure alone appertains the right of distributing
all monies levied in the colonies.

III. That the said act as well as a multitude of other acts of the
British parliament which announce the same principles, and the acts and
constant claims of Uie British colonies which have enjoyed a representa-
tive system, have established a public colonial law, uniform for them all,
under which they have prospered, by which their legislatures have an-
nually distributed the revenue and exercised an effectual and necessary
controul over the expenses of their administration.

IV. That there is the less reason to maintain that this province
ought not to enjoy that right, as it is the only one of all the North Ameri-
can colonies, for which the Imperial Parliament is not every year called
apon to vote a great part of the expenses of the civil government That
this house is yet willing, as they have always been, to grant all the sums
towards the necessary expenses of the administration of justice, and
the support of the civil government provided they have a just controul
over the whole revenue.

V. That even assuming as a proposition, which, nevertheless, this
house do formally reject, that the revenue applicable to the payment of
the expenses of the civil government, and of the administration of jus-
tice, may legally be distributed by any other authority than that of the
legislature; if they were sufficient to defray the whole of those expenses,
the claim set up by the present administration to exemption from the
effectual and necessary controul of the assembly, in the distribution of
that portion of the public revenue, is by so much the more ungrounded,
as in consideration of the acknowledged insufficiency of those funds, the
house of assembly being called upon, to supply additional considerable
sums, indispensably necessary for covering the whole expenses.of the civil
government, and of the administration of justice, they have the right of
annexing to that grant, such conditions and limitations as the interest of
the country appears to them to require.

CIV

LORD DALHOUSIE'S SPEECH PROROGUING THE LEGISLA-
TURE OF LOWER CANADA, 1827

[Trans.: Christie, op. cit,]

Gentleman of the legislative council, gentlemen of the assembly, — I
come to close this session of the provincial parliament, convinced^ by the
state of your proceedings, that nothing likely to promote the public inter-
est can be now expected from your deliberations.

To you, gentlemen of the legislative council, who have attended to
your duties in this session, I offer my thanks on the part of his Majesty,
as an acknowledgment of the regard which, by your presence, you have
shown to the welfare of your country, and also of that proper respect
which you have manifested for the sovereign, from whom your honours
are derived.

Gentlemen of the assembly, — It is painful to me, that I cannot speak

< See No. XXXIXL

342 Constitutional Documents of Canada, [1791-1840

my sentiments to you in terms of approbation and thanks. The proceed-
vings in this session impose upon me a duty, of which, however onpleasing,
I will acquit msrself as a faithful servant of my Idng, and a sincere friend
to the province.

Many years of continued discussion of forms and accounts have proved
unavailing to clear up and set at rest a dispute, which moderation and
reason might have speedily terminated. It is lamentable to see, that no
efforts or concessions of his Majesty's government have succeeded in
reconciling those differences of opinion in the legislature; but it is in-
finitely more so, that differences on one subject should cause a rejection
of every other measure which his ly(ajesty's government recommends to
your considration.

The duties expected of you in this session were not dilBcult; among
the first was an examination of the public accounts of last year, and a
report upon them, whether of approval or otherwise ; — ^has that duty been
done so that your country can know the result?

Have you considered the estimated expenditure for the current year,
and granted the supply required in his Majesty's name? or have reasons
been assigned for the refusal of them, that can be known and understood
by the country? — ^Have die messages from his Majesty's representative
been duly acknowledged, and answered according to the rules and forms
of parliament, or according with the respect which is due by each branch
of the l^islature to the oQier?

Have the rules or orders of proceeding in the house of assembly
been attended to, in so far as they affect and recognize the prerogative
lights of the crown-?

These are questions, gentlemen, which you are now to ask vourselves
individually and answer to your constituents on your return to them.

These are questions which you are to answer to your consciences,
as men who are bound by oaths of fidelity to your country and to your
king.

Iii my administration of the government, I have seen seven years
pass away without any conclusive adjustment of the public accounts; thus
accumulating a mass for future investigation, which must lead to confu-
sion and misunderstanding. In the same years I have seen the measures
of government, directly applicable to the wants of the province thrown
aside without attention and without anv reason assigned. I have seen
the forms of parliament utterly disregarded ; and in this session a positive
assumption of executive authority, instead of that of legislative, which
last, is, alone your share in the constitution of the state\

The results of your proceedings in this session have been, the refusal
of the supplies necessary for the ordinary expenses of government, the
loss of the militia bill, the failure of all provision for the maintenance of
prisoners in your gaols and houses of correction, for the support of the
insane and foundlings, and for the establishments of education and char-
ity, and a total obstruction of local and public improvements.

In this state of things, and with the experience of past years, it is
now no longer consistent with a proper discharge of the high trust com-
mitted to me, to entertain hopes of a return to better reason in the repre-
sentative branch of this parliament but it is still my duty to call upon you
as public men, and to call upon the country, as deeply interested in the
result, to consider seriously the consequences of perseverance in such a
course.

I shall conduct the Government with the means in my power, with an
undiminished desire to do good; but while I must submit myself to the
interruption of all public improvement, under the authority of the civil
government, I will declare my deep regret at such a state of things: I
think it right to convey to the country, a free and unreserved expression
of my sentiments upon these public misfortunes; and I will leave no doubt
on the public mind of my determination to persevere firmly in the path

^This ia a concise statement of the whole difficulty.

1791-1840] Constitutional Documents of Canada. 343

of my duty, with a faithful regard to the rights of my sovereign with
which are also combined the best interests of the province.

It only remains for me now, compelled by existing circumstances, to
prorogue this parliament, whatever may be the inconvenience resulting
to the province by such a measure.

cv

HUSKISSON'S SPEECH ON CANADIAN AFFAIRS*

[Trans.: Christie, op, cit.\

There is, I am sure, none who will not say, that the pretensions of
the legislative body to take the whole management of these monies into
its own hands, are neither founded in law nor practice. On the other
hand, the house of assembly holding the public purse in its own hands,
having the complete command of the general revenue, in order to enforce
its unreasonable pretensions — for so I must call them, inasmuch as they
are contrary to law, inconsistent with, and subversive of all the principles
of constitutional government — in order I say to enforce their pretensions,
have refused to appropriate any part of the larger revenue, of which they
have the command, unless also the appropriation of the permanent crown
revenue be given up to them. This, sir, is the state of the controversy
between the executive and the legislative body in Canada. The conse-
quences of the agitation of « such a question as this, in which both parties
have stood upon their extreme rights have been most unforttmate, and
such as all who looked dispassionately at the subject, could not but most
deeply regret One of the unfortunate consequences has been, the neces-
sity under which the representative of the king has found himself, of ap-
propriating money for the necessary services of the colony, without the
sanction of the colonial legislature. Such a thing as this, in a country
with a l^islative assembly — in a country that has the least pretence to
freedom, can only be justified by the absolute necessity of preventing
general confusion, and the subversion of the government. I do not stand
here, God forbid that I should! in the British House of Commons, living
as I do, in a country where the rights of the popular branch of the legis-
lature to controul the expenditure of the money it raises are so well known
and universally acknowledged — to defend the abstract propriety of a gov-
ernor of a colony appropriating its revenue without the sanction of an
act of the legislature, as required by law; but, pressed by necessity, it
ought not perhaps to be wondered at, however we may regret the neces-
sity, that a governor should take all the means in his power to maintain
the tranquillity of the place committed to his charge. — ^When principles
are pressed to the extreme, a legislature may, no doubt, distress the
executive government of a country, and so wear it out' by continued op-
position, as to have the point in dispute conceded; but what are not in
the meantime the unfortunate results to the people? What, in the midst
of these conflicts, has been the result to the province of Canada? Noth-
ing was expended of the money raised in this irregular manner, as I must
call it, but what was absolutely necessary to carry on the government of
the province; all improvement was at a stand, the roads were neglected,
education was overlooked, the public buildings were suffered to fall to
decay, and the country generally — I will not say reduced to a state of
anarchy, because the king's representative properly sustained his govern-
ment— ^was brought to such a state that there was not a Canadian whose in-
terests did not suffer. The recurrence of such a state of things it is our

* In 1828 matteri reached such a criaia that the EztremistB under Papineau attacked
Dalhousie in terms of abuse. A monster petition condemning him and setting forth
grievances waa sent to England. A counter-petition from the Eastern Townahipa
loUowed. On Hnskiason's motion the Government appointed a committee to investi*
nte Canadian affairs. Ertracts from its Report, which, including evidence, runs to
fonr hundred pagea, are given in the next document.

344 Constitutional Documents of Canada. [1791-1840

duty to prevent, and I think I have made out such a case as is sufficient
to convince the house, without going into further details, that, if we have
the right and the power, the time is come which warrants us calling upon
parliament to interpose its beneficent authority for the purpose of quieting
these feuds, and of establishing such a system of civil government as may
give a fair share to all parts of the province of the administration of the
revenues, so as to render them available for the improvement of the
country — such a system as will on the one hand give to the legislative
assembly the power of directing the whole application of funds for the
internal improvement of the province, and on die other, restraining them
from the exercise of any authority over what I may call the civil list.
Every man who knows anything of the country must be aware of the
unfitness of the king's representative in the government, and the judicial
establishment for the administration of criminal justice, which is the same
as that of England, depending for their stipends upon the varying judg-
ments of a popular assembly. The inexpediency of this with regard to
the judicial establishment, which in its administration of justice, might
often come into collision with the members of the assembly, whose judg-
ment is every year to regulate the reward of their services, must be par-
ticularly obvious. Judges have duties to perform, which render it essential
that they should be perfectly independent. I trust I need say no more to
convince the house, that the system wished to be established by the Cana-
dian legislature, is not compatible with the independence and dignity either
of the king's representative or the criminal judges. Out of what particu-
lar fund these charges should be defrayed, I am not prepared to say, but
the present plan of paying a fixed and settled sum out of a variable reve-
nue, I certainly think might be amended. Without, however, entering into
the particulars on this point, I think some mode might be found for estab-
lishing what I have styled the civil list, from which the salaries of the
judicial and other departments, should be granted for life; or in any
other way that would answer the object I have in view. The remainder of
the revenue should then be left to the free disposal of the colonial legis-
lature. I must here, in justice to the king's government in Canada, claim
for them their due. So far was it from wishing to have any control over
any further sum than that to which I have alluded, that they never hesi-
tated, during the whole of these troubles, to lay before the legislature of
the province, an account of the application of, and payments from the
revenue, in order that the assembly might be assured there was no mis-
application of it. The government there are perfectly willing, it is evident
from this, to accede to the suggestion I have just made respecting the
share of controul it shall have over the colonial revenues. Sir, I do not
think there are any other topics connected with the present state of Canada,
which would justify me in detaining the house longer, as I trust I have
said sufficient to support me in the motion I intend to make. There are
two grounds on which I principally rest. The first is the state of the
representative system in Lower Canada, and the situation of the revenue
in respect to the administration of justice; and the second is the con-
troversy which has grown up respecting the powers of the executive and
legislative bodies. The case I have made out on those two points is suffi-
cient, I trust, to entitle me to the committee for which I mean to move.
Before I sit down, I beg only to add a word or two respecting a point
which has been insinuated in this house, and discussed in other places. I
allude to what has been said respecting the policy of giving up the colony
altogether. Those who think it would be politic to do so, may say that
we ought to spare ourselves the trouble and endeavours to improve the
state of the provinces, by taking the wiser and better course of relin-
quishing them altogether. Let those who argue thus, consider that these
are our fellow subjects — arc born like ourselves, in the king's allegiance—
are fulfilling all the duties of subjects and are willing to remain as such
and fulfil all the obligations their allegiance to the Crown requires. I
say, that whilst that is the case, they are fairly entitled to claim from us
that protection which their fidelity and good conduct have rendered them

1791-1840] Constitutional Documents of Canada. 345

so worthy of. On such a subject I will not argue on — what is, however,
a very maintainable ground, the importance of these provinces to Great
Britain in a naval, a commercial and political point of view — but I im-
plore honourable gentlemen, before they venture even to allow themselves
to hint at such a conclusion as that to which I have just adverted, to con-
sider the political honour of this country, and the moral impression which
would be made on all nations by such a relinquishment without necessity,
and without its ever having been asked us. Shall we give up such a pos-
session without a challenge? Or shall we, as was done in the case of an-
other part of America once, also belonging to France, I mean Louisiana —
shall we make it a matter of pounds, shillings and pence? Shall we sell
it to another power? England has not fallen so low, Canada is bound
to us by the recollections of honourable valour, both naval and military.
It is a trophy too glorious to part with in either of the ways I have
alluded to. Canada cannot but be maintained by every means within our
power; we are bound if we wish to bear untarnished our honour, to give
Canada protection to the last extremity. That, then, is not a view of the
subject we can for one instant entertain. It is a country, too, let it be re-
membered, where there are none of those unfortunate distinctions which
prevail in others of our colonies — ^there is no division of castes, no slavery
— the people are, I may say, almost as one family united by the most in-
timate connections with this country. England is the parent of many
colonies, one of which now forms one of the greatest and most flourish-
ing empires in the world; by that, and others, we have carried our lan-
guage, our free institutions, and our system of laws, to the most remote
comers of the globe. What we have thus planted is now taking root,
and what we now foster as colonies will be, no doubt, one day or other,
themselves free nations, the communicators of freedom to other countries.
If I am told that for this we have made great sacrifices, I say, be it $o,
for in spite of these sacrifices, England remains, for its extent, still the
most powerful, the most happy nation that does or ever has existed. I
say, moreover, that we should be well paid for all the sacrifices we may
yet be called upon to make, if we are to add to the rich harvest of glory
we have already reaped, by being the parent of countries in which the
same happiness and prosperity that has distinguished this country will. I
trust, for many ages to come be enjoyed. That will be our reward for
establishing our superfluous population not only in America, but in other
quarters of the world. What can be a prouder feeling for Englishmen,
than that England has done its duty to the world, by attempting, and suc-
cessfully, to improve it? Whether Canada is to remain for ever depend-
ent on England, or is to become an independent state — ^not, I trust, by hos-
tile separation, but by amicable arrangement — it is still die duty and in-
terest of this country to imbue it with English feeling, and benefit it with
English laws and institutions.

CVI

REPORT OF THE SELECT COMMITTEE ON THE STATE OF
THE CIVIL GOVERNMENT OF CANADA*

[Trans. : British Parliamentary Papers, 1828, VII ; S69.J

22nd July, 1828.

Your committee began their investigation into the state of the civil

government of Canada, by examining the several petitions from the in*

habitants of the two provinces, which had been referred to them by the

house. The petition from the townships of the lower province*, signed by

> The extracts giyen from the Report are the moat important constitnttonally. The
whole Report is valuable, and the 308 pares of evidence are of exceptional interest.
The Report became, later on, a strong political platform of reform in Lower Canada.
Unfortpnately, the Keport was never debated in the British Parliament, for soon after
it was drawn up Huskisson ceased to be Colonial Secretary.

* The Eastern Townships.

346 Constitutional Documents of Canada, [1791-184C

about 10,000 persons, complain of the want of courts within their own
limits, and of the administration of french law in the french language.
That they are without representation in the house of assembly in Lower
Canada; and that emigrants of British origin have been deterred from
settling in the province: And, finally, they prav that a legislative union
may take place between Upper and Lower Canada/

Your committee then proceeded to examine the petition signed by
87,000 inhabitants of Lower Canada, resident within the seigniories, who
complain of arbitrary conduct on the part of the governor of the province
— of his having applied public money without legal appropriation— of vio-
lent prorogations and dissolutions of the provincial parliament, and of his
having prevented the passing of many useful acts, which they enumerate.

They complain also that a receiver general had been maintained in
the exercise of his functions for some years after his^ insolvency was
known to the government That similar abuses had prevailed with respect
to the office of sheriff. And it is further stated, that the rights of the
petitioners had been injured by acts of the Imperial parliament, particu-
larly by the Canada Trade Act and the act passed in the sixth year of
his Majesty's reign, chap. 59, affecting the Tenures of Land.

For a further knowledge of the grievances complained of, your com-
mittee beg leave to refer to the petitions, which will be found in the ap-
pendix.

Before your committee proceed to explain or to discuss these im-
portant subjects, they think it their duty to state, that petitions from the
province of Upper Canada were also referred to their consideration; the
prayer of which petitions is, that the proceeds arising from the sale of
certain lands set apart for a protestant clergy may not be applied solely
to the use of the cleigy of the church of England, (the adherents to which
throughout the province they state, in contradiction to representations of
Archdeacon Strachan, to be comparatively few in number) but that they
may be applied to the maintenance of protestant clergymen of other de-
nominations, and to the purposes of general education.

As these petitions appear to comprehend the most material subjects
that have of late agitated the provinces of Upper and Lower Canada, your
committee thought the best course they could pursue, was to examine
witnesses as to each petition, in succession, and in communicating to the
house, the information they have received, and the opinions they have
been induced to form as to the civil government of Canada, they will treat
of the different subjects as much as possible in the order in which they
were investigated.

Your committee proceeded to examine into the peculiar system of law
established in Lower Canada, to which their attention was peculiarly
drawn by the petition from the Townships. Your committee have ex-
amined in great detail on this subject, from which they collect tiiat un-
certainty has long existed on points of law relating to the tenure of real
property in that portion of the province. It appears that shortly after the
cession of the province, the king of England, in a proclamation dated the
7th October, 1763' (which will be found in the appendix) declared, amongst
other things, "That all the inhabitants of the province, and all others re-
sorting to it, might confide in his royal protection for enjoying the benefit
of the laws of England," and announced that he had given commands for
the erection of courts of judicature, with an appeal to his Majesty in
council.

In the year 1774', the first act of parliament was passed making pro-
vision for the better government of this part of the British dommions.
By this act the English criminal law was preserved. But it was enacted
that, "in all matters of controversy relating to property and civil rights,
resort should be had to the laws of Canada, as the rule for decision of
the same, and all causes that should therefore be established in every court
of justice, to be appointed within the province, should, with respect to

* Cf . No. XdV. » See No. IV. » See No. XXV.

1791-18401 Constitutional Documents of Canada, 347

such property and rights, be determined agreeably to the said laws and
customs of Canada/' There is, however, one marked exception to this
concession of the French law, namely, "that it should not apply to lands
which had been, or should be granted in Free and Common Soccage/'

After an interval of several years, this act was followed by the Con-
stitutional Act of 1791\ The provisions of this important act have no
bearing upon the subject under our consideration, excepting that it pro-
vides with respect to Lower Canada, that lands shall be granted in free
and common soccage if so desired, and further, that such grants are to be
subject to such alteration, as to the nature and consequences of Soccage
Tenure, as ma^ be made by the provincial legislature, and with his Ma-
jety's approbation and assent; but no such alteration has been made.

On examining into the application of those provisions in the province,
it appears not only that doubts have existed as to the true interpretation
of them— but that the general practice of the colony has been to convey
real property within the townships according to the Canadian forms, and
that it has descended and been subject to the incidents of that law. In
the year 1826, the British parliament passed an act which put its own
interpretation of these statutes beyond the reach of further dispute. This
act, commonly called the Canada Tenures' Act,' declared that the law of
England was the rule by which real property within the townships was to
be hereafter regulated and administered. In offering any recommenda-
tions on points of so much difficulty and importance, your committee are
fully aware of the disadvantages under which they labour, and of their
inability, from the want of sufficient technical and local information to
enter, for any useful purpose, into minute and intricate details. They
do not, however, decline to offer as their opinion, that it would be ad-
vantageous that the declaratory enactment in the Tenures' act respecting
lands held in free and common soccage should be retained: that mort-
gagees should be special, and that in proceedings for the conveyance of
land, the simplest and least expensive forms of conveyance should be
adopted upon the principles of the law of England; that form which pre-
vails in Upper Quiada, being probably under all circumstances, the best
which could be selected: that a registration of deeds relating to soccage
lands should be established as in Upper Canada.

Your committee are further of opinion that means should be found,
of bringing into effective operation the clause in the Tenures' act, which
provides for the mutation of tenure; and they entertain no doubt of the
inexpediency of retaining the seigniorial rights of the crown, in the hope
of deriving a profit from them. The sacrifice on the part of the crown
would be trifling, and would bear no proportion to the benefit that would
result to the colony from such a concession.

In addition to these recommendations it appears to be desirable that
some competent jurisdiction should be established to try and decide causes
arising out of this description of property; and that circuit courts should
be instituted within the townships for the same purposes.

The committee cannot too strongly express their opinion that, the
Canadians of French extraction should, in no degree, be disturbed in the
peaceful enjoyment of their religion, laws, and privileges, as secured to
them by the British acts of parliament; and so far from requiring them
to hold lands on the British tenure, they think that when the lands in the
seigniories are fully occupied, if the descendents of the original settlers
shall still retain their preference to the tenure of fief et seigneurie, they
see no objection to other portions of unoccupied lands in that province
being sranted to them on that tenure, provided that such lands are set
apart from and not intermixed with the townships.

Your committee are now desirous of adverting to the representative
system of Lower Canada, with respect to which all parties seem to agree
that some change should take place. To this branch of their enquiry, they
are desirous of recalling to the recollection of the house that under the
provisions of the act of 1791, the division of the province for the purpose
* See No. LV. * 6 George IV, c. 59.

348 ConsHtuHonal Documents of Canada, [1791-1840

of exercising the elective franchise, was entrusted to the governor; and
It appears that Sir Alured Clarke took the numerical amount of the popu-
lation as the sole basis on which his calculations were formed, and divided
into counties as much land as was fotmd to contain a given number oi
inhabitants. On the thickly populated banks of the St Lawrence, a small
district was found to suffice, while in the most distant parts, vast terri-
tories were comprehended in one county, in order to obtain the requisite
amount of population. Thus it happens ^at the counties of Kent, Surrey,
Montreal, Leiqster, and Warwick, do not, altogether, equal, in extent, the
single county of Buckinghamshire. The small counties, too, are com-
posed wholly of lands holden as seigniories.

A bill actually passed the assembly, the object of which was to in-
crease the number of the representative assembly. This bill did not be-
come a law, and it appears to have been founded upon the same prin-
ciple, and to have involved the same error as the original arrangement
by Sir Alured Clarke. It has been stated by one of the witnesses, that
under the proposed division, a disproportionable increase would have been
given to the representatives from the seigniories.

In providing a representative system for Uie inhabitants of a country
which is gradually comprehending in its limits newly peopled and exten-
sive districts, great imperfections must necessarily arise from proceeding,
in the first instance, on the basis of population only. In Upper Canada,
a representative system has been founded on the compound basis of terri-
tory and population. This principle, we think, might be advantageously
adopted in Lower Canada.

One of the obstacles which is said greatly to impede the improve-
ment of the country is, the practice which has prevailed in making grants
of land in large masses to individuals who had held official situations in
the colony, and who have evaded the conditions in tiie grant, by which
they were bound to provide for its cultivation, and now wholly neglect
it, although powers have been latterly acquired by the government to
escheat these lands; and although we think that under certain modifica-
tions this power may be advantageously used, we are nevertheless of
opinion that a system should be adopted similar to that in Upper Canada,
by the levy of a small annual duty on lands unimproved and unoccupied,
contrary to the conditions of the grant.

It now becomes the duty of your committee to advert to the petitions
signed by the inhabitants of the seigniories, on the important subjects con-
tained in them. They thought it right to call for explanation from Mr.
Neilson, Mr. Viger, and Mr. Cuvillier, members of the assembly of Lower
Canada, who had been deputed to this country for the purpose of seeking
redress for the injuries complained of by the petitioners.

From the testimony of these gentlemen we have learned, with the
deepest regret, that the disputes which have arisen between the govern-
ment and the house of assembly, originatinfi[ (as they appear to have
done) in doubts as to the right of appropriating, and accounting for a
considerable portion of the public revenues, have led to a state of con-
fusion and difficulty in the administration of public affairs in the colony,
which calls for a decisive and early remedy.

With a view to understand accurately the pounds of this dispute, the
committee have carefully examined into the different sources of revenue
arising in Lower Canada, and they have examined also the public docu-
ments which have enabled them to trace the successive steps which had
been taken by the contending parties in these disputes. Your committee
beg leave to refer to the evidence of Mr. NeUson and of Mr. Wilmot Hor-
ton, for a detailed account of the origin and progress of these differences.
Upon this important subject your committee have felt that they should
not do wisely in confining their views to a critical examination of the
precise meaning of the words of the different statutes — ^they look rather
to the circumstances of Lower Canada — to the spirit of its constitution —
to the position and character of the local government, and the powers,
privileges and duties of the two branches of the legislature.

1791-1840] Constitutional Documents of Canada. 349

Although from the opinion given by the law officers of the crown,
your committee must conclude that the legal right of appropriating the
revenues arising from the act of 1774, is vested in the crown, they are
prepared to say that the real interests of the province would be best pro-
moted by placing the receipt and expenditure of the whole public revenue
under the supenntendance and controul of the house of assembly.

On the other hand, vour committee, while recommending such a coni-
cession on the part of the crown, are strongly impressed with the advan-
tages of rendering the governor, the members cf the executive council,
and the judges independent of the annual votes of the house of assembly,
for their respective salaries.

Your committee are fully aware of the objections in principle, which
may be fairly raised against the practice of voting the permanent salaries
to judges who are removable, at the pleasure of the crown; but being con-
vinced that it would be inexpedient that the crown should be deprived
of that power of removal, and having well considered the public incon-
venience which might result from their being left in dependence upon
an annual vote of the assemblv, they have decided to make the recom-
mendation, in their instance, of a permanent vote of salary.

Although your committee are aware that the grant of permanent
salaries has been recommended to a much greater number of persons con-
nected with the executive government, than they have included in their
recommendation, they have no hesitation in expressing their opinion, that
it is unnecessary to include so large a number, and if the officers above
enumerated, are placed on the footing recommended, they are of opinion
that all the revenues of the province (except territorial and hereditary
revenues) should be placed under the controul and direction of the legis-
lative assembly.

Your committee cannot close their observations on this branch of
their enquiry, without calling the attention of the house to the important
circumstance, that in the progress of these disputes, the local government
has thought it necessary through a long series of years, to have recourse
to a measure (which nothing but the most extreme necessity could justify)
of annually appropriating by its own authority, large sums of money of
the province, amounting to no less a sum than £140,000 without the con-
sent of the representatives of the people, under whose controul the appro-
priation of these monies is placed by the constitution.

Your committee cannot but express their deep regret that such a state
of things should have been allowed to exist for so many years in a British
colony, without any communication or reference having been made to
parliament on the subject

Upon the several points referred to your committee connected with
the office of receiver general, of the sheriffs, and of the Jesuits' estates,
your committee proceeded to examine evidence on each. The facts of the
case as regards the receiver general, Mr. Caldwell, are detailed in Mr.
Neilson's evidence. Mr. Caldwell was a defaulter in 1823 for £96,000 of
the public money of the prpvince. Upon an examination of the accounts
by the house of assembly, no acquittal could be traced from the treasurv
of a later date than 1814, thotigh some balances were stated up to 1819,
and it appeared by documents then produced, that tiie fact of his de-
ficiency was known for a considerable time before he was suspended.

Your committee recommend for the future that steps should be taken
by efficient securities and by a regrular audit of the accounts, to prevent
the recurrence of similar losses and inconveniences to the province.

As connected with this branch of the enquiry, your committee recom-
mend that precautions of the same nature should be adopted with regard
to the sheriffs, as it appears that within a few years two instances of tiie
insolvency of these officers have occurred, while possessed, in virtue of
their office, of latge sums of money deposited in their hanas.

With respect to the estates which formerly belonged to the Jesuits
your committee lament that they have not more full information, but it

350 Constiiutional Documents of Canada. [1791-1840

appears to them to be desirable that the proceeds should be applied to the
purposes of general education.

One of the most important subjects to which their enquiries have been
directed, has been the state of the legislative councils, in botii the Canadas,
and the manner in which these assemblies have answered the purposes
for which thy were instituted. Your committee strongly recommend that
a more independent character should be given to those bodies, that the
majority of their members should not consist of persons holding office
at the pleasure of the crown, and they are of opinion, tiiat any other
measures that may tend to connect more intimately this branch of the
constitution with the interest of the colonies, would be attended with the
greatest advantage. With respect to the judges, with the exception only
of the chief justice, whose presence, on particular occasions, might be
necessary, your committee entertain no doubt that they had better not
be involved in the political business of the house. Upon similar points, it
appears to your committee, that it is not desirable that judges should hold
seats in the executive council.

Your committee are desirous of recording the principle, which, in
their judgment, should be applied to any alterations in the constitution
of the Canadas, which was imparted to them under the formal act of the
British legislature of 1791. The principle is to limit the alterations which
it may be desirable to make by any future British act, as far as possible,
to such points as from the relation of the mother country with tfie Can-
adas, can only be disposed of by the paramount authority of the British
legislature; and they are of opinion, that all other changes should, if pos-
sible, be carried into effect by the local legislatures themselves, in amicable
communication with the local government

Upon the great question of the union of the two Canadas, your com-
mittee have received much evidence, to which they desire to call the at-
tention of the house. With reference to the state of public feeling that
appears to prevail in these colonies on thi$ momentous subject, your com-
mittee are not prepared, under present circumstances, to recommend that
measure.

Your committee, nevertheless, think it highly desirable that some sat-
isfactory arrangement, (and, if possible, one of a permanent nature,)
should be effected between the two Canadas, with regard to the imposition
and distribution of the customs collected in the St. Lawrence. They trust,
however, when the heats which so unfortunately exist shall have subsided,
that such an arrangement may be amicably effected.

i^ * T^ ^^ ^^ T^

Your committee beg leave to call the particular attention of the gov-
ernment to the mode in which juries are composed in the Canadas, with
a view to remedy any defects that may be found to exist in the present
system.

Your committee lament that the late period of the session in which
they were appointed, has rendered a minute investigation into all parts
of the subject submitted to them impossible. They believe, too, that if
the legislative assemblies and the executive government of Canada can
be put on a right footing, that means will be found within the province
of remedying all minor grievances. They are disposed, nevertheless, that
the prayer of the lower Canadians for permission to appoint sm agent in
the same manner as agents are appointed by other colonies which possess
local legislatures, should be granted; and that a similar privilege should
be extended to Upper Canada, if that colony should desire it.

At an early period of their investigation, your committee perceived
that their attention must be directed to two distinct branches of enquiry :—
1st, — ^To what degree the embarrassments and discontents whicn have
long prevailed in the Canadas, had arisen from defects in the system of
laws and the constitutions established in these colonies. 2nd, — How far
these evils are to be attributed to the manner in which the existing system
has been administered.

179M840] Constitutional Documents of Canada. 351

Your committee have clearly expressed their opinion that serious de-
fects were to be found in that system, and have ventured to suggest sev-
eral alterations that have appeared to them to be necessary and conveni-
ent. They also fully admit, that from these as well as from other cir-
cumstances, the task of government in these colonies (and especially in
the Lower Province) has not been an easy one ; but they feel it their duty
to express their opinion that it is to the second of the causes alluded to,
that Uiese embarrassments and discontents are in a great measure to be
traced. They are most anxious to record their complete conviction that
neither the suggestions they have presumed to make, nor any other im-
provements in the laws and constitutions of the Canadas will be attended
with the desired effect, unless an impartial, conciliatory and constitutional
system of government be observed in these loyal and important colonies.

CVII

NEILSON'S RESOLUTIONS, HOUSE OF ASSEMBLY, LOWER

CANADA*

[Trans.: Christie, op. cit,]

6th December, 1828.

1. Resolved, — That it is the opinion of this committee, that this
house has derived the greatest satisfaction from the gracious expression
of his Majesty's beneficent views towards this province, and from the
earnest desire of his excellency the administrator of the Government, to
promote the peace, welfare and good government of the province, as
evinced in his excellency's message of Friday last

2. Resolved,— That it is the opinion of this committee, that this
house has, nevertheless, observed with great concern, that it may be in-
ferred from the expression of that part of the said message which relates
to the appropriation of the revenue, that the pretension put forth at the
commencement of the late administration, to the disposal of a large por-
tion of the revenue of this province, may be persisted in.

3. Resolved, — ^That it is the opinion of this committee, that under
no circumstances, and upon no consideration whatsoever, ought the house
to abandon or in any way compromise, its inherent and constitutional
light, as a branch of the provincial parliament, representing his Majesty's
subjects in this colony, to superintend and controul the receipt and ex-
penditure of the whole public revenue arising within this province.

4. Resolved, — ^That it is the opinion of this committee, that any
le^slative enactment in this matter by the parliament of the United King-
dom, in which his Majesty's subjects in this province are not and cannot
be represented, unless it were for the repeal of such British statutes or
any part of British statutes, as may be held by his Majesty's government
to militate against the constitutional right of the subject in mis colony,
could in no way tend to a settlement of the affairs of the province.

5. Resolved, — That it is the opinion of this committee, that no inter-
ference of the British legislature with the established constitution and
laws of this province, excepting on such points as from the relation be-
tween the mother country and the Canadas, can only be disposed of by
the paramount authority of the British parliament, can in any way tend
to the final adjustment of any difficulties or misunderstandings which
may exist in this province, but rather to aggravate and perpetuate them.

6. Resolved, — That it is the opinion of this committee, that in order
to meet the difficulties of the ensuing year, and to second the gracious
intentions of his Majesty for the permanent settlement of the financial
concerns of the province, with due regard to the interests and efficiency

* These Resoludotis were the Assembly's reply to a conciliatorr speech from Sir
Jtmes Kempt, based on the Report of the Committee of 1828. (See Christie, III.
pp. 224 ff.)

352 Constitutional Documents of Canada, [1791-1840

of his government, this house will most respectfully consider any esti-
mate for the necessary expenses of the civil government for the ensuing
year, which may be laid before it, confidently trusting that in any such
estimate a due regard will be had to that economy which, the present cir-
cumstances of the country and its wants require.

7. Resolved, — ^That it is the opinion of this committee, that on the
permanent settlement before mentioned being effected with the consent
of this house, it will be expedient to render the governor, lieutenant-
governor, or person administering the government for the time being, and
the judges and executive councillors independent of the annual vote of
the house, to the extent of their present salaries.

8. Resolved, — ^That it is the opinion of this committee, that although
this house feels most grateful for the increased security against the illegal
application of the public money, which must result from his Majesty's
government referring all persons who may have been concerned in such
application, to an act of indemnity to be consented to by this house, it will
be inexpedient to consent to any such enactment till the full extent and
character of such illegal applications may have been fully enquired into
and considered.

9. Resolved, — ^That it is the opinion of this cotfimittee, that this
house feels the most sincere gratitude for his Majesty's solicitude to
effect the most perfect security against the recurrence of abuses on the
part of persons entrusted with the public monies in this province.

10. Resolved, — That it is the opinion of this committee, that this
house has not complained, nor have any complaints been made known to
it, respecting the arbitration for the distribution between the provinces
of Upper and Lower Canada, of tiie duties collected in Lower Canada;
but that in this, as in every other respect, this house will most cheerfully
co-operate in every equitable and constitutional measure which may be
submitted to it, as desirable by the inhabitants of Upper Canada.

11. Resolved, — ^That it is the opinion of this committee, that this
house has seen with sentiments of the highest satisfaction and gratitude,
the declaration of the willin^ess of his Majesty's government cheerfully
to accede to the desires which the assembly has so frequently expressed
during the last twenty years, of having an agent in England, to indicate
the wishes of the inhabitants of Lower Canada; and that it is expedient
to provide for such an appointment without delay.

12. Resolved, — ^That it is the opinion of this committee, that so soon
as the scheme in contemplation of his Majest/s government for the per-
manent settlement of the financial concerns of the province shall have
been made known and considered, it may be expedient to provide some

' adequate indemnity to such persons as were placed on the civil establish-
ment of this province, with salaries prior to the year one thousand eight
hundred and eighteen, and whose offices may have been- found to be un-
necessary or require to be abolished.

13. Resolved, — ^That it is the opinion of this committee, that this
house will cheerfully concur in any measure which may appear most
likely to be successful in effectually removing the great inconvenience
which has been sustained from the non-performance of tiie duties of
settlement by grantees or holders of land obtained from the crown, and
otherwise remove the obstructions to the settlement of the country, which
may have resulted or may hereafter result from the manner in which the
powers and superintendence of the crown in this most essential particular
as affecting the general prosperity of the province, may have been exer-
cised.

14. Resolved, — ^That it is the opinion of this committee, that it is the
desire of this house to take as speedy as possible every means in its power,
that the inhabitants of the townships, upon a subdivision of the counties
in which they are situated by act of the provincial parliament, shall have
a full and equitable representation in this house, of persons of their own
free choice, and that the house will cheerfully concur in every measure
particularly interesting to the townships, which may appear to be the

1791-1840] Constitutional Documents of Canada. 353

most desirable to their inhabitants, and the most conducive to the general
welfare.

15. ResolvedrT-That it is the opinion of this committee, that this
house is fully sensible of the distinguished mark of confidence reposed in
the loyalty and attachment hitherto evinced by his Majesty's Canadian
subjects and their representatives in the provincial parliament, by his
Majesty's declaration that he relies on them, for an amicable adjustment
of the various questions which have been so long in dispute.

16. Resolved, — ^That it is the opinion of this committee, that amongst
those questions not particularly mentioned on the present occasion, this
house holds as most desirable to be adjusted and most essential to the
future peace, welfare and good government of the province, viz. :

The independence of the judges and their removal from the political
business of the province.

The responsibility and accountability of public officers.

A greater independence of support from the public revenues, and
more intimate connection with the interest of the colony, in the com-
position of the legislative council.

The application of the late property of the Jesuits to the purposes of
general education.

The removal of all obstructions to the settlement of the country, par-
ticularly the crown and clergy reserves remaining unoccupied in the
neighbourhood of roads and settlements; and exempt from the common
burthens.

And a diligent enquiry into and a ready redress of all grievances and
abuses which may be found to exist or which may have been petitioned
against by the subject in this province, thereby assuring to all the in-
dividual benefit of an impartial, conciliatory and constitutional govern-
ment, and restoring a well-founded and reciprocal confidence between the
governors and the governed.

(Journal of the Assembly, 6th December, 1828.)

CVIII

THE CONSTITUTIONAL ACT AMENDMENT ACT, 1830
(11 George IV and I William IV, c. 53.)

An Act to amend so much of an Acf^ of the thirty-first year of his late
Majesty, for making more effectual provision for the Government
of the Province of Quebec.

16th July, 1830.
Whereas by an Act passed in the thirty-first year of the reign of his 31 Geo. Ill,
late Majesty, King George the Third, intituled, "An Act to repeal certain cap. 31.
parts of an Act passed in the fourteenth year of his Majesty's reign, in-
tituled, 'An Act for making more effectual provision for the Government
of Quebec in North America,' and to make further provision for the
Government of the said Province," it is amongst other things enacted
that no person shall be summoned to the Legislative Council in either of
the Provinces of Upper Canada and Lower Canada who shall not be of the
.lull 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 such by the conquest and ces-
sion 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 Legislative Assembly in either of the said Provinces of Upper
Canada or Lower Canada, or of being elected at any such election, who
shall not be of the full age of twenty-one years, and a natural-bom sub-
ject 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

« See No. LV. W

354

Constitutional Documents of Canada, [1791-1840

Persona
naturalized
may sit in
AssemU^ of
Lower Canada
and in Legis-
lative Council.

Act of

Naturalization
not to have
force or
authority
unless His
Majestv's
assent be
signified to
the same.

by the conquest and cession of the Province of Canada: And whereas it
is expedient that persons naturalized by any Act of the Legislative Council
and Assembly of the Province of Lower Canada assembled by his Majesty,
his heirs, or successors should be enabled to be summoned to the Legis-
lative Council of the said Province of Lower Canada, and of voting at
the elections of members to serve in the Legislative Assembly of the said
Province, or of being elected at any such election ; Be it therefore 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 Parlia-
ment assembled, and by the authority of the same, that all persons na-
turalized by any Act of the Legislative Council and Assembly of the
Province of Lower Canada, assented to by his Majesty, his heirs or suc-
cessors, shall henceforth be and be deemed competent in the law to be
summoned to the Legislative Council of the said Province of Lower
Canada, and to vote at the elections of members to serve in the Legisla-
tive Assembly of the said Province, and to be elected at any such election.
II. Provided nevertheless, and be it further enacted, that whenever
any bill which has been passed by the Legislative Council and by the
House of Assembly in the said Province of Lower Canada, for the na-
turalization of any persons or person, shall be presented for his Majesty's
assent to the Governor or Lieutenant-Governor of the said Province, or
to the person administering his Majesty's Government therein, such Gov-
ernor or Lieutenant-Governor, or person administering the Government,
shall and he is hereby required to reserve every such bill for the signi-
fication 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 person administering the Govern-
ment, 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 the said Province unless his 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 his Ma-
jesty's assent to the Governor, Lieutenant-Governor, or person adminis-
tering the Government.

CIX

PETITION FROM HOUSE OF ASSEMBLY, LOWER CANADA

[Trans.: Christie, op. cit.]

May it please your Majesty.

We your Majesty's dutiful and loyal subjects the commons of the
province of Lower Canada, in provincial parliament assembled, confiding
in the sentiments of justice and liberality which actuate your Majesty,
humbly submit for your royal consideration: —

That notwithstanding the progress that has been made in the edu-
cation of the people of this province, under the encouragement afforded
by the recent acts of the legislature, the effect of the impediments opposed
to its general dissemination Jby the diversion of the revenues of the
Jesuits' estates, originally destined for this purpose, the withholding of
promised grants of land for schools, in 1801, and the rejection in the
legislative council of various bills in favor of education, are still severely
felt throughout the province, and materially retard its prosperity.

That the management of the waste lands of the crown has been vicious
and improvident, and still impedes the settlement of these lands, by delays,
expenses and difficulties, opposed to their easy and secure occupation by
all persons without distinction, who may be disposed to become actual
settlers thereon, and apply themselves to this branch of industry, so pre-
eminently beneficial for the general prosperity of new countries.

1791-1840] Constitutional Documents of Canada. 355

That the power of regulating the trade of the province, reserved by
the parliament of the United Kingdom, however beneficially it may have
been exercised on several occasions for the prosperity of the colony and
the general good of the empire, has, nevertheless, from the variations and
uncertainty of the duration of its enactments, occasional injurious uncer-
tainty in mercantile speculations, and prejudicial fluctuations in the value
of real estate in ^e country, and in the different branches of industry
particularly connected with trade.

That the inhabitants of the different towns, parishes, townships, extra-
parochial places and counties of this province, suffer from the want of
sufficient legal powers for regulating and managing their several local
concerns indispensable to improvement and their common welfare.

That much uncertainty and confusion has been introduced into laws
for the security and regulation of property, by the intermixture of differ-
ent codes of laws and rules of proceeding in the courts of justice; and
that the administration of justice is become insufficient and unnecessarily
expensive.

That this uncertainty and confusion has been greatly increased by
enactments affecting real property within the colony, made in the parlia-
ment of the United Kingdom since the establishment of the provincial par-
liament, without those interested having even had an opportunity of being
heard, and particularly by a recent decision on one of the said enactments
m the provincial court of appeals.

That several of the judges in the courts in this province have long
been engaged in, and have even taken a public part in the political affairs
and differences of the province, at the same time holding offices during
pleasure, and situations incompatible with the due discharge of their judi-
cial functions, tending to destroy that confidence in their impartiality, in
cases where the executive government is concerned, which is so essential
lo the peace and well-being of the community.

That during a long scries of years, executive and judiciary offices have
been bestowed almost exclusively upon one class of subjects in this pro-
vince, and especially upon those the least connected by property or other-
wise with its permanent inhabitants, or who have shewn themselves the
most averse to the rights, liberties and interests of the people.

That holding executive offices essential to the proper and regular
administration of the government, and having lost the confidence of the
country, several of these persons avail themselves of means afforded by
their situations, to prevent constitutional and harmonious co-operation of
the government and the house of assembly, and to excite ill-feeling and
discord between them, while they are remiss in their different situations to
forward the public business.

That there exists no sufficient responsibility on the part of the persons
holding these situations, nor any adequate accountability among those of
them entrusted with public money, the consequence of which has been,
the misapplication of large sums of public money, the loss of large sums
of public money and of the money of individuals, by defaulters, with whom
deposits were made, under legal authority, hitherto without reimbursement
or redress having been obtained, norwithstanding the humble representa-
tions of your petitioners.

That the evils of this state of things have been greatly aggravated, by
enactments made in the parliament of the United Kingdom, without even
the knowledge of the people of this colony, which enactments have rendered
temporary duties imposed by the provincial parliament permanent; leaving
in the hands of public officers, over whom the assembly have no effectual
controul, large sums of money arising within this province, which is applied
by persons subject to no sufficient accountability.

That the selection of legislative councillors has also been chiefl^r con-
fined to the description of the inhabitants of the province before mentioned,
or to public officers holding situations during pleasure, with large salaries
paid out of the public revenue, and who, uniting in the same persons legis-
lative, executive and judiciary powers, countenance, encourage and uphold

356 Constitutional Documents of Cannula, [1791-1840

abuses, and render all legislative remedies in the provincial legislature
nearly impraeticable.

That while the people of this province suffer under the present state
of things, and endeavour to obtain redress, they are not the less sensible
of the advantages which they enjoy unfder your Majesty's government, and
perticularly of the more liberal policy adopted towards this colony within
the last two years; they nevertheless feel with sentiments of the deepest
regret, that the hopes with which they were cheered, after a long period
of unmerited suffering and insult, have been greatly diminished by the
delays which have occurred in redressing many of the grievances com-
plained of in their humble petition to the king and parliament in 1828, most
of which were recommended to be removed by the select committee of the
honorable the house of commons on the state of Canada, which reported
in the same year ; particularly —

The interspersion of crown and clergy reserves among the lands
granted by the crown.

The evils resulting from Imperial legislation for the internal concerns
of the colony.

The composition of the legislative council.

The dependence of the judges, and their interference with the political
concerns of the province

The want of responsibility and accountability of public officers, and
of a tribunal in the colony for the trial of impeachments.

The withholding of the revenues of the estates of the late order of
Jesuits, from the purposes of education.

The management of the waste lands of the crown, in consequence of
which applicants for actual occupation are prevented from freely possessing
the same under secure titles, in sufficient quantities for cultivation, without
unnecessary delay, and without any expense or burthen, other than the
fair and necessary costs of survey and title.

Your petitioners most respectfully submit, that most of the grievances
and subjects of complaint above set forth, may be remedied by your
Majesty's royal prerogative, and that such a result would be equally advan-
tageous to all classes of your Majesty's faithful subjects in this province,
and to the general welfare of the empire.

Wherefore your petitioners most humble pray that your Majesty will
be pleased to take this their humble petition into your gracious considera-
tion, and exercise your royal prerogative for remedy of the evils of which
they complain, to the end that they may be wholly and for ever removed.

And, as in duty bound, your petitioners will ever pray.

CX

CANADIAN REVENUE CONTROL ACT, 1831'

(1 & 2. William IV, c 23.)

'An Act to amend an Acf of the fourteenth year of His Majesty King
George the Third, for establishing a fund towards defraying the
charges of the administration of justice and support of the civil gov-
ernment within the Province of Quebec in America.

22ND SEPTEMBER, 1831.
14 G. 3, c 88. Whereas by an Act passed in the fourteenth year of the reign of his

late Majesty, King Geoive, the Third, intituled "An Act to establish a
Fund towards further defraying the charges of the administration of jus-
tice and support of the Civil Govemm<*nt within the Province of Quebec
in America," it was amongst other things enacted that from and after the
fifth day of April, one thousand, seven hundred and seventy-five, there
should be raised, levied, collected and paid unto his said late Majesty, his

* This Act was ▼ioleiitly opposed by the Duke of Wellington. (See Lord's JonrnMk,
6 Sept., 1831.)

'^See No. XXVI.

1791-1840] CQfistitutional Documents of Canada. 357

, heirs and successors, for and upon the respective goods thereinafter men-
tioned, which should be imported and brought into any port of the said
Province, over and above all other duties then payable in the said Province
by any Act or Acts of Parliament, the several rates and duties therein
mentioned; (that is to say,) for every gallon of brandy or other spirits of
the manufacture of Great Britain, three-pence; for every gallon of rum
or other spirits, which should be imported or brought from any of his
Majesty's sugar colonies in the West Indies, six-pence; for every gallon
of mm or other spirits which should be imported or brought from any
other of his Majesty's colonies or dominions in America, nine-pence; for
every gallon of foreign brandy, or other spirits of foreign manufacture,
imported or brought from Great Britain, one shilling; for. every gallon of
lum or of the produce or manufactures of any of the Colonies or Planta-
tions 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 should be imported or
brought in the said Province in ships or vessels belonging 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
should be imported or brought into the said Province in any other ships
or vessels in which the same might be legally imported, six-pence; and
after those rates for any greater or less quantity of such goods respective-
ly; and it was thereby, further enacted that all the monies that should arise
by the said duties (except the necessary charges of raising, collecting, levy-
ing, recovering, answering, paying, and accounting for the same) should be
paid by the Collector of his Majesty's customs into the hands of his
Majesty's Receiver-General in the said Province for the time being, and
should be applied in the first place in making a more certain and adequate
provision towards defraying the expenses of the administration of justice
and of the support of the Civil (^vemment in the said Province; and that
the Lord High Treasurer, or the Commissioners of his Majesty's Treasury,
or any three or more of them for the time being should be and they were
thereby empowered 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 defraying said expenses; and it
was thereby enacted that the residue of the said duties should remain and
be reserved in the hands of the said Receiver-(jeneral for the future dis-
positions of Parliament: And whereas the said Province of Quebec hath
since the enactment of the said Act been divided into the two Provinces
of Upper Canada and Lower Canada : And whereas it is expedient to make
further provision for the appropriation of the duties raised, levied and col-
lected under the said Act ; be it therefore enacted by the King's Most Excel- Lesi^tavc
lent Majesty, by and with the advice and consent of the Lords Spiritual an<l upper and
Temporal and Commons, in this present Parliament assembled, and by the Lower Canada
authority of the same, that it.5halL'"nLy!XJ2^j3wfv^ f/^.- ^t^^ t >j;gia^;yfAm>ypprnprf.
Councils and Assemblies o£.tha said Previncea^fUppti:-

-Canada-aadiQwer JJyl^JJJj"

rV any Acts to be by them from time to time passed thereof

as

^ atianiicH 'tu'tf/ His Majesty, his heirs, and successors, or on his or their shall seem "
behalf, to appropriate in 'such manncr^And ta .such-pufposea as to them "*****<> ****"•
respectively sh'att Seem meet, all the monies that shall hereafter arise by,
or be produced from the said duties, except so much of such monies as
shall be necessarily defrayed for the charges of raising^ collecting, levying,
recovering, answering, paying, and accounting for the same.'

■ See Lucas, Lord Durham's Report, Vol. I, p. 182; Vol. II, p. 141.

358 Constitutional Documents of Canada, [1791-1840

CXI

PETITION OF HOUSE OF ASSEMBLY OF LOWER CANADA, 1835"

[Trans. : Christie, op. cit.]

To the king's most excellent Majesty.

May it please your Majesty, — ^We, your Majesty's faithful and loyal
subjects, the commons of Lower Canada, assembled in provincial parlia-
ment, deeply impressed with the necessity of the concordance and harmony
that ought to prevail between the several branches of the legislature of this
province, for promoting the happiness, the welfare and the good govern-
ment of its inhabitants, have ta^en into mature consideration the circum-
stances connected with the constitution and composition of the legislative
council of this province, as established by the act of the parliament of Great
Britain, in the 31st year the reign of your late royal father, our august
sovereign of blessed memory, have considered it as our duty towards your
Majesty as the supreme head of the British Empire, and paternal chief of
the people who compose it; towards ourselves as representing one of the
most loyal of those people, and towards the general interests of the empire,
most respectfully to represent:

That the l^islative council of this province^ has not, at any period of
its existence, ^iyen proofs of that spirit of independence aiid community
onntcrests^ witH the Inhabitants of the country7 which could alone ensure
that harmony in the proceedings of the government, and give, in particular
to each of its branches, that degree of confidence of public opinion which
is requisite to produce that effect

That it could not be otherwise, when it is considered that the original
constitution of that body, and its renovation in proportion as vacancies
occurred has been at the disposal of the crown, at the recommendation of
the provincial administrations, most frequently interested in surrounding
themselves in that second branch, by public functionaries, or by other indi-
viduals Imown to be advocates of the measures of the executive, and who
became thus clothed with a legislative inviolability. No bounds were given
to those appointments, and they were thus made, in great majority, from
among those who were the least connected with the country, either in point
of permanent interest, of services rendered to their fellow citizens, or of
the esteem in which they were held. Hence the whole body became iso-
lated from the people, none of the great interests of whom it represents.

That the existence of this evil which has for a long time formed the
subject of the remonstrances of the inhabitants of this country, has induced
us to search for a remedy, so that the provincial government might be
reconstituted upon bases which may at the same time coincide with those
imitations of the metropolitan government, which it was evidently the inten-
tion of its legislators to introduce in the Canadas, and at the same time
present that practical analogy the results of which were, no doubt, not
less their desire to introduce, and without which apparent imitation in
forms alone, would only produce a still greater anomaly.

Although we have no hesitation in stating our opinions as to the means
of remedying this constitutional defect in our government, as forming the
bases of our humble representations to your Majesty, and although we do
not consider that all the interests of the country are fully and equally
represented in the third branch of the legislature, yet those to whom a
defective system of government have given an unconstitutional preponder-
ance, might make a handle of it to cause the expression of our opinion not
to be looked upon as that of the population in general ; and, by the operation
of the same system, the representations of interested public functionaries,
and of privileged persons in the colony might reach your Majesty's govern-
ment, carrying the same weight as those of the representatives freely
elected by the whole people. This danger added to the wide local distance
might cause measures adopted in the United Kingdom with the best inten-

^ For an official reply to this Petition, see No. CXIII.

1791-1840] Constitutional Documents of Canada, 359

tions, but without practical and local knowledge, to be discordant with the
true interests of the province and even to hurt those interests in essential
points.

We t^orAfjjffi pr^ttttm^ b^ir^^y,*^ r/TPf*'''*""^ *^^t, in case your Majesty
shotiM^RT Convinced of the difficulties that have been exposed, there would
be the certain means of preventing them, by placing the people of the coun-
try in general, in a situation to express their opinion, and to recommend
proper modifications through delegates freely and indiscriminately chosen
for- that pui'pose bj ali-t^s— Sy and oat <yf at^ r«tacc#>c nf the ^^"^"Jiuni^.
so ^^Hff"**^'" ?M/"""'r "*^^ the interests oJ the pTPyiPCC^-and with those
of Ks Majesty's goverfiinent, which cannot Be separated frQm..<eaGh other.
Such a bod/, constituted in virtue of an act ni parliament of the United
Kingdom, to whom they would have afterwards to make a report of their
labours, would, whilst it could be no disparagement to the supreme author-
ity of the empire, be in unison with the numerous examples in the free
institutions of this continent, with respect to which it has often been
declared that England desired to leave nothing to be wished for by the
inhabitants of these colonies.

A general assembly of this kind, would prove to be a faithful inter-
preter of all the interests of the colony taken collectively, including those
which it was the intention to be caused to be represented by the legislative
council, and those which that body claim to represent. Those interests
would in effect possess therein, all their weight and all their legitimate
influence; unless, indeed, whilst the executive branch of the colonial gov-
ernment represents the interests of the metropolitan state, there ought to
be also another constituted branch out of the country,- and compounded of
elements without any affinity with the varied interests and feelings of those
who inhabit it

In case your Majesty should not consider it proper at this time to
adopt such a measure, we will not take upon ourselves, in stating the
result of our deliberations, to determine whether the entire abolition of
the present legislative council of this province, and the assimilation of
Its government to that of several of the adjacent colonies, would tend to
cause peace and harmony to be re-established in the conduct of affairs.
The people of the country, if they had an opportunity of being legally con-
stituted fdr that purpose, would be the best judges to decide this weig[hty
question. We therefore proceed upon the supposition that an intermediate
legislative branch may, in certain cases, produce more maturity in the
deliberation and examination of bills, than if only one body were called
upon to assent to them ; at the same time, circumstances of rare occurence
might happen in which the popular representations might, for the moment,
contravene the interests of the body of their constituents, and that those
mterests might be cherished in the second branch, and guarded, until the
wishes of the people were more fully expressed, either by more decided
representations or by the means of new elections.

The second branch as actually in existence, in no way connected, in the
majority of its members, with the superior and permanent interests of the
country, is not adapted to fulfil that end; and even putting the case, of
which as yet there has been no example, that a provincial administration
were to send to it a majority of men of opposite principles, the following
administration, or perhaps the same^ might very soon hasten to recompose
the body in such a way as to ensure its approbation of their measures.

The habits, the climate, the newness of the country, the changeability
of fortunes, the division of estates, and the laws which facilitate it, are
obstacles to the existence of a permanent aristocracy, so that an hereditary
legislative body with the powers of the house of lords, would be simply
an impossibility in Canada. Landed property being here almost wholly
owned in small lots by the mass of the people, it would be impossible to
make a choice so as to form a permanent legislative council, even supposing
it to be a numerous one, of men who in their own persons would present

^The nufestion of a "ConTention" wu embodied in a resolution by the House
of Assembly in January, 1833.

360 Constitutional Documents of Canada. [1791-1840

an essential portion of the existing means and capitals of the country;
much more, they could not counterbalance in importance and in wealth
any one single county in the province : and even supposing that such a body
could be collected, the above mentioned circumstances would very soon
bring it into decay. In fact, several persons heretofore called to the legis-
lative council, and whom we may reckon then possessed a large and per-
manent interest in the country, have since found themselves entirely desti-
tute of fortune.

As to the idea of perforce creating an aristocracy through the medium
of law, either by endeavouring to establish upon a system of substitutions
(entails) or otherwise, a state of things, which the moral and physical
circumstances in which the country is placed, forbid ; or by making provi-
sion out of the public funds for l^islators for life and without respon-
sibility, it is one that is so contradictory to the known ideas of the con-
stitution of ^gland, as a practical model to go by, that your faithful and
loyal subjects who now most respectfully address your Majesty, do not
think it necessary to dwell upon it.

A pecuniary qualification required in the persons called to the council,
if the choice of them be left to the executive, would not probably produce
any perceptible change in the composition of the body, with relation to
the nature of the various other portions of our colonial institutions. The
appointments must in that case necessarily be made upon the recommenda-
tions of governors, who, being only transitorily in the country, and not
having it in their power to become properly acquainted with the inhabitants
of the country, until after a long residence, most frequently have recourse
to irresponsible advisers in the colony. The persons who are qualified,
being much fewer in number than those who would have to be chosen, the
result would be that the worst would be chosen of those, and that the sup-
posed qualification would only serve to legitimate the abuse, and to render
its disappearance more difficult. Then, although each of those who were
called to the legislative council might be capable of having a seat there,
the majority would collectively have been chosen in an exclusive sense,
and from amongst such as had the fewest relations of interest and feelings
of the people. We should see as we have in times past, this body, far from
being attached to the country, and making part of it, representing only
favoritism, monopolies, and privileges, and through its unconstitutional
influence upon the march of public affairs, perpetuating that tendency of
the men in power in the province, to oppose themselves to every measure
demanded by the people, and creating and maintaining a separate interest
and feelinpfs of distrust and even hostility in the minority, instead of
labouring m conjunction with the house of assembly, to unite all the in-
habitants of the country by means of an uniformity of views and institu-
tions, possessing the same confidence in your Majesty's government The
abuse here pointed out is, as we humble conceive, sufficiently exemplified
in the present composition of the legislative council, the appointments made
during the last few years have only in a small number, a relation with the
mass of the people generally, whilst the majority has been such as we have
supposed it would continue to be along with a pecuniary qualification.

There only remains, ma^ it please your most gracious Majesty, the
principle of election^ to rest upon, as being capable in practice of presenting
an analogy with the second branch of the legislature of the United King-
dom.

We entertain no doubt of the result of the adoption of this principle,
if the election depended upon a numerous body of electors composed of the
best ingredients and the best interests of the colony ; and if the choice were
confined to persons possessed of a certain easy degn*ce of fortune, without,
however, raising that qualification so high that such choice could only be
made, in any case, but out of a small number of elegible persons. The best
effects might be expected from a legislative body constituted upon those
bases, if, whilst its principle of action was founded in the interests of your

* A motion against the LegislatlTe Council aa at present constituted was pasted in
the House of Assembly, January, 1833, by 34 votes to 26.

1791-1840] Constitutional Documents of Canada, 361

Majesty's subjects in this province, as a general and common motive, it
found itself in its formation and its proceedings independent of the popular
assembly. It would undoubtedly be thus with the above qualifications, and
with a different mode of renewal, so as to give more permanence to the
body that is now in question.

It is upon these several considerations that we most respectfully sub-
mit the following details : —

That an elective legislative council be established, chbsen by land-
holders having a nett annual income of ten pounds in the country, and
twenty pounds in cities, and who have been residents for at least one year
within the circle wherein the election takes place.

The eligibility to be restricted to the subjects of your Majesty, having
attained the age of at least thhty years, residents of the province, and hav-
mg resided therein at least fifteen years, and possessing an annual freehold
mcome arising from property situated within the province, of at least one
hundred pounds for those elected for the county, and of at least two
hundred pounds for those of the cities at Quebec and Montreal.

The duration of the body to be limited to six years ; the renewal to be
made by one-sixth part every year, it being to be determined during the
first five years by lot which of the members chosen at the general election
shall have to retire. When there shall happen to be any vacancies, those
who succeed to them to be members only for the period which would have
remained to their predecessors.

^ The number of members to be equal to that of the counties, cities, and
divisions thereof, or other circles sending members to the house of assem-
bly, with the exception of boroughs whose population does not amount to
two thousand souls, who would only have to vote in the counties of which
they make part. So that the number of councillors would be nearly half of
that of members of the assembly.

The speaker or chairman of the body to be chosen by the members,
subject to the approbation of your Majesty.

The judges to be ineligible, as well as the clergy.

The members of the present legislative council not to belong to the
new council, except they are elected; yet, nevertheless, should your Majesty
in your most gracious royal intention think proper to retain them therein,
they should only be considered as supernumerary members, and would have
to justify their qualifications in landed property, and resign their places
of profit

The legislative council not to be subject to dissolution.

The members not to accept, otherwise than by bill, places of profit
or honor during good pleasure, excepting those of justice of the peace,
and in the militia, nor become accountable for public money, nor receive
any from the executive government, under whatever denomination, without
subjecting themselves to a reelection.

The individuals who offer themselves as candidates, to make oath as
to their qualifications ; if the candidates are not present, three electors may
make affirmation as to that qualification, to the best of their knowledge.
The members # elected shall, before they take their seats, take the same
oath, and shall be bound to renew it at all times upon order of the body.

When it happens that members are elected at the same time both for
the legislative council and for the assembly, they shall make choice of either
one of the other of the houses, within a prescribed time.

We cannot close our present humble address to your Majesty, without
expressing how much we should have desired to have received the par-
ticular statement of the views of your Majesty's government on this im-
portant subject, as announced by the right honorable lord viscount Goderich,
your Majest/s principal secretary of state for the colonies, in his despatch
of the 7th July, 1831, addressed to his excellency the governor in chief
of this province, and that the same has not yet been communicated to us,
so as to aid us in our endeavours to remedy an acknowledged and instant
evil. Wherefore we, the faithful subjects of your Majesty, do most humbly
pray that your Majesty will be pleased to take these our representations

362 Constitutional Documents of Canada. [1791-1840

into your gracious and favourable consideration, and grant such remedy
therein as to your Majesty in your wisdom may seem proper.

And as well from inclination, as from a sense of duty, we shall not
fail ever to pray for your Majesty's sacred person.

CXII

ADDRESS OF THE LEGISLATIVE COUNCIL OF LOWER-
CANADA, 183J*

[Trans.: Christie, op. cit.^

To the King's Most Excellent Majesty.

Most gracious Sovereign, — ^We your Majesty's dutiful and loyal sub-
jects, the legislative council of Lower Canada, in provincial parliament
assembled, having had under our serious consideration, the dangerous and
unconstitutional proceedings adopted by the assembly, are impelled by a
sense of duty to your Majesty, and your Majesty's faithful Canadian
people, humbly to approach your Majesty's throne, with a representation of
the alarming posture of the affairs of this province, and our earnest suppli-
cation for immediate and effectual relief.

From the invariable state of peace and prosperity to which we had
attained under the constitution, bestowed upon us by your Majesty's royal
father and the Imperial parliament, we are approaching to a state of
anarchy and confusion — unceasing attempts are made to destroy the con-
fidence which has hitherto subsisted between the subjects of your Majesty
of different origin and language — the interests of agriculture and commerce
and the wants of the people are neglected for the advancement of the cabals
of party — ^your Majesty's representative is falsely charged with partiality
and injustice in the exercise of the powers confided to him — ^your Majesty's
officers, both civil and military, are deliberately libelled, as a combined
faction, actuated by interest alone, to struggle for the support of a corrupt
government, adverse to the rights and wishes of the people — and this un-
merited abuse has, for years past, been as frequent within the walls of the
assembly as without — ^nor can it be doubted that this system has been
adopted and urged, with the wicked intention to degrade the local author-
ities in the eyes of the people, and thereby ultimately to render them
powerless and inefficient for die support of your Majesty's government in
this province.

Everything indicates a continuance, if not an increase of the evils
which we have briefly enumerated — for while your Majesty's officers, and
particularly the judges of your Majesty's courts of law, are accused and
defamed, a competent tribunal within the colony, to which they might ap-
peal for trial and vindication, is refused — whereby a timid, instead of a
fearless and independent exercise of their functions is to be apprehended;
and with a view to the completion of its designs, the assembly has ven-
tured on the daring step of addressing your Majesty to render the legis-
lative council elective.

The crisis at which we have arrived, is pregnant with consequences of
the deepest interest to the happiness and welfare of your Majesty's subjects
in this province, and at such a moment, it would be criminal in the legis-
lative council, to withhold from your Majesty, the frank and candid
avowal of its sentiments.

The efforts of the assembly have been obviously directed, for several
3'ears past, to the attainment of power and influence, at the expense of the
crown, and in direct violation of the constitutional rights and privileges
of the legislative council. In illustration of this, we respectfully advert
to the persevering endeavours of that house to obtain the entire controul
and disposal of all the provincial revenue and income, refusing, at the same
time, to make any adequate^permanent provision for the expenses of the

^ Thb Address is the Le^islatiye Council's answer to the previous document.

1791-1840] Consfitutionat Documents of Canada. 363

civil government, and to provide for the independence of the judiciary, —
to the conditions and instructions annexed to the votes of certain sums
contained in the bill of supply, sent up during the present session, which
strike at the existence of your Majesty's prerogative to appoint to all offices
of honor or profit in the colony, — ^to the claim advanced by the assembly to
preserve this extensive and important part of your Majesty's dominions,
(in which there is room for millions of inhabitants) as a colony to be
settled only by Canadians of French origin and descent, contrary to the
just and manifest rights of your Majesty's native bom subjects, — and
lastly, in the attempt to induce your Majesty to adopt a measure which
would destroy the equilibrium of the constitution, by substituting an elec-
tive council for the intermediate branch established by law. In reference
to the pretension last noticed, we humbly entreat your Majesty's attention
to the undeniable fact, that in proportion as your Majesty has graciously
been pleased to increase the constitutional weight and efficiency of the
legislative council, by the addition of members, unconnected with the local
administration, and largely taken from the assembly itself, the efforts of
that house for its entire abolition, have become more and more violent and
daring.

That the constitution of government established in this province, under
the act passed in the 31st year of the reign of his Majesty king George the
third, chapter 31, has been efficacious in promoting the welfare and happi-
ness of the inhabitants thereof, and in confirming their attachment to the
British throne, are facts powerfully attested by the peaceable submission ot
the people to the laws, and the readiness with which they have on all occa-
sions defended the province against foreign aggression, as well as by the
petitions laid at the foot of the throne in the years 1814 and 1828, and the
addresses, at those periods, of the assembly itself, in which they entreated
his late Majesty and the Imperial parliament "to maintain the inhabitants
of Canada in the full enjoyment of the constitution as established by law,
without any change whatever."

It was in the year 1831, after the general election for the assembly,
now in session, and when some grounds of complaint against the local
administration were in course of being redressed by the interposition of
the Imperial government, that a desire for a change in the constitution was
first openly avowed in that body, and it is a matter of astonishment that
a violent and reckless party in that house, should be able to induce a
majority of its members into an attempt to destroy a form of government,
under which your Majesty's Canadian people have enjoyed a state of peace,
security and contentment, scarcely exceeded by any part of the world, and
against which no considerable portion of the people have yet formally com-
plained\

While, therefore, the legislative council desire not to conceal from
your Majesty, the actual state of the province, they are far from believing
that the great body of the people yet participate in the views and wishes
of the majority of the assembly, but in a community in which education
has made so little progress, even the well-disposed, the happy, and con-
tented, are too liable to be misled by the factious and designing.

The constitution enables your Majesty to uphold an independent branch
of the legislature, by a judicious selection of the members chosen to com-
pose it, and we venture, with all humility, to state to your Majesty, that
a branch so chosen is essential to sustain your royal prerogative, to main-
tain the connection, which happily subsists between this colony and the
mother country, and to give security to a numerous class of your Majesty's
subjects of British origin, now numbering about one hundred and fifty
thousand souls, scattered over this province, whose interests cannot be
adequately represented in an assembly, seven-eights of the members where-
of are of French origin, and speak the French language.

It is under the circumstances above described that the assembly have

^See Christie, III, pp. 368 ff.

364 Constitutional Documents of Canada. [1791-1840

proposed to your Majesty to abolish this house, and to substitute in its
place a council to be elected' by proprietors of estates of ten pounds annual
value; a measure well conceived to further the desired object of obtaining
a legislative body, in all respects, the counterpart of the assembly, inasmuch
as that would virtually embrace the whole constituency of the country.

Having maturely considered, we trust without improper bias, the
nature of the alterations in the constitution, proposed by the assembly, we
intreat your Majesty duly to weigh the opinion which we now humbly sub-
mit, as to the fatal consequences which may be expected to result from
such a change. Its more immediate effects would be to render all offices
m the colony elective — to unsettle the minds of your Majesty's subjects of
British origin respecting the security of life and property, which they now
enjoy — to prevent their further increase through emigration and to sever
the ties which bind the colony to the parent state ; while its ultimate result
would bring into collision the people of Upper and Lower Canada and
drench the country with blood, for it is our solemn conviction that the
inhabitants of Upper Canada will never quietly permit the interposition
of a French republic between them and the ocean.'

When the leaders of the assembly, in the year 1831, first openly de-
clared themselves against the constitution, they found means of inducing
a member of this house to proceed to England, for the sole avowed pur-
pose of supporting the petitions of the assembly to your Majesty, and they
have since, from year to year, procured the prolongation of his mission.
We humbly submit that the representation made by this gentleman to your
Majesty's government, ought to be received with extreme caution, because
the legislative council have never assented to the mission — ^have never had
official communication of any instructions given to him, or of despatches
from him — ^and he has committed a gross breach of the constitutional
rights of the house, by receiving a large annual salary from the assembly,
knowing the same to be without the sanction of law, paid to him out of
the public money, advanced upon the simple votes of that house for defray-
ing its ordinary contingent expenses.

Upon all these circumstances, the legislative council earnestly beseech
your Majesty to take into your most serious consideration, the present
alarming posture of affairs in your Majesty's once happy province of Lower
Canada — to be graciously pleased to adopt such measures, as in your wis-
dom will tend to tranquilize the minds, to maintain the constitutional rights
and liberties of all your Majesty's subjects therein, and thus guarantee the
permanence of the existing connexion between the colony and the parent
state.

CXIII

AYLMER TO HOUSE OF ASSEMBLY OF LOWER CANADA

[Trans.: Christie, op. cit.]

Castle of St. Lewis,
14th Jan., 1834.^

The governor in chief communicates to the house of assembly, for its
information, an extract from a despatch addressed to him by the secretary
of state for the colonial department, in answer to the petition of the house
addressed to the king", which by desire of the house, was transmitted to
the secretary of state during the last session, for the purpose of being laid
at the foot of the throne : —

"I have also laid before the king, the addresses of the house of assem-
bly. I cannot pass over this document without observation. The object
of this address is to pray his Majesty to sanction a national convention
of the people of Canada, for the purpose of superseding the l^islative

»See No. CXI.

* ThiB section of the petition received a rebuke from England in a deipatck from
Lord Goderich. See Christie, III, 490.
»See No. CXI.

1791-1840] Constitutional Documents of Canada. 365

authorities, and taking into their consideration in which of two modes the ^
constitution of Lower Canada shall be altogether destroyed. — ^Whether by«^^
the introduction '^f the elective principle, or by the entire abolition of the
le^tSTative council. On the mode proposed, his Majesty Is willing to put
no- liiimhii L'UIPiitruction than that of extreme inconsiderateness : to the
object sought to be obtained, his Majesty can never be advised to assent,
as deeming it inconsistent with the very existence of monarchical institu-
tions. To <»very measure which may secure the independence and raise the
character of the legislative council, his Majesty will jbt most ready to
assent. In 1828, a committee' of the house of commons carefully investi-
gated the grievances alleged by the inhabitants of the Canadas, and amongst
them the 'COHSTftUttoTi T)f the legislative council was a matter of serious ^
deliberation. The committee reported that one of the most important
subjects to which their enquiries had been directed was the state of the
legislative council in both the Canadas, and the manner in which those
assemblies had answered the purposes for which they were instituted. Xh£
committee strongly recommended that a more independent character should
be-^ivW ttrihuse't^odies^ that the majority of their members should not
consist of persons holding offices at the pleasure of the crown, and that any ^
other measures that might tend to connect more intimately that branch of
the constitution with the interests of the Colonies would be attended with
the greatest advantage. With respect to the judges, with the exception
only of the chief justice, whose presence on particular occasions, might be
necessary, the committee entertained no doubt that they had better not be
involved in the political business of the house. An examination of the
constitution of the body at that period and the present, will suflicientlv
show in what spirit his Majesty's government have laboured to accomplish
the wishes of parliament. The house of assembly state correctly that it
has often been avowed that the people of Canada should see nothing in the
institutions of neighbouring countries to which they should look with envy.
1 have_yet to learo^lbajt.iiis. Majesty's subjects in Canada entertain auch
sisniimen ts at present, or that they desire to copy in a monarchical govern- /"
ment alt the institutions of a republic, or to have the "'^'^Vry of aojcxccu-
tive abspliUcJy de2endent for its existence, i^pnn a pffflul^** bodj^ usiuying
the whole authority 'pTTTig State^ 1 am not prepared to advise his Majesty
to iTCOnPhmehd to parliament so serious a step as the repeal of the act of
1791, whereby the institutions of this country were conferred separately
upon the provinces of Upper and Lower Canada. — Serious as are die diffi-
culties by which your lordship's administration is beset, they are yet not
such as to induce me to despair of the practical working of Uie Britisl
constitution; but should events unhappily force upon parliament tiie exer-
cise of its supreme authority to compose the internal dissensions of the
colonies, it would be my object, and my duty as a servant of the crown, to
submit to "psrtfament such moaification of the charter of the Canadas, as
shottkl tend, npt to the introduction of institutions inconsistent with mon-
arcltltcal government, but to maintaining and strengthening the connection
with the mother country, by a close adherence to the spirit of the British
constitution, and^ by p.rescrvyg in thei^ f^BflT iPl?^**! smd within their due
limits, the mutual' ngTiirim a privileges^ of all classes of his Majesty's sub-
jects.'"

« See No. CVI.

' This despatch was severely criticised in "The Ninety-Two Resolutions" (No.
CXIV), and was expunged from the Journals of the House (see p. 388).

366 Constitutional Documents of Canada, [1791-1840

CXIV

THE NINETY-TWO RESOLUTIONS OF 1834'
[Trans. : Blue Books relating to Canada^ vol. VI, 1836.]

Resolutions of the House of Assembly of Lower Canada, dated Quebec,
Friday. 21 February, 1834.

1. Resolved, That His Majesty's loyal subjects, the people of this
province of Lower Canada, have shown the strongest attachment to the
British Empire, of which they are a portion; that they have repeatedly
defended it with courage in time of war ; that at the period which preceded
the Independence of the late British Colonies on this continent, they re-
sisted the appeal' made to them by those colonies to join their confederation.

2. -Resolved, That the people of this province have at all times mani-
fested their confidence in His Majesty's Government, even under circum-
stances of the greatest difficulty, and when the government of the province
has been administered by men who trampled under foot the rights and
feelings dearest to British subjects; and that these sentiments of the people
of this province remain unchanged.

3. Resolved, That the people of this province have always shown
themselves ready to welcome and to receive as brethren, those of their
fellow-subjects who, having quitted the United Kingdom or its dependen-
cies, have chosen this province as their home, and have earnestly en-
deavoured (as far as on them depended) to afford every facility to their
participating in the political advantages, and in the means of rendering
their industry available, which the people of this province enjoy; and to
remove for them the difficulties arising from the vicious system adopted by
those who have administered the government of the province, with regard
to those portions of the country in which the new-comers have generally
chosen to settle. \

4. Resolved, That this House, as representing the people of this
province, has shown an earnest zeal to advance the general prosperity of
the country, by securing the peace and content of all classes of its inhabit-
ants, without any distinction of origin or creed, and upon the solid and
durable basis of unity of interest, and equal confidence in the protection of
the mother country.

5. Resolved, That this House has seized every occasion to adopt, and
firmly to establish by law in this province, not only the Constitutional and
Parliamentary law of England, which is necessary to carry the Government
into operation, but also all such parts of the public law of the United
Kingdom as have appeared to this House adapted to promote the welfare
and safety of the people, and to be conformable to their wishes and their
wants; and that this House has, in like manner, wisely endeavoured so to
regulate its proceedings as to render them, as closely as the circumstances
of this colony permit .analogous to the practice of the House of Commons
of the United Kingdom.

6. Resolved, That in the year 1827, the great majority of the people
of this province complained, in petitions signed by 87,000 persons, of serious
and numerous abuses which then prevailed, many of which had then existed
for a great number of years, and of which the greater part still exist
without correction or mitigation.

7. Resolved, That the complaints aforesaid, and the grievance which

^ These Resolutions were introduced by Elzear Bedard, first Mayor of Quebec
They were first embodied in an address to the Governor-General, Lord Aylmer, and
then forwarded to England, where their subject matter was debated in the House of
Commons at the instance of J. A. Roebuck, M.P. for Bath, who had be<» agent in
England for Lower Canada since 1833. Their historical interest is largely due to the
fact that they mark the parting of the ways among the "reformers" in Lower Cansda.
and that they led to the formation of the Constitutional Societies of Montreal snd
Quebec. They are printed here in full, as they illustrate better than any other docu-
ment the matured attitude of Papineau and his followers, and distinguidi them fmn
the Moderates and Constitutional Radicals, led by John Neilson.

« See No. XXVH.

1791-1840] Constitutional Documents of Canada. 367

gave rise to them, being submitted to the consideration of the Parliament
of the United Kingdom, occasioned the appointment of a Committee of the
House of Commons, of which the Honourable Edward Geoffrey Stanley,
now His Majesty's Principal Secretary of State for the Colonial Depart-
ment, and several others who are now Members of His Majesty's Govern-
ment, formed part ; and that after a careful investigation and due delibera-
tion, the said Committee, on the 18th July 1828\ came to the following very
just conclusions :

Istly. 'That the embarrassments and discontents that had long
prevailed in the Canadas, had arison from serious defects in the sys-
tem of laws, and the constitutions established in those colonies.

2dly. "That these embarrassments were in a great measure to be
attributed to the manner in which the existing system had been admin-
istered.

3dly. "That they had a complete conviction that neither the sug-
gestions which they had made, nor any other improvements in the laws
and constitutions of the Canadas, will be attended with the desired
effect, unless an impartial, conciliating and constitutional system of
government were observed in these loyal and important colonies."

8. Resolved, That since the period aforesaid, the constitution of this
province, with its serious defects, has continued to be administered in a
manner calculated to multiply the embarrassments and discontents which
have long prevailed; and that the recommendations of the Committee of
the House of Commons have not been followed by effective measures of a
nature to produce the desired effect

9. Resolved, That the most serious defect in the Constitutional Act,
Its radical "fault, g!e musl actifc piiuLiple uf evil aiid (llgtuiilent iu the
province; the most powerful and most frequent cause of abuses of power;
of the infraction of the laws ; of the waste of the public revenue and prop-
erty, accompanied by impunity to the governing party, and the oppression
and consequent resentment of the governed, is that injudicious enactment,
the fatal results of whidi were foretold by the Jtionouraoie ^hAflCS Jaftt^s
Fox at the time of its adoption, which invests the Crown with that exor-
k;»»>,| j/^«t^> ^;>i^^^po»^|il^ ^|()i 2ny gbveiTfment duly Daianccd, and fOtnid-
cd on io^ anH j««»fVA oTT/T'TiAr qq force Sind cderctoh) 6f ^eteeTlng"and com-
posing withQyt,^Si£.n^le or limitation, or any predetermined qtmlification,
an entire branch oi the legislature, supposed from the nature of ifs attribu-
tiohs to be independent, out inevitably the servile tool of the authority
whidi Litates^ composes and decomposes it, and can on any day modify
It to suit the interests or the passions of the moment

10. Resolved, That with the possession of a power so unlimited, the
abuse of it is inseparably connected ; and that it has always been so exer-
cised^ in the selection of ^e Members of the Legislative Council of this
province, as to favour the spirit of monopoly and despotism in the execu-
tive, judicial and administrative departments of government, and never in
favour of the public interest

11. Resolved, That the effectual remedy for this evil was judiciously
foreseen and pointed out by the Committee of the House of Commons, who
asked John Neilson, esquire, (one of the agents who had carried to England
the Petition of the 87,000 inhabitants of Lower Canada) whether he had
turned in his mind any plan by which he conceived the Legislative Council
might be better composed in Lower Canada ; whether he thought it possible
that the said body could command the confidence and respect of the people,
or go in harmony with the House of Assembly, unless the principle of
election were introduced into its composition in some manner or other;
and also, whether he thought that the colony could have any security that
the Legislative Council would be properly and independently composed,
unless the principle of election were introduced into it in some manner or
other; and received from the said John Neilson answers, in which (among
other reflections) he said in substance, that there were two modes in which

>SeeNo.CVL

368 Constitutional Documents of Canada. [1791-1840

the composition of the Legislative Council might be bettered: the <^ne hi
appointing men who. jyere independent of the executive, (but that to judge
fiioiu eAT5(g?rence 'there would be no security that this^would be done,) and
that if this mode were found impracticable, the other yf^rtuiA \^ fr^ rgnf^***"
the T i>or;eto|;Yfi rniiniril tUatirr

12. Resolved, That judging from experience, this House likewise
believes that there would be no security in the first mentioned mode, the
course of events having but too amply proved what was then foreseen ;
and that this House approves all the inferences drawn by the said John
Neilson from experience and facts ; but that with regard to his suggestion
that a class of electors of a higher qualification should be established, or a
qualification in property fixed for those persons who might sit in the Coun-
cil, this House have, in their Address to His Most Gracious Majesty, dated
the 20th March 1833*, declared in what manner this principle could, in their
opinion, be rendered tolerable in Canada, by restraining it within certain
bounds, which should in no case be passed.

13. Resolved, That even in defining bounds of this nature, and requir-
ing the possession of real property as a condition of eligibility to a Legis-
lative Council, chosen by the people, which most wisely and happily has not
been made a condition of eligibility to the House of Assembly, this House
seems rather to have sought to avoid shocking received opinions in Europe,
where custom and the law have given so many artificial privileges and
advantages to birth and rank and fortune, than to consult the opinions
generally received in America, where the influence of birth is nothing, and
where, notwithstanding the importance which fortune must always natu-
rally confer, the artificial introduction of great political privileges in favour
of the possessors of large property, could not long resist the preference
given at free elections to virtue, talents and information, which fortune
does not exclude but can never purchase, and which may be the portion
of honest, contented and devoted men, whom the people ought to have the
power of calling and consecrating to the public service, in preference to
richer men, of whom they may think less highly.

14. Resolved, That this House is nowise disposed to admit the excel-
lence of the present Constitution of Canada, although His Majesty's Secre-
tary of State for the Colonies has unseasonably and erroneously asserted,
that it has conferred on the two Canadas the institutions of Great Britain ;
nor to reject the principle of extending the system of frequent elections
much further than it is at present carried; and that this system ought
especially to be extended to the Legislative Council, although it may be
considered by the Colonial Secretary incompatible with the British Govern-
ment, which he calls a monarchical government, or too analogous to the
institutions which the several States, composing the industrious, moral and
prosperous confederation of the United States of America, have adopted
for themselves.

15. Resolved, That in a despatch, of which the date is unknown, and
of which a part only was communicated to this House by the Govemor-in-
chief on the 14th January, 1834*, His Majesty's Secretary of State for the
Colonial Department, (this House having no certain knowledge whether the
said despatch is from the present Colonial Secretary or from his predeces-
sor) says, that an examination of the composition of the Legislative Coun-
cil at that period (namely, at the time when its composition was so justly
censured by a Committee of the House of Commons) and at the present,
will sufficiently show in what spirit His Majesty's Government has en-
deavoured to carry the wishes of Parliament into effect.

16. Resolved, that this House receives with gratitude this assurance of
the just and benevolent intentions, with which, in the performance of their
duty. His Majesty's Ministers have endeavoured to give effect to the wishes
of Parliament.

»No. CXI.

« See No. CXIII.

1791-1840] Constitutional Documents of Canada. 369

17. Resolved, That unhappily it was left to the principal Agent of
His Majesty's Government in this Province to carry the wishes of the
Imperial Parliament, into effect; but that he has destroyed the hope which
His Majesty's faithful subjects had conceived of seeing the Legislative
Council reformed and ameliorated, and has confirmed them in the opinion
that the only possible mode of giving to that body the weight and respec-
tability which it ought to possess, is to introduce into it the principle of
election.

18. Resolved, That the Legislative Council, strengthened by a majority
inimical to the rights of this House and of the people whom it represents,
has received new and more powerful means than it before possessed of
perpetuating and of rendering more offensive and more hurtful to the
country the system of abuses of which the people of this province have up
to this day ineffectually complained, and which up to this day, Parliament
and His Majesty's Government in England have ineffectually sought to
correct.

19. Resolved, That since Hs pretended reform the Legislative Council
has, in a manner more calculated to alarm the inhabitants of this province,
and more particularly in its address^ to His Majesty of the 1st of April
1833, renewed its pretension of being specially appointed to protect one
class of His Majesty's subjects in this province, as supposing them to have
interests which could not be sufficiently represented in the Assembly,
seven-eighths of the Members of which are by the said Council most
erroneously stated to be of French origin and speak the French language :
that this pretension is a violation of the constitution, and is of a nature to
excite and perpetuate among the several classes of the inhabitants of this
province, mutual distrust and national distinctions and animosities, and to
give one portion of the people an unjust and factious superiority over the
other, and the hope of domination and undue preference.

20. Resolved, That by such claim the Legislative Council after a
reform which was held up as one adapted to unite it more closely with the
interests of the colony in conformity with the wishes of Parliament, calls
down, as one of its first acts, the prejudices and severity of His Majesty's
Government upon the people of this province, and upon the representative
branch of the Legislature thereof; and that by this conduct the Legisla-
tive Council has destroyed amongst the people all hope which was left
them of seeing the said Council, so long as it shall remain constituted
as it now is, act in harmony with the House of Assembly.

21. Resolved, That the Legislative Council of this Province has never
been anything else but an impotent screen between the Governor and the
people, which by enabling the one to maintain a conflict with the other,
has served to perpetuate a system of discord and contention; that it has
unceasingly acted with avowed hostility to the sentiments of the people
as constitutionally expressed by the House of Assembly; that it is not
right under the name of a Legislative Council to impose an aristocracy
on a country which contains no natural materials for the composition of
such a body; that the Parliament of the United Kingdom in granting to
His Majesty's Canadian subjects the power of revismg the Constitution
under which they hold their dearest rights, would adopt a liberal policy,
free from all considerations of former interests and of existing preju-
dices; and that by this measure, equally consistent with a wise and sound
policy, and with the most liberal and extended views, the Parliament of
the United Kingdom would enter into a noble rivalry with the United
States of America, would prevent His Majesty's subjects from seeing any-
thing to envy there; and would preserve a friendly intercourse between
Great Britain and this province, as her colony, so long as the tie between
us shall continue, and as her ally, whenever the course of events may
change our relative position.

22,^ Resolved, That this House so much the more confidently emits
the opinions expressed in the preceding resolution, because, if any faith

< Sec No. CXII.

370 Constitutional Documents of Canada. [1791-1840

is to be placed in the published reports, they were at no distant period
emitted with other remarks in the same spirit, in the Commons House of
the United Kingdom, by the Right Honourable Edward Geoffrey Stanley,
now His Majesty's Principal Secretary of State for the Colonial Depart-
ment, and by several other enlightened and distinguished Members, some
of whom are among the number of His Majest/s present Ministers; and
because the conduct of the Legislative Council since its pretended reform,
demonstrates that the said opinions are in nowise rendered less applicable
or less correct by its present composition.

23. Resolved, That the Legislative Council has at the present time
less community of interest with the province than at any former period;
that its present composition, instead of being calculated to change the
character of the body, to put an end to complaints, and to bring about
that co-operation of the two Houses of the Legislature which is so neces-
sary to the welfare of the country, is such as to destroy all hope that
the said Council will adopt the opinions and sentiments of the people of
this province and of this House with regard to the inalienable right of
the latter to the full and entire control of the whole revenue raised in
the province, with regard to the necessity under which this House has
found itself (for the purpose of effecting the reformation which it has
so long and so vainly demanded of existing abuses) to provide for the
expenses of the Civil Government by annual appropriations only, as well
as with regard to a variety of other questions of public interest, concern-
ing which the Executive Government, and the Legislative Council which
it has selected and created, differ diametrically from the people of this
province, and from this House.

24. Resolved, That such of the recently appointed councillors as
were taken from the majority of the Assembly, and had entertained the
hope that a sufficient number of independent men, holding opinions in
unison with those of the majority of the people and of their Representa-
tives, would be associated with them, must now feel that they are over-
whelmed by a majority hostile to the country, and composed of men who
have irretrievably lost the public confidence, by showing themselves the
blind and passionate partisans of all abuses of power, by encouraging all
the acts of violence committed under the administration of Lord Dal-
housie, by having 6n all occasions outraged the representatives of the
people of the country; of men, unknown in the country until within a
few years, without landed property or having very little, most of whom
have never been returned to the Assembly (some of them having even
been refused by the people), and who have never given any proofs of
their fitness for performing the functions of Legislators, but merely of
their hatred to the country; and who, by reason of their community of
sentiment with him, have found themselves, by the partiality of the (jov-
emor-in-Chief, suddenly raised to a station in which they have the power
of exerting during life an influence over the legislation and over the fate
of this province, the laws and institutions of which have ever been the
objects of their dislike.

25. Resolved, That in manifest violation of the Constitution, there
are among the persons last mentioned several who were bom citizens of
the United States, or are natives of other foreign countries, and who
at the time- of their appointment had not been naturalized by Acts of the
British Parliament; that the Residence of one of these persons (Horatio
Gates) in this country during the last war with the United States was
only tolerated ; he refused to take up arms for the defence of the country
in which he remained merely for the sake of lucre; and after these pre-
vious facts, took his seat in the Legislative Council on the 16th March,
1833; and 15 days afterwards, to wit, on the 1st April, voted for the ad-
dress before mentioned, censuring those who during the last war were
under arms on the frontiers to repulse the attacks of the American
armies and of the fellow-citizens of the said Horatio Gates: that another
(James Baxter) was resident during the said late war within the United
States, and was bound by the laws of the country of his birth, under

1791-1840] Constitutional Documents of Canada, 371

certain circumstances, forcibly to invade this province, to pursue, destroy
and capture, if possible, His Majesty's armies, and such of his Canadian
subjects as were in arms upon the frontiers to repulse the attacks of the
American armies, and of the said James Baxter, who (being at the same
time but slightly qualified as far as property is concerned! became, by
the nomination of the Govemor-in-Chief, a Legislator for life in Lower
Canada, on the 22d of March, 1833; and eight days afterwards, on the
1st of April aforesaidj voted that very address which contained the
caluminious and insulting accusation which called for the expression of
His Majesty's just r^ret, "that any word had been introduced which
should have the appearance of ascribing to a class of his subjects of one
origin, views at variance with the allegiance which they owe to His
Majesty.'*

26. Resolved, That it was in the power of the present Govcmor-in-
Chief, more than in that of any of his predecessors (by reason of the
latitude allowed him as to the number and the selection of the persons
whom he might nominate to be Members of the Legislative Council) to
allay, for a time at least, the intestine divisions which rend this colony,
and to advance some steps towards the accomplishment of the wishes of
Parliament, by inducing a community of interest between the said Council
and the people, and by giving the former a more independent character
by judicious nominations.

27. Resolved, That although 16 persons have been nominated in less
than two years by the present (Governor to be Members of the said
Council (a number greater than that afforded by any period of 10 years
under any other administration), and notwithstanding the wishes of Par-
liament, and the instructions given by His Majesty's Government for the
removal of the grievances of which the people had complained, the same
malign influence which has been exerted to perpetuate in the country a
system of irresponsibility in favour of public functionaries, has prevailed
to such an extent as to render the majority of the Legislative Council
more inimical to the country than at any former period; and that this
fact confirms with irresistible force the justice of the censure passed by
the (Committee of the House of Commons on the constitution of the Legis-
lative Council as it had theretofore existed, and the correc^ess of the
opinion of those Members of ^e said Committee who thought that the
said body could never command Ae respect of the people, nor be in har-
mony with the House of Assembly, tmless the principle of election was
introduced into it

28. Resolved, That even if the present (jovemor-in-Chief had, by
making a more judicious selection, succeeded in quieting the alarm and
allaying for a time tiie profound discontent which then prevailed, that
form of government would not be less essentially vicious which makes
the happiness or misery of a country depend on an Executive over which
the people of that country have no influence, and which has no perma-
nent interest in the country> or in common with its inhabitants; and that
the extension of the elective principle is the only measure which appears
to this House to afford any prospect of equal and sufficient protection in
future to all the inhabitants of the province, without distinction.

29. Resolved, That the accusations preferred against the House of
Assembly by the Legislative Council, as recomposed by the present Gov-
emor-in-CThief, would be criminal and seditious, if their very nature did
not render them harmless, since they go to assert, that if in its liberality
ud justice the Parliament of the United Kingdom had granted the
earnest prayer of this House in behalf of the province (and which this
House at this solemn moment, after weighing the Despatches of the Sec-
retary of State for the Colonial Department, and on the eve of a general
election, now repeats and renews), that the constitution of the Legisla-
tive Council may be altered by rendering it elective, the result of this

* S«e a despatch from the Secretary of State for the Colonial Department quoted
1? the LegislatiTe Council by Lord Aylmer, in givinff them the reply of Jtht British
G<»Ttmm«it to their "Address" (No. CXU), 14 January, 1834. (Oiristie, III. 491.)

372 Constitutional Documents of Canada. [1791-184C

act of justic and benevolence would have been to inundate the country
with blood.

30. Resolved, That by the said Address to His Majesty, dated the
Ist of April last, the L^islative G)uncil charges this House with having
calumniously accused the King's Representative of partiality and in jus*
tice in the exercise of the powers of his office, and with deliberately
calumniating His Majesty's officers, both civil and military, as a faction
induced by interest alone to contend for the support of a government
inimical to the rights, and opposed to the wishes of the people: with
reference to which this House declares, that the accusations preferred by
it have never been calumnious, but are true and well founded, and that
a faithful picture of the Executive Government of this province in all its
parts is drawn by the Legislative Council in this passage of its address.

31. Resolved, That if, as this House is fond of believing. His Ma-
jesty's Government in England does not wish systematically to nourish
civil discord in this colony, the contradictory allegations thus made by
the two Houses, make it imperative on it to become better acquainted
with the state of the province than it now appears to be, if we judge
from its lon^ tolerance of the abuses which its agents coiUhiit with im-
punity; that it ought not to trust to the self praise of those who have the
management of the affairs of a colony, passing, according to them, into
a state of anarchy; that it ought to be convinced, that if its protection
of public functionaries, accused by a competent authority (that is to say
by this House, in the name of the people), could for a time by force and
intimidation aggravate, in favour of those functionaries and against the
rights and interests of the people, the system of insult and oppression
which they impatiently bear, the result must be to weaken our confidence
in, and our attachment to His Majesty's Government, and to give deep
root to the discontent and insurmountable disgust which have been ex-
cited by administrations deplorably vicious, and which are now excited
by the majority of the public functionaries of the colony, combined as ai
faction, and induced by interest alone to contend for the support of a
corrupt Government, inimical to the rights and opposed to the wishes
of the people.

32. Resolved, That in addition to its wicked and calumnious address
of the Ist April, 1833, the Legislative Council, as recomposed by the pres-
ent Governor- in -chief, has proved how little community of interest it
has with the colony, by the fact, that out of sixty- four Bills which were
sent up to it. twenty-eight were rejected by it, or amended in a manner
contrary to their spirit and essence; that die same unanimity which had
attended the passing of the greater part of these Bills in the Assembly*
accompanied their rejection by the Legislative Council, and that an oppo-
sition so violent, shows clearly that the provincial executive and tiie
council of its choice, in league together against the representative bo'dy.
do not, or will not, consider it as the failliful interpreter and the equit-
able judge of the wants and wishes of the people, nor as fit to propose
laws conformable to the public will; and that under such circumstances,
it would have been the duty of the head of the Executive to appeal to
the people, by dissolving the Provincial Parliament, had there been any
analogy between the institutions of Great Britain and those of this
province.

33. Resolved, That the Legislative Council as recomposed by the
present Govemor-in-chief, must be, considered as embodying the senti-
ments of the colonial executive Government, and that from the moment
it was so recomposed, the two authorities seem to have bound and leagued
themselves together for the purpose of proclaiming principles subversive
of all harmony in the province, and of governing and domineering in a
spirit of blind and invidious national antipathy.

34. Resolved, That the address voted unanimously on the 1st April.
1833, by the Legislative Council, as recomposed by the present Governor-
in-chief, was concurred in by the Honourable the Chief Justice of the
province, Jonathan Sewell, to whom the Right Honourable Lord Viscount

1791-1840] Constitutional Documents of Canada, 373

Goderich, in his Despatch, communicated to the House on the 25th No-
vember, 1831, recommended "a cautious abstinence from all proceedings
by which he might be involv^ in any contention of a party nature;" by
John Hale, the present Receiver-General, who, in violation of the laws,
and of the trust reposed in him, and upon illegal warrants issued by the
Governor, has paid away large sums of the public money, without any
regard to the obedience whidi is always due to the law; by Sir John
Caldwell, baronet, the late Receiver-General, a peculator, who has been
condemned to pay nearly i 100,000, to reimburse a like sum levied upon
the people of this province, and granted by law to His Majesty, His heirs
and successors, for the public use of the province, and tor the support
of His Majesty's Government therein, and who has diverted the greater
part of the said sum from the purposes to which it was destined, and
appropriated it to his private use; by Mathew Bell, a grantee of the
Crown, who has been unduly and illegally favoured by the Executive, in
the lease of the forges of St. Maurice, in the grant of large tracts of
waste lands, and in the lease of large tracts of land formerly belonging
to the order of Jesuits; by John Stewart, an Executive Councillor, com-
missioner of the Jesuits' estates, and the incumbent of other lucrative
offices: all of whom are placed by their pecuniary and personal interests
under the influence of the Executive; and by the Honourable George
Moffatt, Peter M'Gill, John Molson, Horatio Gates, Robert Jones, and
James Baxter, all of whom, as well as those before mentioned, were, with
two exceptions, bom out of the country, and all of whom, except one,
who for a number of years was a member of the /\ssembly, and has ex-
tensive landed property, are but slightly qualified in that respect, and had
not been sufficiently engaged in public life to afford a presumption that
they were fit to perform the functions of legislators for life; and by
Antoine Gaspard Couillard, the only native of the country, of French
origin, who stooped to concur in the address, and who also had never
been engaged in public life, and is but very moderately qualified with
respect to real property, and who, after his appointment to the council,
and before the said 1st of April, rendered himself dependent on the
Executive by soliciting a paltry and subordinate place of profit

35. Resolved, That the said address, voted by seven councillors,
under the influence of the present head of the Executive, and b^ five
others of his appointment, (one only of the six others who voted it, the
Hon. George Moffatt, having been appointed under his predecessor,) is
the work of the present administration of this province, the expression
of its sentiments, the key to its acts, and the proclamation of the ini-
quitous and arbitrary principles, which are to form its rule of conduct
for the future.

36. Resolved, That the said address is not less injurious to the small
number of Members of the L^islative Council who are independent, and
attached to the interests and honour of the country, who have been Mem-
bers of the Assembly, and are known as having partaken its opinions and
seconded its efforts, to obtain for it the entire control and disposal of iht
public revenue; as having approved the wholesome, constitutional, and
not, as styled by the Council, the darinff step taken by this House of
praying by address to His Majesty that the Legislative Council might be
rendered elective; as condemning the scheme for the creation of an ex-
tensive monopoly of lands in favour of speculators residing out of the
country; as believing that they could not have been appointed to the
Council with a view to increase the constitutional weight and efficacy of
that body, in which they find themselves opposed to a majority hostUe
to their principles and their country; as believing that the interests and
wishes of the people are faithfully represented by their representatives,
and that the connexion between this country and the parent state, will
be durable in proportion to the direct influence exercised by the people in
the enactment of laws adapted to ensure their welfare; and as being of
opinion, that His Majesty's subjects recently settled in this country will
share in all the advantages of the free institutions and of the improve-

374 ConstiiutiofuU Documents of Canada. [1791-1840

ments which would be rapidly developed, if, by means of the extension
of the elective system, the administration were prevented from creating
a monopoly of power and profit in favour of the minority who are of one
orig^in, and to the prejudice of the majority who are of another, and from
buying, corrupting and exciting a portion of this minority in such a
manner as to give to all discussions of local interest the alarming char-
acter of strife and national antipathy; and that the independent Members
of the Legislative Council, indubitably convinced of the tendency of that
body, and undeceived as to the motives which led to their appointment as
Members of it, now refrain from attending the sittings of the said
Council, in which they despair of being able to e£Eect anything for the
good of the country.

37. Resolved, That the political world in Europe is at this moment
agitated by two great parties, who in di£Eerent countries appear under the
several names of serviles, royalists, tories and conservatives on the one
side, and of liberals, constitutionals, republicans, whigs, reformers, radi-
cals and similar appellations on the other; that the former party is, on
this continent, without any weight or influence except what it derives
from its European supporters, and from a trifling number of persons
who become their dependents for the sake of personal gain, and from
others, who from age or habit cling to opinions which are not partaken
by any numerous class; while the second party overspreads all America.
And that the Colonial Secretary is mistaken if he believes that the ex-
clusion of a few salaried officers from the Legislative Council could suffice
to make it harmonize with the wants, wishes and opinions of the people,
as long as the Colonial Governors retain the power of preserving in it a
majority of members rendered servile by their antipathy to every liberal
idea.

38. Resolved, That this vicious system, which has been carefully
maintained, has given to the L^islative Council a greater character oi
animosity to the country than it had at any former period, and is as
contrary to the wishes of Parliament, as that which, in order to resist
the wishes of the people of England for the Parliamentary Reform, should
have called into the House of Lords a number of men notorious for their
factious and violent opposition to that great measure.

39. Resolved, That the Legislative Council, representing merely the
personal opinions of certain members of a body so strongly accused at a
lecent period by the people of this Province, and so justly censured by
the Report of the Committee of the House of Commons, is not an au-
thority competent to demand alterations in the constitutional Act of the
31st 6eo. 3, c. 31 > and that the said Act ought not to be and cannot be
altered, except at such time and in such manner as may be wished by
the people of this Province, whose sentiments this House is alone com-
petent to represent; that no interference on the part of the British
Legislature with the laws and constitution of this province, which should
not be founded on the wishes of the people, freely expressed either through
this House or in any other constitutional manner, could in anywise tend
to settle any of the difficulties which exist in this province, but, on the
contrary, would only aggravate them and prolong their continuance.

40. Resolved, That this House expects from the justice of the Par-
liament of the United Kingdom, that no measure of the nature afore-
said, founded on the false representations of the Legislative Council and
of the members and tools of the Colonial Administration, all interested
in perpetuating existing abuses, will be adopted to the prejudice of the
rights, liberties and welfare of the people of this province; but that on
the contrary, the Imperial Legislature will comply with the wishes of
the people and of this House, and will provide the most effectual remedy
for all evils present and future, either by rendering the Legislative Council
elective in die manner mentioned in the Address of this House to His
most gracious Majesty, of the 20th Mardi^ 1833, or by enabling the people
to express still more directly their opinions as to the measures to be
adopted in that behalf, and with regard to sudh other modifications of

1791-1840] Constitutional Documents of Canada. 375

the constitution as the wants of the people and the interests of His Ma-
jesty's Government in the province may require; and that this House
perseveres in the said Address.

41. Resolved, That His Majesty's Secretary of State for the Colonial
Department has acknowledged in his despatches, that it has frequently
been admitted that the people of Canada ought to see nothing in the in-
stitutions of the neighbourmg States which they could regard with envy,
and that he has yet to learn that any such feeling now exists among His
Majesty's subjects in Canada; to which this House answers, that the
neighbouring States have a form of government very fit to prevent abuses
of power, and very effective in repressing them; tluit the reverse of this
order of things has always prevailed in Canada under the present form
of government; that there exists in the neighbouring States a stronger
and more general attachment to the national institutions than in any other
country, and that there exists also in those States a guarantee for the
progressive advance of their political institutions towards perfection, in
the revision of the same at short and determinate intervals, by conven-
tions of the people, in order that they may without any shock or violence
be adapted to the actual state of things.

42. Resolved, That it was in consequence of a correct idea of the
state of the country, and of society generally in America, that the Com-
mittee of the House of Commons asked, whether there was not in the
two Canadas a growing inclination to see the institutions become more
and more popular, and in that respect more and more like those of the
United States; and that John Neilson, esquire, one of the agents sent
from this country, answered, that the fondness for popular institutions
had made great progress in the two Canadas; and that the same agent
was asked, whether he did not think that it would be wise that the object
of every change made in the institutions of the province should be to
comply more and more with the wishes of the people, and to render the
said institutions extremely popular : to which question this House for and
in the name of the people whom it represents, answers, solemnly and de-
liberately, "Yes, it would be wise; it would be excellent"

43. Resolved, That the constitution and form of government which
would best suit this colony are not to be sought solely in the analogies
offered by the institutions of Great Britain, where the state of society is
altogether different from our own; and that it would be wise to turn to
profit by the information to be gained by observing the effects produced
by the different and infinitely varied constitutions which the Kings and
Parliament of England have granted to the several plantations and
colonies in America, and by studying the way in whidi virtuous and
enlightened men have modified such colonial institutions when it could be
done with the assent of the parties interested.

44. Resolved, That the unanimous consent with which all the Ameri-
can States have adopted and extended the elective systnem, shows that it
is adapted to the wishes, manners and social state of the inhabitants of
this continent; that this system prevails equally among those of British
and those of Spanish origin, although the latter, during the continuance
of their coloniad state, had been under the calamitous yoke of ignorance
and absolutism; and that we do not hesitate to ask from a Prince of the
House of Brunswick, and a reformed Parliament, all the freedom and
political powers which the Princes of the House of Stuart and thtir Par-
liaments granted to the most favoured of the plantations formed at a
period when such grants must have been less favourably regarded than
they would now be.

45. Resolved, That it was not the best and most free systems oi
colonial government which tended most to hasten the independence of
the old fiiglish colonies; since the Province of New York, in which the
mstitutions were most monarchical in the sense which that word appears
to bear in the despatch of the Colonial Secretary, was the first to refuse
obedience to an Act of the Parliament of Great Britain; and that the
colonies of Connecticut and Rhode Island, which though closely and affec*

376 Constitutional Documents of Canada. [1791-1840

lionately connected with the mother country for a long course of years,
enjoyed constitutions purely democratic, were the last to enter into a
confederation rendered necessary by the conduct of bad servants of the
Crown, who called in the supreme authority of the Parliament, and the
British Constitution to aid them to govern arbitrarily, listening rather to
the governors and their advisers than to the people and their representa-
tives, and shielding with their protection those who consumed the taxes
rather than those who paid them.

46. Resolved, That with a view to the introduction of whatever the
mstitutions of the neighbouring States offered that was good and ap-
plicable to the state of the province, this House had among other meas-
ures passed, during many years, a Bill founded on the principle of pro-
portioning arithmetically the number of Representatives to the popula-
tion of each place represented; and that if by the pressure of circum-
stances and the urgent necessity which existed that the number of Repre-
sentatives should be increased, it has been compelled to assent to amend-
ments which violate that principle, by giving to several counties contain-
ing a population of little more than 4,000 souls, the same number of
Representatives as to several others of which the population is five times
as great, this disproportion is in the opinion of this House an act of
injustice, for which it ought to seek a remedy: and that in new countries
where the population increases rapidly, and tends to create new settle-
ments, it is wise and equitable that by a frequent and periodical census,
such increase, and the manner in which it is distributed, should be ascer-
tained, principally for the purpose of settling the representation of the
province on an equitable basis.

47. Resolved, That the fidelity of the people, and the protection of
the government, are co-relative obligations, of which the one cannot long
subsist without the other; that by reason of the defects which exist in
the laws and constitution of this province, and of the manner in which
those laws and that constitution have been administered, the people of
this province are not sufficiently protected in their lives, their property
and their honour; and that the long series of acts of injustice and op-
pression, of which they have to complain, have increased with idarming
rapidity in violence and in number under the present administration.

48. Resolved, That in the midst of these disorders and sufferings,
this House and the people whom it represents, had always cheriiJied the
hope and expressed their faith that His Majesty's Government in Eng-
land did not knowingly and wilfully participate in the politiod immorality
of its colonial agents and officers; and that it is with astonishment and

frief that they have seen in the extract from the despatches of the Colonial
ecretary, communicated to this House by the Govemor-in-chief during
the present session, that one at least of the members of His Majes^s
Government entertains towards them feelings of prejudice and animosity,
and inclines to favour plans of oppression and revenge, ill adapted to
change a system of abuses, the continuance of which would altogether
discourage the people, extinguish in them the legitimate hope of happiness
which, as British subjects, they entertained, and would leave them only
the hard alternative of submitting to an ignominious bondage, or of see-
ing those ties endangered which unite them to the moUier country.

49. Resolved, That this House and the people whom it represents
do not wish or intend to convey any threat; but that, relying as they do
upon the principles of law and justice, they are and ought to be poli-
tically strong enough not to be exposed to receive insult from any man
whomsoever, or bound to suffer it in silence; that the style of the said
extracts from the despatches of the Colonial Secretary, as communicated
to this House, is insulting and inconsiderate to such a d^ree that no
legally constituted body, although its functions were infinitely subordinate
to those of legislation, could or ought to tolerate them; tiiat no similar
example can be found even in the despatches of those of his predecessors
in office least favourable to the rights of ^e colonies; that the tenor of
the said despatches is incompatible with the rights and privileges of this

1791-1840] Constitutional Documents of Canada. 377

House, which ought not to be called in question or defined by the Colonial
ScMoretary, but which, as occasion may require, will be successively pro-
mulgated and enforced by this House.

50. Resolved, That with regard to the following expressions in one
of the said Despatches, "should events unhappily force upon Parliament
the exercise of its supreme authority to compose the internal dissension
of the Colonies, it would be my object and my duty, as a servant of the
Crown, to submit to Parliament such modifications of the Charter of the
Canadas as should tend, not to the introduction of institutions inconsistent
with monarchical government, but to maintaining and strengthening the
connexion with the mother country, by a close adherence to the spirit
of the British constitution, and by preserving in their proper place and
within their due limits the mutual rights and privileges of all classes of
His Majesty's subjects';" — ^if the^ are to be understood as containing a
threat to introduce into the constitution any other modifications than such
as are asked for by the majority of the people of this province, whose
sentiments cannot be legitimately expressed by any other authority than
its representatives, this House would esteem itself wanting in candour to
the people of England, if it hesitated to call their attention to the fact
that in less than 20 years the population of the United States of America
will be as great or greater than that of Great Britain, and that of British
America will be as great or greater than that of the former English
Colonies was when the latter deemed that the time was come to decide
that the inappreciable advantage of governing themselves instead of being
governed, ought to engage them to repudiate a system of Colonial Gov-
ernment which was, generally speaking, much better than that of British
America now is.

51. Resolved, That the approbation expressed by the Colonial Secre-
tary, in his said despatch, of the present composition of the Legislative
Council, whose acts, since its pretended reform, have been marked by
party spirit and by invidious national distinctions and preferences, is a
subject of just alarm to His Majesty's Canadian subjects in general, and
more particularly to the great majority of them, who have not yielded
at any time to any other class of the inhabitants of this province in tiieir
attachment to His Majesty's Government, in their love of peace and order,
in respect for the laws, and in their wish to effect that union among the
whole people which is so much to be desired, to the end that all may
enjoy freely and equally the rights and advantages of Britjsh subjects,
and of the institutions which have been guaranteed to and are dear to
the cotmtry; that the distinctions and preferences aforesaid have almost
constantly been used and taken advantage of by the Colonial Administra-
tion of this Province, and the majority of the Legislative Councillors,
Executive Councillors, Judges and other functionaries dependent upon it;
and that nothing but the spirit of union among the several classes of the
people, and their conviction that their interests are the same, could have
prevented collisions incompatible with the prosperity and safety of the
province.

52. Resolved, That since a circumstance, which did not depend upon
the choice of the majority of the people, their French origin and their
use of the French language, has been made by the colonial authorities a
pretext for abuse, for exclusion, for political inferiority, for a separation
of rights and interests; this House now appeals to the justice of His
Majesty's Government and of Parliament, and to the honour of the people
of England; that the majority of the inhabitants of this country are in
nowise disposed to repudiate any one of the advantages diey derive from
their origin and from their descent from the French nation, which, with
legard to the progress of which it has been the cause in civilization, in
the sciences, in letters, and the arts, has never been behind the British
nation, and is now the worthy rival of the latter in the advancement of
the cause of liberty and of the science of Government; from which this
country derives the greater portion of its civil and ecclesiastical law, and

' See No. CXIII.

378 Constitutional Documents of Canada. [1791-1840

of its scholastic and charitable institutions, and of die religion, language,
habits, manners and customs of the great majority of its inhabitants.

53. Resolved, That our fellow-subjects, of British origin, in this pro-
vince, came to settle themselves in a country, "the inhabitants whereof,
professing the religion of the Church of Rome, enjoyed an established
form of constitution and system of laws, by which their persons and their
property had been protected, governed and ordered, during a long series
of years, from the first establishment of the province of Canada;" that,
prompted by these considerations, and guided by the rules of justice and
of the law of nations, the British Parliament enacted that, "in all mat-
ters of controversy, relative to property and civil rights, resort should
be had to the laws of Canada;" that when Parliament afterwards de-
parted from the principle thus recognised, firstly, by the introduction of
the English criminal law, and afterwards by that of the representative
system, with all the constitutional and parliamentary law necessary to its
perfect action, it did so in conformity to the sufficiently expressed wish
of the Canadian people; and that every attempt on the part of public
functionaries or of other persons (who on coming to setde in the pro-
vince, made their condition their own voluntary act) against the existence
of any portion of the laws and institutions peculiar to the country, and
any preponderance given to such persons in the Legislative and Executive
Councils, in the courts of law, or in other departments, are contrary to
the engagements of the British Parliament, and to the rights guaranteed
to His Majesty's Canadian subjects, on the faith of the national honour
of England, and on that of capitulations and treaties.

54. Resolved, That any combination, whether effected by means of
Acts of the British Parliament, obtained in contrave!>'Jon to its former
engagements, or by means of the partial and corrupi administration of
the present constitution and system of law, would be *« violation of lliose
rights, and would, as long as it should exist, be obeyed by the people
from motives of fear and constraint, and not from choice and affection;
that the conduct of the Colonial Administrations and of their agents and
instruments in this colony, has for the most part been of a nature unjustly
to create apprehensions as to the views of the people and government of
the mother country, and to endanger the confidence and content of the
inhabitants of this province, which can only be secured by equal laws, and
by the observance of equal justice, as the rule of conduct in all the de-
partments of the Government

55. Resolved, That whether the number of that class of His Ma-
jesty's subjects in this province, who are of British origin, be that men-
tioned in the said address of the Legislative Council, or whether (as the
truth is) it amounts to less than half that number, the wishes and inter-
ests of the majority of them are common to them and to their fellow-
subjects of French origin, and speaking the French language; that the
one class love the country of their birth, the other that of their adoption ;
that the greater portion of the latter have acknowledged the generally
beneficial tendency of the laws and institutions of the country, and have
laboured, in concert with the former, to introduce into them gradually,
and by the authority of the Provincial Parliament, the improvements of
which they have, from time to time, appeared susceptible, and have resisted
the confusion which it has been endeavoured to introduce into them in
favour of schemes of monopoly and abuse, and that all without distinc-
tion wish anxiously for an impartial and protecting (Government

56. Resohred, That in addition to administrative and judicial abuses
which have had an injurious effect upon the public welfare and con-
fidence, attempts have been made, from time to time, to induce the Par-
liament of the United Kingdom, by deceiving its justice and abusing its
benevolent intentions, to adopt measures calculated to bring about com-
binations of the nature above mentioned, and to pass Acts of internal
legislation for this province, having the same tendency, and with regard
to which the people of the cotmtry had not been consulted; that, un-
happily, the attempts to obtain the passing of some of these measures were

1791-1840] Constitutional Documents of Canada. 379

successful, especially that of the Act of the 6 Geo. 4, c 59, commonly
called the 'Tenures Act," the repeal of which was unanimously demanded
by all classes of the people, without distinction, through their represen-
tatives, a very short time after the number of the latter was increased;
and that this House has not yet^een able to obtain from His Majesty's
Representative in this province, or from any other source, any informa-
tion as to the views of His Majesty's Government in England with regard
to the repeal of the said Act

57. Resolved, That the object^ of the said Act was, according to the
benevolent intentions of Parliament, and as the title of tiie Act sets forth,
the extinction of feudal and seigniorial rights and dues on lands held en
fief and d cens in this province, with the intention of favouring the great
body of the inhabitants of the country, and protecting them against the
said dues, which were regarded as burdensome; but that the provisions of
the said Act, far from having the effect aforesaid, afford facilities to
seigniors to become, in opposition to the interests of their censitaires, the
absolute proprietors of the extensive tracts of unconceded lands which,
by the law of the country, they held only for the benefit of the inhabi-
tants thereof, to whom they were bound to concede them in consideration
of certain limited dues; that the said Act, if generally acted upon, would
shut out the mass of the permanent inhabitants of the CQuntry from the
vacant lands in the seigniories, while at the same time they have been
constantly prevented from settling on the waste lands of the Crown on
easy and liberal terms, and under a tenure adapted to the laws of the
country, by the partial, secret and vicious manner in which the Crown
Land department has Seen managed, and by the provisions of the Act
aforesaid, with regard to the laws applicable to die lands in question;
and that the application made by certain seigniors for a change of tenure,
under the authority of the said Act, appear to prove the correctness of
the view which this House has taken of its practical effect

58. Resolved, That it was only in consequence of an erroneous sup-
position that feudal charges were inherent in the law of this country,
as far as the possession and transmission of real property and the tenures
recognised by that law were concerned, that it was enacted in the said
Act that the lands with regard to which a change of tenure should be
effected, should thereafter be held under the tenure of free and common
soccage; that the seigniorial charges have been fotmd burdensome in cer-
tain cases, chiefly by reason of the want of adequate means of obtaining
the interference of the Colonial Government and of the courts of law,
to enforce the ancient law of the country in that behalf, and that the
Provincial Legislature was, moreover, fully competent to pass laws pro-
viding for the redemption of the said charges in a manner which should
be in accordance with the interests of all parties, and for 'the introduc-
tion of the free tenures recognised by the laws of the country; that the
House of Assembly has been repeatedly occupied, and now is occupied
about this important subject; but that the said Tenures Act, insufficient
of itself to effect equitably the purpose for which it was passed, is of a
nature to embarrass and create obstacles to the effectual measures which
the legislature of the country, with a full knowledge of the subject, might
be disposed to adopt; and tiiat the application thus made (to the exclu-
sion of the Provincial Legislature) to the Parliament of the United
Kingdom, which was far less competent to make equitable enactments on
a subject so complicated in its nature, could only have been made with
a view to unlawful speculations and the subversion of the laws of the
country.

59. Resolved, That, independently of its many other serious imper-
fections, the said Act does not appear to have been founded on a suffi-
cient knowledge of the laws which govern persons and property in this
cotmtry, when it declares the laws of Great Britain to be applicable to
certain incidents to real property therein enumerated; and that it has
only served to augment the confusion and doubt which had prevailed in

^ Cf. Lucas, JLord Durham'^ Report, I, p. 16U

380 Constitutional Documents of Canada. [1791-1840

the courts of law, and in private transactions with regard to the law
which applied to lands previously granted in free and common soccage.

60. Resolved, That the provision of the said Act which has excited
the greatest alarm, and which is most at variance with the rights of the
people of the country, and with those of the Provincial Parliament, is
that which enacts that lands previously held en fief oi' en censine shall,
after a change of tenure shall have been effected with regard to them, be
held in free and common soccage, and thereby become subject to the laws
of Great Britain, under the several circumstances therein mentioned and
enumerated; that besides being insufficient in itself, this provision is of a
nature to bring into collision, in the old settlements, at multiplied points
of contiguity, two opposite systems of laws, one of which is entirely un-
known to this country, in which it is impossible to carry it into effect ; that
from the feeling manifested by the colonial authorities and their partisans
towards the inhabitants of the country, the latter have just reason to fear
that the enactment in question is only the prelude to the final subversion,
by Acs of Parliament of Great Britain,, fraudulently obtained in violation
of its former engagements, of the system of laws by which the persons
and property of the people of this province were so long happily governed.

61. Resolved, That the inhabitants of this country have just reason
to fear that the claims made to the property of the seminary of St Sul-
pice, at Montreal, are attributable to the desire of the colonial adminis-
tration, and its agents and tools, to hasten this deplorable state of things;
and that His Majesty's Government in England would, by re-assuring His
faithful subjects on this point, dissipate the alarm felt by the clergy, and
by the whole people without distinction, and merit their sincere gratitude.

62. Resolved, That it is the duty of this House to persist in asking
for the absolute repeal of the said Tenures Act, and until such repeal
shall be effected, to propose to the other branches of the Provincial Par«
liament such measures as may be adapted to weaken the pernicious effects
of the said Act.

63. Resolved, That this House has learned with regret^ from one of
the said despatches of the Colonial Secretary, that His Majesty has been
advised to interfere in a matter which concerns the privil^es of this
House; that in the case there alluded to, this House exercised a privilege
solenmly established by the House of Commons, before the principle on
which it rests became the law of the land; that this privil^e is essential
to the independence of this House, and to the freedom of its votes and
proceedings; that the resolutions passed by this House, on the 15th of
February, 1831, are constitutional and well-founded, and are supported by
the example of the Commons of Great Britain; that this House has re-
peatedly passed bills for giving effect to the said principle, but that these
bills failed to become law, at first from the obstacles opposed to them
in another branch of the Provincial Legislature, and subsequendy by rea-
son of the reservation of the last of the said bills for the signification of
His Majesty's pleasure in England, whence it has not yet been sent back;
that until some bill to the same effect shall become law, this House per-
sists in the said resolutions; and that the refusal of his Excellency, the
present Governor-in-chief, to sign a writ for the election of a knight
representative for the county of Montreal, in the place of Dominique
Mondelet,^ esquire, whose seat had been declared vacant, is a grievance
of which this House is entitled to obtain the redress, and one which would
alone have sufficed to put an end to all intercourse between it and the
Colonial Executive, if the circumstances of the country had not offered
an infinite number of other abuses and grievances against which it is
urgently necessary to remonstrate.

64. Resolved, That the claims which have for many years been set
up by^ the Executive Government to that control over and power of ap-
propriating a great portion of the revenues levied in this province, which
belong of right to this House, are contrary to die rights and to the con-

^ For the hiBtoir* >ce Christie, III, pp. 448, 498. The despatch referred to in this
"RcMiltttion" is in Ibid, pp.. 524 #.

1791-1840] ConstituHofud Documents of Canada, 381

stitution of the country; and that with regard to the said daims, this
House persists in the declarations it has heretofore made.

65. Resolved, That the said claims of the Executive have been vague
and varying; that the documents relative to the said claims, and the ac-
counts and estimates of expenses laid before this House, have likewise
been varying and irregular, and insufficient to enable this House to proceed
with a full understanding of the subject on the matters to which they
related; that important heads of the public revenue of the Province, col-
lected either under the provisions of the law or under arbitrary regula-
lions, made by the Executive, have been omitted in the said accounts;
that numerous items have been paid out of the public revenue without the
authority of this House, or any acknowledgment of its control over them,
as salaries for sinecure offices, which are not recognized by this House,
and even for other objects for which, after mature deliberation, it had
not deemed it expedient to appropriate any portion of the public revenue ;
and that no accounts of the sums so expended have been laid before this
House.

66. Resolved; That the Executive Government has endeavoured by
means of the arbitrary regulations aforesaid, and particularly by the sale
of the waste lands of the Crown, and of the timber on the same, to create
for itself out of the revenue which this House only has the right of ap-
propriating, resources independent of the control of the representatives
of the people; and that the result has been a diminution of the whole-
some influence which the people have constitutionally the right of exer-
cising over the administrative branch of the Government, and over the
spirit and tendency of its measures.

67. Resolved, That this House having, from time to time, with a
view to proceed by bill, to restore r^ularity to the financial system of
the province, and to provide, for the expenses of the administration of
justice and of His Majesty's Civil Government therein, asked the Pro-
vincial Government by address for divers documents and accounts relating
to financial matters, and to abuses connected with them', has met with
repeated refusals, more especially during the present session and the pre-
ceding one; that divers subordinate public functionaries, summoned to
appear before committees of this House to give information on the said
subject, have refused to do so in pursuance of the said claim set up
by the Provincial Administrations to withdraw a large portion of the
public income and expenditure from the control and even from the knowl-
edge of this House ; that during the present session one of the said subor-
dinate functionaries of the Executive being called upon to produce the
originals of sundry roisters of warrants and reports, which it was im-
portant to this House to cause to be examined, insisted on being present
at the deliberations of the committee appointed by the House for that
purpose; and that the head of the administration being informed of the
fact, refrained from interfering, although in conformity to Parliamentary
usage, this House had pledged itself that the said documents should be
letumed, and although the Govemor-in-chief had himself promised com-
munication of them.

68. Resolved, That the result of the secret and unlawful distribution
of a large portion of the public revenue of the province has been, that
the Executive Government has always, except with regard to appropria-
tions for pbjects of a local nature, considered itself bound to account for
the public money to the Lords Commissioners of the Treasury in Eng-
land, and not to this House, nor according to its votes, or even in con-
formity to the laws passed by the Provincial Legislature; and that the
accounts and statements laid before this House from time to time have
never assumed the shape of a regular system of balanced accounts, but
have been drawn up, one after another, with such alterations and irre-
gularities as it pleased the administration of the day to introduce into
them, from the accounts kept with the Lords of the Treasury, in which
the whole public money received was included, as well as all the items

382 Constitutional Documents of Canada. [1791-1840

of expenditure, whether authorized or unauthorized by the Provincial
L^islature.

69. Resolved, That the pretensions and abuses aforesaid have taken
away from this House even the shadow of control over the public revenue
of die province, and have rendered it impossible for it to ascertain at
any time the amount of revenue collected, the disposable amount of the
same, and the sums required for the public service; and that the House
having during many years passed bills, of which the models are to be
found in the Statute-book of Great Britain, to establish a regular system
of accountability and responsibility in the department connected with the
receipt and expenditure of the revenue, these bills have failed in the
Legislative G>uncil.

70. Resolved, That since the last session of the Provincial Parlia-
ment, the Govemor-in-chief of this Province, and the members of his
Executive Government, relying on the pretensions above mentioned, have
without any lawful authority paid large sums out of the public revenue,
subject to die control of this House; and that the said sums were divided
according to their pleasure, and even in contradiction to the votes of this
House, as incorporated in the Supply Bill passed by it during the last
session, and rejected by the Legislative Council.

71. Resolved, That this House will hold responsible for all monies
which have been, or may hereafter be paid, otherwise than under the au-
thority of an Act of the Legislature, or upon an address of this House,
out of the public revenue of the province, all those who may have author-
ized such payments, or participated therein, until the said sums shall have
been reimbursed, or a bill or bills of indemnity freely passed by this House
shall have become law.

72. Resolved, That the course adopted by this House in the Supply
Bill, passed during the last session, of attaching certain conditions to cer-
tain votes, for the purpose of preventing the accumulation of incompatible
offices in the same persons, and of obtaming the redress of certain abuses
and grievances, is wise and constitutional, and has frequently been adopted
by the House of Commons, under analogous circumstances; and that if
the Commons of England do not now so frequently recur to it, it is be-
cause they have happily obtained the entire control of the revenue of the
nation, and because the respect shown to their opinions with regard to
the redress of grievances and abuses, by the other constituted authorities,
has regulated the working of the constitution in a manner equally adapted
to give stability to His Majesty's Government, and to protect the interests
of the people.

73. Resolved, That it was anciently the practice of the House of
Commons to withhold supplies until grievances were redressed; and that
in following this course in the present conjuncture, we are warranted in
our proceeding, as well by the most approved precedents, as by the spirit
of the constitution itself.

74. Resolved, That if hereafter, when the redress of all grievances
and abuses shall have been effected, this House should deem it fit and
expedient to grant supplies, it ought not to do so otherwise than in the
manner mentioned in its fifth and sixth resolution of the 16 March, 1833,
and by appropriating by its votes in an especial manner, and in the order
in which they are enumerated in the said resolutions, the full amount
of those heads of revenue, to the right of appropriating which claims
have been set up by the Executive Government

75. Resolved, That the number of the inhabitants of the country
being about 600,000, those of French origin are about 525,000, and those
of British or other origin 75,000; and that the establishment of the civil
government of Lower Canada for the year 1832, according to the yearly
returns made by the Provincial Administration, for the information of
the British Parliament, contained the names of 157 officers and others
receiving salaries, who are apparently of British or foreign origin, and
the names of 47 who are apparently natives of the country, of French
origin: that this statement does not exhibit the whole disproportion

1791-1840] Constitutional Documents of Canada, 383

which exists in the distribution of the public money and power, the latter
class being for the most part appointed to the inferior and less lucrative
offices, and most frequently only obtaining even these by becoming- the
dependents of those who hold the higher and more lucrative offices; that
the accumulation of many of the best paid and most influential, and at
the same time incompatible offices, in the same person, which is forbidden
by the laws and by sound policy, exists especially for the benefit of the
f oriner class ; and that two-thirds of the persons included in the last com-
mission of the peace issued in the province are apparently of British or
foreign origin, and one-third only of French origin.

76. Resolved, That this partial and abusive practice of bestowing the
great majority of official places in the province on those only who are
least connected with its permanent interests, and with the mass of its
inhabitants^ has been most especially remarkable in the judicial depart-
ment, the judges for the three great districts having, with the exception
of one only in each, been systematically chosen from that class of persons,
who, being bom out of the country, are the least versed in its laws, and
in the language and usages of the majority of its inhabitants; that the
result of their intermeddling in the politics of the country, of their con-
nexion with the Members of the Colonial Administration, and of their
prejudices in favour of institutions foreign to and at variance with those
of the country, is that the majority of the said judges have introduced
great irregularity into the general system of our jurisprudence, by neglect-
ing to ground dieir decisions on its recognized principles; and that the
claim laid by the said judges to the power of regulating the forms of
legral proceedings in a manner contrary to the laws, and without the
interference of the legislature, has frequently been extended to the fun-
damental rules of the law and of practice ; and that in consequence of the
same system, the administration of the criminal law is partial and un-
certain, and such as to afford but little protection to the subject, and has
failed to inspire that confidence which ought to be its inseparable com-
panion.

77. Resolved, That in consequence of their connexion with the mem-
bers of the Provincial Administrations, and of their antipathy to the
country^ some of the said judges have, in violation of the laws, attempted
to abolish the use in the courts of law of the language spoken by the
majority of the inhabitants of the country, whidi is necessary to the free
action of the laws, and forms a portion of the usages guaranteed to them
in the most solemn manner by the law of nations and by statutes of the
British Parliament

78. Resolved, That some of the said judges, through partiality for
political purposes, and in violation of the criminal law of England as
established in this country, of their duty and of their oath, have connived
with divers law officers of the Crown, acting in the interest of the Pro-
vincial Administration, to allow the latter to engross and monopolize all
criminal prosecutions of what nature soever, without allowing the private
prosecutor to intervene or be heard, or any advocate to express his opinion
as amicus curiae, when the Crown officers opposed it; that in consequence
of this, numerous prosecutions of a political nature have been brought in
the courts of law by the Crown officers against those whose opinions
were unfavourable to the Administration for the time being; while it was
impossible for the very numerous class of His Majesty's subjects to which
the latter belonged to commence with the slightest confidence an^ prose-
cution against those who, being protected by the Administration, and
having countenanced its acts of violence, had been guilty of crimes or
misdemeanors; that the tribunals aforesaid have, as far as the persons
composing them are concerned, undergone no modification whatever, and
inspire the same fears for the future. .

79. Resolved, That this House, as representing the people of this
province, possesses of right, and has exercised within this province when
occasion has required it, all the powers, privileges and immunities claimed

384 Constitutional Documents of Canada. [1791-1840

and possessed by the Commons House of Parliament in the kingdom of
Great Britain and Ireland.

80. Resolved, That it is one of the undoubted privileges of this
House to send for all persons, papers and records, and to command the
attendance of all persons, civil or military, resident within the province,
as witnesses in all investigations which this House may deem it expedient
to institute; and to require such witnesses to produce all papers and
lecords in their keeping, whenever it shall deem it conducive to the public
good to do so.

81. Resolved, That as the grand inquest of the province, it is the duty
of this House to inquire concerning all grievances, and all circumstances
which may endanger the general welfare of Uie inhabitants of the province,
or be of a nature to excite alarm in them with regard to their lives, their
liberty, and their property, to the end that such representations may be
made to our Most Gracious Sovereign, or such legislative measures intro-
duced, as may lead to the redress of such grievances, or tend to allay such
alarm; and diat far from having a right to impede the exercise of these
rights and privileges, the Govemor-in-chief is deputed by his Sovereign,
is invested with great powers, and receives a large salary, as much for
defending the rights of the subject and facilitating the exercise of the
privileges of this House, and of all constituted bodies, as for maintaining
the prerogatives of the Crown.

82. Resolved, That since the commencement of the present session, a
great number of petitions relating to the infinite variety of objects con-
nected with the public welfare, have been presented to this House, and
many messages and important communications received by it, both from
His Majesty s Government in England and from His Majesty's Provincial
Government; that many bills have been introduced in this House, and
many important inquiries ordered by it, in several of which the Govemor-
in-chief is personally and deeply implicated; that the said petitions from
our constituents, the people of all parts of this province; the said com-
munications from His Majesty's Government in England and from the
Provincial Government; the said bills already introduced or in prepara-
tion; the said inquiries commenced and intended to be diligently prose-
cuted, may and must necessitate the presence of numerous witnesses, the
production of numerous papers, the employment of numerous clerks, mes-
sengers and assistants, and much printing, and lead to inevitable and daily
disbursements, forming the contingent expenses of this House.

83. Resolved, That from the year 1792 to the present, advances had
constantly been made to meet these expenses, on addresses similar to that
presented this year bv this House to the Govemor-in-chief, according to
the practice adopted by the House of Commons; that an address of this
kind is the most solemn vote of credit which this House can pass, and
that almost the whole amount of a sum exceeding £277,000 has been ad-
vanced on such votes by the predecessors of his Excellency the Govemor-
in-chief, and by himself (as he acknowledges by his message^ of the 18th
January, 1834), without any risk having ever been incurred by any other
governor on account of any such advance, although several of them have
had differences, attended by violence and injustice on their part, with the
House of Assembly, and without their apprehending that tiie then next
Parliament would not be disposed to make good the engagements of the
House of Assembly for the time being; and that this refussd of the Gov
craor-in-chief, in the present instance, essentially impedes the despatch
of the business for which the Parliament was called together, is deroga-
tory to the rights and honour of this House, and forms another grievance
for which the present administration of this province is responsible.

84. Resolved, That besides the grievances and abuses before men-
tioned, there exist in this province a great number of others (a part of
which existed before the commencement of the present administration,
which has maintained them, and is the author of a portion of them), with
regard to which this House reserves to itself the right of complaining

> See Chriatle, III, p. 531.

1791-1840] ConsHiutional Documents of Canada. 385

and demanding reparation, and the number of which is too great to allow
of their being enumerated here : that this House points out, as among that
number,

Istly. The vicious composition and the irresponsibility of the Execu-
tive G>uncil, the members of which are at the same time judges of the
Court of Appeals, and the secrecy with which not only the functions,
but even the names of the members of that body have been kept from
the knowledge of this House, when inquiries have been instituted by it
on the subject.

2dly. The exorbitant fees illegally exacted in certain of the public
offices, and in others connected with the judicial department, under regu-
lations made by the Executive Council, by the judges, and by other func-
tionaries usurping the powers of the legislature.

3dly. The practice of illegally calling upon the judges, to give their
opinions secretly on questions which may be afterwards publicly and
contradictorily argued before them; and the opinions themselves so given
by the said judges, as political partizans, in opposition to the laws, but
in favour of the administration for the time being.

4thly. The cumulation of public places and offices in the same per-
sons, and the efforts made by a number of families connected .with the
administration, to perpetuate this state of things for their own advan-
tage, and for the sake of domineering for ever, with interested views and
m the spirit of party, over the people and their representatives.

Sthly/ The intermeddling of members of the Legislative Councils in
the election of the representatives of the people, for the purpose of influ-
encing and controlling them by force, and the selection frequently made
of returning officers for the purpose of securing the same partial and cor-
rupt ends; the interference of the present Govemor-in-chief himself in
the said elections; his approval of the intermeddling of the said legisla-
tive councillors in the said elections; the partiality with which he inter-
vened in the judicial proceedings connected with the said elections, for
the purpose of influencing the said proceedings, in a manner favourable
to the military power and contrary to the independence of the judicial
power; and the applause which, as commander of the forces, he bestowed
upon die sanguinary execution of the citizens by the soldiery.

6thly. The interference of the armed military force at such elec-
tions, through which three peaceable citizens, whose exertions were neces-
sary to the support of their families, and who were strangers to the agi-
tation of the election, were shot dead in the streets ; the applause bestowed
by the Governor-in-chief and Commander of the Forces on the authors
of this sanguinary military execution (who had not been acquitted by a
petty jury) for the firmness and discipline displayed by them on that
occasion.

7thly. The various faulty and partial systems which have been fol-
lowed ever since the passing of the Constitutional Act, with regard to
the mans^ement of the waste lands in this province, and have rendered
it impossible for the great majority of the people of the country to settle
on the said lands; the fraudulent and illegal manner in which, contrary
lo His Majesty's instructions. Governors, Legislative and Executive Coun-
cillors, Judges and subordinate officers have appropriated to themselves
large tracts of the said lands; the monopoly of an extensive portion of
the said lands in the hands of speculators residing in England, with which
the province is now threatened; and the alarm generally felt therein with
regard to the alleged participation of His Majest/s Government in this
scheme, without its having deigned to re-assure his faithful subjects on
this head, or to reply to the humble address to His Majesty adopted by
this House during the last session.

Sthly. The increase of the expenses of the Government without the

authority of the Legislature, and the disproportion of the salaries paid

to public functionaries for the services performed by them, lo the rent

of real property, and to the ordinary income commanded by the exertions

> For the hUtory. see Chrutic, III, ch. XXXII ff.

h. . ^

386 Constitutional Documents of Canada, [1791-1840

of persons possessing talent, industry and economy equal to, or greatei
than those of the said functionaries. ^

9thly. The want of all recourse in the courts of law on the part of
those who have just and legal claims on the Government.

lOthly. The too frequent reservation of bills for the signification of
His Majesty's pleasure, and the neglect of the Colonial-office to consider
such bills, a great number of which have never been sent back to the
province, and some of which have even been returned so late that doubts
may be entertained as to the validity of the sanction given to them; a
circumstance which has introduced irregularity and uncertainty into the
legislation of the province, and is felt by this House as an impediment
to the re-introduction of the bills reserved during the then preceding
session.

llthly. The neglect on the part of the Colonial-office to give any
answer to -certain addresses transmitted by this House on important sub^
jects; the practice followed by the administration of conmdunicating in
an incomplete manner, and by extracts, and frequently without giving
their dates, the despatches received from 'time to time on subjects which
have engaged the attention of this House; and the too frequent refer-
ences to the opinion of His Majesty's Ministers in England, on the part
of the provincial administration, upon points which it is in their power
and within their province to decide.

12thly. The unjust retention of the college at Quebec, which forms
part of iht estates of the late Order of Jesuits, and which from a col-
lege has been transformed into a barrack for soldiers; the renewal of
the lease of a considerable portion of the same estates, by the provincial
executive, in favour of a member of the Legislative Council, since those
estates were returned to the Legislature, and in opposition to the prayer
of this House, and to the known wishes of a great number of His Majestjr's
subjects to obtain lands there, and to settle them; and the refusal of the
said executive to communicate the said lease, and other information on
the subject, to this House.

13thly. The obstacles unjustly opposed by the executive, friendly to
abuses and to ignorance, to the establishment of colleges endowed by
virtuous and disinterested men, for the purpose of meeting ^e growing
desires of the people for the careful education of their children.

14thly. The refusal of justice with regard to the accusations brought
by this House, in the name of the people, against judges, for flagrant
acts of malversation, and for ignorance and violatron of the law.

ISthly. The refusals on the part of the governors, and more espe-
cially of the present Govemor-in-chief, to communicate to this House the
information asked for by it, from time to time, and which it had a right
to obtain, on a great number of subjects connected with the public busi-
ness of the province.

16thly. The refusal of His Majesty's Government to reimburse to
the province the amount for which the late Receiver-general was a de-
faulter, and its n^lect to enforce the recourse which the province was en-
titled to against the property and person of the late Receiver-general

85. Resolved, That the facts mentioned in the foregoing resolutions,
demonstrate that the laws and constitutions of the province have not,
at any period, been administered in a manner more contrary to the in-
terests of His Majesty's Government, and to the rights of the people of
this province, than under the present administration, and render it neces-
sary that his Excellency Matthew Lord Aylmer, of Balrath, the present
Governor-in-chief of this province, be formally accused by this House,
of having, while acting as Governor, in contradiction to the wishes of the
Imperial Parliament, and to the instructions he may have received, and
against the honour and dignity of the Crown, and the rights and privi-
leges of this House and the people whom it represents, so recomposed
the' Legislative Council as to augment the dissensions which rend this
colony; of having seriously impeded the labours of this House, acting
as the grand inquest of the country; of having disposed of the public

1791-1840] Constitutional Documents of Canada. 387

revenae of the province, against the consent of the Representatives oi
the people, and in violation of the law and constitution ; of having main-
tained existing abuses, and created new ones; of having refused to sign
a writ for the election of a representative to fill a vacancy which had
happened in this House,' and to complete the number of representatives
established by law for this province; and that this House expects from
the honour, patriotism and justice of the reformed Parliament of the
United Kingdom, that the Commons of the said Parliament will bring
impeachments, and will support such impeachments before the House of
Lords against the said Matthew Lord Aylmer, for his illegal, unjust and
unconstitutional administration of the government of this province; and
against such of the wicked and perverse advisers who have misled him,
as this House may hereafter accuse, if there be no means of obtaining
justice against them in the province, or at the hands of His Majesty's
Executive Government in England.

86. Resolved, That this House hopes and believes, that the inde-
pendent members of both Houses of the Parliament of the United King-
dom will be disposed, both from inclination and from a sense of duty,
to support the accusations brought by this House, to watch over the pre-
servation of its rights and privileges which have been so frequently and
violently attacked, more especially by the present administration; and so
to act, that the people of this province may not be forced by oppression
to regret their dependence on the British Empire, and to seek elsewhere
a remedy for their afflictions.

87. Resolved, That this House learned, with gratitude, that Daniel
0'G>nnell, Esq., had given notice in the House of Commons in July last,
that during the present Session of the Imperial Parliament, he would
call its attention to the necessity of reforming the Legislative and Execu-
tive Councils in the two Canadas; and that the interest thus shown for
our own fate by him whom the gratitude and blessings of his country-
men have, with the applause of the whole civilized world, proclaimed
Great and Liberator, and of whom our fellow-countrymen entertain
corresponding sentiments, keeps alive in us the hope that through the
goodness of our cause and the services of such a friend, the British Par-
liament will not permit a minister, deceived by the interested represen-
tations of the provincial administration and its creatures and tools, to
exert (as there is reason from his despatches to apprehend that he may
attempt to do,) the highest degree of oppression, in favour of a system
which in better times he characterized as faulty, and against subjects of
His Majesty who are apparently only known to him by the great patience
with which they have waited in vain for promised reforms.

88. Resolved, That this House has the same confidence in Toseph
Hume, Esq., and feels the same gratitude for the anxiety which he has
repeatedly shown for the good government of these colonies, and the
amelioration of their laws and constitutions, and calls upon the said
Daniel O'Connell and Joseph Hume, Esqrs., whose constant devotedness
was, even under a tory ministry, and before the reform of Parliament,
partially successful in the emancipation of Ireland, from the same bond-
age and the same political inferiority with which the communications re-
ceived from the Colonial Secretary during the present session menace
the people of Lower Canada, to use their efforts that the laws and con-
stitution of this province may be amended in the manner demanded by
the people thereof; that the abuses and grievances of which the latter
have to complain may be fully and entirely redressed; and that the laws
and constitution may be hereafter administered in a manner consonant
with justice, with the honour of the Crown and of the people of Eng-
land, and with the rights, liberties and privileges of the people of this
province, and of this House by which they are represented.

89. Resolved, That this House invites the members of the minority
of the Legislative Council who partake the opinions of the people, the
present members of the House of Assembly, until the next general elec-
tion, and afterwards all the members then elected, and such other persons

588 Constitutional Documents of Canada. [179M840

as they may associate with them, to form one committee or two commit-
tees of correspondence, to sit at Quebec and Montreal in the first mstance,
and afterwards at such place as they shall think proper; the said com-
mittees to communicate with each other, and with the several local com-
mittees which may be formed in different parts of the province, and to
enter into correspondence with the Hon. Denis Benjamin Viger, the agent
of this province in England, with the said Daniel O'Connell and Joseph
Hume, Esqrs., and with such other members of the House of Lords or
of the House of Commons, and such other persons in the United King-
dom of Great Britain and Ireland, as they may deem expedient, for the
purpose of supporting the claims of the people of this province and of this
House; of furnishing such information, documents and opinions as they
may think adapted to make known the state, wishes and wants of the
province; the said committees also to correspond with such persons as
they shall think proper in the other British colonies, which are all inter-
ested, that the most populous of their sister colonies do not sink under
the violent attempt to perpetuate the abuses and evils which result as well
from the vices of its constitution as from the combined malversation of the
administrative, legislative and judicial departments, out of which have
sprung insult and oppression for the people, and, by a necessary conse-
quence, hatred and contempt on their part for the provincial government.

90. Resolved, That the Honourable Denis Benjamin Viger be re-

auested to remain at the seat of His Majesty's Government, at least during
le present session of the Imperial Parliament, to continue to watch over
the mterests of the province with the same zeal and the same devotedness
as heretofore, without suffering himself to be discouraged by mere formal
objections on the part of those who are unwilling to listen to the com-
plaints of die country.

91. Resolved, That the fair and reasonable expenses of the said two
Committees of Correspondence, incurred by them in the performanc of
the duties entrusted to them by this House, are a debt which it contracts
towards them; and that the representatives of the people are bound in
honour to use all constitutional means to reimburse such expenses to the
said Committee, or to such persons as may advance money to them for
the purposes above mentioned.

92. Resolved, That the message from his Excellency the Govemor-
in-chiefj received on the 13th of January last, and relating to the writ
of election for the county of Montreal, with the extract from a despatch
which accompanied it, the message from the same, received the same day,
and relating to the Supply Bill, and the message from the same, received
on the 14th January last, with the extract from a despatch which accom-
panied it, be expunged from the journals of this House.'

CXV
DECLARATION*

Of the causes which led to the formation of THE CONSTITUTIONAL
ASSOCIATION OF QUEBEC, and of the objects for which it has
been formed.

[Trans.: Christie, op. cit. Vol. IV.]

The political evils under which Lower Canada has long labored, have
recently been increased in so alarming a degree, that the subversion of
government itself is to be apprehended, with the consequent disorders of

'For the m'esaage of 13 January, see Christie, III, p. 524; for that of 14 Janisai7'
•ee No. CXni.

s This document and Nos. CXVI. CXXII. CXXVII, illustrate the parting of the
wajrs in Lower Canada. They represent the platform of the Moderates irrespectiTC of
creM or race, who, while determined on reform, were far removed from Papmeau and
the language of "The 92 Resolutions."

1791-1840] Constitutional Documents of Canada, 389

anarchy, unless the progress of them be arrested, and an effectual remedy
applied.

Under the influence of a party in the Assembly of the Province, labor-
ing by every means which they could devise to concentrate political power
in their own hands exclusively, national distinctions have been fostered
and established, the administration of the local government bzs been per-
severingly obstructed and impeded, its authority brought into contempt,
and public and private security essentially impaired and endangered ; whilst
the just subordination of the colony to the parent state has been openly
questioned, and resistance to its authority, if not avowedly inculcated,
certainly covertly promoted.

In prosecution of the views of the party to which those evils are mainly
ascribable, tiiat portion of the population of the Province which has been
by them designated as of "British or Foreign origin," has virtually been,
and now is\ deprived of the privilege of being heard in the representative
branch of the government in support of their interests and views. The
portion of the population thus proscribed amounts to about one hundred
and fifty thousand souls, or one- fourth of the whole, and comprises nearly
all the merchants, the principal members of the learned professions, a large
body of skilful and wealthy artizans and mechanics, and a great number
of respectable and industrious agriculturalists, possesses extensive real
estate, and holds by far the greatest portion of the capital employed in the
pursuits of trade and industry, all which interests are liable to be burthened
and in fact have been injuriously affected, in consequence of the proceed-
ings of the said party and of the majority of the same origin by whom
they have been supported in the assembly of the Province.

The class of persons by whom members of the assembly are almost
exclusively returned, — 'that is, the inhabitants of French origin, who form
the majority, and whose character is in other respects most estimable,—
has shewn itself peculiarly liable to be acted upon by ambitious and self-
interested individuals, who, by exciting the latent national prejudices of
the majority against their fellow-subjects of a different origin, can, as
appears from late events, lead them astray by specious though perfectly
unfounded representations addressed to their prejudices and passions.

By these means the party in the Assembly already alluded to, has
acquired a dangerous ascendancy over this class of the population, and the
result of the late elections evinces that they will use it for the purpose
of securing the return of such persons only as will act in subserviency to
them. Upon that occasion it is notorious that no other qualification was
asked or required from candidates than an implicit acquiescence in the
views and wishes of the party as expressed in the resolutions of the Assem-
bly to be presently adverted to.

While the representation of the Province continues on such a footing,
with the concentration of power incident to it, experience has shewn that
there can be no hope of a fair and impartial administration of the powers
of government, and there is too much reason to apprehend that in a body
so constituted, the public and general interests of the Province, commercial
and agricultural, will continue to be overlooked and neglected, or subjected
to injurious regulations, its improvement obstructed and retarded, and
the whole internal government of the Province deprived of the legislative
superintendence and provisions which are necessary for its efficiency, and
the promotion of the general welfare.

The political evils arising from the constitution and composition of
the Assembly have been greatly increased and aggravated by the act of the
Imperial Parliament' placing at the disposal of the Assembly, absolutely
and unconditionally as it is understood by that body, the important revenue
by means of which the civil expenditure of the Province was previously
defrayed. By Uiis increase to the power derived from great numerical
superiority in the Assembly, have been superadded the irresistible weight
and influence necessarily conjoined with the exclusive power of appropri-

^Papineau had aueceeded in gaining almost complete control of the House of
Attembly in the elections of 1834. * See No. CX.

390 Constitutional Documents of Canada. [1791-1840

ating the revenues absolutely and indispensably requisite for defraying the
civil expenditure of the Province, by means of which the Executive govern-
ment has been rendered entirely dependent on the will and pleasure of the
leaders in the Assembly for its very existence; and public authority, both
administrative and judicial, from the Govemor-in Chief and the Chief
Justice of the Province to the most humble individual in the scale of oflBce,
has been subjected to their interested, partial, vindictive, or capricious
control.

If any doubt could heretofore have been entertained as to the design
and tendency of the proceedings of these men, that doubt must have been
removed by the resolutions^ passed in the Assembly on the 21st day of
February, 1834, containing divers false and scandalous imputations of so
general a nature as not to admit of answer or investigation, against the
character and conduct of His Majesty's government in Ais Province,—
against the whole body of its officers, civil and military, — against the judi-
ciary and the second branch of the Provincial Legislature, — against a large
portion of the inhabitants of the colony engaged solely in the duties and
pursuits of private life, and against the British government generally as
respects this Province, since the cession of Canada to His Majesty by the
Crown of France.

These resolutions passed by a majority of 56, of whom 51 were members
of French origin, against 24, of whom 17 were not of that origin. They
formally class and enumerate His Majesty's subjects in this Province as
persons of "French origin" and of "British or Foreign origin," the former
of whom are erroneously stated as consisting of 525,000 and the latter of
75,000 souls.

The address to His Majesty and to the two Houses of Parliament,
wherein these resolutions are embodied ,and which have been transmitted
to England, claims a revision and modification, by the majority of the people
of this Province, of the Constitutional Act; an extension of the elective
system contrary to the prerogative of the Crown and the British constitu-
tion, for the purpose of investing the appointment to offices of honor and
profit in the said majority of the people; the election of the second branch
of the legislature, now appointed by the Crown for life, in virtue of the
aforesaid act; threatening at the same time the British government and
Parliament with the example of the late colonies, now the United States of
America, and insisting upon being supported in the demands contained in
the said resolutions, that the people of this Province *may not be forced by
oppression to regret their dependence on the British empire, and to seek
elsewhere a remedy for their afflictions.'

In furtherance of the views of Uie framers of the said resolutions
and address, the said resolutions were, shortly after the close of the last
session of the Provincial Parliament, printed and distributed in great num-
bers throughout the Province at the public expense ; and certain committees
were therein invited to be formed, to aid in giving effect to the same,
under a pledge of the "honor of the representatives of the people" to reim-
burse the expenses of the said committees to them, or to such persons as
might advance money to them.

The party already referred to, composed of certain members of the
House of Assembly, of French origin, has for several years past, as already
stated, and as is well known, taken advantage of every opportunity, both by
speeches delivered in the House of Assembly and elsewhere, and through
means of newspapers under their control, to excite the ancient national
prejudices of the inhabitants who are of French origin, against their fel-
low-subjects who are not of that origin; and particularly by the aforesaid
resolutions printed and distributed as aforesaid, and by meetings and com-
mittees in support thereof, they have in fact so operated upon the preju-
dices of persons of their origin, as to excite a great number of them to
frequent public expressions of hatred, and threatened violence to those not
of the same national ^origin.

In consequence of these machinations and others connected with and

» Sec No. CXIV.

17914840] Constitutional Documents of Canada, 391

resulting from them, it has come to pass, as might have been looked for
under such circumstances, that at the late general election, (as the poll
books kept of record according to law will shew,) majorities consisting of
persons of French origin have chosen nearly the whole of the members who
are to compose the House of Assembly for the ensuing four years, of per-
sons of that origin who have publicly approved of the said resolutions, or
pledged themselves to their support.

As subordinate to the grievances now stated, but contributing materi-
ally to the political evils of the Province, other departments of the govern-
ment may be mentioned as to which measures of reform are urgently called
for. The system of judicature as now established, it is universally known,
is altogether insuflScient and unsuited to the present state and condition
of the Province. From the great extension of the settlements, and tfie
increase of population in different districts, the courts of original juris-
diction have become inaccessible to the inhabitants at a distance from them,
otherwise than at a ruinous expense, involving in many cases a denial or
failure of justice; whilst the Court of Appeals, from its peculiar constitu-
tion, is unfit for the exercise of the powers with which it is entrusted.
That a system of such vital importance to the public welfare, and yet so
injuriously defective and inadequate, should have continued without altera-
tion or improvement, is among the striking evidences of the imperfect
exercise of powers entrusted to the Provincial Legislature.

In every well-regulated government it is essential that the executive
authority should be aided by the advice of able and well-informed indi-
viduals, acting together and in a body, by which sound discretion, uniform-
ity, consistency and system are imparted to its measures. Among colonial
governments, which are generally administered by persons laboring under
the disadvantage of a deficiency of local information, assistance of this
nature is indispensable for the attainment of the ends of good government
This body of advisers ought to be found in the Executive Council of the
Province ; but its members are too few in number, and its composition too
defective, to answer the purposes of its institution.

Whilst the greatest importance ought to be attached to the selection
of fit persons for seats in the Legislative Council, it is indispensably neces-
sary for the stability of the government as now constituted, and for the
security of His Majesty's subjects within the Province, that the power of
appointing members to that branch of the legislature should continue to
reside exclusively in the Crown, but subject to such regulations as may be
deemed proper for ensuring the appointment of fully qualified persons.

Under the for^^ing view of the political state of the Province, the
object of the Constitutional Association of Quebec will be, —

By constitutional means, —

1st. To obtain for persons of British and Irish origin, and others
His Majesty's subjects laboring under the same privation of common rights
a fair and reasonable proportion of the representation in the Provincial
Assembly.

2nd. To obtain such reform in the system of judicature and the
administration of justice as may adapt them to the present state of the
Province.

3rd. To obtain such a composition of the Executive Council as may
impart to it the efficiency and weight which it ought to possess.

4th. To resist any appoirftment of members of the Legislative Council
otherwise than by the Crown, but subject to such regulations as may ensure
the appointment of fit persons.

5th. To use every effort to maintain the connexion of this colony with
the parent state, and a just subordination to its authority.

6th. To assist in preserving and maintaining peace and good order
throughout the Province, and ensuring the equal rights of His Majesty's
subjects of all classes.

Now WE, whose names are undersigned, taking the premises into our
serious consideration, do hereby form ourselves into a Constitutional Asso-
ciation for the purposes stated in the foregoing declaration, and for mutual

392 Constitutional Documents of Canada, [1791-1840

support in the discharge of the duties of our allegiance to His Majesty^
as lawful Sovereign of the United Kingdom of Great Britain and Ireland,
and of this Province, dependent on and belonging to the said Kingdom.

Declaring that we wish for no preferences or advantages over our
fellow-subjects of whatever national origin, nor for any infringement of
the rights, laws, institutions, privileges and immunities, civil or religious
in which those of French origin may be peculiarly interested, and to which
they are entitled, or which they enjoy under the British government and
the established constitution ; desiring merely for ourselves the enjoyment of
equal rights with our fellow-subjects, and that permanent peace, security
and freedom for our persons, opinions, property and industry which are the
common rights of British subjects.

And in furtherance of the purposes aforesaid, to the utmost of our
power, we hereby pledge ourselves to each other and to our fellow-subjects
throughout the Empire.

CXVI

AN ADDRESS BY THE CONSTITUTIONALISTS OF MONTREAL
TO MEN OF BRITISH OR IRISH ORIGIN, 1834

[Trans.: Christie, op. cit.]
Fellow Countrymen,

Engaged in a contest, the result of which must be felt throughout the
Provinces of British America, we, your oppressed brethren of Montreal,
solicit your attention to a brief and temperate exposition of our principles
and grievances.

Connected with you by identity of origin, by community of feeling, by
national recollections, and by one common interest, in thjs the hour of
danger we look to you for support

The population of Lower Canada, heterogeneous in its character, com-
prehends two distinct classes — a majority of French, and a minority of
British descent — governed by feeling and attachments widely differing from
each other ; the causes which have produced that division may be generally
known.

The want of education among the French majority, and their conse-
quent inability to form a correct judgment of the acts of their political
leaders, have engendered most of our grievances. The extent of that ignor-
ance may be collected from the facts, that within the last few years in each
of two Grand Juries of the Court of King's Bench for the district of
Montreal, selected under a provincial law, from among the wealthiest in-
habitants of the rural parishes, there was found but one person competent
to write his name; and that trustees of schools are specially permitted, by
statute, to affix their crosses to their school reports.

The political information of that part of the Canadian population en-
gaged in agricultural pursuits is, therefore derived exclusively from the
few educated individuals scattered among them, who speak the same
language, and who possess the means of directing public opinion, exempted
from those salutary checks which education alone can bestow.

The persons who wield this mighty power are, generally speaking
seigniors, lawyers and notaries, of French extraction, all of whom as will
be shown hereafter, have a direct and selfish interest in maintaining a
system of feudal law, injurious to the country, and bearing with peculiar
severity on British interests.

Our endeavours to procure relief have been represented as an overt
attack upon the customs and institutions of the Province; national preju-
dices have been called into action, national feelings excited, and a French
majority, ignorant of the nature of the contest, is now arrayed against a
Bntish minority.

Passing by the petty vexations of the feudal tenure, such as the

1791-1840] Constitutional Documents of Canada. 393

seignior's right to call for the title deeds, of every vassal; his exclusive
right of grinding the grain of his seigniory; his right to assume any pro-
perty within the limits of his seigniory, on reimbursing to the purchaser
the cost of his acquisition; and other claims of a servile and arbitrary
character incident to feudal law; we proceed to the subject of the more
grievous burdens by which we are oppressed.

Throughout the seigniories of Lower Canada, within the limits of
which are comprised the cities of Montreal and Quebec, upon the sale of
real property the feudal Lord extracts from the purchaser a fine, equal to
one-twelfth part of the price — a claim which recurs with each successive
sale ; thus every person who clears, or otherwise improves a farm, erects a
building either in town or country, or invests capital in landed estate,
bestows one-twelfth of his outlay on the seignior, wnenever the property is
brought to sale.

This odious law, so injurious in its effects, readily explains why this
fine Province, although riciily endowed by nature, is so far surpassed in
the career of improvement by neighboring Provinces and States.

From the want of a bill for the registration of acquisition of real
property, the validity of a title cannot be ascertained except by a course
of expensive proceedings through Courts of Law, but secret incumbrances
may still exist, unaffected by that procedure, for whose discovery no means
are afforded; hence the difficulty of borrowing money on mortgage, and
ihe frequent seizure and forced sale of real estate.

The profits which accrue to the seignior from this state of things are
obvious; and the interest of the French lawyer and notary in maintaining
a system of law that fosters litigation and produces corresponding expense
is equally intelligible.

Such are the considerations which govern a party exercising a para-
mount influence in the House of Assembly : and thus it is that British liber-
ality which conferred upon the French population the elements of free
government has been perverted by designing and interested individuals^ to
the means of retaining laws adverse to national prosperity and to the spirit
of free institutions.

The repugnance of Britons to a slavish and antiquated system of feudal
jurisprudence has drawn upon them the undisguised hostility of the French
party; an hostility which has been manifested by attempts even of a legis-
lative character to check emigration from the British Isles, and to prevent
a permanent settlement in the Province of that class of His Majesty's sub-
jects, whom they have invidiously described as of "British or Foreign

* * >f
origm.

The most prominent of these enactments, and the most tm just, is the
imposition of a tax on British emigrants, and British emigrants only, in
violation of the most sacred rights we inherit from our fathers, and con-
trary to the best interests of the Province.

They have denounced, as a mischievous monopoly, a Land Company,
established for the purpose of settling, with a British population, lands
which, by their distance from a market and want of roads, would otherwise
be inaccessible to individual enterprise; wilfully overlooking the fact, that
the immense tracts of land still held by the Crown, and offered for sale, in
small parcels, at low rates, secure the advantages of competition, and will
prevent the Company from using the privileges to the detriment of the
community.

In the formation of counties for the election of representatives, the
townships, which are held by the tenure of free and common soccage, and
are therefore the natural resort of British settlers, have been divided into
counties, according to the actual population, without making any provision
for their future growth, although the territory thus parcelled out is of
much larger extent that the French seigniores ; so that were the respective
sections of the Province peopled in proportion of their productive powers,
a majority of British constituents would return a minority of representa-
tives.

They have excluded co-tenants and co-proprietors from the elective

394 Constituttonat Documents of Canada. [1^91-1840

franchise, as being generally Britons, whilst to co-heirs, as being chiefly
French, the right of voting has been carefully secured.

The, qualification of magistrate, of militia officers and of jurors, is
made to depend upon real estate; the possession of which, in properties
of limited value, is generally confined to Canadians, whilst Britons, whose
capitals are more commonly embarked in commercial and manufacturing
pursuits, are virtually debarred from those offices and public trusts; thus
confining our liberties to the discretion of a body of men, the greater num-
ber of whom are devoid of education, and have been taught to regard
Britons as their natural enemies.

Their abuse of power and contempt of enlightened public opinion,
(confident in the support of an unlettered French majority,) are exempli-
fied by their proceedings in the House of Assembly. We have seen Mr.
Christie* expelled from successive Parliaments, despite the remonstrances
of the disfranchised electors of Gasp^, and contrary to every principle of
a representative government — Mr. Mondelet expelled by a forced construc-
tion of an illegal resolution, a construction, from which the framer of the
resolution declared his dissent; and contrary to the precedent in the case
of Mr. Panet who under like circumstances, was permitted to retain his
seat — ^The West Ward of Montreal, containing a majority of independent
British electors, disfranchised for two years — a pretended enquiry into the
melancholy riot of the 21st of May, 1852, where individuals were pro-
nounced guilty before the examination of a single witness; and where, in
violation of a solemn pledge, and of common justice, the evidence for the
prosecution was sent forth to the world without any evidence having been
received in defence — public monies misapplied under resolutions of the
Assembly, without the assent of the co-ordinate branches of the legislature
— the contingent expenses of the Assembly charged with a salary to Mr.
Viger, originally of ilOOO, but gradually increased to il700 per annum — a
sum so disproportionate to the services rendered, as to justify the conclu-
sion, that the vote itself was a convenient pretext for the secret misapplica-
tion of Provincial funds and, their daring contempt of all public and con-
stitutional principles during the last session, and on the eve of a dissolu-
tion, in attempting to commit a new Parliament to the reimbursement of
the expenses attendant upon the convening of public meetings throughout
the Province, avowedly for the purpose of influencing the general election.

The laws governing commercial transactions introduced from France,
remain as they were at the conquest. Applications to the Assembly for a
bankrupt law, and other modifications of die existing jurisprudence, suited
to the altered circumstances of the country, have been uniformly neglected,
and we continue subjected to the uncertain and ill defined provisions of a
body of laws long since repudiated in that France, whence it was originally
derived.

The provincial banks called into existence by acts of the Provincial
Legislature, and by the terms of their charters, compelled annually to
exhibit statements of their affairs, have been openly denounced by Mr.
Papineau, late Speaker of the Assembly, and organ of the French party,
from no other possible motive than a desire to inflict injury upon com-
merce, and consequently on Britons, by whom the commerce of the country
is chiefly conducted.

The same individual has publicly recommended to the French party
to abstain from all intercourse with Britons: an advice which has been
acted upon to a considerable extent

Not satisfied with the powers with which they are constitutionally
. invested, the French party in the Assembly have been incessantly occupied
in attempting to arrogate to themselves supremacy in the concerns of the
Province.

Their refusal to pass laws, except of temporary duration, has involved
in uncertainty important interests which would require to be regulated by
permanent enactments.

^ Qiristie fives a full account of his expulsion, etc., in his History. For the
Mondelet case and the Montreal riot, see pp. 380. 385.

1791-1840] Cotistitutional Documents of Canada. 395

Their claim to pass in review the salaries of all public officers by an
annual Civil List, voted by items, would, if acceded to, lead to a disorgan-
ization of government, and ultimately render the Judges and other public
functionaries, the instruments of their political animosities.

The Legislative Council, a body appointed by the Crown, and where
alone British interests are fairly represented, they are endeavouring to
replace by an elective Council, which, returned by the same constituency,
must, from necessity, be in all respects a counterpart of the Assembly; a
measure which would remove the barriers that defend us against French
tyranny, and give to a majority, hostile to British interests, a power that
would be employed to sever the connexion between Canada and llie Empire.

Our opposition to this extension of the elective principle, dictated by
preservation, has been falsely represented as an opposition to liberal insti-
tutions. Accustomed to see in the neighboring States the mild toleration
of equal laws, and a constitution in its essential features approximating to
our own, we are not of those who startle with alarm at the name of a
republic, or view their institutions with jealousy or distrust. With senti-
ments of generous pride, we recognise the lineaments of kindred blood and
national character. Sensible of the benefits derived from our connexion
with the parent state, and ardently attached to the land of our fathers,
we view with grief and indignation, proceedings, which, if not successfully
resisted, will leave us no choice between a change which we deprecate, and
a submission to French oppression.

It were an insult to the understanding to dwell upon public opinion,
as expressed by a population destitute of the advantages of education, as
a mass of the French population in this Province has been shewn to be,
and we regard with blended feelings of indignation and contempt, the affec-
tation of die leaders of the French party, of the character of liberals and
reformers, whilst they have sedulously fostered a system of feudal exac-
tions and feudal servitude, which invest a privileged class with more
arbitrary rights than the nobility of England, without the plea of hereditary
claims to legislative honors.

Numbering in our ranks many who, both in Britain and in Ireland,
were foremost in the cause of reform ; independent in our principles ; un-
connected with ofhce; of all classes and of all creeds; bound together by
the endearing recollection of a common origin, and the powerful sentiment
of a common danger, we are prepared to resist to the uttermost the efforts
of a party, which, under the specious guise of popular institutions, would
sever wisdom from power, and respect from intelligence, and consign us to
unendurable bondage.

Cherishing sentiments of becoming respect for His Majest/s govern-
ment, and correctly appreciating its many efforts to advance our prosperity,
the task we have undertaken to perform requires, nevertheless, that we
should explicitly declare our opinion, that the evils which oppress us have
been aggravated by the various and temporising policy of successive admin-
istrations.

The destinies of this important Province have been confided to Colonial
Secretaries, ignorant of the state of parties in the Colony. Entering upon
office without a competent knowledge of our affairs ; relying for informa-
tion upon a House of Assembly, constituted as that body has been shewn
to be; alternately making unwise concessions or attempting to enforce
anwise principles, and not unfrequently retiring from office at a time when
experience would have enabled them to act with becoming judgment and
decision, the tendency of their measures has been to compromise the dig-
nity of the Home Government and to confer a sanction upon the preten-
sions by which our interests are assailed.

We are not insensible to the just grounds of complaint arising from
the inefficiency of the Executive Council, and the feeble claims which that
body possesses to the confidence of the community.

We cannot recognize just principles of government in calling to a seat
in one of the Councils, a clerk or subordinate officer of the other; and
although the Legislative Council, as at present constituted, commands our

396 Constitutional Documents of Canada. [1791-184C

respect as possessing a majority of independent members, we consider that
it yet contains too many persons holding dependent situations under the
Crown and liable to be acted upon by undue influence.

The accumulation of offices in the family and connection of a leading
member of the Legislative Council, deserves to be held up to public repre-
hension.

The irresponsible manner in which the Land Granting Department is
conducted, the salary disproportioned to the duties performed, which is
attached to the office, and other abuses connected with the Woods and
Forests, demand revision.

To the redress of these abuses, and to all other reforms, based upon
just principles, we offer the most strenuous support, and we, deliberately
and with confidence submit this exposition of our principles and grievances,
in order that our fellow-countiymen may be enabled to judge of the sin-
cerity of the respective parties in the Province, by contrasting professions
with facts.

The subject of this address cannot fail to suggest important reflections
connected with the social and political relations of the country. Of what
the future will disclose we can offer no conjecture. Recent events have
roused us to a sense of impending danger, and the British and Irish popu-
lation of Lower Canada are now united for self-preservation, animated by
a determination to resist measures, which, if successful must end in their
destruction. Shall we, in this, the country of our adoption, be permitted
lo find a home? or shall we be driven from it as fugitives?

Strong in the sympathies of our fellow countrymen in the Sister Pro-
vinces, injury cannot be inflicted upon us, without affecting them; and the
Frencn party may yet be taught, that the majority upon which they count
for success, will, in the hour of trial, prove a weak defence against the
awakened energies of an insulted and oppressed people.

By order of the Committee appointed at a public meeting of the in-
habitants of Montreal, held on the 2(Hh of November, 1834.

(Signed) John Molson, Jun.

CXVII

ABERDEEN TO AYLMER

[Trans. : Christie, op. cit.]

Downing Street, 11th February, 1835.

My Lord, — In conformity with the pledge given in my despatch of the
8th of January, I can assure Your Lordship that His Majesty's government
have not ceased to direct their anxious attention to the discovery of those
means which appeared to offer the most reasonable prospect of bringing to
a happy termination the existing differences between the House of Assem-
bly of Lower Canada and the Executive government of the Province. This
enquiry has been undertaken with a deep sense of the importance of the
object to be attained and has been prosecuted with the most zealous knd
earnest endeavors to arrive at a favorable result; but I cannot disguise
from Your Lordship that throughout the investigation I have found myself
surrounded by no common difficulties.

Your Lordship will recollect that in the year 1828 a Committee of the
House of Commons, was appointed for the purpose of enquiring into the
state of the civil government of Canada which, after a laborious and pro-
tracted examination, embodied in their report* various su^^stions calcu-
lated in their opinion for the improvement of the administration of the
Province,

This report was declared by the House of Assembly of Lower Canada
to be "an imperishable monument of the justice and profound wisdom of

« No. CVI.

179M840] Constitutional Documents of Canada. 397

the G>mmittee/' and to point out the certain mode of removing all the
evils of which the people of Canada had complained. On a future occasion
I may endeavour to show, and I hope incontrovertibilityp the manner in
which the recommendations of the Committee have been carried into full
effect. At present I will only observe that notwithstanding the general
enthusiasm with which the appearance of the report was nailed by the
House of Assembly, a spirit of discontent from whatever cause arising,
has continued gradually to increase among the members of that body, until
in the last year it has burst forth with a vehemence altogether unparallelled.
This spirit was remarlcably exhibited in the ninety-two resolutions* passed
by the House of Assembly on the 23rd of February, 1834. These resolu-
tions were referred to a Committee of the House of Commons on the 25th
April, and occupied their attention for a considerable time. On the 3d July,
the Committee closed their labors with a report,' in which they did full
justice to the anxiety of the Home Government to carry into execution the
suggestions of the Select Committee of 1828; and declared that the en-
deavors of the Government to that end had been unremitting, and guided,
in all cases, by a desire to promote the interests of the Province.

The Committee delivered no opinion upon the subject matter of any
one of the resolutions submitted to their consideration, but lamented that
mutual misconception appeared to prevail, which they hope might be
removed ; and finally expressed their persuasion that the practical measures
for the future administration of the affairs of Lower Canada might best
be left to the consideration of the Government, who were responsible foi
their adoption and execution.

From that period up to the present day I do not find that any measures
have been undertaken in compliance with the recommendation of the Com-
mittee of the House of Commons. On the 15th November, the day on
which the dissolution of the late administration took place, Your Lordship
was apprized by Mr. Spring Rice, that he was prepared to transmit very
full instructions on the various important points upon which it was essen-
tial for Your Lordship to be informed on the approaching meeting of the
Assembly of Lower Canada; but in cbnsequence of the event* which had
then occurred, he was prevented from making any further communication.
Not being aware of the nature and purport of these contemplated instruc-
tions, Your Lordship will see that I have thus been deprived of the fruits
of the matured reflection of my predecessor; and that on my own accession
to office, I find this complicated question very much in the same situation in
which it was left by the Committee of the House of Commons, on the 3d
July : — with this difference however, that the difficulties of its solution have
been materially aggravated by the additional delay of six months.

In adverting to this delay, Your Lordship will not understand that it
is with the view of imputing blame to any one, but simply for the purpose
of expressing my regret that a crisis should now have arrived, in which
a prompt decision is rendered indispensable, and that it must be taken at
a moment and under circumstances when there exists a peculiar necessity
for the most careful review of all that has passed, and for the most delib-
erate reflection on the consequences of any step that may be adopted.

The painful situation in which Your Lordship has long been placed,
and the personal relation in whidi you have been made to stand towards
the^ House of Assembly form no slight addition to the embarrassments
which obstruct the successful termination of the question at issue. It is
due, however, to Your Lordship to state that from your first assumption
of the Government of Lower Canada, my predecessors in the Department
over which I now preside, have signified their general approbation of the
conduct you have pursued in the Administration of the affairs of that
Province. — With satisfaction I add that from an examination of Your

* No. CXIV.

' The ftcport is in British Parltamentory Papers, 1834, XVIII. Tbe eridence is in
Ibid, 1837, Vll.

*Tlie fall of the ministrj in which Aberdeen's predecessor, Sprinf Rice, was
Colonial Secretary.

398 Constitutional Documents of Canada. [1791-1840

Lordship's Official correspondence, commencing at the period referred to,
I can see no reason to dissent from the accuracy of diese opinions. At
the same time it must be obvious that the exasperated feelings so prevaloit
in the Assembly, and die alienation of that branch of the Canadian Legis-
lature from the Executive Government, have rendered Your Lordship's
position so extremely difficult as even to forbid the hope that you would be
enabled to employ with any good effect the words of conciliation and peace.
Looking then at the matter of dealing with the whole of this subject, and
bearing in mind the circumstances to which I have already adverted. His
Majesty's Government are of opinion that die exigences of the case demand
some more decisive and expeditious mode of proceeding than is consistent
with an ordinary and regular correspondence. Your Lordship's sentiments
have been more than once expressed to the same effect.

The Kin^ has therefore been humbly advised to select an individual'
possessing His Majesty's entire confidence, who has been unconnected with
past Canadian polities, and has had the opportunity by recent personal coin,
munication with the members of His Majesty's Government, of ascertaining
their views and intentions more fully and unreservedly than could be pos-
sible by means of written statements.

This individual in the capacity of His Majesty's Royal Commissioner,*
will repair to Lower Canada fully instructed to examine, and, if possible,
to terminate the various points of discussion, in the hope of composing all
those differences which have so long agitated the Province, and which have
deeply afflicted His Majesty's loyal subjects.

Without attempting to give Your Lordship even an outline of the in-
structions of which His Majesty's Extraordinary Commissioner will be the
bearer, it may be sufficient to inform you that his mission will not be so
much for the purpose of promulgating any new principles of government,
as of carrying into effect that system of liberality and justice towards the
people of Lower Canada, which His Majesty has long since adopted, and
which a committee of the House of Commons recently declared had charac-
terised the policy and conduct of all those by whom the affairs of the King-
dom have been administered during the last six years, although the result
which has hitherto attended these efforts might perhaps render our hopes
of the future less sanguine, it will not diminish the desire or the determina-
tion of the King to satisfy all the just claims and expectations of his Cana-
dian subjects.

They will find that His Majesty is unwearied in his endeavors to
establish "an impartial, conciliatory and constitutional Government in Can-
ada."— For this end it will be the object of His Majesty to renew an enquiry
into every alleged grievance, to examine every cause of complaint, and to
apply a remedy to every abuse that may still be found to prevail ; for this
end there is no sacrifice he would not cheerfully make which should be
compatible with the fundamental principles of the Constitution itself, and
with the continued existence of the Province as a possession of the British
Crown. I am unwilling to believe that the Canadian people can be insen-
sible to feelings so truly paternal, which as Your Lordship well knows have
not been recently adopted or on the spur of the occasion, and for which
we may reasonably hope that His Majesty will be rewarded by the loyalty
and attachment of all classes in the important Province now under your
immediate government.

Your Lordship will communicate this despatch to the House of Assem-
bly in the usual manner. Although without any direct information on the
subject from Your Lordship, I learn from other sources of intelligence,
that the Legislature will have met on the 27th of January — should their
sittings have been adjourned, you will take such means as may appear most

^ Lord Gosford, who succeeded Aylmer in 1834, was accompanied by two fellow
Commissioners, Sir Charles Grey and Sir George Gipps. They handed in, in 1836, six
Reports, which are in British Parliamentary Papers, 1837, aXIV. Out of the 8iig>
gestions of their final report emerged The Ten Kesolutions of March, 1837 (see No.
CXXIV). It is interesting to note in the light of future events diat their Reports
im(>lied that a suspension of the Constitution seemed better than a continued policy
of ineffectiTe condliation. For the Instructions to Gosford, etc., see No. CXVIII.

1791-1840] ConsHtutional Documents of Canada. 399

proper for bringing the despatch under the knowledge of the members,
before Uie period of their re-assembling in Parliament

I will not fail to give Your Lordship timely notice of the probable
arrival of His Majesty's Commissioner, in order that you may be^ enabled
to convoke the Assembly with the least possible inconvenience to its mem-
bers.

I have the honor to be,
^ My Lord,

Your most obedient,

, * (Signed) Abesdebn.

CXVIII

GLENELG TO GOSFORD*

[Trans. : Imperial Blue Books Relating to Canada, 1856, VoL VI.]

G>py of a Despatch from Lord Glenek; to the Earl of Gosford, the Right
Hon. Sir C. £. Grey and Sir G. Gipps, His Majesty's Commissioners
of Inquiry in Lower Canada.

My Lord and Gentlemen, Downing-street, 17 July 1835.

5. Before I approach more closely to the discussion of the questions
which will principally engage your attei^tion. it is necessary that I should
explain the motives by which His Majesty nas been induced to issue the
commission which you are about to execute.

6. The dissensions which commenced in Lower Canada in the year
1820, have since that time, with some transient intermissions, been continu-
ally increasing in violence and animosity. They have at length advanced to
such a height as not only to invade the peace of society, but nearly to
paralyse the activity of the executive government, threatening with the
most fatal confusion a country exempt beyond the common lot of nations
from the influence of ordinary causes of social evil.

7. This state of affairs in a portion of the King's dominions so valu-
able, and otherwise so prosperous, has engaged His Majesty's most anxious
and deliberate attention. To heal the disorders by which the province is
distracted, and to restore internal peace and union, it has appeared to His
Majesty necessary to adopt some well-digested and comprehensive plan oi
adjustment But the foundation of such a plan must be laid in a complete
knowledge of the people in all its bearings, moral, social and political.

8. Notwithstanding the variety and amount of the intelligence on this
subject which has been collected during the last few ^ears, there is yet a
deficiency of adequate information upon many questions of the greatest
moment to the correct apprehension of the state of Canadian affairs. The
seven years which have elapsed since the first Parliamentary Report have
given birth to numerous changes, to new wants, new interests, and new
combinations of interests. The very removal of some grievances has, in
some instances, aggravated those which remain or altered their relation to
each other. The general balance of society has also been constantly and
rapidly affected by the infusion of new masses of inhabitants, bringing with
them new views and prepossessions. In order to appreciate the actual
wants and wishes of a country developing its resources and undei^oing
internal changes with such extreme rapidity, it is necessary that a new and
careful survey should be made, by impartial and intelligent observers, of
the state and prospects of society in the province. The crisis cannot be mec
by effective measures, unless those measures be founded on the results of
such an inquiry. His Majesty has been induced to sanction your mission

* These Instmcttoat represent the complete policy of "conciliation," as it was
termed hy the anti-French-Canadians.

400 Constitutional Documents of Canada. [1791-1840

to Lower Canada, in the hope that you will be able to conduct this investi-
.s^ation to a satsifactory and successful issue.

It is His Majesty's earnest injunction, that in the dischai]ge of this
duty you avail yourselves of every opportunity to impress the minds of the
people of Lower Canada with a just sense of the warmth and honesty oi
feeling with which their interests are regarded by all orders of society in
this kingdom ; that you consult with equal kindness the claims and wishes
of every class of His Majesty's Canadian subjects; and that by applying
to the consideration of every question which shall come before you the
maxims of an enlightened policy, you endeavour to unite the inhabitants
of the province in mutual concord, and to strengthen the bonds by which
they are connected with the other members of the British empire.

10. Proceeding in this spirit to Lower Canada, you will there make
universally known His Majesty's deep solicitude to redress, to the utmost
extent of his lawful authority, every real grievance under which his Cana-
dian subjects may labour. You will listen with the most respectful atten-
tion to every complaint, and investigate by all accessible evidence, oral or
documentary, the merits of every question which shall be brought before
you. You will ascertain by personal inspection what are the real points in
which, in practice, the existing system presses most severely; and in con-
sultation with each other, you will mature such plans as may appear to you
best adapted to place the affairs of the province on a permanent basis of
order and of well-regulated liberty.

11. His Majesty has thought it proper that the Commission should
consist of more than one member, because the proposed range of inquio'
will embrace so many topics, legislative, judicial, fiscal, moral and social,
that it is not to be imagined that the studies or previous habits of any single
mind, however gifted, would be sufficient to compass them all.

12. With the actual administration of the provincial government the
commissioners, as such, will have no concern. Although the Earl of Gos-
ford, the Governor-general of all His Majesty's Colonies in British North
America, has been placed at the head of the Commission, his Lordship's
functions as Commissioner are totally distinct from those which he will
discharge as head of the government. The duty of the Commissioners is
limited, with the utmost strictness, to inquiry, to mutual deliberations, and
to reporting, for His Majesty's information, the conclusions which they
may be led to adopt. The Governor will alone exercise the powers which
have been vested in his predecessors under the Constitutional Act of 1791.

13. But although your duty as Commissioners be exclusively to inquire,
to deliberate, and to report; yet, within the sphere of that duty you are
placed under no restrictions, excepting such as the necessity of die case
or your own judgment may prescribe. You will lay before His Majesty
a faithful statement of all matters entrusted to your investigation, and
of your matured sentiments regarding them. It will then remain for the
King, on the advice of his confidential servants, to determine on the
course of action to be pursued. Your counsels and those measures will
have for their common object the advancement of the welfare and pros-
perity of Lower Canada by all methods compatible with the integrity of
the empire, and with the authority of the King as supreme in all parts
of the British dominions.

14. You will ever bear in mind that you are sent on a mission of
peace and conciliation. You will therefore proceed in a spirit not of dis-
trust, but of confidence; remembering that much of your success will de-
pend, not only on the zeal, ability and fairness of your inquiries, but also
on your perfect separation from all local and party disputes, and on the
unquestionable frankness and impartiality of your general conduct.

15. I must not omit to observe, that the legislature of Lower Canada
must ultimately be the instrument through which any benefits resulting
from your mission must, to a very great extent, be accomplished. His
Majesty disclaims the intention of provoking any unnecessary Parliamen-
tary interferences in the internal affairs of the province. To mediate be-
tween adverse parties, with an entire respect for the constitutional rights

1791-1840] Constitutional Documents of Canada. 401

common to them all^ is the lugh office appropriate to his Royal station, and
this function the Kmg, aided by your inquiries and advice, is anxious on
the present occasion to perform.

16. With these preliminary remarks on the motives in which your
mission has originated, and on the spirit in which your duties as Com-
missioners are to be discharged, I proceed to advert to some of the more
prominent subjects of claim and complaint on the part of the House of
Assembly.

17. Among the most pressing of these is the Financial Question
which has given rise to so protracted a controversy.

18. After the several gradations through which this question has
passed, it has at length assumed the following shape : — ^As representatives
of the people of Lower Canada, the House of Assembly claim the right
of appropriating to the public service, according to their own discretion,
the whole of the revenues of the Crown accruing within the province.
The claim extends to the proceeds of all Parliamentary and provincial
statutes, whatever may have been the original conditions of these grants;
to the funds drawn from the sale of timber and of the waste lands of the
Crown; to all fines and forfeitures; and to the income derived from the
Seigneurial rights inherited by the King from his royal predecessors. In
fine, the authority of the local legislature over the income and expendi-
ture of the province is declared to be so extensive as to embrace every part
of that receipt and outlay, and so inalienable as to supersede even the
concessions deliberately made in preceding times by the former repre-
sentatives of the Canadian people.

19. Without pausing to discuss the great constitutional questions
which these claims involve, I content myself with referring to the un-
doubted fact, that the Kings of England have at all times been, in right
of their Crown, in possession of certain sources of revenue peculiarly
their own, and of which they could not be divested, except by their own
consent. In modem times, as is well known, the control of Parliament
over this revenue in these kingdoms has been established on the accession
of each Sovereign to the Throne by a solemn compact made between the
Crown and the Houses of Lords and Commons. If, therefore, the King
were disposed to insist upon positive law, ancient practice, or constitu-
tional analogy, His Majesty might readily vindicate his ng^ht to dispose of
the territorial, hereditary and casual revenue of the Crown arising in
Lower Canada, towards the maintenance of the civil government in that
part of his dominions. But anxious to render his reign a blessing to his
Canadian subjects. His Majesty is prepared to decline taking this ground,
and to refer the decision of the question to the single test of the advan-
tage or disadvantage to the province, with which the proposed cession
would be attended. It would be difficult to imagine any pecuniary sacri-
fice which would not be wisely incurred in purchasing a peaceful settle-
ment of the dissensions of the last fifteen years.

20. If pecuniaiy interests alone were at stake, the King would not
hesitate to make this cession permanently and without conditions. Thev
must ill indeed have understood the character and policy of the British
Government, who may have supposed that the peace and well-being of
this great empire, has been put to hazard in a prolonged contest with the
most valuable of its foreign dependencies, for the sake of a sum of
money so insignificant, as to be scarcely perceptible in the financial opera-
tions of Great Britain, and of no considerable moment even in those of
Lower Canada. During the progress of this controversy, there have been
expended by Parliament, for objects altogether Canadian, sums, com-
pared with which, the utmost demand that has been made on the liberality
of the House of Assembly, for the support of the executive government
of the province, is altogether trivial. The real importance of connecting
the surrender of the hereditary and territorial revenue with some reser-
vation or conditions for the support of the civil government, and for the
administration of justice, rests upon grounds far higher than any which

could be brought to a pecuniary measurement. There are objects essential,

Z

402 Constitutional Documents of Canada. [1791-1840

as it would seem, to the welfare of His Majesty's Canadian subjects
which could not probably be secured if that surrender were made uncon-
ditionally. In this view of the question, His Majesty is bound not to
relinquish the appropriation of funds which the law and the constitution
have placed at his disposal, without making a stipulation suggested ex-
clusively by his care for the common benefit of his people.

21. Amongst the foremost of the objects which His Majesty is thus
bound to rescue from a precarious support, are the independence of the
judges and the pure administration of the law. From the commence-
ment of his reign, it has been the constant and persevering e£Fort of His
Majesty to render the judges of the Superior Courts in Lower Canada
mdependent alike of the Crown for the tenure of their offices, and of the
representatives of the people for their annual emoluments. In the various
documents already noticed you will find the history of those attempts, and
a full explanation of the causes to which their failure is to be ascribed.
Yet a review of the Journals of the Assembly will, I think, convince you
that between that House and His Majesty's Government no real, or at
least no irreconcileable, difference of opinion exists on this subject. Oo
the contrary, you will find, that respecting the general principles on which
we must proceed, a perfect unanimity has prevailed. It is fully admitted
that the judges ought to hold their offices not at the pleasure of the
King, but during good behaviour, and that their official incomes should
be paid, not at the pleasure of the popular branch of the legislature, bu*
from adequate funds to be irrevocably pledged for that purpose.

22. This, then, will be one of the subjects of your earliest inquiry;
and you will endeavour to suggest the plan of a law, in which there may
be good ground to anticipate the concurrence of the House of Assembly,
for the securing of judicial independence. If this can be effected, one ot
the chief difficulties which might otherwise obstruct the cession of the
revenues, would be overcome.

23. The regard which it is His Majest/s duty to maintain for the
welfare of the people of Lower Canada, appears to forbid a surrender of
the revenues of the Crown in that province to the appropriation of the
legislature, unless some condition be further made for the support of .tiie
executive government by an adequate civil list

24. I pa^ss over, without any direct notice, the grounds on which
the contending parties in the province have, on the one hand, urged the
necessity of such a stipulation, and, on the other hand, denied that it
could be safely or constitutionally admitted. You will readily learn
from various public documents, which will be pressed upon your atten-
tion, in the province itself, what are the arguments to which I refer. I
cannot, however, abstain from recording in this place, the principal con-
siderations which appear to make it necessary, that the concession about
to be made to Uie provincial legislature should be qualified by the demand
of a proper civil list

25. A constant altercation between the House of Assembly and the
executive government, on the subject of ^e official emoluments of the
chief officers of the Crown, would be derogatory to the character of those
officers, and especially of the Governor, representing the person and clothed
with the delegated prerogatives of the King. The tendency of sudi con-
troversies would unavoidably be, to induce a dis-esteem for those func-
tionaries, by exhibiting them in the light of pensioners on the reluctant
bounty of the representatives of the people; although the common wel-
fare of society evidently requires that they should rather be respected as
the ministers of the King; exercising, under a just responsibility indeed,
but yet with freedom and independence, the powers confided to them for
the public good.

26. The continued agitation of a subject so capable of being placed in
an invidious light, could scarcely be compatible with the tranquil and steady
progress of those most important branches of the public business, with
which the higher functionaries of the government are charged. It would
also be>directly injurious to them, and therefore to the society at the head

1791-1840] Cokstitutional Documents of Canada. 403

of which they are placed, thus to give an habitual and offensive prominence
to the remuneration they were receiving, and in the same degree to divert
public attention from the services by which that pecuniary reward was
earned.

27. The security which the Governor and his principal officers would
derive from the grant of a civil list, would strengthen the connexion sub-
sisting between Canada and the other members of the British empire. It
would be a distinct recognition of the principle, that the administration of
the affairs of the province, by a Governor and officers appointed by the
King, is a substantive and essential part of the provincial constitution.
To debate from year to year whether grants shall or shall not be made for
the support of such functionaries, might almost seem to involve a tacit
assumption, that the existence of such offices was itself a question open to
annual revision. In sb remote a part of His Majesty's dominions, it is
especially necessary that the Royal Authority, as represented by His
Majesty's officers, should be most distinctly admitted as one pf the com-
ponent and inseparable principles of the social system.

28. Nor are the motives by which the independence of the judges has
been recommended by the King, and admitted by the Assembly, inapplicable
to the case of the principle officers of the local government. They have
frequently unpopular duties to perform; they are not seldom called to
oppose the passions and emotions of the day; and, for the permanent well-
being of society, to brave the displeasure of the popular leaders. They
should therefore be raised above all influence, and all suspicion of influ-
ence, of unworthy fear or favour. The interests of freedom and of good
government require that those upon whose firmness and constancy the
maintenance of order and the authority of the laws mainly depend, should
not be looking for their subsistence to the favour of a body, which neces-
sarily reflects most of the fluctuating movements of the public mind.

29. Such are the principle motives which induce me to conclude that
the King could not consistently with the interests of his Canadian subjects,
relinquish, except il^ return for an adequate civil list, the control which
His Majesty at present exercises over the hereditary and territorial reve-
nue.

30. It will be for you to consider and report, what ought to be the
precise terms of this stipulation. A temporary cession of the revenue, in
return for a provision for the chief public officers of the province for a
corresponding period, would be the most satisfactoiy arrangement. In the
rapid progress of settlement in the Canadian provinces, a few years will
probably be productive of changes, demanding a corresponding alteration
in the terms of any adjustment concluded at the present period; and a
decennial revision of the compact now to be made, would seem best cal-
culated to secure those public benefits, and avert those public evils, by the
hope or fear of which the compact itself is recommended.

31. If however a temporary settlement, to be renewed from time to
time, should prove impracticable, or upon a closer consideration^ of the
subject should seem to you inexpedient, you will then consider in what
manner the inconveniences inseparable from the permanent adjustment of
such a question can be most effectually mitigated or avoided.

32. Respecting the amount of the civil list to be demanded, the very
moderate proposal of the Earl of Ripon might perhaps be taken as the
basis. But as his Lordship proposed to retain for the Crown, the control
of the territorial and hereditary revenue, it would be in perfect consistency
with his principle to advance beyond the limit of his demands. It will be
for you to consider what part of the public revenue ought thus to be with-
drawn from the annual appropriation of the provincial legislature. In
attempting to draw thjs line, you will judge what are those services in the
performance of which the common good requires that the officers of the
Crown should be elevated above the reach of popular prepossessions auid
prejudices. Other considerations will probably claim a place in deciding
on the amount of the civil list to be demanded ; but to maintain the proper

404 Constitutional Documents of Canada. [1791-1840

freedom of action in the chief organs of the executive government, will be
the principal object to be borne in view.

53. The opponents of the claims preferred by the House of Assembly
to the control of the territorial revenue insist, with peculiar emphasis, that
the necessary effect of yielding to this claim would be, to transfer from the
executive government to the popular branch of the legislature the manage-
ment of the uncleared territory, asserting that the assumption of this duty
by the House of Assembly would be most injurious to the agricultural and
financial interests of Lower Canada.

34. Were the right of appropriating the revenue arising from the
Crown lands, and the charge of their management indissolubly connected,
I should admit this reasoning to be correct. The objections to die combina-
tion in the same hands of a large share of the legislative power with so
important a branch of the executive authority, are too obvious to escape
your notice ; and I therefore may, without inconvenience, abstain from a
particular explanation of them. It may be sufficient to say, that His
Majesty's confidential advisers regard as conclusive and unanswerable, the
objections which are made to confiding the management of the uncleared
territory of Lower Canada to either or to both of the Houses of General
Assembly, or to persons appointed by them and subject to their control.

35. In the distribution of the different powers of the State, the office
of settling and alienating the uncleared territory properly belongs to the
executive government

36. It is competent to the legislature upon this as upon other subjects
to lay down general rules for the guidance of the executive authorities;
or either branch of the legislature may separately offer its advice to the
Crown as to the policy and system of management which it thinks should
be pursued; but the practical application of such general rules, and the
charge of carrying into effect the system of management which may be
approved, are functions so strictly of an executive and administrative
character, that they can only be properly discharged by those in whose
hands all similar powers are lodged by the constitution. Nor am I aware
of any ground on which a surrender of that trust could be properly requiretl
from His Majesty, or which would justify the resignation of it by the
King.

37. Wishing to meet the whole subject frankly and without reserve,
I am not disposed to deny, that at a period which perhaps can hardly be
called remote, large grants of land were improvidently made to persons who
had no legitimate title to that advantage; but this I believe to have been
the necessary consequence of a system of management which, though faulty
in itself, was consonant with opinions prevalent at the time of its establish-
ment; and I am entitled, on behalf of the executive government, as admin-
istered by Lord Ripon and by his Lordship's successors, to assert, that they
gave conclusive evidence both of the disposition to originate, and of the
ability to effect, a complete reform in this department of the public service.
Lord Ripon took the most effectual security against the recurrence of such
abuses, by establishing the rule, that no waste lands should be disposed of
except by public auction, and at such an upset price as should effectually
prevent fictitious sales. I am aware that complaint has been made of the
infringement of this rule; but after the most careful search into odl the
documents within my reach, I am able to declare that I find no evidence of
a solitary deviation from it. The cases mentioned as exceptions, are all to
be explained by the same simple statement. Persons who, before the date
of Lord Ripon's regulations, had entered into contracts, or had received
from the government promises for the grant of lands upon different terms,
insisted afterwards on their earlier titles ; against which, of course, it would
have been unjust to plead a subsequent and retrospective rule.

38. But while claiming for His Majesty, and for the public officers
appointed by him, the right and duty to regulate the settlement and aliena-
tion of the wild lands of the Crown, I am not only ready, but anxious that
every proper security should be taken for the intelligent, faithful* and
punctual execution of that duty; nor does it seem to me that it would

1791-1840] Constitutional Documents of Canada. 405

necessarily be incompatible with these objects, to place the territorial
revenue at the disposal of the legislature.

39. In considering this subject, it will be, in the first place, necessary
to determine the principles upon which the uncleared territory could be
most advantageously brought into settlement This inquiry has engaged
the serious attention both of speculative observers and of persons prac-
tically engaged in such affairs. Lord Ripon evidently devoted to it mudi
time and thought; and his Instructions to Lord Aylmer on this head rest
on principles which certainly underwent a very close investigation. Aware,
as I am, how many are the sources of error to which speculations of this
kind are liable, and how necessary it is for the correction of such fallacies,
to possess an intimate acquaintance with the scene in which sudi abstract
principles are reduced to practice, I express my concurrence in the general
views of my predecessor, with -the same self-distrust by whidh he appears
to have been actuated. It was under the influence of that feeling, as well
as from respect for the local authorities, that Lord Ripon took the wise
course of soliciting the advice of the House of Assembly for the guidance
of the local government in maturing his scheme, and in the discharge of
the duties connected with it. The House has not, as yet, acted on that
request

40. This silence may, I trust, be understood to imply an approbation
of the system so fully explained by Lord Ripon ; but as it is of the greatest
importance that some permanent rules should be prescribed upon this sub-
ject which cannot with propriety be left to the arbitrary discretion of any
functionaries, however eminent in character or station, it will be part of
your duty to inquire and ascertain what are the principles and the rules
which could be most conveniently adopted for this purpose. The existing
regulations, if not perfect, seem at least sufficiently accurate to form the
basis of a legislative enactment on the subject You will, however, have
an opportunity of learning how far Lord Ripon's plan has really been
productive of the beneficial effects which his Lordship anticipated, and how
far any unforeseen difficulties may have embarrassed its operation. You
will thus be enabled to judge to what extent it may demand or admit c4
amendment.

41. But it will be necessary not merely to determine the general system
of management which should be adopted, but likewise to provide adequate
machinery by which that system may be practically applied. In your in-
quiries upon this head, your attention will naturally be drawn to the course
of proceeding followed in this country, in a case which, however dis-
tinguishable, is not dissimilar from that of the management of the wild
lands in Lower Canada. The land revenue of the Crown in England, is
placed under the direction of a Board, of which all the members are ap-
pointed by the King.

42. The Commissioners of Woods and Forests, under the direction of
the Treasury, receive the rents and profits which arise from the estates of
the Crown ; apply such portions of the receipts, as in their discretion they
think expedient, in the improvement of the property, and in defraying the
various expenses of management; and transfer the balance which may
remain to the public account, under the compact entered into at the com-
mencement of the reign. As a check upon any abuse in the discharge oi
these duties, and more especially in the application out of the gross revenue
of the sums required for the management and improvement of the estates,
the Board is placed under the obligation of presenting, annually, to both
Houses of Parliament a full report of its proceedings, including an account,
in detail, of all receipts and disbursements within the preceding year.

43. You ^ill consider whether any obstacles exist to the adoption, in
Lower Canada, of a similar aramgement, which, if practicable, would
remove the principal difficulty in nudcing over to the legislature the right
of appropriating the territorial revenue, by securing to die executive gov-
ernment that free action in the management of the wild lands of tihe Crown
which it is absolutely essential to preserve.

44. It remains to notice one other topic, which must be considered in

406 ConstitutiofMl Documents of Canada.. [1791-1840

connection with the proposed financial arrangements. The cession of the
hereditary and territorial revenue to the appropriation of the provincial
legislature, would deprive the King of the means of paying the pensipns
and compensation allowances which have been charged upon that fund, in
the exercise of His Majesty's lawful and undoubted authority It is almost
superfluous to say, that any violation of the pledged faith df the Crown
cannot, in the prospect of any advantage whatever, be admitted even as the
subject of debate. The total charge under this head is of no formidable
amount ; and, as far as I can ascertain, there is no single case in which such
a grant has been charged upon the Crown revenues of the province, without
a substantial and adequate ground of personal desert or public policy.

45. You will ascertain what are all the liabilities to which this revenue
is legally subject. His Majesty will not consent to abandon the cause of
any claimant whose title may rest upon a legal foundation. No plan of
surrendering to the provincial legislature the appropriation of these funds
will be submitted by yourselves to the King, or proposed by His Majesty
to the Assembly, which does not comprise, as an essential part of its basis,
the maintenance of such legal titles.

46. I will not allow myself to suppose that, on this subject, any dif-
ference of opinion can arise between the executive government and the
representatives of the Canadian people. The charge for pensions and com-
pensation allowances will be continusdly diminishing; nor will it be for-
gotten that, by the proposed arrangement. His Majesty would surrender
the exercise of the most grateful of the Royal functions, reserving to
himself no funds for the reward of merit, however distinguished, but
devolving entirely on the local legislature, the means of dispensing public
favour, and of testifying public gratitude. But although His Majesty
abstains from demanding a control over any part of the revenue of the
province, for the purpose either of relieving faithful public servants when
labouring under the pressure of old age or sickness, and incapable of per-
forming their accustomed duties, or even of rewarding eminent merit, yet,
as often as such cases may arise. His Majesty will lay his commands on
the Governors of the province to prefer the claims of such persons to the
justice and liberality of the House of Assembly. Nor does His Majesty
doubt that to such applications the representatives of the people of Lower
Canada will accord a cheerful assent -

47. I have now enumerated the various subjects which, I think, may
fairly enter as conditions into any arrangement for the cession of the
Crown revenue. They are, the independence of the judges; the settlement
of a civil list ; the management of the waste lands ; and the continuance of
existing pensions. If on these topics a satisfactory adjustment can be
made, I am not aware that there will remain any further difficulty in the
way of a compliance with the wishes of the House of Assembly on the
subject of the appropriation of the provincial revenues.

48. I am not, however, insensible to the danger of overlooking, at
this distance from the scene, some conditions which, on closer observation,
it might seem necessary to embrace in the final settlement of a plan, at
once so comprehensive and so important to the best interests of the pro-
vince. During your residence in Lower Canada, some topics kindred to
those to which I have adverted may present themselves to your notice ; and
you will not exclude from your consideration any question which may
appear to you to have a material bearing on the decision to be ultimately
adopted by the King. To place the financial affairs of the province on some
safe and permanent basis, and thus to relieve the executive government and
the two Houses of General Assembly from the unhappy distractions of the
last 15 years, may be truly stated to be the main object of your mission.
It will, therefore, receive your first and most careful attention.

49. I next proceed to the consideration of a subject which has given
rise to long and embarrassing discussions between the executive govern-
ment and the House of General Assembly ; I refer to the tenures on which
lands in the Province of Lower Canada are holden. Much controversy has
prevailed, not only respecting the legal incidents of soccage tenure in that

1791-1840] Constitutional Documents of Canada. 407

province, but also respecting the comparative advantages of holding land
in fief and seignior ie, or in soccage, and a question has arisen whether
these controversies would be more properly adjusted by Parliamentary or
by provincial enactments. Convinced of the propriety of referring the
whole subject to the provincial legislature, Lord Ripon embodied that
principle in an Act which was passed in 1831. It has been since maintained
that die language of that statute is not sufficiently precise or copious to
effect the real design of its author ; and it has been strongly pressed on His
Majesty's Government that Parliament should be advised to repeal the
Canada Tenures Act of 1825.

50. On the whole of this subject I am well convinced that the Imperial
Legislature will adopt any measure distinctly recommended to them by the
legislature of Lower Canada. To advance any further, except at the in-
stance of that legislature, and with a perfect assurance of its approbation,
would be to disregard every lesson to be derived from the experience of
past years. No security less than the distinct declaration by the local legis-
lature, of their wish for such a proceeding, could rescue the authors of a
new Parliamentary enactment respecting Canadian tenures from the re-
proach of invading, in violation of the most solemn pledges, one of the
admitted privileges of the Governor, Council, and Assembly. The law as
it at present stands, invests the local legislature completely with the right
of dealing with Acts of the Imperial Parliament relating to tenures of land
in the province, and it does so, as it appears to me, in terms as ample as
could possibly be selected. The principle of avoiding all unnecessary inter-
ference is, I think, more effectually respected by this delegation to the
provincial legislature of the right to repeal all or any of the provisions of
British Acts respecting tenures, than by a repeal of such Acts directly,
or in the first instance by the British Parliament itself.

51. The more material inquiry, however, is, whether there be sufficient
reason for commuting the existing feudal tenures into the tenure in free
and common soccage; or for subjecting the soccage lands to any of the
incidents of the tenure in fief and seigniorie ; and under what tenure those
lands which yet remain a part of the demesne of the Crown should here-
after be granted. Ample materials exist from which a correct judgment
on ^is question might be drawn by persons resident in the province.

52. You will ascertain what have been the real consequences of the
two different kinds of tenure on the prosperity of the' different portions of
the province in which they have respectively prevailed.

64. The importance of the topics to which I have hitherto adverted
would be very imperfectly understood, unless they were viewed in their
connection with another question to which the majority of the House of
Assembly would seem to attach a yet higher interest. In the 92 Resolutions
of the Session of 1834,* in the address to His Majesty of that year, and in
the address adopted in the Session which closed abruptly in the commence
ment of the present year, the constitution of the Legislative Council was
msisted upon as the chief and prominent grievance in the whole system of
provincial government. To the discussion of this subject, nearly half of
those resolutions, and of those addresses, is devoted ; and the Assembly, in
the most decided language, have declared that all remedial measures will
be futile and unsatisfactory which should stop short of rendering the seats
in the Legislative Council dependent on a popular election.

65. The petitioners* of Quebec and Montreal, on the other hand, depre-
cate with equal earnestness any departure from the principle on which the
appointment of the members of the Legislative Council is regulated by the
Act of 1791, and denounce any such change as pregnant with the most for-
midable evils.

66. The King is most unwilling to admit, as open to debate, the ques*

« No. CXIV.

* Compare Nos. CXV and CXVI.

406 Constitutional Documents of Canada. [1791-1S4C

tion whether one of the vital principles of the provincial government shall
undergo alteration. The solemn pledges so repeatedly given for the main-
tenance of that system, and eveiy just prepossession derived from constitu-
tional usage and analogy, are alike opposed to such innovations, and might
almost seem to preclude the discussion of them.

67. But His Majesty cannot forget that it is the admitted right of all
his subjects to prefer to him, as King of these realms, their petitions for the
redress of any real or supposed grievances. His Majesty especially recog-
nises this right in those who are themselves called to the high office of
representing a large and most important class of his people. The acknowl-
edgment of that right appears to the King to imply on his own part, the
corresponding duty of investigating the foundations of every such com-
plaint His Majesty therefore will not absolutely close the avenue to in-
quiry, even on a question respecting which he is bound to declare that he
can for the present perceive no reasonable ground of doubt His Majesty
will not refuse to those who advocate such extensive alterations, an oppor-
timity of provinff the existence of the grievances to which so much promin-
ency has been given.

68. The King is rather induced to adopt this course, because His
Majesty is not prepared to deny that a statute which has been in effective
operation for something less than forty-three years may be capable of im-
provement, or that the plan upon which the Legislative Council is consti-
tuted may possibly in some particulars be usefully modified ; or that in the
course of those years some practical errors may have been committed by
the Council, against the repetition of which adequate security ought to be
taken. Yet if these suppositions should be completely verified, it would yet
remain to be shown, by the most conclusive and circumstantial proof, that
it is necessary to advance to a change so vital as that which is demanded
by the House of Assembly.

69. It must be recollected that the form of provincial constitution in
question is no modern experiment nor plan of government, in favour of
which nothing better than doubtful theory can be urged. A Council nomin-
ated by the King, and possessing a co-ordinate right of legislation with the
representatives of the people, is an invariable part of the British colonial
constitution in all the Transatlantic possessions of the Crown, with the
exception of those which still remain liable to the Legislative authority of
the King in Council. In some of these colonies it has existed for nearly
two centuries. Before the recognition of the United States as an independ-
ent nation, it prevailed over every part of the British p>ossessions m the
North American continent, not comprised within the limits of colonies
founded by charters of incorporation. The considerations ought indeed to
be weighty which should induce a departure from a system recommended
by so long and successful a course of historical precedent.

70. To the proposal^ made by that body to refer the consideration of
this question to public conventions, or» as they are termed primary meetings,
to be holden by the people at large in every part of the province. His
Majesty commands me to oppose his direct negative. Such appeals are
utterly foreign to the principles and habits of the British constitution, as
existing either in this kingdom or in any of the foreign dependencies of
the Crown.

71. You will therefore apply yourselves to the investigation of this
part of the general subject, endeavouring to ascertain how far the L^s-
lative Council has really answered the original objects of its institution;
and considering of what amendments it may be susceptible. It is His
Majesty's most earnest hope and trust that in the practical working of the
constitution of the province, there will be found to exist, no defects which
may not be removed by a judicious exercise of those powers which belong
to the Crown, or which Parliament has committed to the provincial legis-
lature.

72. When your report shall have been received. His Majesty will take

« Se« No. CIX.

1791-1840] Constitutional Documents of Canada, 409

into his most serious consideration the question whether there are any
amendments in the law on this subject, which it would be fit to propose
for the consideration of the Imperial Legislature : and which being founded
on the principles, and conceived in the spirit of the Act of 1791, may be
calculated to render the practical operation of that statute more conform-
able to the wishes and intentions of its framers.

73. There is one complaint closely connected with the topic referred
to, of which I do not find any notice in the Resolutions of the Assembly.
The constitution of Lower Canada consists of various brances or members.
To each of which Parliament has assigned such functions as were thought
necessary to counterbalance/ the danger of abuse in the other organs of
government. If the balance be disturbed, a counterpoise would be required
to rectify the disturbance. It is earnestly maintained by many, that the
House of Assembly does not supply a fair representation of the Canadian
people; that the constituencies throughout the province are so arranged as
to insure the return of a much larger proportion of members in the interest
of the Canadians of French descent, than is warranted either by their num-
bers or their property; and that neither the commercial interest, nor the
landholders in the townships, are protected in the popular branch of the
legislature with any just regard to their importance, or to the' wealth and
number of the persons embraced in those classes. The Canadians of British
descent have been therefore, it is said, accustomed to look to the Legislative
Council for defence against the partiality which they ascribe to the mem-
bers of the House of Assembly.

74. On the truth and justice of these representations, it is not for me
here to pronounce an opinion. But assuming them to be true, it is clear
that the existence of such a state of things would throw additional diffi-
culties round an attempt to modify the Legislative Council.

75. It will be necessary for you to inquire into the truth of these
all^^tions. This duty indeed you are bound to perform, with a view to
the general interests of the colony, even independently of amr reference to
its bearing on the construction of the Legislative Council The number of
persons of British or of French birth or origin actually sitting in the
Assembly will of course afford a most imperfect criterion of the influence
by which their seats may have been obtained, and of the course of policy
to which they will habitually incline. The material question respects the
national character and prepossessions rather of the several constituencies,
than of the different members. Lower Canada must also be viewed as a
country in which the limits of settlement and cultivation are continually
widening. It requires therefore an elective system, resting on a principle
such as shall accommodate itself to changes which are taking place in the
circumstances of the electors^ with a magnitude and rapidity to which there
is no parallel in the communities of Europe.

76. If your inquiries should lead you to the conclusion, that a change
m the Law of Election in Lower Canada is necessary or desirable, it will ^e
right that the change should, if possible, be effected, not by an Act of
Parliament, but by an Act of the local legislature.

77. The composition of the executive council has also been made the
subject of censure. It is maintained that the members of the body are
incompetent to the judicial duty with which they are charged, and unfit to
act as the confidential advisers of the Governor in their more appropriate
office of aiding in the execution of his administrative authority. Hence,
it is said, has arisen the habit of appealing, with inconvenient frequency, to
the Secretary of State, on many questions which might more advan-
tageously have been disposed of in the province itself. To this practice
is ascribed not only much needless delay in the dispatch of public business,
but the mischief inseparable from bringing the ultimate and supreme
executive authority into needless collision with individuals and with the two
Houses of Legislature.

78. So far as these complaints refer to the appellate jurisdiction of
the executive councillors, there appears an unanimity so entire amongst all
the parties concerned, that the only subject of inquiry is, by what means

410 Constitutional Documents of Canada. [1791-1840

that jurisdiction can be most speedily and advantageously transferred to a
more appropriate tribunal. But, on the other branch of the subject, there is
a wider scope for investigation.

79. I am disposed to doubt whether the number of the members of
the executive council might not be reduced with advantage to the com-
munity. In the Indian presidencies, as well as in all the new British colo-
niesy tiie number is limited to three or four. A much larger number would
seem scarcely compatible either with promptitude, secrecy, and a due sense
of personal responsibility ; or with calmness of deliberation, freedom from
party dissensions, and exemption from the danger of inconvenient compro-
mise. If three members only had seats at the board, it might at once be
reasonable to impose, and possible to enforce, the observance of the rule,
that on all questions of importance the Governor should be bound to explain
to the board his own opinions, and to receive from them, in return, an
explanation of theirs. This, however, is a subject on which His Majesty
is not, at the present moment, disposed to act without the aid of your
judgment and report.

80. I would not, however, exclude from your consideration any pro-
posal of which it is the professed object to render the Executive Council a
more effective instrument of good government. You will therefore report
whether there are any practicable amendments which, on the whole, it would
be desirable to adopt, either in the mode of convening, of consulting, or
remunerating the members of this body, or regarding die tenures of their
seats.

81. The state of education in Lower Canada must engage your most
serious attention, with a view to the best means of promoting the more
general diffusion of sound learning, religious knowledge, and Christian
principle. Of His Majesty's anxiety in regard to these paramount objects,
it would be difficult to speak in terms sufficiently emphatic. But the earnest
endeavours of my predecessors on this subject have been so repeatedly
frustrated, that I suspect the existence of some obstacles of which the
Home Government is not aware. Amidst the heat of contention on ques-
tions comparatively of slight temporary concern, this momentous and per-
manent interest of the whole Canadian people may have been overlooked.
Sufficient attention, perhaps, has not been given to the essential distinctions
between the state of society in this kingdom and in the province. It may
have been forgotten that in a new country, pressing forward in the career
of agricultural and commercial enterprize, it is far more impolitic than in
this kingdom to calculate on the voluntary exertions of those who combine
the advantages of wealth and leisure with practical experience in public
affairs. If His Majesty's Government have not hitherto addressed them-
selves with sufficient promptitude to the duty of devising and recommending
well-considered plans, for an object so nearly touching the moral and intel-
lectual no less than the social benefit of the Canadian people, it is an error
which cannot be too frankly confessed nor too zealously redeemed.

82. You will therefore apply yourselves to the collection of all such
intelligence as may be necessary for framing a general system of provin-
cial education, embracing not the mere rudiments of literature, but all that
relates to the culture of the minds and the development of the moral and
religious principles of youth in the different ranks of society. This is a
tasl^ the due performance of which requires so intimate an acquaintance
with the character and wants of the people, that I doubt whether, within
the time of your residence in Canada, it will be possible for you to be com-
pletely prepared to form a deliberate conclusion on a question thus compre-
hensive. It will, however, be of great value if a commencement can be
made, resting on a solid basis, on which, aided by the co-operation of the
Governor, a more complete structure may hereafter be erected by the
Legislative Council and Assembly. I am sanguine in the hope that such
will be the result of your inquiries and your report

83. The last topic to which I shall refer in my present communication
is, the distribution between the Provinces of Lower and Upper Canada of
duties, levied tmder Acts of Parliament or Statutes of the Lower Province,

179M840] Constitutional Documents of Canada. 411

at the ports in the River St Lawrence. The interposition of Parliament to
apportion these funds was dictated and justified by necessity. Between two
great dependencies of the empire, at variance on a question of the deepest
mterest to both, Parliament assumed an aumonty to mediate, Yiot with a
view to any interest exclusively or principally British, but for the sake of
objects altogether Canadian. Still it has never been disputed or concealed,
that this intervention was accompanied by the exercise of an extreme right,
nor have His Majesty's Government ever been slow to seize every oppor-
tunity for remitting the decision of this dispute to the legislatures, within
whose cognizance the question properly falls. You will make it your busi-
ness to inquire whether such an adjustment oi the rights of the two pro-
vinces, satisfactory to them both, can be devised, as would justify the repeal
of the Canada Trade Act If any such project can be matured. His
Majesty's Government would be happy to introduce into Parliament the
necessary measure for accomplishing that repeal.

84. It appears from the records of this office that my immediate 'pre-
decessor, the Earl of Aberdeen investigated with great diligence the
question whether the recommendations of the House of Commons' Com-
mittee of 1828, on Canadian Affairs, had been completely executed. The
result of those inquiries his Lordship embodied in a Minute of which I
have the honour to enclose a copy for your information. In reliance on the
habitual accuracy of Lord Aberdeen, I think myself entitled confidently to
maintain with him, that to each of the recommendations of that Committee,
the King has given complete effect to the utmost extent of His Majesty's
constitutional authority; that in obedience to His Majesty's commands, the
most pressing instances have been made to the Legislative Council and
Assembly to accomplish every other part of the designs of that Committee
to which legislative aid was indispensable; and further, that so frank and
cordial was the spirit in which those concessions were made, that on every
one of the principal topics included in the Report of 1828, His Majesty
spontaneously advanced considerably beyond the limits recommended by its
authors.

85. This however, is a general conclusion of so much importance, and
enters so largely into the justification of the policy observed by the King,
from the commencement of his reign, towards his Canadian people, that
His Majesty is not satisfied that it should rest merely on the revision tmder-
taken by his own confidential servants, of the events of the last seven
years. Desiring that it should be brought to the test of the most rigid and
impartial inquiry, His Majesty commands me to instruct you, on your
arrival in Lower Canada, to ascertain and to report whether the recom-
mendations of the Canada Committee of 1828 have, to the full extent of
His Majesty's authority and legitimate influence, been carried into complete
effect ; or whether there is any, and if any, what part of their advice which
it yet remains with his Majesty to execute.

86. I have now adverted to all the topics which it is necessary to com-
prise in the present communication; I have accompanied them with such
observations as the occasion seemed to require. In offering those observa-
tions I must again disclaim the remotest intention of fettering your dis-
cretion or of restricting in any degree the exercise of your own judgment,
either as to the subjects of inquiry or the opinions at which you may arrive.
In the course of your investigations new topics will occur to you, and new
views of topics already familiar will present themselves. You will not on
any occasion, or for any reason, shrink from the explicit declaration ot
your sentiments. You will not decline any inquiry, the prosecution of
which may promise benefit to the colony or to the mother country. You
cannot err, either in the selection or in the treating of questions, if you
steadily bear in view the purpose for which His Majesty has been induced
to entrust you with the execution of this commission, and the obligation
under which you are placed to contribute, by every means in your power, to
the accomplishment of that gracious purpose.

I have, &c.

( Signed ) Glenelg.

412 Constitutional Documents of Canada. [1791-1840

CXIX

GLENELG TO HEAD*
[Trans. : Imperial Blue Books relating to Canada^ Vol VI, 1836.]

Copy of a Despatch from Lord Glenelg to Sir F. B. Head.

Sir, Downing Street, 5 December 1835.

I have the honour herewith to transmit to you, a commission under
His Majesty's sign-manual, appointing you lieutenant-governor of the
province of Upper Canada.

You have been selected for this office at an era of more difficulty and
importance than any which has hitherto occurred in the history of that
part of His Majesty's dominions. The expression of confidence in your
discretion and ability which the choice itself implies, would only be weak-
ened by any more formal assurance which I could convey to you.

In the following instructions, I shall presuppose your knowledge of
many occurrences, the correct understanding of which is essential to the
discharge of the duties to which you are called, but which it is unnecessary
for me to recapitulate. As, However, a more exact acquaintance with
Canadian affairs is indispensable for your guidance in the administration
of the government of Upper Canada, I think it right to refer you to those
sources of information on which you will be able most safely to rely.
Amongst these, the first place is due to the journals of the Legislative
Council, and of the House of General Assembly. The appendices sub-
joined to the annual summary of the proceedings of the two Houses, con-
tain a fund of information on almost every topic connected with the
statistics and political interests of the province; and to those reports you
will be able to resort with far greater confidence than to any other source
of similar intelligence. The Report of the Committee of the House of
Commons of the year 1828, with the evidence, oral and documentary, to
which it refers, will also throw much light on the progress and the actual
state of the questions agitated in the upper province. The correspondence
of my predecessors and myself, with the officers who have successively
administered the provincial government, will of course engage your careful
attention.

In Upper Canada, as in all countries which enjoy the blessing of a
free constitution, and of a legislature composed in part of the representa-
tives of the people, the discussion of public grievances, whether real or
supposed, has always been conducted with an earnestness and freedom of
inquiry of which, even when occasionally carried to exaggeration, no
reasonable complaint can be made. The representatives of the Canadian
people, if departing at times from the measured style and exact terms in
which the investigation of truth may perhaps be most successfully con-
ducted, have yet, even in the agitation of questions the most deeply affecting
the interests of their constituents, exhibited a studious respect for the
person and authority of their Sovereign, and a zealous attachment to the
principles of their balanced constitution. Until the last session of the
provincial parliament, the remonstrances of the House were diiefly confined
to insulated topics of complaint; discussions, indeed, occasionally arose,
and discontent was occasionally manifested; but it may be affirmed, that
generally there subsisted a spirit of amicable co-operation between the
executive government and the legislature.

The cession by His Majesty of the revenues raised tinder the statute
14 Geo. 3, c. 88, to the appropriation of the House of Assembly,* was a
gratuitous and unsolicited act, and was accepted by that body in a spirit of
grateful cordiality.

I will not pause to recapitulate the events which immediately preceded,

' In this despatch to the new Goyernor of Upper Canada, Sir Francis Bond Head,
Glenelg outlines the methods of dealing with the famous Seventh Report on Grievances
which was drawn up by a Committee of the Upper Canadian Assemhly early in 1835.

'See No. CX.

1791-1840] Constitutional Documents of Canada, 413

if th^ did not produce the interruption of this mutual good understanding.
It is sufficient for my present object to observe, that the relations which
had formerly subsisted between die executive government and the repre-
sentatives of the people underwent an entire change immediately after the
election which took place in the autumn of 1834. The supporters of the
local i^ovemment now for the first time found themselves in a constant
minority on every question controverted between them and their political
antagonists. A committee of grievances was appointed, by which a report
•was made impugning the administration of affairs in every department oi
the public service, and calling for remedial measures of such magnitude and
variety as apparently to embrace every conceivable topic of complaint
Having adopted this report, and having directed its publication in an un-
usual form, the House transmitted through the lieutenant-governor, to the
King, an address, in which some of the more considerable of the claims
of de committee were urged in terms of no common emphasis. It will be
your fiVst duty on the assumption of the government to convey to the
House the answer which His Majesty has been advised to return to these
representations.

I cannot proceed to explain the terms of that answer without prelimi-
nary remark with a view to which the preceding statement has been chiefly
made. Whatever may be the justice of the complaints now preferred
respecting the general principles on which the public affairs of the province
have been conducted, the representatives of the people of Upper Canada
are at least not entitled to impute to the confidential advisers of the King
any disregard of their remonstrances. The greater part of the grievances
detailed by the committee and the House are now for the first time brought
by them under His Majesty's notice My predecessor, the Earl of Ripoti,
in his despatch of the 8th of November 1832, to Sir John Colbome, was
commanded by the King to state, that "there was no class of the Canadian
people, nor any individual amongst them, to whose petitions His Majesty
did not require that the most exact and respectful attention should be
given." His Majesty has never ceased to be actuated by the spirit which
dictated those instructions, and of course will not deny to the House of
General Assembly that careful investigation of the grounds of their com-
plaints, which He graciously pledged himself to bestow on the representa-
tion of any individual petitioner. I feel myself therefore entitled, on behalf
of His Majesty's Government, to object to any resort on the part of the
House to that ulterior measure to which they allude, but whidi they will
feel with me is to be justified only by an extreme emergency.

I now proceed to the consideration of the various topics embraced in
the seventh report of the committee of grievances, and in the addresses of
the two Houses to His Majesty: and I shall advert to them in the order in
which they are pursued in the report itself.

In the following pages, if any subject should appear to be passed over
without due regard, you will understand that I have at least been guilty of
no intentional omission, but have, in obedience to His Majesty's commands,
made it my endeavour to meet every question which the committee and the
House have thought it necessary or proper to raise.

1. It is stated that "the almost unlimited extent of the patronage of
the Crown, or rather of the Colonial Minister for the time being, and his
advisers here, together with the abuse of that patronage, are the chief
sources of colonial discontent. Such (it is added) is the patronage of the
Colonial Office, that the granting or withholding of supplies is of no politi-
cal importance, unless as an indication of the opinion of the country con-
cerning the character of the Government, which is conducted on a system
that admits its officers to take and apply the funds of the colonists without
any legislative vote whatever." The committee then proceed to an enumera-
tion of the various public offices, and the different departments and branches
of the public service, over which this patronage is said to extend; and by
bringing the whole into one view, they suggest what must be the amount
of the authority and influence accruing to the executive government from
these sources.

414 Constitutional Documents of Canada. [1791-1840

m

The statement is substantially this: that tlie number of public offices
in the colony is too great ; and that the patronage, instead of being vested,
as at present, in the Crown, and the local representative of the Crown,
should be transferred to other hands.

In the long enumeration of places at the disposal of the executive
government in Upper Canada, the committee have not adverted to one con-
sideration to which I think that great prominence might justly be assigned.
It is perfectly true, as it is quite inevitable, that in Upper Canada, as in
other new countries, the number of public employments is and will be far
larger in proportion than in older and more densely-peopled states. The
general machinery of government must be the same in a scanty as in a
large and redundant population; corresponding departments of Uie public
service, whether legislative, judicial or administrative, must exist in both.
And in a new country, besides, there will be some establishments for which
in the settled states of Europe no counterpart can be found; such, for
example, are all which relate to the allocation, surveying and grantic^ of
wild lands. Nor is it to be forgotten, that in the early stages of such a
society many duties devolve upon the government, which at a more ad-
vanced period are undertaken by the better educated and wealthier classes,
as an honourable occupation of their leisure time. Thus in the Canadas,
although the mere text of the law would there, as in England, authorize
any man to prefer and prosecute an indictment in His Majesty's name, yet
virtually and in substance the prosecution of all offences is confided to the
government or its officers. These causes have inevitably tended to swell
the amount of the patronage of the provincial government, without sup-
posing any peculiar avidity on their part for the exercise of such power.

With respect to the patronage of the requisite offices. His Majesty's
Government are not solicitous to retain more in their own hands, or in
those of the governor, than is necessary for the general welfare of the
people and the right conduct of public affairs. I confess myself, however,
unable to perceive to whom the choice amongst candidates for public em-
ployment could with equal safety be confided. It requires but little fore-
sight or experience to discover that such patronage, if exercised in any
form of popular election, or if committed to any popular body, would be
liable to be employed for purposes far less defensible, and in a manner less
conducive to the general good : chosen by irresponsible patrons, the public
officers would themselves be virtually exempt from responsibility; and all
the discipline and subordination which should connect together in one un-
broken chain the King and his representative in the provmce, down to the
lowest functionary to whom any portion of the powers of the state may b«
confided, would be immediately broken.

I conclude, therefore, that as in such a country as Canada there must
exist a number of public officers, large in proportion to the present number
and wealth of the inhabitants, so the selection of them must for the most
part be entrusted to the head of the local government

I disclaim, however, on the part of the Ministers of the Crown, every
wish to urge these general principles beyond their just and necessary limits.
There are cases in which I think, according to the analogy of similar cases
in this country, the patronage now said to be exercised by the lieutenant-
governor might with perfect safety and propriety be transferred to others.
On this subject, however, it will be more convenient to state the general
principle, than to attempt the specific and detailed application of it at this
distance from the scene of action.

That principle is to maintain entire, by the nomination and removal of
public officers, that system of subordination which should connect the head
of the Government with every person through whose instrumentality he is
to exercise the various delegated prerogatives of the Crown. What is
necessary for this end must be retained ; whatever patronage is unnecessary
for the maintenance of this principle should be frankly and at once aban-
doned.

It is noticed in the report, as an aggravation of the evils of the gov-
ernment patronage, that almost every public officer holds his place at the

1791-1^] Constitutional Documents of Canada. 415

pleasure of the Crown. I cannot disguise my opinion, that the public good
would be little advanced if the subordinate functionaries held their
places upon a more certain tenure. In practice, indeed though subject to
certain exceptions to be hereafter noticed, no public officer is in danger
of losing his employment, except for misconduct or incompetency: but
there are many kinds of misconduct and incompetency which could never
be made the subject of judicial investigation, but which yet would be
destructive of the usefulness of a public officer, and ought therefore to be
followed by a dismissal from the public service. Nor is it necessary to
insist at any length on the evils which would arise in the transaction of
business, if the subordinate officers were aware that they were entirely
independent of the good opinion of their superiors for continuance in their
employments.

It is not difficult to show, in reference to any conceivable arrangement
on the subject of patronage, that there will be dangers against which it is
impossible to take an absolute and perfect security. I know not, however,
that any less exceptionable scheme could be devised than that which at
present prevails, of giving to the head of the local government the choice
of the subordinate officers, and of making their places dependent on His
Majesty's pleasure. To prevent, however, as far as may be possible, the
continuance of any well-founded ground of complaint on this head. His
Majesty, disclaiming for himself and for his representatives in the province
all desire to exercise, with the view merely to patronage, the power of
appointing public officers, is pleased to prescribe for your guidance the
following rules:

First: You will, at the earliest opportunity, enter into a diligent
review of the offices in the appointment of the Crown and of the local
government, as detailed in the report of the committee, and the appendix,
with a view to ascertain to what extent they may, without impairing the
efficiency of the public service, be reduced immediately and prospectively.
You will report to me the result of your investigation, with such particular
information as will enable His Majesty's Government to decide in each
case on the expediency of adopting your recommendation.

Secondly: If, during the reference of that report to me, any occasion
occur for the reduction of offices, either by abolition or by consolidation,
you will exercise your own discretion as to waiting for fresh instructions,
or proceeding at once to the reduction. Any appointment, however, made
under such circumstances, will be merely provisional. In case^ of the
immediate abolition of any office not required for the efficient discharge
of the public service, you will stipulate for such a compensation to the
present holders, as the disappointment of their reasonable expectations
may entitle them to receive.

Thirdly: In the prescribed revision of these offices you will make
it one of your objects to form a judgment what share of the patronage of
the Crown or the local government may safely and wisely be transferred
to other hands. You will report to me on this subject, but will refrain
from taking any steps regarding it without further instructions from me.

Fourthly: In the selection of persons to execute public trusts, you
will be guided exclusively by the comparison of the claims which the dif-
ferent candidates may derive from past services, or from personal qualifi-
cations.

Fifthly: In general, you will not select for any public employment in
Upper Canada any person who is not either a native or a settled inhabitant
of the province. To this general rule occasional exceptions may be admit-
ted ; as in cases where some peculiar art or science is demanded, which no
provincial candidate may be found to possess in the requisite degree. An
exception must also be made in reference to those officers who are imme-
diately attached to your own person, in the choice of whom His Majesty
does not think it right to subject you to any such restriction.

Sixthly: As often as any office shall be vacant, which is not to be
suppressed, and of which the annual emolument shall exceed £200, you
will make the appointment provisional only, and with the distinct intimation

416 Constitutional Documents of Canada. [1791-1840

'to the party elected that his confirmation will depend entirely on the
estimate which His Majesty may form of his pretensions; and you will on
every such occasion signify to me, for His Majesty's information, the
grounds on which you have proceeded, and the motives which have directed
your choice. If His Majesty should be pleased to issue, under his sign-
manual, a warrant authorizing you to make a grant of the office under the
public seal of the province, then, and not till then, the appointment must
be considered as finally ratified. I trust that in these regulations the House
of Assembly will perceive a sufficient proof of His Majesty's settled pur-
pose to exercise this branch of His prerogative for no other end than the
general good of His Canadian subjects, and to prevent its being converted
into an instrument of promoting any narrow, exclusive or party designs.

3. Under the head of salaries and fees, the committee have entered
into very copious statements, to show that the emoluments of the public
officers in Upper Canada are excessive, and out of all just proportion to
the value of the services rendered. It is unnecessary for me to enter into
these details, because, as to the general principles on which it will be your
duty to act on questions of this nature, there can be no room for contro-
versy. Indeed, those principles will, I think, be most conveniently con-
sidered when divested of topics connected with the interests and the
services of particular persons.

There is no measure of retrenchment, compatible with the just claims
of His Majesty's various officers, and with the efficient discharge of the
public service and duty, to which the King is not disposed to give a prompt
and cheerful assent. To determine what ought to be the scale of remunera-
tion to public functionaries of different classes, would require information
too minute and exact to be obtained beyond the limits of the province
itself. This would appear a very fit subject for a special inquiry, in which
it might be proper to employ commissioners, to be appointed under the
authority of an act of the Asesmbly. I have reason to suppose that the
subject has never yet undergone a full and fair investigation; and therefore
I do not feel myself entitled to assume the non-existence of those abuses
which so readily grow up under a system which is not subjected to a
careful scrutiny, conducted upon permanent and enlightened views of pub-
lic economy. Even if the result of the examination should be only to show
that there is no evil of this nature to be remedied, the labour would be
amply repaid, by placing so important a fact beyond the reach of all reason-
able suspicion.

In dealing with existing interests, the local legislature will, I doubt
not, be well disposed to adopt the rules which have been uniformly taken
by Parliament for the guidance of their discretion in similar cases. The
saving of public money which could arise from the unexpected reduction ot
official incomes, would not only subject numerous families to extreme dis-
tress, but by impairing general confidence in the public credit, would
weaken the foundations on which all proprietary rights must ultimately
repose.

The King confidently relies on his faithful subjects of Upper Canada,
that they will not reduce His Majesty to the distressing alternative of
either abandoning the just interests of any of his servants, or opposing
himself to measures having for their object the reduction of public expen-
diture.

4. Next in the order of complaints, is that which relates to the amount
of the pension list. On this, as on the subject which I have last noticed,
I conceive that I shall better discharge my duty by attempting to provide
against any future abuse, than by engaging in a minute retrospect of any
which may have already occurred

I do not anticipate that the Assembly of Upper Canada would wish to
withhold from the King the means of rewarding faithful and zealous public
services, or would think it desirable that no provision should ever be made

1791-1840] Constitutional Documents of Canada, 417

by His Majesty to solace the declining years of those who have consumed
in laborious public duties in the colony the larger portion of their lives.

You will therefore assent to any law which may be tendered for your
acceptance, of which the object shall be to regulate, on a just and reason-
able scale, the amount of the future pension list of Upper Canada, and to
prescribe the principles upon which any pensions shall be granted.

The chief practical question, then, which at present demands considera-
tion, is whether His Majesty should be advised to recommend to Parliament
the assumption to itself of the office of deciding on the future appropria-
tion of these lands. There are two distinct reasons, both of which appear
to me conclusively to forbid that course of proceeding.

First: Parliamentary legislation on any subject of exclusively internal
concern, in any British colony possessing a representative assembly, is as
a general rule, unconstitutional. It is a right of which the exercise is
reserved for extreme cases, in which necessity at once creates and justifies
the exception.

But important as is the question of the clergy reserves^ in Upper
Canada, yet I cannot find in the actual state of the question any such
exigency as would vindicate the Imperial Legislature in transferring to
themselves the settlement of this controversy. The conflict of opinion
between the two Houses upon this subject, much as it is to be lamented, yet
involves no urgent danger to the peace of society, and presents no insuper-
able impediment to the ordinary administration of public affairs. Although
a great evil, it is not such as to exclude every hope of mitigation by the
natural progress of discussion, and by the influence of that spirit which,
in public affairs, not seldom suggests to parties alike solicitous for the
general good, some mutual surrender of extreme views, and some com*
promise on either side of differences which at first sight might have ap-
peared irreconcileable. Until every prospect of adjusting this dispute
within the province itself shall have been distinctly exhausted, the time for
the interposition of Parliament will not have arrived, unless indeed both
Houses shall concur in soliciting that interposition; in which event there
would of course be an end to the constitutional objections already noticed.

The second ground on which I think myself bound to abstain from
advising His Majesty from referring this question immediately to Parlia-
ment, is, that the authors of the Constitutional Act have declared this to be
one of those subjects, in regard to which the initiative is expressly reserved
and recognized as falling within the peculiar province and the special cog-
nizance of the local legislature, although its ultimate completion is no less
distinctly made to depend, in addition to the ordinary submission to His
Majesty, on the acquiescence of the Imperial Parliament.

It is not difficult to perceive the reasons which induced Parliament
in 1791, to connect with a reservation of land for ecclesiastical purposes,
the special delegation to the Council and Assembly of the right to vary
that provision by any Bill, which being reserved for the signification of
His Majesty's pleasure, should be communicated to both Houses of Parlia-
ment for six weeks before that decision was pronounced. Remembering,
it should seem, how fertile a source of controversy ecclesiastical endow-
ments had supplied throughout a large part of the Christian world, and
how impossible it was to foretell with precision what might be the prevail-
ing opinions and feelings of the Canadians on this subject at a future
period. Parliament at once secured the means of making a systematic pro-
vision for a Protestant clergy, and took full precaution against the eventual
inaptitude of that system to the more advanced stages of a society then in
its infant state, and of which no human foresight could divine the more
mature and settled judgment.

In the controversy, therefore, respecting ecclesiastical endowments,
which at present divides the Canadian legislature, I find no unexpected

* See, inUr aiia, Brymner, Report on Canadian Archives (1899); Appendix B,
Lord Durham's Report.

AA

418 Constitutional Documents of Canada. [1791-1840

element of agitation, the discovery of which demands a departure from
the fixed principles of the constitution, but merely the fulfilment of the
anticipations of Parliament in 1791, in the exhibition of that conflict of
opinion for which the statute of that year may be said to have made a
deliberate preparation. In referring the subject to the future Canadian
legislature, the authors of the Constitutional Act must be supposed to
have contemplated the crisis at which we have now arrived, — ^the era of
warm and protracted debate, which in a free government may be said to
be a necessary precursor to the settlement of any great principle of national
policy. We must not have recourse to an extreme remedy, merely to avoid
the embarrassment which is the present though temporary result of our
own deliberate legislation.

I think, therefore, that to withdraw from the Canadian to the Imperial
Legislature the question respecting the clergy reserves, would be an in-
fringement of that cardinal principle of colonial government which forbids
parliamentary interference, except in submission to an evident and well-
established necessity.

Without expressing any further opinion at present on the general
objects of the Bill of last session, I think the effect of that Bill would, as
it appears, have been to constitute the Assembly not merely the arbiters
respecting the disposal of the funds to be raised by the sale of these lands,
but the active and independent agents in effecting those sales, and thus to
invest them with the appropriate functions of the executive government

10. The withholding of public accounts from the House of Assembly is
the next head of complaint

It is proposed, ^at to remedy this evil a statute should be passed
providing the time and manner of making such returns, and naming the
officers who should render them to the legislature; "but," add the com-
mittee, "it is well known that such an enactment would fail in the Council,
which has an interest in preventing the enforcement of practical accounta-
bility to the people."

Although I cannot permit myself to believe that the Council would
really oppose themselves to any judicious measure of this kind, I fear that
such legislation would be found to involve many serious, if not insuperable
difficulties. I must object to the appointment of individuals for any pur-
pose of this kind by name in a statute, or by any authority other than that
of the King. Persons so appointed would exercise a control over all the
functions of the executive government, and would have a right of inspect-
ing the records of all public offices to such an extent as would leave His
Majesty's representative, a^d all other public functionaries, little more than
a dependent and subordinate authority. Further, such officers would be
virtually irresponsible and independent

On this subject, however, His Majesty commands me to state, that
there is no information connected with the receipt and expenditure of any
part of the revenue of Upper Canada, which He wishes to withhold from
the representatives of the Canadian people. You will, immediately on your
arrival in the province, apprise the heads of every public department by
which any such funds are received or administered, that they must con-
stantly keep in preparation, to be produced to the Assembly, in compliance
with any addresses which may be presented to you by that House, copies
and abstracts of all public accounts; and you will consider in what form
these can be drawn up, so as to exhibit all material information in the most
complete and luminous manner. It will, perhaps, be possible to concert
with the House beforehand some system for preparing such returns; and
as often as they may present to you addresses for such information, you
will promptly accede to their wishes, except in the extreme case, which it
is difficult to suppose, of any demand of that nature being made in such
a form that the compliance with it would endanger some great public
interest

1791-1840] Constitutional Documents of Canada. 419

12. The next topic of complaint is, that many of the recommendations
contained in Lord Ripon's despatch of the 8th November 1832, have not
been carried into effect. Amongst these are especially mentioned such as
relate to the amendment of the election laws, the non-interference of His
Majesty's officers at elections, the disclosure to the House of the receipt
and expenditure of the Crown revenue, the exclusion of ministers of
religion from the Legislative and Executive G>uncils, the reducing the costs
of elections, the judicial independence, and the limitation of the number of
public officers who may sit in the Assembly.

Adhering, without reserve or qualification, to all the instructions issued
under His Majesty's commands by Lord Ripon, the King is pleased to
direct that you do adopt that despatch as a rule for the guidance of your
own conduct ; and that you exert your legitimate authority and influence to
the utmost possible extent, to carry into effect all such of his Lordship's
suggestions as may still continue unfulfilled.

13. The selection of justices of the peace is said to "have been made
chiefly from persons of a peculiar bias in politics, and to be the means of
extending the power and influence of the colonial system." It is not in
my power to verify the accuracy of this opinion', and I am happy to feel
myself relieved from the necessity of such an investigation. If any such
abuse exists, it cannot be too promptly or decisively remedied. Whenever
any increase of the number may appear to you desirable, you will propose
to any gentleman in Upper Canada, possessing the necessary qualifications
of knowledge, property and character, and unquestionable fidelity to the
Sovereign, the assumption of the office of a justice of the peace, without
reference to any political considerations.

14. A very rfrn'fjdfraMfi parl^^ thf rfpftrt is dfvnfrd to the statement
and illustratTOirotllLe. lact that the executive government of Upper Canada
is virtually irresponsible; and the conclusion drawn from this statement
is, that tnirfer the present system there can be no prospect of a good and
faithful admitiistialioii of fmblic affairs.

Without entering on the one hand unnecessarily into a discussion of
those general principles to which my attention is thus invited, or digressing,
on the other hand, into personal topics, it is enough for me to observe on
the present occasion, that experience would seem to prove that the admin-
istration of public affairs in Canada is by no means exempt from the con-
trol of a practical responsibility. To His Maicaty aod..to Parlament the
governor of Upper Canada is at all times most fully responsible for his
official acts. "That this responsibility is not merely nominal, but that His
MsLJesry 'ittls the most lively interest in the welfare of His Canadian
subjects, and is ever anxious to devote a patient and laborious attention
to any representations which they may address to Him, either through
their representatives or as individuals, is proved not only by the whole tenor
of the correspondence of my predecessors in this office, but by the despatch
which I am now addressing to you. That the Imperial Parliament is not
disposed to receive with inattention the representations of their Canadian
fellow-subjects, is attested by the labours of the Committees which have
been appointed by the House of Commons during the last few years to
inquire mto matters relating to those provinces.

It isthe duty of the lieutenant-governor of Upper Canada to vindkate
to the Khig and- to raiHatnent every act of his administration. In the
event of afljr fCpfie'sentations being addressed to His Majesty upon the sub-
ject of vour official conduct, you will have the highest possible claim to a
favourable construction; but the presumptions which may reasonably be
formed in your behalf will never supersede a close examination how far
they coincide with the real facts of each particular case which may be
brought under discussion.

This responsibility to His Majesty and to Parliament ifr-Meond to none \
which can be impfuif ri on a p«bKc man, and it is one which it is in the
power. of the House of Assembly at any time» by address or petition, to I
bring into active operation.

420 Constitutional Documents of Canada, [1791-1840

I further unreservedly acknowledge that the principle of eflFective
responsibility should pervade every department of your government; and
for this reason, if for no other, I should hold that every public officer
should depend on His Majesty's pleasure for the tenure of his office. If
the head of any department should place himself in decided opposition to
your policy, whether that opposition be avowed or latent, it will be his duty
to resign his office into your hands, because the system of government
cannot proceed with safety on any other principle than that of the cordial
co-operation of its various members in the same general plans of promoting
the public good. The inferior members of the different offices 'should
consider neutrality on this great litigated (question of provincial policy as
at once their duty and their privilege. Diligently obeying all the lawful
commands of their superiors, they will be exempted from censure if the
course which they have been directed to pursue should issue in any unfor-
tunate results.

Some of the members of the local government will also occasionally
be representatives of the people in the Assembly, or will hold seats in the
Legislative Council. As members of the local legislature they will of
course act with fidelity to the public, advocating and supporting no mea-
sures which, upon a large view of the general interest, they shall not think
it incumbent on them to advance. But if any such person shall find himself
compelled by his sense of duty to counteract the policy pursued by yon
as head of the government, it must be distinctly understood that the im-
mediate resignation of his office is expected of him ; and diat, failing such
a resignation, he must, as a general rule, be suspended from it Unless
this course be pursued, it would be impossible to rescue the head of^ the
government from the imputation of insincerity, or to conduct the adminiv
tration of public affiairs with the necessary firmness and decision.

I need hardly say, that in the event of any public officer bein^ urged
into a resignation of his place by his inability to give a consaentious
support to his official superior, the merits of the question would undergo
an investigation of more than common exactness by His Majesty's Minis-
ters, and that His Majesty's decision would be pronounced with a perfect
impartiality towards those who had the honour to serve him in the pro-
vince, however high or however subordinate might be their respective
stations.

By a steadfast adherence to these rules, I trust that an effective system
of responsibility would be established throughout the whole body of public
officers in Upper Canada, from the highest to the lowest, without the
introduction of any new and hazardous schemes ; and without recourse to
any system, of which the prudence and safety have not been sufficiently
ascertained by a long course of practical experience.

15. I next advert to two subjects of far more importance than any of
those to which I have hitherto adverted : I refer to the demand made partly
in the report of the committee, and partly in the address from the Assembly
to His Majesty, for changes in the mode of appointing legislative council-
lors, and for the control by the Assembly of the territorial and casual
revenues of the Crown.

On these subjects I am, to a considerable extent, relieved from the
necessity of any particular investigation; because claims precisely iden-
tical have been preferred by the Assembly of Lower Canada, and because,
in the instructions^ to the commissioners of inquiry who have visited that
province, I have already had occasion to state the views whidi have re-
ceived His Majesty's deliberate sanction. The principles of government in
the two sister provinces must, I am well aware, be in every material respect
the same ; I shall therefore annex for your information, as an appendix to
this despatch, so much of the instructions to the Earl of Gosford and his
colleagues as applies to these topics.

In the prosecution of the inquiries of the commissioners in Lower
Canada, they will be instructed to enter into full and unreserved communi-

> See No. CXVIII.

1791-1840] Constitutional Documents of Canada. 421

cation with you upon these questions, and to frame their report in such
a maimer as may enable His Majesty to adopt a just and final conclusion
upon the course to be pursued respecting them in both the Canadas. For
this purpose you will supply the commissioners with all the information
which you may think necessary for them to receive, and with every sugges-
tion which you may think it expedient to make for their assistance in com-
paring the state of these questions in the two provinces. If it should
ultimately appear desirable, the commission may perhaps be directed to
resort to Upper Canada, there to pursue, in concurrence with yourself, a
more exact inquiry into these subjects than they could institute at Quebec,
in reference to the affairs of the upper province.

In general, the Earl of Gosford and his colleagues will be directed
to enter into unreserved communication with you, not only on the points
just mentioned, but on every subject of common interest to the two pro-
vinces. You on your part will conduct yourself towards them in the most
cordial spirit of frankness and co-operation.

I have thus, in order, adverted to every subject to which the Assembly
of Upper Canada have called the attention of His Majesty's Government
You will communicate to the Legislative Council, and to that House, the
substance^ of this despatch, as containing the answer which His Majesty
is pleased to make to the addresses and representations which I have had
the honour to lay before Him from the two Houses in their last session.
I trust diat in this answer they will find sufficient evidence of the earnest
desire by which His Majesty's councils are animated to provide for the
redress of every grievance, by which any class of His Majesty's Canadian
subjects are affected.

I close this communication with the expression of my earnest hope,
and I trust not too confident belief, that the representatives of the people
of Upper Canada will receive with gratitude and cordiality this renewed
proof of His Majesty's paternal solicitude for the welfare of His loyal
subjects in that province; and that^ laying aside all groundless distrusts,
they will cheerfully co-operate with the King, and with you as His
Majest3r's representative, in advancing the prosperity of that interesting
and valuable portion of the British empire.

I have, &c.

( Signed ) Glenelg.

EXTRACTS FROM PETITI6nS OF HOUSE OF ASSEMBLY,

LOWER CANADA, 1836"

[Trans.: Christie, op. cit,]
4( 4( * * 4( *

We solemnly repeat that the principal of the political reforms which
this House and the people have for a great number of years used every
effort to obtain, is to extend the elective principle to the Legislative Council.
To render the Executive Council directly responsible to the representatives
of the people, conformably to the principles and practice of the British
Constitution, — to place under the wholesome and constitutional control of
the House the whole public revenue from whatever source derived — to
obtain tiie repeal of certain Acts of the Imperial Parliament, in whiclh the
people of the Province were not represented, with regard to the internal
affairs of the Province, making its territory and best resources the subject

^ Head submitted a copy of these Instructions to the Legislature of Upper Canada
(Ke his Narrative, p. 47, for his reasons for doin^f so). As a result, Gosxord's work
WM seyerely hindered, and Papineau turned on him the same stream of abuse as he
l^*d poured on Aylmer. (See Kingsford, History of Canada, Vol. IX, p. 618.)

' This document represents the final position of Papineau's party on the eve of the
Rebellion. It contains the earliest reference in exact terms to a responsible executire.
^e next document contains the Resolutions of the House of Assembly on which it
via founded.

422 Constitutional Documents of Canada. [1791-1840

of unfair speculation and monopoly — to ensure equal rights and impartial
justice to all classes — ^to abolish sinecures, and the accumulation of incom-
patible offices — to redress the numerous abuses which prevailed in the
various departments of the public service — ^and to obtain for the Provincial
Legislature with regard to the internal affairs of the Province, and more
especially over the management and settlement of the waste land thereof
for the benefit of all classes of His Majesty's subjects without distinction,
that essential control which would be the direct consequence of the prin-
ciples of the Constitution.

* ^ ^ * ^ ^

At the head of the reforms which We persist in considering as essential,
is the introduction of the principle of popular election into the constitution
of the Le^slative Council. The people of the country, without distinction,
regard this body, as at present constituted, as factitiously opposed to its
institutions, its state of society, its feelings and its wants, and as having
been and as being necessarily the strong-hold of oppression and abuses.
They continue in like manner to believe that any partial reform which shall
stop short of the introduction of the elective principle, will be altogether
insufficient, and will, as leaving the inherent vice untouched, bring back
the same evils and the same collisions. We think, that with regard to the
constantly baneful action of the Legislative Council, we have amply ex-
plained ourselves to your Majesty, and that no other proof than the past
and present acts of that body is needed to remove all doubt as to the nature
and spirit of the improvement to be introduced into it. We look, in this
respect, upon the Act of 1791, giving Legislators for life to the Canadian
Provinces, at the mere pleasure of the Executive authority, as an unfor-
tunate experiment, followed by most unhappy conse<}uences. We also look
upon this experiment as entirely foreign to the British constitution. We
regret that in the extracts from the Despatches we have mentioned^, an
attempt is made by begging the question to infer an analogy which does
not exist, for the purpose of aggravating certain specious objections
against an elective Council. We would respectfully pray your Majesty to
remark, that the influence which prevailed in the Councils of the Empire,
at the period when the Act of 1791 was passed, was calculated to p^ive an
undue preponderance to the aristocratic principle, while in America, the
independent state and the progress of society, repelled any doctrine of this
nature, and demanded the extension of the contrary principle. We nmst
also express our regret, that while your Majesty's representative in this
Province has solicited the co-operation of the two Houses of the Provin-
cial Legislature to labor at the reform of abuses, and while this House is
fully disposed to grant that co-operation, the constant opposition of the
Legislative Council is of a nature to prevent so important an appeal from
being followed by any result. For ourselves, we are conscious that we have
ever been, and are still guided in our labors by our conviction of what was
for the greatest advantage of the people, and best adapted to cause your
Majesty's Government in this Province to be respected, cherished and
strengthened ; and firm in our determination to pursue the same course, we
pray your Majesty to believe that we shall not depart from it.

Respecting as we do the expression of the Royal pleasure, we yet
regret that the Ministers of the Crown should have declared that your
Majesty was most unwilling to admit that the question of an elective
Legislative Council was a subject open to deibate in this Province. We
beg to be permitted to represent to your Majesty, that it is not within the
province of the Colonial Secretary to limit the subjects which are to engage
the attention of this House and the people it represents, within the required
forms, and with the view of improving the laws and condition of the Pro-
vince. Aprainst this infringement of the liberties of die subject, by one of
your Majesty's responsible servants, we dare to appeal to the supreme

1 These instructionB were made public by Sir Francis Head, the Lleiit.-Gov. of
Upper Canada, and commtinicated to Papineau by Bidwell, Speaker of tke Upper
Canadian Legislature.

1791-1840] Constitutional Documents of Canada. 423

authority of the Empire, to that of your Majesty, sitting in your high
CDurt of Parliament.

We do not intend to discuss the historical points of English colonial
government, on which we venture to differ with your Majest/s ministers.
Time has solved the problem, and we firmly believe that those happy
countries to which these questions refer, would never have attained the
degree of prosperitv which they now enjoy, either under the old colonial
government, or under a system like that which successive colonial minis-
ters have established and maintained in this colony.

On the subject of the Executive Council, we abstain from entering on
any details, because we hold this question to be closely connected in prac-
tice with the other more important subjects of colonial policy. We shall
confine ourselves in saying, tiiat the full and entire recognition of the
rights of this House and of the people, by those whom your Majesty maybe
pleased to call to your Councils, and their constitutional responsibility
based upon the practice of the United Kingdom, will be essential motives
for confidence in your Majesty's government

On the subject of the independence of the Judges, we see with pleasure
that there exists no difference between the views of His Majesty's Govern-
ment and our own. We regret that we were mistaken in our efforts to
carry them into effect. Since that time the modifications which have ren-
dered the character of the Legislative Council worse, while it was pre-
tended to make it better, have convinced us that it would be of no advan-
tage to the due administration of justice, to proceed on the same basis.
We shall not, however, abandon the consideration of the subject, and we
shall attentively examine any plan which shall appear to us well adapted
for the attainment of the desired end.

What we have now said will suffice to show your Majesty what our
views are, with regard to the politics of the colony as a whole, to the
functions and powers which be believe to belong to the Provincial Legis-
lature on all matters relative to the internal affairs of the colony, and
with regard to what we conceive to be the best means of ensuring activity,
efficiency and responsibility in the public service. We would suggest to
your Majesty, that there are on this portion of the American Continent,
more than a million of your Majesty's subjects, composing the Colonies of
Upper and Lower Canada, who, speaking different languages, and having
a great diversity of origin, laws, creeds and manners, characteristics pecu-
liar to them respectively, and which they have severally the right to pre-
serve as a separate and distinct people, have yet come to the conclusion
that the institutions common to the two countries ought to be essentially
modified, and that it has become urgently necessary to reform the abuses
which have, up to this day, prevailed in the administration of the Govern-
ment We rejoice that we have, in our just claims, the support of our
brethren of Upper Canada. This support will render manifest to your
Majesty and to our fellow subjects in all parts of the Empire, that we have
been sincere in our declarations, that the circumstances and wants of the
two Canadian Provinces do indeed require a responsible and popular gov-
ernment, and that we have been actuated by no narrow views of party or
of origin in repeating to your Majesty for many years, our prayer that
such a Government may be granted to us.

With regard to the protection and to the equality of the rights which
your Majesty's Canadian suft>jects are entitled to, the remedy of evils and
abuses, the abolition of sinecures and pluralities, the expected formation
of an Executive Council on the principles we have set forth, and to .divers
other subjects more particularly mentioned in the Speech from the Throne
at the opening of the present Session, we refer to the answer to His Excel-
lency the Governor in Chief, and we ardently wish that the views and in-
structions of your Majesty's Government, on the essential points, may be
of a nature to facilitate the results which your Majesty's Representative

424 Constitutional Documents of Canada. [1791-1840

has been pleased to promise, and which it wiU a£Eord us the most lively
satisfaction to see attained.

In the extracts from despatches hereinbefore cited, there are certain
passages which induce us to believe that we have not made ourselves
understood by your Majesty's Government, with regard to the nature of
the control we desire for t^e Provincial Legislature over the waste lands
on the public domain of the Province, and which might cause some appre-
hension in the opinion of our fellow subjects. We have never claimed to
exercise over tHis portion of the affairs of the Government, any other
authority than the parliamentary and constitutional authority which we are
entitled to exercise over all the other affairs of the country in so far as
the peace, welfare and good government of die country mav be therein
concerned. We have also set forth at length our reasons tor believing
that this authority belongs to us. On this head, as on all others, our wish
is that the due execution of the laws may remain in the hands of the
Executive authorities, within the limits prescribed by the laws and the con-
stitution, and under the necessary responsibility ; but we also wish that the
right of the Assembly of the Province to legislate on these subjects, jointly
with the other branches of the Legislature, and to exercise in this behalf
the other powers of the Commons of the country, may receive its full
application.

It remains for us to address your Majesty on this important and exten-
sive subject, — the public revenue and expenditure of this Province. We
humbly thank your Majesty for the gracious declaration, that your Majesty
is disposed to admit the control of the Representatives of the people over
the whole public Revenue raised in this Province. We regard the fulfilment
of this promise as of the highest importance. In stating exiplicity in the
preceding portions of the Address, the rights which we humbly believe to
belong to the Legislature of this Province, with regard to certain parts of
this Revenue, we wish to present the stibject in its true point of view, in
order that no misconception may hereafter retard the desired result. In
the proposals which it may please Your Majesty to make to us for the
purpose of attaining this result, it is impossible Uiat your Majesty should
lose sight of the essential principles of the Constitution, or to the declara-
tory Act of 1778\ to the benefit of which we believe the people of this
country are peculiarly entitled. We shall receive with respect, and examine
with the most scrupulous attention any communication which Your Majesty
may be pleased to make to us, tending to the settlement of the financial
questions. We believe, however, that any merely temporary arrangement,
made as a matter of expediency, and not carrying with it the recognition
of the principles we have supported, could not have the desired effect, but
would sooner or later bring back the very difficulties with which we are
now contending. We humbly represent to Your Majesty, that the people
of this Province, tired of the continued struggle in whidi thty have been
so long engaged to obtain the recognition of their rights on the part of
the Metropolitan and Colonial authorities, would regard with painful ap-
prehension the possibility of the recurrence of the same state of things,
and of the necessity of making new sacrifices for the purpose of laying
these complaints before Your Majesty and Parliament We wish for a
Government which shall assure us freedom and security; the unrestricted
effect of Your Majesty's declarations can alone confer it on us; and it
will be when we possess it, and can entertain a hope of the removal of
grievances and abuses we complain of, that we can properly sedc the means
of giving effect to Your Majesty's wishes with regard to an appropriation
of a permanent nature. With respect to the extension of any appropriation
of this nature beyond what we have hitherto thought to be reasonable, it
will be impossible for us to take the subject into consideration until after
the views of Your Majesty's Government, with regard to the details, shall
have been made known to us. We must, however, declare that having
represented to Your Majesty our views with regard to the efficiency and

» See No. XXXIII.

1791-1840] Constitutional Documents of Canada. 425

responsibility which we wish to see established in the Provincial Govern-
ment, we should think we failed in our duty to our constituents if we
destroyed that efficiency and that responsibility, by placing, as a general
rule, the great public functionaries of the province, beyond the reach of
the wholesome action of the constitution. We are not actuated b^ any
merely pecuniary motive; we believe that the largest sums Your Majestsr's
Government could ask for, would be utterly insignificant in comparison
with those for which Your Majesty's servants in this^province have been
defaulters, or the enormous sums expended out of the pt^lic revenue, with-
out the authority of the Provincial Legislature, and, even in opposition to
the votes of this House; or in comparison with the ufaste of the public
property, by which four millions of acres of land or more, scarcely an
eighth part of which has yet been settled, have been monopolized or alien-
ated. But we earnestly desire to preserve the benefit x>f a just control on
the part of the Legislature over the several branches of the Provincial
Executive, and we can never consent by renouncing it, to confound all
the powers of the state for time to come.

Having thus rendered manifest our opinions on the essential points of
the extracts from despatches which, have come to our knowledge, we refer
on all other points, to our humble petition to Your Majesty and your
Parliament of the 1st of March, 1834, and the 21st February, 1835, in which
we presevere — We beg leave to call Your Majesty's royal attention to the
essential reforms we have pointed out in the former part of this address,
and which we believe to be indispensably necessary. Declaring ourselves
unsatisfied with the views and intentions of Your Majesty's ministers, we
address ourselves to Your Majesty and to your Parliament, in order that
our just claims may be listened to, and that Your Majesty's government in
this province may forthwith become a constitutional and responsible gov-
ernment, and one possessing the confidence of your faithful subjects.

We have frequently regretted that the destinies of the inhabitants of
this portion of the British Empire should depend almost solely on a Colo-
nial Minister acting on the other side of the ocean, and for the most part
on incorrect data and an imperfect knowledge of facts.

We expect full justice from the august tribunal to which we appeal,
and we trust that the Provincial Parliament will be so called together, for
its next session as to enable us to continue as early as possible our labours
for the welfare of the country, and, reassured by the measures we expect,
to consider the means of finally arranging the difficulties which subsist in
the Government of this Province, and of giving strength, stability and
public confidence to Your Majesty's government therein.

Wherefore we respectfully entreat Your Majesty to listen favorably
to our humble prayers, and as well by the exercise of the august powers
which belong more especially to Your Majesty as jointly with the Parlia-
ment of the United Kingdom, to render full justice to your faithful sub-
jects, and to deliver them from the system of oppression and bad govern-
ment which the Colonial Ministers have long made to press heavily upon
them. And by inclination led, as well as by duty bound, we shall ever pray
for Your Majesty's sacred person.

CXXI

RESOLUTIONS OF HOUSE OF LOWER CANADA, 1836

[Trans.: Christie, op, cit,]

Resolved, That it is the opinion of this Committee, that this House, in
its exertions to procure a redress of the various grievances under which
the people of this Province labour, and to introduce a good and responsible
system of local government, have, in addition to the other weighty and
substantial reasons by which it has been guided, been greatly encouraged
by the hope and expectations that any amelioration in tiie political institu-

^

426 Constitutional Documents of Canada. [1791-184C

ttons of the colony would be followed, of right, by similar advantages to
our brethren inhabiting the sister Provinces of British North America.

Resolved, That it is the opinion of this committee, that the political
reforms which this House and the good people of this Province have been
for a great many years endeavouring to obtain, have at various epochs
been explained by the votes, resolutions and addresses of this House, and
by the petitions of the people themselves. That the principal object of
those -reforms is:4-To render the Executive Council of this Province
directly responsible to the representatives of the people, in conformity with
the principles and oractice of the British Constitution as they obtain in tiie
United Kingdom j^ to extend the principle of election to the Legislative
Council, which branch of the Provincial Legislature has hitherto proved,
by reason of its independence of the people, and of its imperfect and
vicious constitution^nsufficient to perform the functions for which it was
originally designedrto place under the constitutional and salutary control
of this House the whole of the revenues levied in this Province from what-
ever source arising; to abolish pluralities, or the cumulation in one person
of several or incompatible offices ; to procure the r^eal of certain statutes
passed by the Imperial Parliament, in which the people of this Province are
not and cannot be represented, which acts are an infringement of the rights
and privileges of the Legislature of this colony, and are injurious to the
interests of the people thereof; to obtain over the internal affairs of this
Province, and over the management and settlement of the wild lands
thereof (for the advantage and benefit of all classes of His Majesty's sub-
jects therein without distinction), that wholesome and necessary control
which springs from the principles of the Constitution itself, and of right
belongs to the Legislature, and more particularly to this House as the rep-
resentatives of the people; which reforms are specially calculated to pro-
mote the happiness of His Majesty's subjects in this Province; to draw
more close the ties which attach the colony to the British empire, and can
in no way prejudice or injure the interests of any of the sister Provinces.

Resolved, That it is the opinion of this Committee, that it has long been
the aim of the enemies of these colonies, by deliberate and unfounded mis-
representations to engender dissensions and bad feelings between the people
thereof, in the hope of preventing all union of purpose among the said
people, and of thereby preventing the reform of those many s&uses and
evils of which the people have so frequently complained, and which are
connived at or upheld for the advantage of a minority hitherto unjustly
possessing, and still endeavoring to maintain, a political ascendency in this
Province, contrary to the principles of all good government.

Resolved, That it is the opinion of this Committee, that this House has
seen with extreme concern, a speech delivered at the opening of the present
session of the Legislature of Upper Canada, by His Excellency Sir John
Colborne, late Lieutenant Governor of that Province, at a moment when
his sudden recall reflected particularly on the merits of his administration,
in which it is stated that the affairs of this Province had exercised an
injurious influence on the interests of Upper Canada — ^had tended appar-
ently to discourage emigration and the transfer of capital to that country,
and had acted disadvantageously in respect to the terms on which the large
loan authorized by the legislature of the province was recently negotiated
in England ; that such a statement is calculated to misrepresent the views of
this House — to prejudice the people of those Provinces against each other—
to disturb that good understanding which ought to prevail, and which has
hitherto prevailed between the said people ; and in place thereof to sow dis-
cord and animosity among the several classes of His Majesty's subjects in
these Provinces.

Resolved, That it is the opinion of this Committee, that strong in tiic
rectitude of their intentions and principles, and moved alone by a desire to
introduce order and responsibility into their political institutions, in the
place of the disorder and abuses which now unhappily prevail, this House
and the people who it represents, indignantly repudiate all design to injure
the interests or embarrass the exertions of the people of Upper Canada, in

1791-1840] Constitutional Documents of Canada. 427

whose welfare the people of this Province feel a lively interest, and for
whose patriotic exertions to improve their political and social conditions,
this House entertains a sincere respect, and this House is gratified to per-
ceive that the representatives of the sister province have done this house
the justice to acquit it of being the cause of any dissensions or embarrass-
ments existmg in the country ; and this House firmly repeats that those dis-
sensions^ and embarrassments proceed from the defective constitution of
the Legislative Council of these colonies, and from the continued uncon-
stitutional exercise by the same persons of executive, legislative and judi-
cial functions, from which causes have resulted the abuses of which the
people have so long and so justly complained.

Resolved, That the Speaker of this House be authorized to transmit
copies of the foregoing resolutions to the Speakers of the several Assem-
blies of Upper Canada\ and of the other sister Provinces, and to express
the desire of this house cordially to co-operate with the said Assemblies
in all constitutional measures calculated to promote the mutual interests of
these colonies.

CXXII

ADDRESS TO THE INHABITANTS OF BRITISH AMERICA, 1836

[Trans. : Christie, op, cit.]

FELLOW COUNTRYMEN,— When an industrious population, after
years of suffering are aroused to a sense of danger, by renewed attacks
upon their rights and liberties, an appeal to those of kindred blood, ani-
mated by the same spirit, and allied by a communion of interests, can excite
no surprise, and requires no justification.

Long and patiently have the population of British and Irish descent in
Lower Canada endured evils of no ordinary description, relying on the
interposition of the Imperial Government for relief ; deceived in the fondly
cherished trust, they are impelled to seek from their own energies, that
protection which has been withheld by the power on whose justice they
reposed.

For half a century the^ have been subjected to the domination of a
party, whose policy has been to retain the distinguishing attributes of a
foreign race, and to crush in others that spirit of enterprise which they are
unable or unwilling to emulate. During that period, a population descended
from the same stock with ourselves, have covered a continent with the
smiling monuments of their agricultural industry; Upper Canada and the
United States bear ample testimony of the floodtide of prosperity, the
result of unresisted enterprise and of equitable laws, which has rewarded
their efforts. Lower Canada, where another race predominates, presents a
solitary exception to this general march of improvement. There, sur-
rounded bv forests inviting the industry of man, and offering a rich reward
to his labour, an illiterate people, opposed to improvements, have com-
pressed their growing numbers almost within the boundaries of the original
settlements, and present in their laws, their tnode of agriculture, and pecu-
liar customs ,a not unfaithful picture of France in the seventeenth century.
There also may be witnessed the humiliating spectacle of a rural population
not anfrequently necessitated to implore eleemosynary relief from the
Legislature of the country.

It were incredible to suppose that a minority, constituting nearly one-
third of the entire population, imbued with the same ardour for improve-
ment that honorably distinguishes their race throughout the North Ameri-
can continent, and possessing the undisputed control of all the great
interests of the colony, would resign themselves to the benumbing sway

*Thlt appeal did not produce the deaired result. After being entered on the
Joamals of tae House of Assembly in Upper Canada, it was expunged by the sue*
eeedinc AsscmMy.

428 Constitutional Documents of Canada, [179M840

of a majority differing from them so essentially on all important points
whilst any mode of deliverance was open to their choice. Nor would
supineness or indifference on their part, produce a corresponding change
in tiieir opponents, or mitigate the relentless persecution with wmch they
have been visited. The deep rooted hostility excited by the French leaders
against those of different origin, which has lead to the perpetration of out-
rages on persons and property, and destroyed confidence in juries who have
been taught to regard us as their foes, has extended its pernicious influence
beyond the limits of Lower Canada. Upper Canada, repulsed in her en-
deavours to open a direct channel of communication to the sea,> has been
driven to cultivate commercial relations with the United States, whose
policy is more congenial with her own. Nova Scotia and New Brunswick
will learn, with indignant surprise, that the destruction of their most im-
portant interests is countenanced and supported by the Assembly of this
Province.

A French majority in one Province has caused these accumulated evils
— a British majority in the United Provinces will compel their removal.

If it be the desire of the French Canadians to isolate themselves from
the other subjects of the Empire, by cherishing the language and manners
of a country which stands to them in the relation of a foreign power, the
effects of such a prejudice will chiefly be felt by themselves, and may be
left for correction to the hand of time; but when national feeling is ex-
hausted in an active opposition to the general interests of the British
American Provinces, when immigration is checked, the settlement of the
country retarded, and the interests of commerce sacrificed, to the visionary
schemes of establishing a French power; it becomes the solemn duty of
the entire British population to resist proceedings so pregnant with eviL
Let it not be said that a million of freemen permitted their rights to be
invaded, and their onward course impeded, by a faction which already
recoils in alarm from the contest it has rashly provoked.

Connected as are the Provinces of British America by a chain of
Rivers and Lakes, affording the means of creating an uninterrupted water
communication between their extremities, at a small expense; possessing
within themselves the elements of all extensive trade by the interchange
of those products which are peculiar to each, and forming part of the
same Empire, they have the undoubted right to require that these advan-
tages shall not be sacrificed by the inertness or the mistaken policy of any
one state; more especially when, as in the case of Lower Canada, that
state, from geographical position, exercises a preponderating influence on
the prosperity of all.

The facts which have been made public in two Addresses, emanating
from the Association, conclusively establish, the want of education among
the French population, their subserviency to their political leaders, and the
hostility of those leaders to the population of British and Irish descent.
Many additional illustrations of their hostile policy might be adduced.

At a time when men of all political parties in the Sister Province are
united in opposing the ccmtemplated change in the timber duties, the
Assembly of this Province, far from lending their assistance, have coun-
tenanced the attack, by recognizing as their agent in England, an individual
who is distinguished by his advocacy of the Baltic interests, and his active
opposition to the Colonial trade. To aid in the prosecution of this design,
they have not scrupled to appropriate a part of the Provincial funds, (ob-
tained under the pretext of defraying their contingent expenses), to reward
their Agent, and to circulate through the British press, statements that are
calculated to mislead the public mind ; thus gratifying their national animos-
ity, by lending a willing aid to ruin the shipping and mercantile interests
of the British American Provinces, and preventing the influx of immigrants
from the British Isles, who are brought to the Q>lonies, at a trifling cost,
by the vessels engaged in the timber trade.

Upper Canada is honorably distinguished for works completed and in
progress, remarkable for their magnitude and for the extensiveness of their
iestined utility. The St. Lawrence canal, at this moment in active progress.

1791-1840] Constitutiofud Documents of Canada. 429

will complete an uninterrupted navigation for vessels of considerable
burden from the upper Lakes to the line dividing that Province from Lower
Canada; but at that point, the spirit of English enterprise encounters the
influence of French domination ; the vast designs of rendering the remotest
of the inland seas accessible to vessels from the ocean is there frustrated
by the anti-commercial policy of the French leaders; we look in vain to
their proceedings for any manifestation of a desire to co-operate in the
great work of public improvement, which animates, as with one spirit, the
entire North American population of British descent ; nor is their adverse
disposition less visible in their opposition to other important designs ; they
eitlier refuse to grant charters to carry into effect works of acknnowledged
public utility, or, when after repeated and earnest applications charters are
obtained, they are clogged with restrictions of an unusual character, in
the hope of rendering them inoperative.

In all new countries the deficiency of capital proves a serious impedi-
ment to the exertions of the enterprising and industrious, and it would be
among the first duties of a wise Legislature to invite the introduction of
foreign capital, by the adoption of an equitable system of law, that would
inspire confidence in personal and landed securities. In Lower Canada,
from the absence of offices for the r^istration of real estate, and from the
system of secret and general mortgages, not only is foreign capital ex-
cluded, but the Colony is impoverished by the withdrawal^ of funds for
profitable and secure investment in other countries. In tracing the motive
of resistance to a measure that more than any other would advance the
public welfare, we again encounter the pernicious influence of French ex-
clusiveness. A general distrust of the titles and securities of landed estate
is suffered to exist, in order to prevent the acquisition of real property by
emigrants from the British Isles.

This spirit of exclusiveness, which betrays itself in all the proceedings
of the Assembly, disfigures even those measures which, it might reasonably
be expected, would inspire sentiments of a more lofty and generous nature.
Although the British Act^ of the 14th Geo. Ill, which confirmed the right
of the French Clergy to tithes, declared, most probably for that very reason,
that the religious communities should not hold estates. They continue in
the undisturbed possession of tracts of land, exceeding fifteen hundred
square miles in extent, besides possessing property of great value in Que-
bec, Montreal, and elsewhere. In addition to the revenues derived from
these possessions, the Assembly annually appropriate large sums of money
out of the Provincial revenues for the support of those communities, and
for the establishment of institutions rigidly and exclusively ^French, whilst
to other institutions on a liberal foundation, affording relief to all, without
distinction of origin or creed, a fair participation of legislative aid has been
refused.

It is, to 'the great body of the people' thus characterised, that His
Excellency the Earl of Gosford, the Representative of a British King, and
the head of the Commission deputed to enquire into our complaints, has
declared that all future appointments to office shall be made acceptable.

A legislative Council constituted on such a principle, would be but a
counteipart of the Assembly; it might, and no doubt would, relieve the
Executive from the odium of sanctioning the illegal appropriation of a
part of the Provincial revenues, by the mere vote of the Assembly ; but it
would not prevent the same misapplication of the public funds being
effected by bill, which is now accomplished by an Address to the head of
the administration.

A Government thus conducted would forfeit all title to our confidence,
would be regarded but as an instrument to secure the domination of a party,
and the brief period of its duration would be marked by scenes of outrage,
and by difficulties of no ordinary description.

Tlie French leaders, if we are to credit their reiterated assertions,
entertain an attachment so deep, so absorbing, for elective institutions, that

«No. XXV.

430 Constitutional Documents of Canada, [1791-1840

they would at once confer that important privilege to its fullest extent,
without reference to previous habits, education, or political dissentions.
How much of this ardour may have been called lorth by a desire to estab-
lish French ascendency, and to depress British interests, may fairly be
deduced from a review of their past proceedings. Without discussing the
question of elective institutions, which, it is obvious, cannot be introduced
to the extent demanded by the Assembly, under the existing political rela-
tions of the colony, which relations we are resolute to maintain, we dis-
tinctly aver, that we are not influenced by idle apprehensions of a Govern-
ment of the people and for the people ; but it must be emphatically a Gov-
ernment of 'the people', truly represented, and not a French faction; the
Government of an educated and independent race, attached to the principles
of civil and religious liberty, and not that of an uninformed population,
striving for domination, and seeking to perpetuate in America, the institu-
tions of feudal Europe.

To the people of the Sister Colonies we appeal, earnestly recommend-
ing the adoption of measures for assembling at some central point, a
Congress of Deputies from all the Provinces of British North America.
A British American Congress, possessing strength from union, and wisdom
from counsel, by the irresistible weight of its moral influence, would super-
sede those other remedial measures which are the last resource of an
insulted and oppressed community. On it would devolve the solemn duty
calmly to deliberate on all matters affecting the common weal, and firmly
to resist all attempts to invade the rights, or impair the interests of the
United Provinces.

In submitting a brief recapitulation of the objects of the Constitutional
Association, it may not be misplaced to offer a few observations explana-
tory of the position of parties in Lower Canada, and of the sentiments of
the British population towards their fellow-subjects of French origin.

The moral guilt of exciting national hostility undoubtedly rests with
the French leaders, who alone benefit by the distracted state of the coun-
try; but the facility with which the French peasantry have received these
impressions, and the unanimity with which they support the aggressive
policy of their leaders, render tiiem, although less culpable, yet equally the
determined opponents of our rights and liberties. Unhappily their want of
education prevents a direct appeal being made, through the press, to their
judgment; but those of their countrymen who are not blinded by the in-
fatuation of party, who possess education to comprehend, and opportunity
to make known, die sentiments of the British population, may be led to
reflect upon the consequences that must result from their present delusion.
Should the admonition be disreg:arded, on them let the responsibility rest

The Province of Lower Canada, whether regarded as a part of the
British Empire or of the great North American family, is evidently des-
tined to receive the impress of national character from those States by
which she is surrounded. An obstinate rejection of all measures, having
for their aim the gradual removal of those peculiarities which distinguish
the population of French origin, may retard, for a time, an inevitable event,
but will certainly hasten the introduction of changes of a more abrupt and
decisive character.

A dispassionate examination of the changes required by the British
population, will satisfy all unprejudiced men, that they are adapted to the
general interests of society, are liberal and comprehensive in their charac-
ter, and unconnected with party objects.

To relieve landed estate from the servitudes and exactions of feudal
law.

To introduce Registry Offices and put an end to the iniquitous frauds
that grow out of the present system.

To promote works of public improvement

To encourage agriculture and protect commerce.

To recognize an ec^uality of rights among all classes.

To resist the dommation of sect or party, and to establish a general
system of education, divested of sectarian tests.

1791-1840] Constitutional Documents of Canada, 431

These are our objects and our demands; they are based on truth, are
essential to national prosperity and to individual security; they admit of
no compromise, and from them we will not recede.

The threatening aspect of the times demands action ; neutrality, the
usual resource of ordinary minds, will not be attended by an immunity from
danger; it must remain with the population of French origin to decide,
whether, by continuing to support the leaders they have hitherto selected,
they are to be regarded as hostile to our just claims, or, by uniting with
their fellow-subjects of British origin, they will compel the introduction
of salutary reforms, consign to their native insignificance the few indi-
viduals who alone profit by the present system of misrule, and by repudi-
ating ancient prejudices and exclusive pretensions, place themselves in
accordance with the spirit of the age.

To us, it is in one respect, a matter of indifference what their decision
may be. The principles we espouse are identified with the happiness of
the human race ; they have taken root with our language in all quarters of
the globe, and wherever that language is spoken, there shall we meet en-
couragement, and thence shall we derive force.

Although Lower Canada presents the strange spectable of a British
Government bestowing its confidence on men who have openly avowed- their
hostility to England, and their desire to effect a separation from the
Empire; although by the contrivance of that Government, the Provincial
funds have been illegally applied to reward French agitators, to support
French journals, and to pay French agents; yet do we feel the proud con-
viction that the energies of Britons will rise superior to the emergencpr,
and that despite an unnatural coalition, the banners of our country will
continue to wave over a British Province.

The voice of supplication has been unheeded amidst the insolent
clamours of faction. United British America ,assuming an attitude alike
removed from menace or from fear, will proclaim her wrongs, assert her
rights, and claim from the Imperial Parliament that interposition, which
shall remove existing grounds of complaint, and carry with it a sufficient
guarantee against future aggressions.

By order of the Executive Committee of the Montreal Constitutional
Association.

CXXIII

GLENELG TO GOSFORD
[Trans. : Christie, op. cit.^

Downing Street,

7th June, 1836.

My Lord, — His Majesty having had under his consideration the
Address of the House of General Assembly of Lower Canada^, on the state
of public affairs in that Province, has commanded me to convey to the
House, through Your Lordship, the following answer:

"The King contemplates with deep regrret the ill success of His
Majest/s efforts to remove from the minds of the Representatives of the
people of Lower Canada, those distrusts and jealousies with which they
appear unfortunately to have been affected. Conscious, however, that His
measures have been dictated by an earnest solicitude for the welfare of
all classes of His Canadian Si^jects, unmixed with any motive of a less
just and liberal character. His Majesty awaits with tranquility the result
of this long and painful discussion, assured that when the misconceptions
of the moment shall have passed away. His labours for the prosperity of
Lower Canada, will be repaid by the confidence of the inhabitants of that
Province, of whatever class or national origin."

His Majesty is sustained and encouraged in these hopes by observing
that the House of Assembly were led to grant the supplies only for six

»No.

432 Constitutional Documents of Canada, [1791-1840

months, and to prefer their present complaints, apparently in consequence
of the publication of some detached passages from my Despatch of tiie
17th of last July^y on which passages the House have founded the remailc
"that the researches authorized by His Majesty for the purpose of ascer-
taining the means of doing justice to His Canadian Subjects, were oo
several of the most essential points, limited by pre-conceived opinions and
anticipated decisions."

This supposition, even if it had received any countenance from the
isolated extracts from my instructions to you and your colleagues in the
Canada Commission, which were brought under the notice of the House of
Assembly, would have been entirely removed if the House had been in
possession of the whole of those instructions. They would have found not
only that the general tenor of diose Instructions favored an entire freedom
of enquiry and judgment by the Commissioners, but that the most unequi-
vocal language had been studiously employed for the express purpose of
counteracting the opposite opinion. I know not how it would have been
possible to nave expressed His Majesty's gracious intentions in terms
stronger or more unambiguous. In my Despatch of the 17th July last, I
stated that, "although your duty as Commissioners would be exclusively to
enquire, of that duty you were placed under no restrictions excepting such
as the necessity of the case, or your own judgments might prescribe.**

I concluded my instructions by disclaiming "the remotest intention of
fettering your discretion, or of restricting in any degree the exercise of
your own judgments, either as to the subjects of enquiry, or. the opinions
at which you may arrive." I observed that in the course of your investi-
gation new topics would occur to you, and new views of topics already
familiar would present themselves. "You will not," I added, "on any occa-
sion, or for any reason, shrink from the explicit declaration of your senti-
ments. You will not decline any enquiry, the prosecution of which may
promise benefit to the Colony or to the Mother Country."

If the whole of my despatch of the 17th July had been before the
House of Assembly, they would have found in these and in other passages,
a sufficient disproof of the supposition that your enquiry was limited by
any pre-conceived opinions or anticipated decisions.

^ It is indeed true that, in approaching this subject, I recorded reasons
which strongly enforce the closest possible adherence to the existing Con-
stitution of Provincial Government In everv part of His extensive domin-
ions, it has been the constant object of His Majesty to correct real abuses,
and to introduce such improvements as the existing state of society, and
the deliberate voice of Public opinion have appeared to demand. But to
reconcile necessary changes with the stability of political and social institu-
tions has been no less an object with His Majesty. At once to reform in
the spirit of the Constitution, and to oppose changes conceived in a contrary
spirit, is a duty which the King will never shrink from avowing his inten-
tion to fulfil.

In conformity with this rule you were directed to "apply yourselves to
the investigation of this part of the general subject, endeavouring to ascer-
tain how far the Legislative Council has really answered the original
objects of its institution, and considering of what amendments it may be
susceptable." You were also informed that when your "Report should have
been received, His Majesty would take into his most serious consideration
the questionss whether there are any amendments in the law on this sub-
ject, which it would be fit to propose for the consideration of the Imperial
Legislature, and which, being founded on the principles and conceived in
the spirit of the Act of 1791, may be calculated to render the practical
operation of that statute more conformable to the wishes and intentions
of its framers."

If it be enquired what definite meaning is to be attached to the terms
which I have thus employed, I answer that the principle of the Constitution

* Sec No. CXVin.

1791-1840] ConsHtuHonal Documents of Canada, 433

of 1791 is, that there shall be two distinct and independent Houses of
Legislature. Adhering to this general principle, it remains for your lord-
ship and your colleagues, acting on the instructions addressed to you as
Commissioners, to enquire how the most effectual means can be taken for
securing such a Legislative Council as shall enjoy at once a due share of
public confidence, and a full exercise of an enlightened and independent
judgment on all matters submitted for its consideration.

The fears of some and the hopes of others, have placed a more narrow
construction on the extracts of my Despatch of the 1/th July. In disavow-
ing that meaning I make no concession, but simply adhere to the views
which I was honored by his Majesty's commands, to express before. Such
as the intensions of His Majesty's confidential advisers were on this sub-
ject in July last, such they still continue.

The Address further advances a complaint connected with the Execu-
tive Government of Lower Canada, a complaint which does not find a place
either in the 92 resolutions of 1834 or in any of the earlier Addresses or
votes of the House of Assembly. The house now, however, state the
necessity of establishing in the Province what is termed "a responsible and
popular government"*

Understanding these expressions in their obvious sense, His Majesty
IS happy to declare that they do not advance beyond the principles by which
it is His pleasure and command that the Executive Government of Lower
Canada should be administered. It is His Majesty's desire and injunction
that full and early explanations should be afforded to the Representatives
of the people, of all important measures adopted by the government; that
the Assembly should enjoy the most ample opportunity of explaining both
to the King, himself, and to His Majesty's Representative, in the Province,
their opinions and their wishes respecting every such measure; that the
imputed misconduct of any public officer, with the exception of His
Majesty's Representative, the Governor, who must be responsible directly
to the King and the Imperial Parliament, should be closely and impartially
investigated, that means should be devised for bringing to trial and punish-
ment within the Province, itself, every such officer to whose charge any
malversation in office may be laid; and tiiat effectual security should be
taken for the zealous co-operation of all subordinate officers in every
measure advised by the Legislature and sanctioned by the King for the
general welfare of His Majest/s subjects.

The Address of the Assembly calls upon His Majesty to recommend
to Parliament the repeal of the British statute respecting the tenures of
land in Lower Canada. If the House had been in possession of my Des-
patch of the 17th July, they would probably have waived this application.
They would have been aware that the reluctance of the King, to recom-
mend to Parliament any measure which could be plausibly represented as
an unnecessary interference with the internal affairs of the Province, is
the single obstacle to the introduction of a Bill on that subject.

The Address proceeds to demand the repeal of the Act and the revoca-
tion of the Charter under which the British North American Land Company
is incorporated, and the resumption of the lands which have been sold to
them. I shall not, I trust, be thought forgetful of what is due to the
privileges and dignity of the House, if I do not shrink from the avowal
of any opinion deliberately entertained by the Ministers of the Crown,
though it be not in accordance with the sentiments of the Representatives
of the Canadian people; I must, therefore, state that His Majesty's Govern-
ment cannot proceed to the consideration of the questions raised by the
Assembly respecting the British North American Land Company, unless
it can first be established in due course of law that the claim of the Com-
pany to their corporate character and to their lands is invalid. No con- '
siderations however urgent, of temporary or apparent expediency, not
even the desire to conciliate the good will of the Assembly of Lower
Canada — than which no motive can be of greater weight,— could reconcile

» See No. CXXI.

BB

434 Constitutional Documents of Canada. [1791-1840

His Majesty to a measure, the principle of which would endanger the foun-
dation of all proprietaiy titles, and all social rights.

The remaining topics embraced in the Address require, on the present
occasion, no very lengthened notice, because when attentively considered,
that document does not appear to advance any principle respecting them
essentially different from those which are admitted or maintained in my
Despatch of the 17th of July.

Respecting Judicial independence, the Assembly frankly admit the
entire coincidence between the opinions of His Majesty's Ministers and
their own.

With regard to the settlement and management of the uncleared lands,
and to all questions of finance, I trust I am not mistaken in supposing that
no essential difference in principle exists between the sentiments contained
in the Address, and those expressed in my despatch of the 17th July.

And now, referring to the preceding remarks, I conceive myself entitled
.to state, that there did not exist during the last Session any real or sub-
stantial difference of opinion between the Ministers of the Crown and the
House of Assenfbly, on any question rj^arding which His Majesty's Gov-
ernment felt at liberty to take any immediate proceedings. No single
complaint had been alleged which had not been either promptly removed,
or made the subject of impartial enquiry. No maladministration of the
affairs of the Province was imputed to your Lordship. Without any actual
controversy with the Executive Government, the House, however, declined
a compliance with the proposition to provide for the arrears and for the
supplies pending the enquiry. His Majesty does not deny that this is a
power which the law has entrusted to the representatives of the people.
But he cannot admit that, on the present occasion, the recourse to the
exercise of that power can be attributed to any indisposition on the part
of His Majesty to accord the fullest measure of justice to His Canadian
subjects. On a review of all the circumstances of the case, His Majesty's
Government are led to the conclusion, that the course pursued by the House
IS to be ascribed to the misapprehension of the tenor of your Lordship's
instructions, induced by the publication of a few detached passages from
them. Your Lordship will, therefore, communicate to the House a complete
copy of those instructions, and will renew your application for the arrears
now due to the public officers, and for the funds necessary to carry on His
Majesty's service,

I have the honor to be, my Lord,

Your most obedient servant,

(Signed) Glbnelg.

CXXIV

LORD JOHN RUSSELL'S TEN RESOLUTIONS, MARCH 6. 183^
[Trans.: Hansard: (3rd Scries) Vol. XXXVL p. 1303.]

1. That since the 31st day of October, in the year 1832, no provision
has been made by the Legislature of the province of Lower Canada, for
defraying the charges of the administration of justice, and for the support
of the civil government, within the said province, and that there will, on
the 10th day of April now next ensuing, be required for defraying in full
the charges aforesaid to that day, the sume of il42,160. 14s. 6d.

2. That at a Session of the Legislature of Lower Canada, holden at
the city of Quebec, in the said province, in the months of September and
October, 1836, the Governor of the said province, in compliance with hb
Majesty's commands, recommended to the attention of the House of
Assembly thereof, the estimates for the current year, and also the accounts,
showing the arrears due in respect of the civil government, and signified
to the said House his Majest/s confidence that they would accede to the

* For the circumstances whiclr led to these Resolutions, see p. 398, note, tad cf
No. CXXV.

1791-1840] Constitutional Documents of Canada, 435

application which he had been commanded to renew, for payment of the
arrears due on account of the public service, and for the funds necessary
to carry on the civil government of the province.

3. That the said House of Assembly, on the 5d day of October, 1856,
by an address to the Governor of the said province, declined to vote a
supply for the purposes aforesaid, and by the said address, after referring
to a former address of the said House to the Governor of the said province,
declared that the said House persisted, amongst other things, in the demand
of an elective Legislative Council, and in demanding the repeal of a certain
Act passed by the Parliament of the United Kingdom in favour o.f the
North American Land Company ; and by the said address, the said House
of Assembly further adverted to the demand made by that House of the
free exercise of its control over all the branches of the Executive Govern-
ment; and by the said address, the said House of Assembly further de-
clared, that it was incumbent on them, in the present conjuncture, to adjourn
their deliberations until his Majesty's Government should, by its acts,
especially by rendering the second branch of the Legislature conformable
to the wishes and wants of the people, have commenced the great work of
justice and reform, and created a confidence, which alone could crown it
with success.

4. That in the existing state of Lower Canada, it is unadvisable to
make the Legislative Council of that province an elective body; but that
it is expedient that measures be adopted for securing to that branch of the
Legislature a greater degree of public confidence.

5. That while it is expedient to improve the composition of the
Executive Council in Lower Canada, it is unadvisable to subject it to the
responsibility demanded by the House of Assembly of that province.

6. That the legal title of the North American LaxuLCompany to the
land holden by the said Company, by yirfue'*or*a grant from his Majesty,
under the public seal of the said province, and to the privileges conferred
on the said company by the Act for that purpose made, in the fourth year
of his Majesty's reign, ought to be maintained inviolate.

7. That it is expedient, that so soon as provisions shall have been
made by law, to be passed by the Legislature of the said province of Lower
Canada, for the discharge of lands therein from feudal dues and services,
and for removing any doubts as to the incidents of the tenure of land in
fee and common soccage in the said province, a certain Act made and
passed in the sixth year of the reign of his late Majesty King George IV.,
commonly called "The Canada Tenures Act," and so much of another Act
passed in the third year of his said late Majesty's reign, commonly called
The Canada Trade Act," as relates to the tenures of land in the said pro-
vince, should be repealed, saving nevertheless to all persons all rights in
them vested under or by virtue of the said recited Acts.

8. That for defraying the arrears due on account of the established
and customary charges of the administration of justice, and of the civil
government of the said province, it is expedient, that after applying for
that purpose such balance as shall, on the said 10th day of A^ril, 18o/, be
in the hands of the Receiver-General of the said province, arising from his
Majesty's hereditary, territorial, and casual revenue, the Governor of the
said province be empowered to issue from and out of any other part of his
Majesty's revenues, in the hands of the Receiver-General of the said pro-
vince, such further sums as shall be necessary to effect the payment of the
before-mentioned sum of £142,160. 14s. 6d.

9. That it is expedient that his Majesty be authorised to place at
the disposal of the Legislature of the said province, the net proceeds of
his Majesty's hereditary, territorial, and casual revenue arising within the
same, in case the said Legislature shall see fit to grant to his Majesty a
civil list for defraying the necessary charges of the administration of jus-
tice, and for the maintenance and unavoidable expenses of certain of the
princiinl officers of the civil government of the said provinces.

10. That great inconvenience had been sustained by his Majesty's
subjects inhabiting the provinces of Lower Canada and Upper Canada,

/

436 Constitutional Documents of Canada. [1791-1840

from the want of some adequate means for regulating and adjusting ques-
tions respecting the trade and commerce of the said provinces, and divers
other questions, wherein the said provinces have a common interest ; and it
is expedient that the Legislature of the said provinces respectively be
authorised to make provision for the joint regulation and adjustment of
such their common interest.

cxxv

GOSFORD'S SPEECH TO THE LEGISLATURE, AUGUST, 1837

[Trans.: Christie, op. cit.}

Gentlemen of the Legislative Council,
Gentlemen of the House of Assembly,

The Reports of the Royal Commissioners on the several subjects which
came under their investigation during their stay in Lower Canada, having
been laid before the two Houses of Parliament, a series of resolutions,
ten in number, were shortly afterwards introduced by the Ministers rela-
tive to the affairs of this Province, copies of which I will communicate to
you in the usual way at the earliest opportunity.

The principal objects of these resolutions are to declare: —

1st. That in the existing state of Lower Canada, it is unadvisable
to make the L^islative Council elective, but that it is expedient to adopt
measures for securing to that brandi of the Legislature a greater degree
of public confidence.

2ndly. That while it is expedient to improve the composition of the
Executive Council, it is unadvisable to subject it to the responsibility
demanded by the House of Assembly.

3rdly. That the legal title of the British American Land Company to
the land they hold under their Charter, and an Act of the Imperial Parlia-
ment, ought to be maintained inviolate.

4thly. That as soon as this Legislature shall make provision by law
for discharging lands from feudal dues and services, and for removing any
doubts as to the incidents of the Tenures of Land in free and common see-
cage, it is expedient to repeal the Canada Tenures Act, and the Canada
Trade Act, so far as the latter relates to the Tenures of Land in this
Province, saving, nevertheless, to all persons, the rights vested in them
under or by virtue of those Acts.

5thly. That for defraying the arrears due on account of the establish-
ment and customary charges of the Administration of Justice and of the
Civil Government of the Province, it is expedient that after applying for
that purpose such balance as should, on the 10th day of April last, be in
the hands of the Receiver General, arising from the hereditary, territorial
and casual revenues of the Crown, the Governor of the Province be em-
powered to issue, out of any other monies in the hands of the Receiver
General, such further sums as shall be necessary to effect the payment of
such arrears and charges up to the 10th April last.

6thly. That it is expedient to place at the disposal of this Legislature
the net proceeds of the hereditary, territorial and casual revenues arising
within the Province, in case the said Legislature shall see fit to grant a
Civil List for defraying ^e charges of the Administration of Justice, and
for the maintenance and unavoidable expenses of certain of the principal
officers of the Civil Government of the Province, and

Lastly, that it is expedient that the Legislatures of Lower and Upper
Canada respectively, be authorized to make provision for the joint regula-
tion and adjustment of questions respecting their trade and commerce,
and of other questions wherein they have a common interest.

Having thus laid before you an outline of the measures contemplated
by the resolutions which were passed after full discussion in the House
of Commons by large majorities, and in the House of Peers witfaont a

179r-1840] Constitutional Documents of Canada, 437

division, I proceed, in obedience to the Royal Commands, to assure you
that it was with the deepest regret and reluctance that Her Majesty's
Government yielded to the necessity of invoking the interference of Parlia-
ment, in order to meet the pressing difficulties which other resources had
failed to remove in the administration of the affairs of the Province. But
with a view to abstain, as much as possible, from any interference which
is not imperatively demanded by the force of existing circumstances. Her
Majesty's Ministers have determined not to submit to the present Parlia-
ment the Bills to be founded on the resolutions of which I have just spoken.
Yet as they cannot overlook the necessity of making immediate provision
for the discharge of the debt from the Civil Government of this Province,
they have resolved to propose to the House of Commons that a vote of
credit should be passed for the advance, by way of loan, from British
Funds, of the sum required for the payment of the debt

Gentlemen of the House of Assembly,

The accounts showing the payments that have been made since the
close of the Session in March, 1836, out of the revenues at the disposal of
the Crown, in p^rt liquidation of the large arrears then due in respect of
the civil establishment of the Province, shall, as soon as possible, be sub-
mitted to you, with every explanation that you may desire, and I can
supply. I have, likewise, in obedience to the injunctions I have received,
directed that an account of the balance of arrears owing on the 10th* April
last for official salaries, and the other ordinary expenditure of the local
Government, be made and laid before you, with an estimate for the current
half year, and in recommending as I do most earnestly these matters to
your early and favorable consideration, I am commanded to express to you,
at the same time, the anxious hope that the Governor of this Province
may not be compelled to exercise the power with which the Imperial
Parliament has declared its intention of investing him, in order to dis-
charge the arrears due in respect of public services, for the payment of
which the faith of the Crown has been repeatedly pledged. The chief
object, therefore, for which you are now called together, is to afford you
an opportunity by granting the requisite supplies of rendering unnecessary,
on the part of the Imperial Parliament, any further action on the 8th of
the series of resolutions to which I have alluded ; and it will, I can assure
you, be to me a matter of unmixed satisfaction, should you resolve to
concede to the united voice of the British people, as expressed through the
several branches of their Legislature, that which you have not thought it
expedient to yield to the solicitation of the Executive Government alone.

Gentlemen of the Legislative Council,
Gentlemen of the House of Assembly,

I am further commanded to express to you the earnest desire of Her
Majesty's Government to co-operate with you in the removal of every
obstacle to the beneficial working of the existing Constitution, and in the
correction of every defect which time and experience have developed in
the laws and institutions of the Province, or in the administration of its
government; and I am, also to assure you of a prompt attention on the
part of Her Majesty's Government to every representation which may
proceed from you, tending to effect improvements of this nature, calculated
to stren^rihen the connexion subsisting between Great Britain and Lower
Canada, by the promotion of the welfare and interests of all classes of
Her Majest/s subjects in this Province.

At die time the summons was issued for assembling you on this day I
had every reason to believe that it would have been in my power to an-
nounce to you, as effected, those alterations which you may gather from
the resolutions of which I have spoken, it is intended to effect in the
composition of the Executive and Legislative Councils, but the interrup-
tion occasioned by the demise of His late Majesty, to the progress of
public business in the Imperial Parliament and the prospect of its early
dissolution, have prevented the Ministers of the Crown from at once per-
fecting die measures they have in contemplation. These measures, there-

438 Constitutional Documents of Canada. [1791-1840

fore, are not forsaken, but only unavoidably suspended for a session, and
I trust I shall, at no veiy distant period, be enabld to appeal to the changes
introduced into the two Councils, as well as to other salutary arrangements,
as a proof of the sincerity with which Her Majesty's Government are
disposed to carry into effect the intentions they have expressed on these
points. ....

CXXVI

ADDRESS OF ASSEMBLY OF LOWER CANADA, AUGUST, 1837

[Trans. : Christie, op. cit.]

May it please Your Excellency.

■ We^ Her Majesty's faithful and loyal subjects, the Commons of Lower
Canada in Provincial Parliament assembled, humbly thank your Excellency
for your Speech from the Throne at the opening of the present session.
We assure your Excellency that at whatever season we may be called upon
to perform the duties entrusted to us by the people of the Province, no
personal inconvenience will prevent our labouring, as our first and most
important occupation, to ensure the liberties and happiness of our fellow
subjects, — to remove the evils which have pressed, and still continue in a
more aggravated form to press upon them, and to protect them against
the system which has corrupted the Provincial Government, and has been
sufficiently powerful not only to cause the Mother Country to refuse all
justice to the people with regard to their demands and ours for the im-
provement of their political institutions, and for the reform of abuses,
but to urge on the highest metropolitan authorities from whom we looked
for justice and protection, to acts of violence, to a violation of die most
sacred and best established rights of the Canadian people and of this
Legislature, and to the destruction of the very foundations of Government
We are, then bound by our duty, frankly to declare to your Excellency,
under the solemn circumstances in which we are placed, and after full and
calm deliberation, that since the time when we were last called to meet in
Provincial Parliament, we have seen in the conduct and proceedings of
the Metropolitan Government, and of the Colonial Administration towards
this country, nothing which could re-establish in the people the confidence
and affection which the long and fatal experience of the past has almost
destroyed; but that, on the contrary, every recent event has tended to
efface what remained of these feelings, and to consolidate, in opposition
to the liberties, interests and wishes of the people, the Colonial Oligarchy
factiously combined against them, and the hitherto unbridled and uncon-
trolled sway of the Colonial Ministers in Downing Street

The avowal which it has pleased your Excellency to make to us, that
the disposition of the authorities and of Parliament with regard to us,
and the oppressive and unconstitutional measures which have been the
result, are the consequences of the recommendations made by certain pre-
tended authorities known by the name of the Royal Commissioners, has
convinced us of the correctness of the opinions we have hitherto expressed
with regard to this Commission, which, constituted and acting under no
law, and without regard to law, and bound beforehand by its instructions
to die partial views and narrow policy of the British Ministry in the gov-
ernment of the colonies, could not possibly co-operate in doing justice to
the inhabitants of this Province, and in establishing their institutions, their
liberties and their prospects for the future, on the solid basis of their
wishes and their wants, as well as on the principles of the constitution. We
were therefore in nowise astonished at discovering in the productions of
this pretended commission nothing but preconceived opinions, prejudices
at variance with its mission and its duty, ideas of government founded on
data utterly foreign to the country, or at finding it fomenting divisions
and national distinctions, forgetful of constitutional principles, calumniating

> This Address is the reply to No. CXXV.

1791-1840] Constitutional Documents of Canada. 439

the provincial representation, and practising deception towards this House
and towards the people. We are bound especially to notice in the reports
in question one essential and paramount contradiction which pervades
every part of them, and forms their essence. It is, that, while they admit
the reality of the greater portion of the abuses and grievances of which
we have complained, the Commissioners do not recommend their removal
and the destruction of the causes which have produced them, but an act of
aggression against this House which has denounced them, and the absolute
destruction of the representative government in the Province, by the illegal
and violent spoliation of the public moneys of the people, by the Ministers
or by the Parliament; whereas it was the duty of the Commission and of
the Mother Country to assist this House in the entire removal of these
evils, and in rendering their recurrence impossible, by constituting the
second branch of the Legislature by means of the elective principle, — by
repealing all laws and privileges unjustly obtained, and by ensuring the
exercise of the powers and legitimate control of this House over the in-
ternal affairs of the Province, and over all matters relative to its territory
and the wants of its inhabitants, and more especially over the public revenue
raised therein.

These remarks will render unnecessary a portion of those .which we
might have been led to make on the series of resolutions spoken of by
your Excellency, and which being proposed by Lord John Russell, one of
the Ministers of the Crown, were adopted by the two Houses of Uie Par-
liament of the United Kingdom^. We perceive in this measure on the one
hand, a formal and total refusal of the reforms and improvements de-
manded by this House, and by the people, and on the other, an abuse of
the powers of Parliament, for the purpose of destroying the laws and con-
stitution of this Province by force, violating with regard to us the most
sacred and solemn engagements, and of thereby establishing irremediably
on the ruins of our liberties, and in place of the legitimate, efficient and
constitutional control which this House, and the people through it, have a
right to exercise over all the branches of the Executive Government, cor-
ruption and intrigue, the pillage of the revenue, and the self-appropriation
of the best resources of the country by the colonial functionaries and their
dependents, the domination and ascendancy of the few, and the oppression
and servitude of the mass of the inhabitants of this Province, without
distinction of class or of origin.

It is our duty, therefore, to tell the Mother Country, that if she carries
the spirit of these resolutions into effect in the Government of British
America, and of this Province in particular, her supremacy therein will
no longer depend upon the feelings of affection, of duty and of mutual
interest which would best secure it, but on physical and material force,
an element dangerous to the governing party, at the same time that it
subjects die governed to a degree of uncertainty as to their future existence
and their dearest interests, which is scarcely to be found under the most
absolute governments of civilized Europe. And we had humbly believed it
impossible that this state of permanent jeopardy, of hatred and of division,
could be wittingly perpetrated by England on the American continent ; and
that the liberty and welfare of every portion of the Empire were too dear
to the independent body of the English people to allow them to prefer
maintaining, in favor of the functionaries accused by the people of this
Province, 3ie system which has hitherto been its bane.

If, even before the opening of the present session, we had been unde-
ceived in this fond hope by public report, if we had little expectation that
a sudden change in the councils of the Empire should place us at once in
possession of the benefits of the constitutive reforms which we had de-
clared to be essential, and such as would alone be sufficient, it was still
natural that we should most anxiously look forward to our being called
together in Parliament, because it was to be supposed, at least, that most
important reforms had been effected in the administration of the Govern-
ment, and that others were speedily to follow them : We have learned with

> See No. CXXIV.

440 Constitutional Documents of Canada, [1791-1840

fresh regret from your Elxcellency's speech, that no such reform has been
effected, or will be so at any near and determinate period : notwithstanding
the so often repeated pledges of the Government Your Excellency has
been pleased to allude distantly to the improvement of the personal com-
position of the Legislative and Executive Councils of this Province. With
regard to the Executive Council, we shall here forbear any painful reflec-
tions on the unmodified existence of that body, after it had been so solemnly
repudiated by your Excellency in the name of the Crown, and on its co-
operation with the other portions of the Provincial Executive in a system
of premeditated coercion to efiPect the overthrow of the laws and constitu-
tion, of incrimination, persecution, and arbitrary removals from office,
directed against the mass of the people who remain faithful to the true
principles of the British Constitution, and who have manifested their
attachment to their assailed liberties. We further represent, that the
present Executive, having, instead of performing its promises of justice
and the removal of abuses and grievances, entered upon the dangerous and
slippery path which has been die ruin of preceding administrations, and
having utterly alienated from it the affection of an important portion of
those of Her Majesty's subjects most devoted to the liberty and welfare of
the country, in order to bestow its confidence and that of the Government
partially, on those only who flatter it, no longer possesses in the person of
its Chief or in those of its other members the capability of effecting the
reforms indispensably necessary as preliminaries to any arrangement be-
tween the Government of the Mother Country and the colony, in a just,
equitable, and impartial manner, adapted to satisfy this House and the
people, and more especially to ensure between the several branches of the
L^islature that co-operation and that uniformity of general views which
we persist in believini^to be absolutely requisite. We should have hoped
that as a pledge of the security of the Government, the Legislative Council
would have been so remodelled as to enable us to ascertain up to what
point it had been rendered capable of legislating conformably widi the
wishes and wants of the people, and to act according to the conclusion to
which we might have come on this important subject This essential
reform having been omitted, we are bound to declare that our duty towards
the people by whom we are sent here, imperiously requires us to follow,
under existing circumstances, the course adopted by us in our Address of
the thirteenth September, one thousand eight hundred and thirty-six; we
therefore persist therein, as well as in all the declarations and demands
therin contained

The reforms which your Excellency announces as having been delayed,
will, nevertheless, if effected, in a spirit of justice and harmony, become
a powerful motive with us for examining whether the Legislative Council
in its present form of constitution, could even for a time co-operate with
us in a system of Legislation conformably to the interests of the people,
and of thereby ascertaining whether it shall have been so remodelled as to
induce us to manifest confidence in Her Majesty's Government

In our efforts to remove the evils which have pressed upon our coun-
try, we have had recourse to none but constitutional means, founded on
the most approved and best recognized principles. We have it so much at
heart, to see the Government once more deserve the public confidence, that
to assist it in attaining that confidence we should recoil before no sacrifice
but that of the liberties or of the honor of the people. We have given
proof of this disposition, even of late, whenever we have been able to
entertain a hope that we were thereby aiding to advance the prosperity of
the country. But we declare, that in the present conjuncture we have not
been able to derive from your Excellency's speech, or from any other
source, any motive for departing even momentarily from our determination
to withhold the supplies until the grievances of the country are redressed.

Your Excellency acknowledges that the chief object for which we are
now convened, is to afford us an opportunity by granting the supplies, of
preventing their being violently taken under an Act of the Imperial Parlia-
ment founded on resolutions already adopted. In the absence of any other

1791-1840] Constitutional Documents of Canada. 441

motive for thus recurring to our authority, than the tardy consideration of
the character of those resolutions as well as of the act of which they might
form the basis. Her Majesty's Government might, we humbly conceive,
have recollected that those resolutions are not our work, that we had
already^ fully deliberated on the demand made to us by your Excellency,
and that while we have not before us any act, or even any hope which can
promise a mitigation of the evils under which the people are suffering, we
should not be justifiable in placing in the hands of hostile powers the means
of aggravating and perpetuating those evils.

There could exist, then, no considerations but such as might be dic-
tated by a servile fear foreign to our mandate and derogatory to the
character of the people, to induce us to be wanting to do our duty in the
present instance, by ratifying the violation of the rights of our constituents,
and of this House, by the British authorities, and by taking on ourselves
of responsibility of the consequences which might result from it We leave
this responsibility to those who have assumed it, and strong in the justice
of our cause, we rely, as we have heretofore done, on Providence, on the
public and private virtues of all classes of the people, on their constancy,
their perserevance, and their attachment to the principles of order and lib-
erty which, following their example, we have tmceasingly striven to main-
tain.

In thus expressing our wish that a commencement of reform had
tended to re-establish confidence, we cannot have been misunderstood as to
the motives which actuate us. We repeat, nevertheless, that we shall regard
all administrative measures whatsoever as insufficient permanently and
effectively to ensure the peace, security and happiness of the Province;
and that the essential and constitutive reforms which we have demanded,
and especially the application of the elective principle to the Legislative
Council, the repeal of Mill undue privileges and monopolies, and of injurious
laws passed in England, the free exercise of the rights and privileges of
this legislature and of this House in particular, and the establishment of
a popular and responsible government, are the only means by which the
advantages herein before mentioned can be ensured, or the political con-
nexion with Great Britain rendered beneficial to the people of Canada.

It is, therefore, our ardent wish that the resolutions adopted by the
two Houses of Parliament may be rescinded, as attacking the rights and
liberties of this Province, as being of a nature to perpetuate bad Govern-
ment, corruption and abuse of power therein, and as rendering more just
and legitimate the disaffection and opposition of the people. If this return
by the Government of the Mother Country to what we consider its duty
towards this colony, should take place under the Reign of Her Most
Gracious Majesty Queen Victoria, we are unable to express to your Excel-
lency how warmly we should congratulate ourselves on having persevered
in claiming justice for the people, notwithstanding the peculiar obstacles
and difficulties which have tended to deter us.

The special and local subjects pointed out by your excellency, and in
particular the advances of public money made to relieve the distress in
certain parts of the Province, and for other purposes, will form the subject
of our deliberations as soon as circumstances will permit, and whenever we
shall be no longer prevented from considering ^em.

442 Constitutional Documents of Canada. [1791-1840

CXXVII

ADDRESS OF THE CONSTITUTIONAL ASSOCIATION OF THE

CITY OF MONTREAL TO THE INHABITANTS OF THE

SISTER COLONIES, 13 DEC.. 1837

[Trans.: Christie, op. cit.]

When sedition and rebellion have boldly proclaimed themselves, in the
most populous and prosperous portions of this once contented and appar-
ently loyal Province, and when anarchy and confusion have set the laws
at defiance, and outraged the harmony and quiet of social life, the question
naturally arises ,to what circumstances of oppression, or to what unre-
dressed grievances such a calamitous state of things is to be ascribed.

The Constitutional Association of this city, has imdertaken the import-
ant duty of answering the enquiry, and of explaining to the inhabitants
of our Sister Colonies, as succinctly as the nature of the subject will admit,
the real cause of the discontent which has called into being the active
disturbances at present, most unhappily, and at the same time most un-
justifiablv, existing in Lower Canada.

At die conquest of the Province of Quebec by the British arms, the
greater proportion of its inhabitants chose to remain in the Province,
trusting to the generosity of their conquerors, rather than to return to the
country of their ancestors; they became British subjects by the mere fact
of their provincial residence, and subsequent civil and political benefactions
conferred upon them, demonstrated their well-placed trust in the generosity
of the British Government.

The full exercise of their religious worship, the complete enjoyment
of their ancient civil laws, and the undisturbed use of their native language,
were among the number of civil and social privileges, guaranteed to them ;
and political privileges, of equal extent to those enjoyed by the British
provincial inhabitants, were, in addition, subsequently bestowed upon them.

The uncongeniality of the French laws as a system of provincial civil
jurisprudence, with the spirit and feelings of British settlers, and their
expressed desire for a change from the petty tyranny of a Governor and
Council to the freedom of a Representative Provincial Government — pro-
cured still greater advantage for the French Canadians. In the year 1791,
the division of the Province of Quebec into the two separate Provinces of
Lower Canada and Upper Canada, was carried into effect, and a Constitu-
tion, essentially similar to that of the Parent State, was conferred upon
each, whilst, at the same time, universal suffrage, was, in effect, granted
to their inhabitants.

It was conceived that this measure, by which one division should
consist, as much as possible, of those who were well inclined to the English
laws, and the other, of those who were attached to the French laws, was
best adapted to put an end to all disputes of a legal sort — ^to reconcile the
jarring interests and opposite views of the provincial inhabitants — to
prevent a great degree of animosity and confusion, from their rooted
opposition of interests and to obviate dissatisfaction from a great as-
cendancy of one party over another in a united Legislature.

Two objections to the measure were, however, neglected by the Min-
ister of the day, that it fostered a population of foreigners in a British
colony, and that it contained no provision, whereby the inhabitants of the
British Islands should be totally excluded from settling themselves in
Lower Canada.

The experience of fifty years of separation between the Provinces,
and the present insurrectionary and seditious spirit exhibited in Lower
Canada, plainly show how far the advantageous results anticipated from
that impolitic and undesired measure have been realized.

The possession of the right of almost universal suffrage, and of a
numerical popular majority of the provincial constituency, gave the com-
plete command of the Representative branch of the Legislature to the

179M840] Constitutional Documents of Canada. 443

French Canadians, who soon exhibited a perfect knowledfi[e of their advan-
tage, and of that exclusive spirit which has since invariably actuated all
their proceedings, and grown into a firm determination to accomplish their
final purposes of the destruction of the interests and rights of the pro-
vincial inhabitants of British and Irish origin, and of the provincial con-
nexion subsisting with the Parent State.

A cursory examination of the composition of the House of Assembly,
from its establishment, will shew that, with scarcely an exception, no
individual of British or Irish origin has been returned to serve as a mem-
ber of that body by a French Canadian majority, unless as a pledged
supporter of French Canadian principles; with scarcely an exception, no
provincial law has been passed, how much soever required for the support
of the interests or the protection of the rights of the inhabitants of British
and Irish origin, and that even these legal exceptions were invariably of a
temporary nature, and subject to the capricious pleasure of French Cana-
dian majorities. The spirit of the legislation of that body will shew that
its temporary character was adopted to render the Province the more com-
pletely subject to their control, or to enable them the more easily to take
advantage of their expected predominance, for the abrogation of those
very temporary laws which they had been constrained to pass. The political
principles of that body will shew a fixed opposition to British interests,
not only in their aversion to or rejection of every measure, which would
tend to the introduction of capital and of a British population into the
Province, as, for example, an effectual system for the registration of mort-
gages, and an abrogation of the feudal tenure; but also in their p|Ositive
introduction and adoption of every measure likely to tend to the privation
of British and Irish rights, or to the destruction of British and Irish inter-
ests, such as the existing county division of the Province, by which the
British and Irish constituency in the seigniories has been completely
swamped in the greater numbers of the French Canadians, and tiieir de-
feated attempt to deprive their fellow-subjects of British and Irish origin
in the cities, tenants of leasehold property in copartnership, from a right
of voting for Members of the Assembly. The claim of that body» for the
sole management and disposal of the whole revenue of the Province, has
constantly had in view the attraction into their own hands of the entire
provincial authority, and the subjection of the Executive Government to
their arbitrary will. From their first insidious attempt in 1795, to obtain
the repeal of the permanent appropriation contained in the Act of 1774,
for the support of the civil government and the administration of justice,
thereby to subject the Executive Government to their good pleasure, for
any further support than the pittance they then agreed to allow, through
the whole course of the financial difficulties, which they have never allowed
to slumber, by means of their annual supply bills, their difficulties as to
the items of that supply, their resolution in 1822 not to grant permanent
supplies, or supplies during the Sovereign's life, their delegations to Eng-
land in 1828, and the whole category of their agitation upon the subject,
down to the year 1831, when the full accomplishment of their long sought
desires was obtained from the good faith of the British Government, by
the repeal of the permanent appropriations; their first, last, great object
was to obtain possession of the provincial revenues, well knowing that by
this means the Government would be cast into their hands. Finally, the
detail of the grievances of this body, as representing the opinions of their
constituency, the so called great mass of the population, completes the evi-
dence of their exclusive interests : in them will be found, the abrogation of
the Charter granted to the British American Land Company, by means
of which the Assembly sought to assume the management of the waste
lands in the townships, and thereby to prevent the settljcment therein of a
British and Irish population; the repeal of the Tenures Act, by which a
commutation of seigniorial tenure may be effected, from their apprehen-
sion of its leading to the introduction into the Province of British capital ;
their indisposition to encourage the settlement of the townships of this
Province, because they are principally inhabited by a British, Irish and

444 Constitutional Documents of Canada. [1791-1840

American population ; their unwillingness to co-operate with Upper Canada,
in the extensive improvements in progress in that Province, by which its
settlement and prosperity might be augmented, and like advantages might
thereby accrue to the British and Irish inhabitants of Lower Canada; and
their pertinacious endeavours to render the Legislative Council elective,
because in it alone were to be found the means of opposing their exclusive
pretensions, and of protecting British interests. The history of the House
of Assembly in its composition, its legislation, its spirit, and political prin-
ciple, fully establishes the aim which its members have constantly kept^ in
view, the aggrandizement of the population of French and the oppression
of that of British origin.

The recorded testimony of a French Canadian leader, and one of the
delegates to England, in 1828, to represent the grievances of his fellow-
countrymen, and since that time, their paid agent for similar purposes,
corroborates the views taken by the Constitutional Association; be de-
clared, in his examination before the Canada Committee of the House of
Commons, in 1828, that "the establishment of the English law as applicable
to property held in the townships on the tenure of free and common soc-
cage would be an infringement of the rights belonging to the French Cana-
dians, if not done by the Legislature of Lower Canada; that the French
laws should be allowed to continue all over the country; that facilities
should have been given to the French Canadians to settle in the Townships ;
that the means of going there should have been given to them; that a
system of education, according to the notions and ideas of the French
Canadians, should have been followed ; that the desire of the French Cana-
dians must necessarily be to keep up their own institutions, and to preserve
their laws in every part of the country ; that the Legislative Council should
be composed of men who would side with the mass of the people, and, in
effecting this latter arrangement, that its natural effect would be to secure
the means of extending the French laws and the French Canadian system
over Lower Canada."

In the full and complete security of their persons and property, in
the free and unrestricted enjo3rment of their religious worship, Uieir ancient
civil laws, their native and beloved language, and of an equadity of rights
and privileges in the provincial representative government with their fel-
low-subjects of British and Irish origin, in possession, moreover of a
numerical popular majority, the French Canadians could have no ssrm-
pathies in common with the people of another race and speaking another
language, no inducement to divest themselves of prejudices dear to them
alike from the associations of country and the recollections of life, or to
abandon habits and customs which they cherished and to which they were
firmly attached, for the questionable advantages to be obtained from assim-
ilation with strangers, whom they were taught to disregard; and the
natural consequence has been, that, in proportion as the French Canadian
population has increased, these evils have likewise increased, until the
repugnance to British interest and British connexion has finally assumed
the form of open and declared rebellion.

The French Canadian population were thus not only nationally inclined
to mark their active opposition to their fellow-subjects of British and Irish
origin, but ^hey have been taught to consider them as strangers and tress-
passers upon their soil; they have been taught to feel towards them none
of those kindly sympathies which unite together subjects of the same
country and possessors of the same rights; they have in fine been taught
to believe themselves oppressed by their fellow-subjects of British and
Irish origin, and to imagine that they possessed the power of expelling
their oppressors. Overlooking moral feebleness in physical capability,
desperate men made an open livehood by influencing the population of
French origin to acts of violence; missionaries of insurrection, by Uieir
own example, ostentatiously shewed to them the manner of setting die
laws at defiance; and individuals loaded with every species of personal
contempt, aggravated a local pressure into popular tumult, or embittered
an unimportant grievance into bloodshed. In all cases, the object was

1791-1840] Constitutional Documents of Canada. 445

attained, active discontent was introduced into the passive population, and
noon day meetings gradually ripened into sedition and rebellion.

It is this exclusive French Canadian spirit alone which has given rise
to all the discontent existing in this Province, it is this which has in fact
made the question one of national origin and not of political party, in it
is to be discovered the source of all the disturbances which have brought
sedition and rebellion in their train, and in it alone is to be found a full
and complete answer to the enquiry, to what causes the present unhappy
condition of this Province is to be ascribed.

This conclusion is borne out, by the text-book of the complaints of
the French Canadian Representatives, adopted in 1834, the famous ninety-
two Resolutions of the House of Ass^mbl/, in which will be found a
detail of grievances and abuses which that body knew to be either alto-
gether redressed, or in active course of being so; reference is therein
principally had to those which have been alluded to : the introduction of the
elective principle into the composition of the Legislative Council, the abro-
gation of the Tenure Act, and the disposal of the whole revenue of the
Province ; the two former have been most widely refused, the latter as un-
wisely granted. By their admission, therefore, no real oppression exists
in the Province, and no real grievance, consistent with the preservation
of British supremacy, remains unredressed.

The French Canadian leaders have endeavoured to excite the sympathy
of the citizens of the United States, and of the professed republicans in
Upper Canada, in behalf of themselves and their fellow-countrymen, by
constantly appealing to their assistance for the support of popular institu-
tions and popular rights, as if their real views were republican, and as if
that form of government were favoured by the French Canadian popula-
tion. It is sufficient to meet this fallacious inference with a direct denial,
as bein^ contrary to fact, and to the habits, feelings and customs of that
population, and as being altogether disproved by the evident principle of
all the measures which have been proposed or approved by the French
Canadian population, or its Representatives in Provincial Parliament assem-
bled. These plainly shew that their views did not extend beyond the means
of securing their own exclusive designs and intentions.

Although hitherto the voice of supplication in favour of British and
Irish provincial grievances has been unheeded, amidst the clamours of an
insurrectionary faction, these loyal subject still confidently trust in the
magnanimity of the Mother Country, and still anticipate from her justice,
an entire redress of their unmerited and patiently endured grievances.

It is in the midst of disorder and disturbance, that the Constitutional
Association of this city presumes to claim the sympathies of the inhabitants
of the Sister Colonies, and their assistance, if required, for the protection
of the rights and privileges of British subjects, and the maintenance of
the connexion of the Province with the Mother Country.

Peter McGill, Chairman,
Wm. Badgley, Secretary.

Montreal, Dec. 13, 1837.

CXXVIII

AN ACT TO MAKE TEMPORARY PROVISION FOR THE
GOVERNMENT OF LOWER CANADA

(1 & 2 Victoria, c. 9.)

10th February^ 1838.
Whereas in the present state of the Province of Lower Canada the
House of Assembly of the said Province, constituted under the Act passed
in the thirty-first year of his Majesty, King George the Third, intituled" yj^'/"'
"An Act to repeal certain parts of an Act passed in the fourteenth year of
hi^ Majesty's reign, intituled 'An Act for making more effectual provision
for the Government of the Province of Quebec in North America,' and to
> No. CXIV.

446 Constitutional Documents of Canada. [1791-1840

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 Goverxunent
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 present Parliament assem-
bled, and by the authority of the same, that from the proclamation of this
Act* in the said Province as hereinafter provided, until the first day of
Ac%«Snt November in the year one thousand eight hundred and forty, so much of
Legulatureof ^^ said Act of the thirty-first year of King George the Third, and of any
Lower Cuiada other Act or Acts of Parliament, as constitutes or provides for the consti-
suspended. tution or calling of a Legislative Council or Legislative Assembly for the
Province of Lower Canada, as confers any powers or functions upon the
said Legislative Council and Legislative Assembly, or either of those
bodies, shall cease and be of no force.

Her Majeity II. And be it enacted that it shall be lawful for her Majesty, by any

frS^iff^^Sn* commission or commissions to be from time to time issued under the Great

Slforthe Seal of the United Kingdom, or by any instructions under her Majesty's

affairs of signet or sign 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 pr 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 Coun-

Membersof cillors: Provided always tnat no member of the said special Council shall

take im Oatli!* be permitted to sit or vote 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 sudi 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.

MdGsoncU^'^ III. And be it enacted that from and after such proclamation as
may make aforesaid, and until the first day of November in the year one thousand
0*7°*^ eight hundred and forty, it shall be lawful for the Governor of the Pro-

fortSeG^- vince of Lower Canada, with the advice and consent of the majority of
emment of the said Councillors present at a meeting or meetings to be for that pur-
Lower Canada, pose from time to time convened by the Governor of the said Province,
to make such laws or ordinances for the peace, welfare ,and good Govern-
ment 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 passing 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:
^pr^oMd' Provided always that no such law or ordinance shall be made unless the
w the same shall have been first proposed by the said Governor for adoption by

Goremor. the Council, nor unless the said Governor and five at least of the said
Councillors shall be actually present when such law or ordinance shall be
made: Provided also, that no law or ordinance so made shall continue
Ufflltiac their in force beyond the first day of November in the year one thousand eight
duration. hundred and forty-two, unless continued by competent authority: Provided
also, that it shall nx>t be 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

* This Act was proclaimed on 29th March, 1S38, in the Quebec Gcsette.

* In accordance with this proyiaion, Sir John Colbome appointed a Special Council.

1791-1840] Constitutional Documents of Canada. 447

impost which at the passing of this Act is payable within the said Province fP'^^ ** ^^
may be thereby continued: Provided also that it shall not be lawful, by^^H"^
any such law or ordinance, to alter in any respect the law now existing in
the said Province respecting the constitution or composition of the Legisla- . ^

tive Assembly thereof, or respecting the right of any person to vote at the dinanaM not
election of any member of the said Assembly, or respecting the qualifica- to affect the
tions of such voters, or respecting the division of the said Province into 2jj^*^ **^*
counties, cities, and towns for the purpose of such elections; nor shall it^Q^of'
be lawful by any such law or ordinance to repeal, suspend, or alter any election, etc.
provision of any Act of the Parliament of Great Britain or of the Parlia-
ment of the United Kingdom, or of any Act of the Legislature of Lower
Canada as now constituted, repealing or altering any such Act of Parlia-
ment.

IV. Provided always, and be it enacted, that it shall not be lawful by No law, etc.,
any such law or ordinance to appropriate any monies which now are ?*■ Jg^Mjr^jmte
which shall hereafter be in the hands of the Receiver-General of the said ji^d for re-
Province of Lower Canada towards the repayment of any sum or sums of payment of
money which shall have been issued out of the sum of one hundred stndjj**^^®'
forty-two thousand one hundred and sixty pounds, fourteen shillings, and lets on certi-
sixpence, granted to her Majesty by an Act passed in the last session of ficate of Corn-
Parliament for advances on account of charges for the administration of SfSJ^^ff'-
justice and of the Civil Government of the Province of Lower Canada, to an amount
unless upon a certificate from three or more of the Commissioners of her exceeding the
Mai«sty^s Treasury, setting forth the several sums which shall have been ■W^J^"***®"
so advanced for any of the purposes aforesaid: Provided also, that, exctu-**
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 appro-
priated by law within the said Province for the public service thereof for
the year one thousand eight hundred and thirty-two.

.V And be it enacted that the Governor of the said Province is Jiereby JgJJ^J^^'*
required, b/ the first convenient opportunity, to transmit to one of her be disallowed
Majesty's Principal Secretaries of State an authentic copy of every law bj Her ^
or ordinance made under the authority of this Act; and that it shall ^cgJJ^t]^"*
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 be taken ^o2?i^?Uwt
a£Fect or invalidate any law, statute or ordinance now in force within the qq^ in force,
said Province of Lower Canada, or in any part thereof, except in so far etc.

as the same is repugnant to Uiis Act.

VII. And be it enacted that this Act shall be proclaimed by the*^|J«J^*fon
Governor of the said Province of Lower Canada within 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 any person ScJ^Jnor"
authorized to execute the commission of Governor of the Province of defined.
Lower Canada shall be taken to be the Governor thereof.

IX. And be it enacted that this Act may be altered or repealed by^j^^^JJj
any Act to be passed in thp present session of Parliament. '

448 Constitutional Documents of Canada. [1791-1840

... CXXIX

REPORT OF SELECT COMMITTEE OF HOUSE OF ASSEMBLY,

UPPER CANADA, FEBRUARY 1838*

[Trans.: Appendix Upper Canada House of Assembly Journals, 1837-8,

pp. 257 ff.]

♦ ♦♦*♦♦

1st. The first project deserving of notice, is the repeal of the Consti-
tutional Act', 31 Geo. 3rd, so far as the same relates to Lower Canada, and
(with some slight variation as regards the imposition of duties and inter-
course with Upper Canada), a return to the provisions of the Act* 14th
Geo. 3rd, chap. 83.

The objections that the inhabitants of Lower Canada, of French origin,
might raise to this change in their form of Government, ought not to be
considered of very great weight. In the first place, it is well kaown, that
they violently opposed the introduction of the representative system at the
time it was adopted, as being unsuited to their habits and opinions ; in the
same manner, and probably for the same reasons, that they now oppose the
introduction of Free and Common Soccage, instead of the Feudal Tenure;
and secondly, because they have abused this invaluable privilege of British
Subjects, and have employed the power it gave them, to bring about revolt,
and the entire overthrow of the Government. If however our fellow Sub-
jects of British descent, should seriously oppose themselves to this change,
the question would then be, whether such modifications might not be intro-
duced into the measure, as would gain their acquiescence. Your Committee
venture to suggest the following : — ^Let the number of Legislative Council-
lors be considerably encreased beyond the number authorized by the 14th
Geo. 3rd : let these be taken in equal numbers from the inhabitants of Bri-
tish, and Irish, and of French descent: and let the English language be the
only language used in legal and legislative proceedings.

In connection with this measure, let the boundary line between Upper
and Lower Canada be so altered, as to give to the Upper Province all the
territory Ijring on the south-west side of the River Ottawa, and of the
Chambly Can>al, including the Island of Montreal ; all of which should be
governed according to the Constitution now existing.

2nd. The next project deserving notice, is one of a more important
and complex character, viz. : — ^a Legislative union of all the North Ameri-
can Colonies. Your Committee see much in this measure, to recommend
it to favorable notice, and as one of the most important advantages that
would immediately result from it, is the establishment of "British Ascend-
ancy/* without any change in the principles of the existing Constitution.

There can be no reason now for feeling any delicacy or hesitation in
speaking of visible and admitted facts, however ungracious or impolitic it
might be to do so, under different circumstances. The Canadians of French
descent in Lower Canada, are not loyal. The inhabitants of all the other
North American Colonies, are loyal : as are also those of British descent in
Lower Canada; — ^and they are so, not merely from the abstract sentiment
of loyalty, or from interest, but because they glory in being British sub-

* This Report was drawn up after the failure of the Mackenzie Rebellion, wbiA
it vividly describes as being ended "by the indignant frown of an insulted people."
The earlier part of the Report, which covers many pages of the Journals, traces the
history of British Canada and lavs all the trouble at the door of the Imperial Govern-
ment, owing to a weak policy of "concession" and "conciliation." The document is,
however, remarkable for its suggestions towards the solution of Canadian difficulties,
and those parts of it in which these suggestions are made are printed in full. The
most remarkable of tiiem is the suggestion for Canadian members in the Britiah Par-
liament. This suggestion had traditions behind it in Upper Canada, as it was made
to the Under Secretary of State in 1822 by John Beverley Robinson (Memoir on
Means to promote the Joint Interests of the Mother Country and her North American
Colonies, pp. 39 ff.) The whole tone of the document is characteristicallly "anti-demo-
cratic," and reflects the regime of Sir Francis Head, for which high praise is forth-
coming. At the same time there is severe criticism for the Colonial Office.

* No. LV. » No. XXV.

1791-1840] Constitutional Documents of Canada. 449

jects; they feel that the safety and security of their lives and liberties de-
pend on their repelling the encroachments of Democracy, which they de-
test; and because they see and feel "the superiority they have over the
neighbouring Republic in being governed by British laws; and they are
convinced, tlmt the stability of their institutions can be best secured, by
maintaining the connection with the Mother Country.

If, then, the whole of these Colonies were so far united as to be repre-
sented Id one Legislature, they would be enabled so to encrease and dis-
tribute their resources for the benefit of all, that the abtmdance and
facilities of national wealth would lead to and advance their common
interest, and place them at once on a level with many powerful naticms;
their attitude also would be such as to constitute a salutary check on. that
system of self-government which placed in the hands of an irresponsible
multitude, who disclaim obedience to any law that opposes their will, is now
threatening in this Western hemisphere to overthrow all those barriers
that have hitherto been regarded as necessary to the security of life, pro-
perty, and that freedom which can only be called "glorious, when restramed
by law."

If this measure should be considered as the one to be preferred for a
final settlement of the Government of these extensive Colonies, the Im-
perial Parliament (through 'whose interposition alone it can be effected),
should have its attention drawn to the necessity of considering, whether
it would not be desirable to continue the Provincial Assemblies, with
powers limited to the adoption of laws for their local and domestic gov-
ernment, separate from the questions of Trade and Commerce, and such
matters as must necessarily affect the interest of all the Colonies. Your
Committee can only say, that they entertain a decided feeling in favor of
retaining local Assemblies, and they urgently recommend the expression
of a similar o^ion on the part of your Honorable House.

In connection with this point of inquiry, your Committee are strongly
impressed with the ccmviction, that no act of our beloved Queen would
give to her loyal and devoted Subjects in this renK)te part of her Domin-
ions, more grateful evidence of Her Majesty's desire to perpetuate their
allegiance, than incorporating in her Royal title, the distinct claim of
Sovereignty over these Her Majesty's extensive and valuable possessions.
Such an act would, your Committee firmly believe, have a powerful moral
effect throughout this Continent, and serve more plainly and distinctly te
dniw the line between those sound, substantial, and we trust, enduring
principles of Monarchy which may well boast their pre-eminence over the
hollow and ever-varying fancies, that spring from a Democracy that is
controlled By the un-English, unmanly, inunoral and degrading system of
vote by ballot, and the pernicious influence of Universal Suffrage.

Your Committee will dismiss! this part of the subject, with this one
other recoounendation, viz. : that the title of the person who may hence-
forth be appointed to the Government of these Colonies, should be that of
"ViGE-RoT? —and that combined with integrity and talent, such as will at
once command confidence and respect, he should always be possessed of
high rank and distinction, as a public man. There was a time when the
Royal Dukes of the Kingdom did not consider the appointment of Captain
General of British North America unworthy of their acceptance ; it should
be made the object of their ambition now.

3rd. Your Committee next proceed to the question of a union of the

Provinces of Upper and Lower Canada. Were it not that the inhabitants

of Lower Canada of British origin regard this project with much favor,

and appear to consider it as the best measure for relieving tiiem from the

oppression under which they have long suffered from the conduct of the

dominant faction in their House of Assembly, your Committee would at

once declare their unqualified dissent; but we feel bound not to overlook

or treat lightly any suggestion that offers a reasonable hope of relieving

our loyal fellow subjects from their political embarrassments, which now,

more than ever, claim our sympathy and consideration. Indeed we feel

that unless a change takes place in the Constitution and system of Govern-

CC

450 Constitutional Documents of Canada. [1791-1840

ment in Lower Canada, it is next to impossible that either that Province or
this can advance one step in improvement, and that those who desire to
continue to live under the British Crown, will be driven to seek some other
place of residence.

If however the union should be that measure which the Imperial Par-
liament may ultimately determine upon, care must be taken that British
ascendancy is securely established in both branches of the Legislatare:
upon no other terms can the measure be sanctioned by this Province; and
this should be most clearly and positively stated to Her Majesty.

In what manner this ascendancy cail be secured, your Committee ab-
stain from offering any positive opinion. A variety of modes, however,
ma^ be suggested^ founded on a division of territory, and the tenure by
which lands are held in the two Provinces, and by restraining Freeholders
in Lower Canada, holding lands by conveyance, from voting, until their
titles are registered, as in the Upper Province. The introduction of the
laws of England, and the use of the English language in all Legislative and
Judicial proceedings should also be insisted upon ; and lastly, it should be
stipulated as a sine qua non on the part of this Province, lliat the place
selected for the seat of Government should be within its limits.

Your Committee are sensible that there are many serious difficulties in
the way of carrying the measure of the union into effect, in a satisfactory
manner, arising from difference of religion, laws, language and general
habits, in the two Provinces, but they believe these may be overcome, and
general satisfaction in the end attained, by rendering them truly British
Colonies, by the gradual influence of the changes necessary in the Institu-
tions of Lower Canada, and the more general diffusion of education among

the inhabitants.

***** *

4th. The next measure which your Committee consider it necessary
to remark upon, is the annexation of the Island of Montreal to Upper
Canada,^ which though last in their enumeration, they regard as far the
most to be desired for the interests of this Province, and as they believe,
for the benefit of the great body of the people in both Colonies.

With respect to the claim of riffht on the part of Upper Canada to a
Seaport, it may be fairly asserted, tnat no single argument or just reason
can be urged against it. The division of the Provinces of Upper and Lower
Canada in 1791, which left this Province without an independent outlet to
the ocean, vras unquestionably a great political error, and has been the
cause of difficulties and dissentions between the two Colonies, that have
led to much mischief and even estrangement, that would not otherwise have
happened.^ The motive for the division, as has been stated in a preceding
part of this report, was a generous regard for the feelings and prejudices
of the inhabitants of Lower Canada, and it is probable diat as provi^ons
had been made for the ultimate payment of the expenses of the Civil
Government of both Provinces, by the duties imposed by the Act of 14
Geo. 3, chap. 88', that the question of revenue (always a delicate and intri-
cate one), did not appear likely to create the embarrassments that have
since occurred.

The period, however, has arrived, when the condition of both Pro-
vinces imperatively requires, that the error committed should be repaired,
and with the utmost possible promptness. Upper Canada has now attained
a population of 450,000 souls, and its increase within the last few years has
been such as clearly to shew, that in a very ^ort time it will number as
many inhabitants as there are now in the Lower Province ; and that pro-
ceeding in a like ratio of increase, it wilt soon outstrip the Sister Colony as
greatly in population, as it already has in commerce and general improve-
ment. It will not be considered as an exaggerated statement to assert, that
four-iifths of the exports at the Port of Quebec, are supplied by Upper
Canada — that of the one thousand ships and vessels that annually enter
from sea, nine hundred at least are supplied with freight from this

*■ This proposal was frequently made during the contests between tlie two Prorincea.

1791-1840] Constitutional Documents of Canada. 451

Province — and that our products constitute the chief articles of remittance
made to the United Kingdom, in payment of the goods, imported — and that
of British manufactures, by far the greater portion; brought to these Col-
onies is consumed and paid for by Upper Canada.

This statement of the comparative commerce of the two Provinces,
founded on data which your Committee believe to be incontrovertible, in
itself proves, that it is contrary to the plainest rules of justice, that all the
Seaports through which this commerce flows, should be controlled by
anodier Colony ; but this is not the only evil of which this Province has to
complain. The Legislature of Lower Canada has from time to time enacted
laws and adopted regulations applying to the commerce of the Country,
which have in effect greatly embarrased the trade of this Province — such
as imposing restraints in the export of its lumber, flour, potash, &c. — alld
in some instances, by the levying of a direct tax, as in the case of emigrants
from the United Kingdom (since expired) — and on lumber passing down
the St. Lawrence. The assumption of these powers has been objected to,
and on different occasions protested against, by the Legislature of Upper
Canada, as the unconstitutional exercise of power by one Colony to tax
the productions of another, especially as in the instances mentioned, where
the articles were merely in transitu to and from the Mother Country; these
remonstrances, however, have not been heeded by the Imperial Govern-
ment, to whom they were addressed, and the Legislature of Lower Canada
having ceased to exercise the functions for which it was created, redress
from that quarter can no longer be expected.

But by far the most painful motive for respectfully but earnestly urg-
ing the immediate concession of the claim of this Province to a Seaport,
independent of all other control, remains to be stated.

Upper Canada confiding in the supremacy of the Institutions of both
Provinces, and never supposing it possible that the state of anarchy into
which Lower Canada has been thrown by the revolt of the disaffected
there, and which so seriously affects every branch of commerce and all
the sources of wealth and prosperity in both Provinces, could have occur-
red, did not hesitate to incur a heavy debt for the accomplishment of
internal improvements of vast magnitude and corresponding value, and
advantage to the country generally, fully relying on the continued increase
of its revenue from imports at Quebec and Montreal, as well as its own
internal revenue, to discharge the interest upon the loans contracted. It
is now, however, sufficiently certain from the state of affairs in Lower
Canada, that revenue from that quarter must be greatly diminished; and
in consequence Upper Canada finds herself reduced to the inevitable neces-
sity of resorting to direct taxation, for the purpose of maintaining its faith
with the public, unless it can obtain without delay, the concession of a plain
and undeniable right, namely, a Seaport at which as in all other countries,
the means of raising a revenue presents itself, free from the appearance of
direct taxation, and where such a discrimination in the selection of articles
for the imposition of duties can be made, as to cause whatever burdens
may be created to fall on parties best able to bear them.

Apart from the claim of right to a Seaport, which Upper Canada
confidently and earnestly urges, your Committee conceive that in granting
it, no portion of Her Majesty's subjects will have the slightest reason to
complain of injustice. It is not asked for purposes of oppression, or to
despoil any party of any single riffht that in equity belongs to them: on
the contrary, every reflecting and dispassionate man must be convinced,
that by the annexation of the Island of Montreal to Upper Canada, the
ship navigation of the St. Lawrence would be immediately completed to
that place — that the improvement of the Ottawa, and other great channels
of commerce, would be forthwith undertaken and carried into effect ; and
that in short one of the most effectual and certain measures for restoring
prosperity and contentment throughout the country, would be the instant
compliance with this claim.

Your Committee have no reason to doubt, indeed they have every
reason to believe, that at least a large majority of the British population,

452 Constitutional Documents of Canada, [1791-1840

which the annexation of Montreal and the country lying south west of the
Ottawa and the Chambly Canal, to Upper Canada, would bring within the
influence of English Laws and English Institutions^ would rejoice at the
change that would be effected by the measure; and it therefore remains
with the Imperial Parliament to determine whether the entreaty of 450,000
loyal subjects in Upper Canada, to have a plain and indi^utable natural
right conceded to them, and' the corresponding wishes of perhaps 50,000
of their fellow subjects of like character in Lower Canada, should be
refused or for a moment neglected, upon the single ground (your Commit-
tee can imagine no other) that the measure would be displeasing to a body
of persons not exceeding one twentieth of the number of those who de-
mand it---persons, too, who have grossly and ungratefully forfeited all
claim to indulgence, and who have proved themselves unworthy of retain-
ing the ascendancy that has too long been intrusted to them.

Your Committee have not hesitated, in remarking upon this all import-
ant subject, to express themselves with firmness and decision — ^not doubting
but that our Gracious Sovereign and the Imperial Parliament will not
ascribe the language they have employed to any factious or illiberal spirit,
but to the single desire, with earnestness and sincerity, to point out the
justice of their claim, and to prove that they are asking that which they
know and feel to be their due, and whi<5H if withheld from them must be
attended with the most disastrous consequences to their future peace and
prosperity, and greatly diminish the value of these Provinces to the Bri-
tish Crown.

Having thus suggested their views upon the leading questions which
they believe require consideration, in the adoption of measures for the
restoration of these important Colonies, to a situation in which they may
recover from the disastrous effects of recent rebellion, your Committee
will advert to a very few points, not necessarily connected with either of
the remedial measures remarked upon, but which in their opinion, are of
importance in themselves, as tending to the strengthening and continuing
of their connection with the Parent State.

1st. In the first place, it must now be manifest, that whatever
policy may be adopted with respect to Lower Canada, whether by herself
or in connection with any other Colony, an adequate Civil List must be
provided, for the maintenance of the Civil Government, and the efficient
administration of justice. Your Committee indeed have little hesitation in
sa3ring, that the relinquishment by the Crown of the power of paying its
public servants, independently of an annual vote of the Assembly, is one,
and probably the chief cause to which the recent rebellion in Lower Canada
may be ascribed.

2nd. The granting of large sums of money upon the Address of the
Assembly, at the commencement of each Session of the Legislature ia
Lower Canada, and which were asked for under the pretence tfiat they
were required to pay the necessary contingencies for carrying on the busi-
ness of the House, when in fact it was well known that they were (at leas*
to a large extent) to be employed in paying salaries to members of the Bri-
tish Parliament, who did not hesitate to prostitute die high station they
occupied to the promulgation of slander and falsehood against the local
authorities, to Ratify the malignant spirit of traitors — ^was not only illegal
and unconstitutional, but has, as is now too apparent, been productive of
the most pernicious consequences, in corrupting the moral feeling of the
people of that Province, and in giving encouragement to that spirit of re-
volt, which has at length exhibited itself in open rebellion.

* « * « « ♦

3rd. Your Committee now beg leave to draw the attention of your
Honorable House to a subject to which they attach very great importance,
and which is suggested in some degree by the observations contained in the
preceding paragraph, viz. — the representation of the North American Col-
onies in th^ House of Commons, by Members chosen by themselves. The
concession of this important point on the part of the Parent State, would.

1791-1840] Constitutional Documents of Canada. 453

your Committee ar^ convinced, be attended with numerous and incalculable
advantages. In the first place, it would strengthen the link that now binds
the loyal inhabitants of these Provinces to the Mother Country, by giving
to them a share in the deliberations of the Councils of the Kingdom — ^by
rendering more distinct and obvious the common interest that unites them,
and by shewing that they are in reaHty a part of that Great Empire in
which yet centres the hopes of mankind, for the preservation and protection
of the civil and religious liberties of the world ; their patriotic and praise-
worthy pride would be encouraged, and their station would be exalted in
their ovm estimation, as well as in that of the British Nation. In the next
place, it would place within the reach of the Imperial Government and
Parliament, the best and most satisfactory means of obtaining information
npon subjects connected with the trade and general interests of these vast
valuable and powerful Colonies.

And among many otiier advantages that might be enumerated, it would
supersede all pretence for continuing the baneful and unconstitutional prac-
tice of employing agents, by whatever faction might be uppermost in the
Representative branch of the Assembly of the respective Colonies, and afford
opportunities for repelling the false and unauthorized statements of such
Members of the House of Commons, as might venture upon declaiming
upon the character and feelings of a people, who abhor their political senti-
ments, and whose notions of Government are utterly at variance with those
entertained by unauthorized and ignorant intermeddlers in their affairs.

Should this suggestion be adopted by your Honorable House, and, at
your desire, by the Imperial Parliament — as your Committee earnestly hope
it may; they offer it as their opinion, that the representation of the Col-
onies should be limited to two from each of the Provinces of Upper
and Lower Canada, Nova Scotia, and New Brunswick, and one from each
of the Islands of Newfoundland and Cape Breton*— that diey ^ould be
elected in joint Assembly by the Legislative Councils and Houses of Assem-
bly of each Colony, at the commencement of every new Assembly, and
continue Members for six months after the dissolution of the Assembly
of the Colony for which they were elected.

4th. The next suggestion to which your Committee beg to draw the
attention of your Honorable Honse, is the necessity (now too painfully
obvious) of keeping up a respectable military force within both Provinces.

3|( « 3|( 4: i» «

5th. Your Conunittee feel that the duty thdt has been assigned to them
by your Honorable House, would be imperfectly performed if they omitted
notice of the inefficiency imputed by a large dass of the most intelligent
of our fellow subjects, to that department of Her Majesty s Government
in England, to which the administration of the affairs of tike Colonies are
entrusted. In the observations your Committee may offer on this head of
their enquiry, they cannot too distinctly disclaim any design to place on
record a word or sentiment, that is not dictated by the single feeling of
patriotism, and in that light they have no doubt your Honourable House
will receive their opinions, and if adopted, transmit them to our Sovereign

It appears to your Committee, that one of the chief causes of dissatis-
faction with the administration of Colonial affairs, arises from the frequent
changes in the Office of Secretary of State, to whom the Colonial Depart-
ment is entrusted. Since the time the late Lord Bathurst retired from that
charge, in 1827, your Committee believe there has been not less than eight
Colonial Ministers, and that the policy of each successive Statesman has
been more or less marked by a difference from that of his predecessor.
This frequency of change in itself, almost inevitably entails two evils,
iw*— An imperfect knowledge of the affairs of the Colonies, on the part
of the Chief Secretary, and the consequent necesaty of submitting the
direction of important details to the subordinate Officers of the Department ;
and second—the want of stability and firmness in the general policy of the
Government, and which of course creates much uneasiness on the part of
Hie Governors and other Officers of the Colonies, as to what measures may
be approved.

452 Constitutional Documents of Canada. [1791-1840

which the annexation of Montreal and the country lying south west of the
Ottawa and the Chambly Canal, to Upper Canada, would bring within the
influence of English Laws and English Institutions, would rejoice at the
change that would be effected by the measure; and it therefore remains
with the Imperial Parliament to determine whether the entreaty of 450,000
loyal subjects in Upper Canada, to have a plain and indi^utable natural
right conceded to them, and' the corresponding wishes of perhaps 50,000
of their fellow subjects of like character in Lower Canada, should be
refused or for a moment neglected, upon the single ground (your Commit-
tee can imagine no other) that the measure would be displeasing to a body
of persons not exceeding one twentieth of the number of those who de-
mand it — persons, too, who have grossly and ungratefully forfeited all
claim to indulgence, and who have proved themselves unworthy of retain-
ing the ascendancy that has too long been intrusted to them.

Your Committee have not hesitated, in remarking upon this all import-
ant subject, to express themselves with firmness and decision — ^not doubting
but that our Gracious Sovereign and the Imperial Parliament will not
ascribe the language they have employed to any factious or illiberal spirit,
but to the single desire, with earnestness and sincerity, to point out the
justice of their claim, and to prove that they are asking that which they
know and feel to be their due, and whi<5H if withheld from them must be
attended with the most disastrous consequences to their future peace and
prosperity, and greatly diminish the value of these Provinces to the Bri-
tish Crown.

Having thus suggested their views upon the leading questions which
they believe require consideration, in the adoption of measures for the
restoration of these important Colonies, to a situation in which they may
recover from the disastrous effects of recent rebellion, your Committee
will advert to a very few points, not necessarily connected with either of
the remedial measures remarked upon, but which in their opinion, are of
importance in themselves, as tending to the strengthening and continuing
of their connection with the Parent State.

1st. In the first place, it must now be manifest, that whatever
policy may be adopted with respect to Lower Canada, whether by herself
or in connection with any other Colony, an adequate Civil List must be
provided, for the maintenance of the Civil Government, and the efficient
administration of justice. Your Committee indeed have little hesitation in
saying, that the relinquishment by the Crown of the power of paying its
public servants, independently of an annual vote of the Assembly, is one.
and probably the chief cause to which the recent rebellion in Lower Canada
may be ascribed.

2nd. The granting of large sums of money upon the Address of the
Assembly, at the commencement of each Session of the Legislature in
Lower <!anada, and which were asked for under the pretence that they
were required to pay the necessary contingencies for carrying on the busi-
ness of me House, when in fact it was well known that they were (at leas*
to a large extent) to be employed in pajdng salaries to members of the Bri-
tish Parliament, who did not hesitate to prostitute the high station they
occupied to the promulgation of slander and falsehood against the local
authorities, to gratify the malignant spirit of traitors — was not only illegal
and unconstitutional, but has, as is now too apparent, been productive oT
the most pernicious consequences^ in corrupting the moral feelin|f of the
people of that Province, and in giving encouragement to that spint of re-
volt, which has at length exhibited itself in open rebellion.

* « * « * ♦

3rd. Your Committee now beg leave to draw the attention of your
Honorable House to a subject to wnich they attach very great importance,
and which is suggested in some degree by the observations contained in the
preceding paragraph, viz.—the representation of the North American Col-
onies in th^ House of Commons, by Members chosen by themselves. The
concession of this important point on the part of the Parent State, would,

1791-1840] Constitutional Docupfents of Canada. 453

your Committee ar^ convinced, be attended with numerous and incalculable
advantages. Iii the first place, it would strengthen the link that now binds
the loyal inhabitants of these Provinces to the Mother Country, by giving
to them a share in the deliberations of the Councils of the Kingdom — ^by
rendering more distinct and obvious the common interest that unites them,
and by shewing that they are in reality a part of that Great Empire in
which yet centres the hopes of mankind, for the preservation and protection
of the civil and religious liberties of the world ; their patriotic and praise-
worthy pride would be enconraged, and their station would be exalted in
their own estimation, as well as in that of the British Nation. In the next
place, it would place within the reach of the Imperial Government and
Parliament, the best and most satisfactory means of obtaining information
npon subjects connected with the trade and general interests of these vast
valuable and powerful Colonies.

And among many other advantages that might be enumerated, it would
supersede all pretence for continuing the baneful and unconstitutional prac-
tice of emj^oying agents, by whatever faction might be uppermost in the
Representative branch of the Assembly of the respective Colonies, and afford
opportunities for repelling the false and unauthorized statements of such
Members of the House of Commons, as might venture upon declattning
upon tiie character and feelings of a people, who abhor their political senti-
ments, and whose notions of Government are utterly at variance with those
entertained by unauthorized and ignorant intermeddlers in their affairs.

Should this suggestion be adopted by your Honorable House, and, at
your desire, by the Imperial Parliament — ^as your Committee earnestly hope
it may; they offer it as their opinion, that the representation of the Col-
onies should be limited to two from each of the Provinces of Upper
and Lower Canada, Nova Scotia, and New Brunswick, and one from each
of the Islands of Newfoundland and Cape Breton — that diey should be
elected in joint Assembly by the Legislative Councils and Houses of Assem-
bly of each Colony, at the commencement of every new Assembly, and
continue Members for six months after the dissolution of the Assembly
of the Colony for which they were elected.

4th. The next suggestion to which your Committee beg to draw the
attention of your Honorable House, is the necessity (now too painfully
obvious) of keeping up a respectable military force within both Provinces.

♦ * * 4: i» «

5th. Your Committee feel that the duty thAt has been assigned to them
by your Honorable House, would be imperfectly performed if they omitted
notice of the inefficiency imputed by a large class of the most intelligent
of our fellow subjects, to that department of Her Majest/s Government
in England, to which the administration of the affairs of tike Colonies are
entrusted. In the observations your Committee may offer on this bead of
their enquiry, they cannot too distinctly disclaim any design to place on
record a word or sentiment, that is not dictated by the single feeling of
patriotism, and in that light they have no doubt your Honourable House
will receive their opinions, and if adopted, transmit them to our Sovereign

It appears to your Committee, that one of the chief causes of dissatis-
faction with the administration of Colonial affairs, arises from the frequent
changes in the Office of Secretary of State, to whom the Colonial Depart-
ment is entrusted. Since the time the late Lord Bathurst retired from that
charge, in 1827, your Committee believe there has been not less than eight
Colonial Ministers, and that the policy of each successive Statesman has
been more or less marked by a difference from that of his predecessor.
This frequency of change in itself, almost inevitably entails two evils.
FirsP — An imperfect knowledge of the affairs of the Colonies, on the part
of the Chief Secretary, and the consequent necessity of submitting the
direction of important details to the subordinate Officers of the Department ;
and second — ^the want of stability and firmness in the general policy of the
Government, and which of course creates much uneasiness on the part of
the Governors and other Officers of the Colonies, as to what measures may
be approved.

454 Constitutional Documents of Canada. [1791-1840

But undoubtedly by far the greatest objection to the system is the
impossibility it occasions, of any Colonial Minister, imaided by persons
possessing local knowledge, becoming acquainted with the wants, wi^es,
feelings and prejudices, of the inhabitants of the Colonies, during his tern*
porary continuance in office, and of deciding satisfactorily upon the con-
flicting statements and claims that are brought before him. A firm, unflinch*
ing resolution to adhere to the principles of Hie Constitution, and to main-
tain the just and necessary power of the Crown, would do much towards
supplying the want of local information; but it would be performing more
than can be reasonably expected from human sagacity, if any man, or set
of men, should always decide in an unexceptionable manner, on subjects
that have their origin thousands of miles from the seat of the Imperial
Government where they reside, and of which they have no personal Imow-
ledge whatever, and therefore wrong may be often done to individuals, or
a faise view taken of some important political question, that in the end, tn^f
throw a whole community into difficulty and dissention; not from the
absence of the most anxious desire to do ri^t, but from an imperfect
knowledge of facts upon which to form an opinion.

To these objections it may be answered, that although the Chief Sec-
retary of State retires with a change of Ministers, the Under Secretaries
(or at all events one of them), and the other subordinate Officers of the
Department, remain and hold their offices permanently, and therefore infor-
mation upon all subjects can be readily imparted to the superior by the
gentlemen who are thus retained, and it may be admitted, that the loiow-
ledge of this fact ought to lessen the force of the objections that rest on
other grounds ; but it cannot be disguised that there is a growing impatience
and unwillingness on the part of Colonists, especially in these extensive
Provinces, to have the measures of Government, whether connected with
their general system of Government, Legislation or patronage, controlled
by persons who are utter strangers to them, not re^onsible in any way to
themselves^ or to the British Parliament, and who perhaps being advanced
to their office from length of service,' or other like cause, are not regarded
as competent (perhaps unjustly) to manage and direct measures which
they (the Colonies) deem of vital importance. Much of this feeling may
be traced to pride — ^but it is a pride that springs from an honorable and
laudible feeling, and always accompanies self-respect, true patriotism, and
love of country, and it therefore ought not to be disregarded, nor should
any attempt be made to lessen or control it, if it were possible to do so.
But the imperfection that exists in the system of Colonial Government that
prevails in England, is rendered more apparent by the want of that confi-
dence that ought to be reposed in the distinguished Officers who from time
to time are commissioned as Governors to different Colonies, than by any
other fact that can be distinctly pointed out.

If the statements publicly made, and uncontradicted, be true, there are
few Colonies from which Governors distinguished for eminent abilities
and high character, have not been within a venr short time withdrawn, or
who have not been compelled to resign their office, in consequence of some
disagreement with the Colonial Secretary; but as your Committee are not
possessed of any official information upon which they can venture to re-
mark, on the causes of these disagreements in other Colonies, they will
confine themselves to a mere reference to the recall of Sir John Colbome,
and Sir Francis Head, in this Province, and they lament that there is too
much reason to adopt the sentiments expressed by the other branch of the
Legislature, that the connection of each of thpse distinguished Officers
"with the (jovemment of this Colony has seemed incapable of being pro-
tracted, with satisfaction to themselves, beyond the period when it became
evident that no submission would be made by them to a spirit of factious
discontent, which nothing can appease but the destruction of British rule."
But your Committtee forbear adding anything to the opinion they have
already expressed in a previous part of this report, of the policy and jus-
tice of these removals, further than to declare, that the measures lately
taken with respect to this Province, and which have resulted in the resigna-

1791-1840] Constitutional Documents of Canada. 455

tion of the Government by Sir Famcis Head, have more than ever ,estab-
iished the conviction, that to ensure confidence in the wisdom and justice
of Her Majesty's Government, some change must be effected in the admin-
istration of the affairs of the Colonial Department.

Your Committee conceive that this all important object would be best
attained by — ^first, granting representation to tiie more important Colonies
in the British House of Cofnmons, as has already been suggested ; second,
by placing the administration of the Colonial Department in the hands of a
Board, to be composed of a President (who being a Cabinet Minister may
be removable on a change of administration of ti^e Government), assisted
by gentlemen of known probity and talent, selected, if not altogether, at
least in part, from the Colonies, and who should retain their offices, not-
withstanding a change of Ministry : — and, third, having selected gentlemen
of undoubted ability and integrity, to fill the office of Governor, to extend
to them a liberal and generous share of confidence — ^to rely upon their
honor, and follow their suggestions, and not deprive them of office so soon
as they are found to differ with, or are unreasonably complained against
by the faction that happens to be in the ascendant in the Assembly or out
of it. Had this confidence been accorded from the time of Lord Dalhousie's
administration to the present day, your Committee have no hesitation in
declaring it to be their firm belief, that the hideous rebellion that has

broken out in Lower Canada would never have occurred.

* « * * ♦ ♦

All which is respectfully submitted.

Henby Sherwood,

Chairman,
Committee Room, House of Assembly,
February 8th, 1838.

cxxx

LORD DURHAM TO LORD GLENELG*

[Trans.: Imperial Blue Books Relating to Canada (18J9). Vol. X.]

Castle of St Lewis, Quebec,
August 9, 1838.
My Lord,

The information which my residence here has enabled me to obtain as
to the condition of the two Canadas is of such a nature as to make me
doubt whether, if I had been fully aware of the real state of affairs in this
part of the world, any considerations would have induced me to undertake
so very difficult a task as is involved in my mission. I do not, however,
wish it to be understood that I consider success impossible. On the con-
trary, I indulge in a hope that if the difficulties and dangers that are now
so apparent to me are appreciated by Her Majesty's Government, so as to
lead to their adoption of measures sufficiently comprehensive and decided
to meet the emergency, the objects of my mission may be accomplished

My sole purpose, therefore, in adverting to circumstances which threat-
en a different result is to impress upon your Lordship my own conviction,
which has been formed by personal experience, that even the best informed
persons in England can hardly conceive the disorder or disorganization
which, to the careful' inquirer on the spot, is manifest in all things per-
taining to Government in these colonies.

Such words scarcely express the whole truth ; not Government merely,
but society itself seems to be almost dissolved; the vessel of the State is
not in great danger only, as I had been previously led to suppose, but looks
like a complete wreck.

It b needless to point out the wide difference between this representa-

' Durham succeeded Gotford as Governor-General, but when he arrived in Canada
in May, 183S, he had large additional powers as High Commissioner. See Lucas, Lord
Durham's Report, I., pp. 106 tS.

456 Constitutional Documents of Canada. [1791-1840

ttoo and the opinions on the subject which were, and probably still are,
held by Her Majesty's Ministers; but since one who had the benefit of
whatever information they possessed is nevertheless compelled to acknowl-
edge that the truth, as it now ai^>ears to him, differs so much from his
previous conceptions of it, what can he infer but that distance has pre-
cluded them from acquiring an accurate knowledge of the whole subject?
This is my belief, and it becomes, therefore, an imperative duty on my part
to convey to your Lordship the exact impressions which I have derived
from personal inquiry and observation. I will not shrink from the per-
formance of that duty.

On the present occasion, however, I propose to confine myself to a
particular class of circumstances; that is, to those which relate to the
Lower Province, and are of the most unfavourable character; my object
in making such a selection being to state without reserve, in a separate
despatch, certain facts and opinions, as to which, as coming from me, it
is most inexpedient that any publicity should be given for the present:
this despatch will therefore be marked "Secret".

The first point to which I would draw your attention, being one with
which all others are more or less connected, is the existence of a most
bitter animosity between the Canadians and the British, not as two parties
holding different opinions and seeking different objects in respect to Gov-
ernment, but as different races engaged in a national contest.

This hatred of races is not publicly avowed on either side: on the
contrary, both sides profess to be moved by any other feelings that such as
belong to difference of origin; but the fact is, I think, proved by an ac-
cumulation of circumstantial evidence more conclusive than any direct
testimony would be, and far more than sufficient to rebut aSI mere asser-
tions to the contrary. If the difference between the two classes were one
of partjr or principles only, we should find on each side a mixture of persons
of both races, whereas the truth is that, with exceptions which tend to
prove the rule, all the British are on one side, and all the Canadians are on
the other. What may be the immediate subject of dispute seems to be of
no consequence; so surely as there is a dispute on any subject, the great
bulk of the Canadians and the great bulk of the British appear ranged
against each other. In the next place, the mutual dislike of the two classes
extends beyond politics into social life, where, with some trifling excep-
tions again, all intercourse is confined to persons of the same origin.
Grown-up persons of a different origin seldom or never meet in private
society; and even the children, when they quarrel, divide themselves into
Fmch and English like their parents. In the schools and the streets of
Montreal, the real capital of the province, this is commonly the case. The
station in life, moreover, of an individual of either race seems to* have no
influence on his real disposition towards the other race; high and low,
rich and poor, on both sides — ^the merchant and the porter, the seigneur
and the habitant — ^though they use different language to express themselves,
yet exhibit the very same feeling of national jealousy and hatred. Such
a sentiment is naturally evinced rather by trifles than by acts of intrinsic
importance. There has been no solemn or formal declaration of national
hostility, but not a day nor scarcely an hour passes without some petty
insult, some provoking language ,or even some serious mutual affront,
occurring between persons of British and French descent Lastly, it ap-
pears, upon a careful review of the political struggle between those who
have termed themselves the loyal party and the popular party, that the
subject of dissension has been, not the connexion with England, nor the
form of the constitution, nor any of the practical abuses which have
affected all classes of the people, but simply such institutions, laws, and
customs as are of French origin, which the British have sought to over^
throw and the Canadians have struggled to preserve, each dass asstnning
false designations and fighting under false colours — iht British professing
exclusive loyalty to the Crown of England, and the Canadians pretending
to the character of reformers. Nay, 1 am inclined to think that the true
principles and ultimate objects of both parties, taken apart from the qnes-

1791-1840] Constitutional Documents of Canada. 457

tion of race, are exactly the reverse of what each of them professes, or, in
other words, that the British (always excluding the body of officials) arc
really desirous of a more responsible Government, while the Canadians
would prefer the present form of Government, or even one of a less
democratic character. I shall have more to say on this head presently,
having mentioned the subject here only for the purpose of citing another
fact which tends to prove the existence of a deep-rooted national sentiment
on both sides. Such a contradiction between the real and avowed prin-
ciples of each party could not have occurred if all the people had been of
one race, or if every other consideration had not given way to the sentiment
of nationality.

This general antipathy of the Canadians towards the British, and of
the British towards the Canadians appears to have been, as it were, pro-
vided for at the conquest of the province, and by subsequent measures of
the British Government. If Lower Canada had been isolated from other
colonies, and so well peopled as to leave little room for emigration from
Britain, it might have been right at the conquest to engage for the preser-
vation of French mstitutions,^ f or the existence of a ''Nation Canadienne";
buty considering how certain it was that, sooner or later, the British race
would predominate in the country, that engagement seems to have been
most unwise. It insured such a strife as has actually taken place; for,
notwithstanding the division of Canada into two provinces, for the purpose
of isolating the French, the British already predominate in French Canada,
not numerically of course, but by means of their superior energy and
wealth, and their natural relationship to the powers of Government.

It was long before the Canadians perceived that their nationality was
in the course of being over-ridden by a British nationality. When the
Constitutional Act bestowed on them a representative system, they were so
little conversant with its nature, and so blind to the probable results of
British emigration, that they described the constitution as a "machine
Anglaise pour nous taxer," and elected to the House of Assembly almost
a majority of Englishmen. But with the progress of British intrusion they
at length discovered, not only the uses of a representative system, but also
that their nationality was in danger; and I have no hesitation in asserting
that of late years they have used the representative system for the single
purpose of maintaining their nationality against the progressive intrusion
of the British race. They hav^ found the British pressing upon them at
every turn, in the possession of land, in commerce, in the retail trade,
in all kinds of industrious enterprize, in religion, in the whole administra-
tion of government, and though they are a stagnant people, easily satisfied
and disinclined to exertion, they have naturally resisted an invasion which
was so offensive to their national pride.

The British, on the other hand, impeded in the pursuit of all their
objects, partly by the ancient and barbarous civil law of the country, and
partly by the systematic opposition of the Canadians to the progress of
British enterprize, have naturally sought to remove those impediments, and
to conquer, without much regard to the means employed, that very mis-
chievous opposition. The actual result should have seemed inevitable.
The struggle between the two races, conducted as long as possible according
to the forms of the constitution, became too violent to be kept within those
bounds. In order to preserve some sort of government, the public revenue
was disposed of against the will of the Canadian people represented by
their Assembly. The consequent rebellion, although precipitated by the
British from an instinctive sense of the danger of allowing the Canadians
full time for preparation, could not, perhaps, have been avoided; and the
sentiment of national hostility has been aggravated to the uttermost, on
both sides, by that excessive inflammation of the passions which always
attends upon bloodshed for such a cause, and still more by this unusual
circumstance that the victorious minority suffered extreme fear at the
Ix^ginning of the contest, and that the now subdued majority had been led
to nope everything from an appeal to force.

There seems to me only one modification of this view of the subject

458 Constitutional Documents of Canada, [1791-1840

The einplo3rment by the Canadians of constitutional and popular means for
their national purpose, has taught some of them, consisting chiefly of the
most active and able, higher political views than such as belong to the
question of nationali^. These men are not at heart friendly to the bar-
barous institutions of their ancestors, but would readily adopt a more
enlightened system, if they could do so without losing their own importance.
Their necessary dependence on the prejudiced mass has alone restrained
them from joining in many of the views for the improvement of the coun-
try which are entertained by the British. They have also learned to
estimate the practical abuses of Government which affect all classes, and
to wish for many reforms without reference to Canadian nationality.
They even had, to some extent, succeeded in disseminating their opinions
amongst the mass of their countrymen, and they are not unlikely to play a
valuable and distinguished part under any new system of government diat
may put an end to the strife between hostile races ; but unfortunately, their
number is so small as scarcely to affect my opinion of the temper of the
Canadian people.

Supposing my view of that subject to be correct, your Lordship will
readily understand that the bulk of the Canadian people are as disaffected
as ever, and that the British part of the population regard the Canadians
with vindictive jealousy. The Imperial Government is distrusted by both
parties; by the Canadians because they fear, or rather expect in gloomy
silence, that advantage will be taken of their late rebellion to remove the
very causes of dissension, by giving a British character to the institutions
and laws of the province, so that there shall no longer be any serious im-
pediment to British colonization and enterprize ; and by the British, on tht
other hand, because they doubt whether the Imperial Government will
ever sufficiently understand the state of parties here, to approve of the
great changes which must inevitably take place, if another period of legis-
lative strive, and perhaps another rebellion, are to be averted.

And here I must notice a fact of great importance. The more discern-
ing of the Canadians are perfectly aware that if the authority of the United
States should ever extend to this country, whether by means of war or of
a peaceful union, the peculiar institutions, and even the language, of French
Canada would be extinguished as soon as possible, yet are they willing,
with the exception perhaps of a considerable portion of the clergy, to
incur the loss of all that they have held most dear, in order to gratify the
sentiment of vengeance that has now got possession of them. I would not
exaggerate the amount of the sacrifice that they are willing to make for
the sake of revenge. It is right to add, therefore, that, in my opinion,
they almost despair, come what may, of preserving those ancient usages
and that distinct nationality, in defence of which they have struggled so
many years.

But be this as it may, whether they are moved by a sentiment of mere
vengeance, or by revenge mixed with despair, I am well convinced that an
American invasion of this province would be highly acceptable to most of
them.

Satisfied of the disaffected temper of the Canadians as a people, I have
naturally taken pains to acquire correct information as to the state of
feeling in the United States as respects these colonies and the mother
country.

All reports concur in assuring me that the present government of the
Union, and a vast majority of the American people, are decidedly adverse
to a rupture with England. Having already conveyed this assurance to
your Lordship, I need not dwell upon it here ; but there are points in the
state of American feeling towards these colonies, and especially near the
frontier, of so much moment as to require particular notice.

In die first place, although some persons in the States, and the more
so if they have visited this country, are aware of the true nature of the
late rebellion, it is a common opinion in America that the contention in
this province has been between the executive government on the one hand,
supported by a minority, and the majority of the people, without distinc-

1791-1840] Constitutional Documents of Canada, 459

tion of race, on the other; and that the subject of disagreement has been,
practical grievances and general principles similar to those which formed
the matter of dispute between England and her old colonies in America.

As their fathers rebelled in defence of those old English charters of
local self-government, which placed local taxation and revenue at the sole
disposition of popular assemblies, so they think that the Canadian majority
was justified in withholding supplies, and in resisting by force the violation
of their constitution by the British Parliament.

They believe, in a word, that the majority in Lower Canada has con-
tended for the maintenance of popular rights, and that arbitrary govern-
ment is the aim of the minority. The mistake is easily accounted for : it is
only on the spot that one learns how the subject of strife in Lower Canada
has been a question of nationality; everywhere else, the false professions
and designations employed by both parties, combined with the plain fact
that the contest has been between a majority and a minority, is apt to mis-
lead the inquirer, by keeping out of view the distinction of races. If the
whole subject were understood by Americans, they would probably sym-
pathize with those who are of the same origin as themselves, who resemble
them in numerous particulars, and who seek objects which, if this country
were under American rule, would be unhesitatingly accomplished, as similar
objects have been attained in the Dutch colony of New York, and the
French colony of Louisiana.

There is no people under the sun to whom the feudal institutions and
most defective civil laws of the Canadians would be more intolerable, than
to the Anglo-Saxon race of the United States. But they have misunder-
stood the case. They have fallen into the not uncommon mistake of con-
founding means with ends. Believing that the means employed by the
Canadians, in the Assembly, were constitutional and popular, and seeing
that the British, being in a minority, necessarily clung to the local executive
and the imperial authority; above all, regardless of the accident (for so it
may be termed with respect to the question of nationality) by which the
Canadians happen to constitute a majority, Americans have supposed that
the objects of both parties in the colony were of the same nature respec-
tively, as the means on which each party has relied. An ever active senti-
ment of national pride is, perhaps, the most remarkable feature in the
American character. It might have been foreseen, therefore, that the
Americans, proudly recollecting the origin and progress of their own
revolutionary war with England, should sympathize with the Canadians
or rather with the majority, who happen to be Canadians. Whether they
may ever comprehend the false position assumed by both parties in this
colony, I will not venture to predict; but so long as their view of the
subject shall remain unchanged, they will, I believe, continue to sympathize
with that side which has the air of contending for democratic principles
and popular objects, and to wish that it may prevail over the other, which
appears in the light of an oppressive minority.

Secondly : Having regard to the national pride of America, it is certain
that the temper and tone of the British party towards thai country tends
to stir up angry passions throughout the Union, and especially near the
frontier, where articles from the colonial newspapers are generally re-
printed. Hitherto the national pride of America has not been deeply
wounded by these means (and I do all in my power to mitigate the national
influence of such affronts to it) ; but I am credibly informed that these
unceasing attacks have not been without effect, and that they form a
subject of growing irritation.

Thirdly: By the existence of a state of things out of which it is easy
to see that war might spring, the American mind becomes more and more
familiar with the idea of war. Differing as the Americans do, from all
other nations, in the universal diffusion of an active interest in public
affairs, and in a habit which belongs to all ranks, of calculation as to the
future, they are led, by the political state of these pi:pvinces, to discuss
the subject of war hypothetically, if I may use the expression; they are
reminded of the events of the last war, and one of them in particular, the

460 Constitutional Documents of Canada. [1791-1840

capture of Washington, which inflicted a deep wound on the national
pride, and by frequently conversing on sudi exciting topics, they gradtially
approach that state of feeling under which the government, necessarily
impelled by the people, wotild find it hard to maintain friendly relations
with England.

Fourthly: It is not to be denied that the distracted state of these
colonies occasions no little inconvenience to the frontier states, and to the
federal government ; it calls for an increase of the army, a sort of military
array on the frontier, and the exercise of new powers by the executive,
which are opposed to the habits, if not to the institutions, of the American
people. All the expense and annoyance are attributed to the British Gov-
ernment. A dispassionate American admits that his p^ovemment is bound,
at whatever cost, to prevent aggressions on the Canadian frontier, and he
does not deny that the obligation has been inadequately fulfilled ; but when
reminded of the inefficiency of the laws for that purpose, and the weakness
of the American executive, he answers that the true source of every diffi-
culty is the weakness of the British Government in Canada, which has not
maintained order amongst its own subjects, nor is able to protect the
United States from such a nuisance as arises from the conduct of British
refugees within their territory. This retort, without stopping to examine
its justice, suffices to show that, until order shall be restored in these
colonies, a great cause of irritation in America will probably continue to
operate with increasing force.

Fifthly: The boundary question, being much mixed, as it unavoidably
IS in America, with considerations arising out of the state of these colonies,
forms a more active element of hostile feeling than would otherwise have
been the case.

Lastly: It is certain that, amongst the frontier population of the
United States, which, I should observe, has very greatly increased since
the last war, there exists a numerous body of men, young, active, energetic,
and self-relying, who, from various motives, long for an opportunity of
invading Canada. Some of them are moved by an opinion, which it would
not be easy to question, that if these colonies were laid open to American
enterprize, a great impulse would be given to the industry and trade of
that part of the States which now constitutes the frontier; some are in-
fluenced by one or other of the circumstances to which I have already
adverted; some by that love of adventure merely which belongs to the
American charactef ; and some by a reasonable calculation of the gain anH
distinction which, in troubled times, usually fall to the most active and
daring. The manner in which these people talk of invading the Canadas
exemplifies the self-reliance of American citizens. They do not expect
that the federal government should open the way for them by military
operations; they even avow their belief that, in a contest of troops only,
the British would surely prevail ; but they reckon upon the friendly dispo-
sition towards them of great numbers on this side, and upon swarming
over the line in such numbers, and at so many places simultaneously, as to
get possession of the country in spite of military obstacles. I do not pre-
tend to weigh such calculations, but state them as they have been reported
to me. If I am not misinformed, it is well that I should remind Her
Majesty's Government of the invasion of Texas by a body of American
citizens, who, without the least aid from their government, have seized
an extensive country, defeated armies, got possession of the soil, and estab-
lished themselves, as a nation, with constitutional government, a judicial
system and municipal institutions as complete as any in America. There
is certainly no immediate danger of such an attack upon these colonies;
and I have mentioned the subject only for the purpose of indicating the
probable character of the contest that would take place here, if all the
causes now in operation should finally produce one. It was in consequence
of all these important considerations that, during my late residence on the
American frontier, I courted the most unreserved communication with all
respectable Americans, for the purpose of impressing them with a more
sound and accurate conception of the real state of things, with a more

1791-1840] Constitutional Documents of Canada, 461

just appreciation of our system of government, and its real objects; and
with a due sense of the danger which would arise to themselvea, if their
government remained a passive spectator of all these proceedings, tending
as they did, to destroy all confidence in its executive strenfl^th, and all
reliance on the national honour.

I am happy to say that my efforts have been successful, that a great
change has taken place in public feeling on the American side, and that my
exertions to restore tranquility and good order are encouraged and sup-
ported by the most influential portions of the press and of society in the
United States.

Except as it has been noticed for the purpose of explaining the temper
of the Canadians, and one of the causes of irritation in the United States,
a most important subject yet calls for your Lordship's attention; I allude
to certain feelings and views of the British section of Her Majest/s
subjects in this province.

Your Lordship is already informed of the general satisfaction ex-
pressed by the British party at my having, when I assumed the Government,
avoided connecting myself with the old body of officials. It may be sup-
posed that the body in question did not participate in that sentiment. I
very soon became aware therefore of the existence of some difference
between the official body and the British in general. Subsequent observa-
tion has convinced me that, except in their common hostility to the Cana-
dians, there is no sympathy between these two classes.

That this should be the case is really not surprising when one dis-
covers how all the powers of Government have been neglected and abused
for many years past in this colony. Not to go further back than the com-
mencement of serious differences between the Canadians and British
as such; since, when the two branches of the legislature have neglected
their proper functions to pursue the contest between races, a long time has
passed without anything like beneficial legislation, and not a few of the
many evils resulting from this perversion of legislative powers have, by a
very natural mistake, been attributed to neglect and corruption in the
Executive. At the same time it must be confessed, that the Executive
has been both neglectful and corrupt. I need not remind your Lordship of
those flagrant instances in which the Imperial Government has been led to
interfere for the correction of administrative abuses, nor is this a fit
occasion for entering on that subject in detail; but I am bound to add,
that the Government of this province, including the administration of
justice, has not obtained the respect of the people, and that, according to
all tny information, there has been ample ground for the distrust and
suspicion with which authority is regarded.

This leads to another feature in the disposition of that portion of
the British inhabitants which may be termed 'independent'. Their main
object, as I have before explained, has been to remove the obstacles which
the ignorance, the apathy, and the ancient prejudices of the Canadians
opposed to the progress of British industry and enterprize ; to substitute, in
short for Canadian institutions, laws and practices, others of a British
character. In this pursuit they have necessarily disregarded the implied,
not to say precise, engagement of England to respect the peculiar institu-
tions of French Canada. But the Imperial Government, on the contrary
never quite foraetting that ancient pledge, has rather extended its pro-
tection to the Canadians than espoused the cause of the British settlers.
It were to be wished, perhaps, that this policy had been^ consistently pur-
sued from the beginning, as in that case a British community might not
have ^rown up here with feelings, wants, and a degree of power which
make it simply impossible to pursue such a policy now. But it has not been
consistently pursued. By a variety of measures, and especially by pro-
moting emigration to this colony, the Imperial Government have really
undermined the Canadian nationality which they perhaps intended to pre-
serve. A similar contradiction may be observed in their treatment of the
national struggle which has ended in civil war. Never taking a decided
part, with either section in the colony, they have wavered between them.

462 Constitutional Documents of Canada. [1791-1840

now favouring the one and then the other, but neither decidedly, and
finally displeasing both sections in about the same degree. Under such a
system, if it may be called one, no governor could have pursued a con-
sistent course, or have attached either the Canadians or the British to the
Imperial Government

I should not permit myself to say this reproachfully, even if there
were room for an accusation, which in my humble opinion there is not;
but I mention it as a necessary result of the original false step, and for
the purpose of explaining the present disposition of the British party.
Deeply offended at every measure or decision of the Imperial Government
which thwarted their own British or Anti-Canadian views, they are also
wanting in that respect for the supreme authority which is sometimes felt
by the discontented subjects of a decided and vigorous Government Re-
strained (though not entirely) from the public expression of their senti-
ments by a hope that the Imperial Government may yet accomplish the
object on which their heart is set, they have no such reserve amongst
themselves, nor do they at all care who knows of the language commonly
held by them when speaking of the Imperial Government, and the connexion
between this colony and the mother country.

I am assured that the leaders and their followers, one and all, are
in the habit of declaring, that rather than be again subject to the French
(meaning, rather than see another majority of Canadians in the Assembly),
they shall find a way to take care of themselves.

I should be sorry to report any idle conversation upon such a topic,
but have no doubt that language of this kind is commonly uttered with an
earnestness of manner which should prove its sincerity. And this is not
all: for the sentiments expressed are enforced by .deliberate arguments,
such as that, considering the exasperation of the Canadians produced by
late events, there can be no permanent safety for people of British descent
except by rendering the colony thoroughly British; and that if the Imperial
(government should not provide for the security of its British subjects,
the time will soon be past for obedience to any other law than that of seli
preservation.

That such views are currently expressed amongst the British party,
there can be no doubt; and I am the more disposed to believe them sin-
cerely entertained, because, having reference to a future contingency, they
are not inconsistent with those loud professions of loyalty and attachment
to England by which the British minority has hitherto sought to enlist the
Imperial Government against the Canadian majority. At present, of
course, such views are merely speculative, everything being held in sus-
pense by the large powers awarded to me, and by tiie hope of a happy
settlement of affairs upon my recommendation.

Notwithstanding, however, the very unfavourable representations con-
tained in this despatch, I am induced to hope with confidence, that success
may ultimately attend the measures with respect to this country which have
been recently adopted by the Imperial (Government My principal reason
for this assurance is drawn from the ^ood effect already produced by
decided and vigorous action. The exercise of the very extensive powers
placed in my hands seems to have operated as a sort of charm, like oil
poured upon troubled waters. At this moment all is still. A stranger
would hardly believe that the countiy had been recently distracted by civil
war. Expectation for the future, is, I trust, taking the place of angry
passions occasioned by the past I must, however, condude by assuring
your Lordship, that whatever hopes I entertain of the future, depend alto-
gether on the supposition that Her Majesty's Government and Parliament
will not shrink from the adoption of permanent measures of remedy and
prevention, proportioned to the greatness of the difficulties with which 1
have yet to contend, and will sanction such measures as will effectually
provide for the abstraction of all legislation on British interests from
the control of a French majority. I am of opinion that this great object
can be legitimately effected without violence to Canadian rights, and in
strict accordance with the soundest principles of constitutional government

1791-1840] Constitutional Documents of Canada, 463

The time is fast approaching when I shall be enabled to bring these
measures under the consideration of Her Majesty's Government; and in
the meantime I recommend to their serious attention the important points
to which I have referred in the present communication.

CXXXI

THE INDEMNITY ACT, 1838*

(1 & 2, Victoria, c 112).

An Act for indemnifying those who have 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 Acf to iHake temporary
Provision for the Government of Lower Canada."

16th August, 1838.

Whereas an Act was made this present session of Parliament, intituled 1 Vict, c^. 9.
"An Act to make temporary provision for the Government of Lower
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 Pro-
vince 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 persons advising or acting under or in obedience to so
much of the same as relates to the sending of certain persons to Bermuda,
who are stated in the same to have made certain confessions, and to the
subjecting such persons to restraint, should be indemnified by Parliament
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 con-
sent of the Lords Spiritual and Temporal and Commons, in this present
Parliament assembled, and by the authority of the same, that all personal jj^^^mnjiy for
actions and suits, indictments, informations, and all prosecutions and pro- persons sd-
ceedings whatsoever, which have been or shall be prosecuted or com-^»h»«^«"*<^*-
menced in any Court or before any tribunal in any part of her Majesty's of^^i^^*^!
Dominions, against any person or persons for or by reason of any act, the Gorernor
matter, or thing advised, commanded, appointed or done in relation to thejndCogicilof
premises before the proclamation of tnis Act in the said Province of Lower Jf JhT28Jh ot
Canada and in the Islands of Bermuda respectively, or elsewhere, in man- June last,
ner hereinafter provided, be, are, and shall be discharged 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 forbear further prose-
cution, 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 Britam 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

* This Act was oasaed to indemnify those who had any share in issuing or acting
under Lord Durham^s Ordinance of 28 June, 1838 (Christie, V., pp. 166 ff.). For the
history see Bourinot, Canada Under British RuU, pp. 136 ff.

* See No. CXXVIII.

464

Constitutional Documents of Canada. [1791-1840

This Act to
be proclaimed
in Lower
Canadmand
Bermtfdare-
•pectirely.

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 in the said
Province of Lower Canada and in the said Islands of Bermuda by the
Governor, or by the person authorized to execute the Commission of Gov-
ernor 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 Majest>''s
Principal Secretaries of State.

CXXXII

LORD DURHAM TO LORD GLENELG
[Trans. : Imperial Blue Books Relating to Canada, 1859. Vol. X.]

(extract of a despatch from earl of DURHAM, G.C.B., TO LORD GLENELG )

Dated — Castle of St. Lewis, Quebec,
16 October, 1838.

In ray despatch (No. 68) which announced my intention of returning
to England at an early period, for the purpose of resigning my commis-
sions*, I explained the grounds on which I had formed that decision after
mature deliberation. I felt that the moral power of my government was
so completely destroyed, and the difficulties of my position so greatly ali-
mented by the proceedings of Her Majesty's Ministers and the Imperial
Parliament, that the attempt to conduct the government of these provinces
on better principles than those which have hitherto been adopted was one
which must be made by other hands than mine. I grieve to find that I
did not by any means exaggerate the probable effect which would be pro-
duced on the public mind on this continent by the occurrences in England.
In the course of one week I have found the tone of the British inhabitants
change^ from the loudest professions of loyalty and attachment to the
connexion with the mother country to a calm anticipation and discussion
of the chances and consequences of separation. From the same mouths that
a short while ago expressed the most passionate resentment of wrongs sup-
posed to have been received from the people of the United States, I hear
significant approval of the course which I have all along taken to conciliate
the good-will of a kindred people, whose sympathies with the English race
it is judged politic to cultivate. I have been startled at the rapid growth of
this dangerous state of mind ; and when the mass of the British population
of this city were assembled to present \ne with an address, expressive of the
kindest feeling towards myself, and the strongest condemnation of the
policy which severs the official connexion between us, I shrunk from any
other than a formal and deliberate expression of my feelings, from fear
lest an indiscreet word or gesture on my part, or any one of those unfor-
seen accidents which carry large popular assemblies beyond the influence of
human control, might lead to a general expression of the angry feeling that
pervaded the excited numbers whom I beheld before me.

A perfectly different feeling exhibited itself at first among the French
Canadians. They naturally exulted in the victory which appeared to have
been gained by those who put themselves forward as their especial advo-
cates in the mother country, and the disaffected rejoiced at perceiving that
the arm of authority was weakened. Since the receipt of the first news
from home which might lead them to believe, on high authority* that I did
not really possess the powers with which they once imagined me to be
invested, I can have no doubt that the disposition to secret machinations

' Durbam accidentally learned from an American newspaper of Sept 19, 1S38,
that his Ordinance of June 28 had been disallowed. On October 9 he defended him-
self in a proclamation, the tone of which so displeased the Colonial Office that be was
recalled. His resignation had, however, been ^reTioiistj sent in, and the despatch
recalling him did not reach Quebec befor^he sailed. On the history, sec Lb C. San*
ders, Lord Melbourne's Papers (London, 1889), and W. li. Torrens, Memoirs of
IVilliam, Viscount Melbourne (2 vols., London, 1878).

1791-1840] Constituiiofud Documents of Canada. 465

and pr^arations for insurrection, which had been for some time checked,
has sprung into renewed activity ; and though I do not feel mudi dread at
the prospect of any unsupported attempts which die French population may
make against the military force now in this country, I cannot doubt that
there is now in existence an organization of the disaffected in this pro-
vince, which may lend a most pernicious aid to any attack which may be
made from without.

I have already forwarded to your Lordship an address expressive of
the feelings of the delegates from the lower provinces of Briti^ North
America; and the accounts which I have recently had show that the same
feelings have been generally expressed in those provinces in the calm
manner in which their happy immunity from actual civil war enables their
inhabitants still to express their political sentiments ; but throughout Upper
Canada where the memory of recent suffering is fresh and vivid, and
where the terror of near and visible peril constantly alarms the public mind,
a more passionate and general feeling of regret and alarm has pervaded all
classes. Unaccustomed to the state of feeling generated by actual insur-
rection, I have been struck by the extent of that terror with which all
parties and all classes see, in the disturbance of my policy, the harbinger
of a winter similar in its political character to the last. The sudden unani-
mity of all parties in that most divided province has been as alarming as
extraordinary; for when those in power, and those who in attempting to
snatch it from them advanced to the brink of rebellion, signed the same
address, — when the leaders of the reformers seconded the resolutions
moved by the heads of the family compact, — I could not but infer that an
unanimity so strange must have been produced by the indication of sure
and awful peril.

Of what nature that danger is, the enclosed communications from Her
Majesty's Ministers at Washington will inform your Lordship. I grieve to
say, that all the information which I have received within these few days,
from all quarters, confirms the alarming intelligence conveyed therein.
I have no doubt that the numbers, means and projects of the conspirators
are greatly exaggerated, but I have little doubt also, that there is a great
reason to apprehend that there has been suddenly formed throughout the
bordering states, among a population capable of such enterprises, a widely
ramified conspiracy, bent on repeating in Canada the scenes of Texas,
invading the British dominions with a horde of those lawless and daring
adventurers, who are to be tempted by the promise of sharing in the plunder
of private and public property in these ample and fertile provinces.

It is of grtat importance that your Lordship and your colleagues should
know the present state of feeling, both in these provinces and in the neigh-
bouring states, and that you should know it betimes. I take, therefore,
the opportunity which is afforded me by the postponement of the Royal
WiUiom's departure, to supply you, though in a hurried manner, with the
information which has reached me.

The mind of the British population throughout all the provinces has
been deeply agitated by the prospect of a new change in the system of
government I am happy to be able to adduce the great number and the
kind language of the addresses which I have received from all parts of
the two Canadas, as proofs of the favourable feelings with which my policy
has been regarded. Your Lordship must not imagme that I attach undue
importance to documents so flattering to myself; for I feel tiiat these are
expressions of a deeper and more serious feeling than any that regards my
individual conduct or treatment. The expressions of regret at my resigna-
tion, and of condemnation of the disallowance of my ordinance, proceed
from those who disapproved of that part of my policy, just as much as
from those who had most warmly supported it. The measures whidi I had
adopted with a view to the disposal of the political prisoners had been a
long time in operation; and however freely they had been canvassed, —
however much a certain portion of the population had thought it ri^ht to
censure them, — that discussion had run its course, and all had acquiesced

in a policy which they judged to be definitely adopted. The disturbance

DD

468 Constitutional Documents of Canada. [1791-1840

bound them to the British empire is weakened by the mere fact of its
soundness becoming a matter of question.

To what extent this feeling prevails, or how soon and in what form
it may exhibit itself, it is impossible to say. It is one of no recent growth.
Do not imagine, my Lord, tiiat it owes its origin to my recall, or that it
could be obviated by my retention of the government. Long lurking in the
minds of even those inhabitants of these provinces in whom it had not
been openly manifested in the course of the late discontents and disturb-
ancesy it was in great measure removed by the apparent indications of a
better policy, which were hailed in the appointment of a Governor armed
with the extensive and sufficient powers which I was supposed to wield
when I landed on these shores. This feeling has sprung into sudden and
rapid growth from the hour in which die public mind was disabused as to
the extent of my previously exaggerated powers by the weightiest authority'
in the British legislature, which deprived me of moral influence by assert-
ing without contradiction, that I "possessed only the ordinary legal powers
of a common Governor." From the same moment and from the same cause
sprang the other feelings of which the wide diffusion among perfectly dif-
ferent classes menaces even greater danger.

The same cause called into renewed and vigorous action the hopes of
the disaffected in both provinces. Of the designs of the disaffected within
the Upper Province we know nothing. In this, the indications of conspiracy
and dangerous designs are numerous and undeniable. A formidable organ-
ization bound togetiber by secret oaths and secret signs, undoubtedly exists,
and extends over the French population, at least of the district of Montreal.
The object of the oath does not appear to be specific; it merely binds the
conspirators to be ready to obey whatever orders they may at any time
receive from their chiefs. When this machinery is to be called into action
does not appear. I am, on the whole, inclined to be of opinion, that there
is no intention of immediate outbresdc in this province, unless in case of
invasion frbm without; to tliat it is at all times ready to serve as a for-
midable auxiliary ; but in the meantime it produces all the alarm which
actual insurrection would occasion. Terrified by signs of this formidable
and mysterious organization, and sometimes by secret menaces or warn-
ings of murder and massacre, the loyal inhabitants of the country quit
their exposed and isolated habitations, and either at first seek refuge in the
towns, or at once secure their safety by quitting the British dominions.
In both provinces alike this emigration, from utter insecurity of person
and property, has taken place to an alarming extent; and both provinces
have thus been, to a great extent, deprived of the most valuable class of
their inhabitants, of those whose peaceful energies contribute most to their
improvement, and who most demand and deserve the steady protection of
a parental government.

The same cause has given life to the worst spirit among the bordering
population of the United States, and extended, if not created, that for-
midable secret combination, of which the existence has been announced to
me, not only by a host of concurrent and consistent private communications,
but by the most solemn warning which the government of the United States
could give.

I do not believe that this conspiracy is the result of that somewhat
generous, but utterly misdirected, sympathy which last winter prompted our
republican neighbours to interfere in behalf of a people whom they erron-
eously imagined to be making a hearty struggle for liberty. It seems rather
to result from the aspect of the weakness of the Government in these
provinces, which has latterly been presented to the bordering population,
and which offers to the ambition or avarice of the bold and lawless settlers
of the American wilderness the ample and fertile lands which appear to
invite occupation by the strongest. They think to repeat the conquest of
Texas from a nobler foe, with proportionately greater means of aggression ;
and if they know that they will have to contend with something more than
a Mexican army, they count on an internal aid, which was not found in
the solitary wilds of Texas.

1791-1840] Constitutional Documents of Canada. 469

That this is the nature of their views and plans 1 infer, not merely
from the direct information which I have received, but from the fact that
the first indications of these machinations were observed just at the period
in which the first debates in the House of Lords convinced the ill-inten-
tioned here, that they need not apprehend a vigorous and well-supported
government in Canada.

Such are the internal and external prospects of a country, respecting
which, in my despatch of the 9th of August, I thus expressed myself: —
"The exercise of the very extensive powers placed in my hands seems to
have operated as a sort of charm, like oil poured on troubled waters. At
this moment all is still; a stranger would hardly believe that the country
had been recently distracted by civil war. Expectation for the future is,
I trust, taking the place of angry passions occasioned by the past"

This was, at the time, a true description; I stated nothing but what
correctly described the state of things in these provinces. I could not
know that at that very hour events were passing at the other side of the
Atlantic which would call into renewed and fearful activity the smothered
embers of universal strife, and reverse the fair order of things which I
had so diligently laboured to establish.

CXXXIV '

LORD DURHAM TO LORD GLENELG

[Trans. : Imperial Blue Books Relating to Canada, 1839. Vol. X.]

Her Majesty's Ship Inconstant, at Sea,

10 November, 1838.
My Lord,

I have the honour to inform your Lordship that I had, on the morning
of my departure for Quebec, an interview with Mr. Sheriff M'Donnell, who
had arrived the night before from Kingston, Upper Canada, for the purpose
of communicating to the government the alarming intelligence of the exist-
ence of a great unwillingness on the part of the militia and volunteers of
Upper Csinada to tender their active services.

Mr. M'Donnell informed me that the belief amongst them of the indif-
ference of the British Government to their fate was so general, that they
deemed it useless to make any exertions to maintain the connexion with
the mother country. He also said that nothing but a declaration from me,
of the intentions of the British Government having been misunderstood,
would. induce them to enrol themselves for the defence of the province
this winter. I had no hesitation in assuring him that no trace of that
indifference would be found in the measures adopted, or the precautions
taken by the government over which I presided, and that I could not
imagine the existence of a different feeling in the minds of the British
Ministers.

I trusted, therefore, that the same alacrity as was before manifested
would be evinced by all classes in >the Upper Province, in coming forward
for the maintenance of the public security.

Mr. M'Donnell stated himself to be perfectly satisfied with my declara-
tion, and was to return to Kingston the same evening.

I regret to state, with reference to this subject, that the feelings
expressed by Mr. M'Donnell are also very generally entertained by the
British population in Lower Canada.

I have, etc.

(Signed) DuxHAif.

470 Constitutional Documents of Canada. [1791-1840

CXXXV

REPORT OF THE COMMITTEE OF THE LEGISLATIVE COUNCIL
OF UPPER CANADA ON LORD DURHAM'S REPORT

[Trans.: Journals of Legislative Council of Upper Canada, App. G.G.]

May 11, 1839.

The Select Committee to whom was referred the Report* of the Right
Honourable the Earl of Durham, Her Majesty's late Govemor-in-Chief
of British North America,

Respectfully Submit the Following Report:

In discussing the report of Her Majesty's late High Commissioner oa
the affairs of Upper Canada, your Committee are fully aware, that their
observations cannot be understood by your Honourable House, as convey-
ing an^ censure on Her Majesty's Commissioner^ who commences by
informing Her Majesty, that his information, respecting the state of Upper
Canada,' had not been acquired in the course of his actual administration
of the government of that Province, a fact to which the report itself bears
ample testimony. His Lordship observes that, '*it is very difficult to make
out from the avowals of parties, the real objects of their struggles, and
still less easy is it to discover any cause of such importance, as would
account for its uniting any large mass of the people in an attempt to over-
throw, by forcible means, the existing form of government" From the
first part of this paragraph it appears, that tiie political parties into which
the Province is said to be divided, have no very strong ground for com-
plaint, otherwise some definite description thereof would doubtless have
been given to his Lordship ; who, in the latter part of the same paragraph,
insinuates that a large mass of the people of Upper Canada were desirous
of overthrowing the government, a fact totally unknown in this Province,
and already sufficiently refuted by the conduct of the people. His Lordship
then informs Her Majesty, that Upper Canada "has long been entirely
governed by a party commonly designated through the Province as the
'family compact, " that, **there is in truth, very little of family connection
among the persons thus united." Why then should his Lordship give his
assistance in the dissemination of any such erroneous idea, as that title
has been used to propagate? His Lordship does not appear to have under-
stood, that the object of the Press in adopting the term of "family com-
pact," as a name by which to designate "the Bench, the Magistracy, the
holders of the high offices of the Episcopal Church, and a great part of
the legal profession, the possessors of nearly Uie whole of the waste lands
of the Province, the people all powerful in the charterd Banks, and sharing
among themselves almost exclusively all offices of trust and profit," intend-
ed to impress their readers with the idea, that a close family connection
did exist among all the persons in authority throughout the Province, and
that if it were not so understood the force of the epithet would be alto-
gether lost ; for throughout his Lordship's Report "the family compact" is
blazoned forth with studious pertinacity, although the inaptness of the
title had been previously admitted.

The High Commissioner next endeavours to show, that all persons of
education, and more especially members of the learned professions, ought
rather to settle in the United States than in Canada; a Surgeon, for in-
stance, because he must show that he is duly qualified before he can be
permitted to practise within this Province ; an Attorney^ because he is not
permitted to practise therein as a Barrister ; and a Barrister, because he is
not allowed to act as an Attomejr.

Your Committee are of opinion, that in all these regulations the legis-
lature has shown a proper and praiseworthy desire to prevent ignorant

^The Rtport was officially communicated to Parliament on 11 Febniarj, 1838.
* See Report, Vol. II (Lucas's Edition), pp. 145-193, where the report on Upper
Canada is historically examined in the notes.

1791-1840] Constitutional Documents of Canada. 471

pretenders to medical and legal knowled^, disturbing the animal economy
or social condition of Her Majesty's subjects. Then comes his Lordship's
list of British grievances, which is altogether remarlotble; he complains
of the Banking system, in which he says the Canadian party are supreme
(a large portion of the stock in the most ancient of the chartered* Banks is,
however, owned by persons residing in England), and further asserts, tiiat
the influence of the Banks "is said to be employed directlv as an instrument
for upholding the political supremacy of tiie part/' (Canadian) — ^Your
Committee happen to have the means of personally Imowing, that the char-
tered Banks have most studiously avoided political connection with adl
parties/

Your Committee find introduced as one of the grievances, "that under
the system of selling land pursued by the government, an individual does
not receive a patent for his land, until he has paid the whole of his purchase
money." Why should a contrary course be pursued? That is not shown 1
The Hij^h Commissioner then wanders into Illinois, and gives a vivid
description of the peculiar advantages to be derived by English folk, who
may become domiciled in the republic. If indeed his Lordship had not
qualified his opinions with the assertion that^ "but few cases in which the
departure of an Englishman from Upper Canada to the States, can bte
traced directly to any of these circumstances in particular," alluding to
the British grievances before mentioned, your Committee would have sup-
posed that the peculiar functions of Her Majesty's High Commissioner
were not those detailed in his commission, the more especially, as these
hitherto unheard of grievances are quoted as the cause of the decreased
immigration from the Parent State; and throughout the Report, compari-
sons are constantly drawn unfavourable to Her Majesty's possessions in
North America.

Your Committee having exposed a few of the inconsistencies in the
first pages of his Lordship's Report, deem it unnecessary to enter more fully
into its details, the conflicting character of which, as compared with his
Lordship's other productions, is sufficiently set forth in the report of the
Committee on the state of the Province, appointed by the House of Assem-
bly: observing, however, that his Lordship sums up the Upper Canadian
grievances in the great practical question of the Clergy Reserves. Your
Honourable House, has, so recently, had this question under discussion,
that your Committee refrain from any commentary on his Lordship's state-
ments regarding it, but your Committee cannot avoid observing, that how-
ever unintentional, his Lordship's remarks are evidently calculated to cast
odium on the Established Church of England, which, like every other
respectable body throughout the colony, has been constantly assailed by the
party mis-named Reformers.

Adverting, now, to his Lordship's great panacea for all political dis-
orders, "Responsible Government," your Committee beg to observe, that a
liberal minded Englishman, sincerely admiring the great principles of the
British Constitution, would naturally be desirous of extending them, theor-
etically and practically, to all people living under the dominion of the
Crown ; and at the first view, would be apt to ascribe any evils which were
found to exist in any portion of the Empire, to the absence of those poli-
tical institutions, which he is bound to uphold in the administration of
public affairs, in the metropolitan and supreme government.

It is in this manner we must account for the adoption, at first sight,
by many statesmen, of the principle, that the officers administering the
government should be under the same popular control in colonies, as the
like persons necessarily are in those societies, where powers of supreme
legislation, by means of popular administration, are found to exist ; but
it is to the practical impossibility of preserving colonial relations on such
a plan, diat we must attribute the fact, that notwithstanding all the changes
produced by the struggles of party, or the alternations of conservative or
liberal politics in England, no statesman, armed with the authority, has, as

^ See Shortt, Early History of Canadian Banking.

472 Constitutional Documents of Canada. [1791*1840

yet, attempted to introduce the principle of responsibility of government to
the people, into the colonial $ystem.

After an attentive and disinterested considerati(m< of this sabjeet, your
Committee are led to the conclusion, that the adoption of the plan pro-
posed l^ the Earl of Durham, in which this is the prominent feature, must
lead to the overthrow of the great colonial empire of England.

The control exercised by the popular will, over the administration of
affairs in Great Britain, and over the choice of persons by whom the gov-
ernment shall be conducted, is fotraded, not upon theory, but upon the
practical necessity of carrying on a government according to the will of
that power in the constitution, which, right or wrong, can most effectually
control it Simple responsibility of the executive functionaries, and their
liability to answer for misdemeanors or mistakes, existed in England long
before the popular branch of the legislature assumed its present powers;
and in fact, the trial and punishment of ministers, or in other words, their
actual responsibility was much more frequently exhibited when the Sover-
eign was independent of the people, than since the British constitution has
been, by the necessities of the Crown, moulded into its present form.

This latter responsibility the colonists have: it is now proposed to
bestow on them the former.

No one can be blind to the fact, that it is amongst those who advocate
the doctrine, that colonies are useless and burdensome, that respon^bility
of the government to the people finds its warmest supporters. Lord Dur-
ham holds a contrary opinion, and yet he advocates popular government !

That the colonial possesions of England are of immense importance,
and essential to the continuance of her greatness and proqierity, few, we
believe, are prepared to deny. In support of that opinion, your Committee
will, however, quote a favourite expression of the Earl of Durham, after
his lordship had seen the Canadian possessions of the Crown, and become
sensible of their value — "England, if she lose her North American agonies,
must sink into a second-rate power.'*

According to the present system, the governor of a colony exercises
most of the royal functions, under the general direction of the ministers
of the crown; he is strictly accountable for his conduct, and for the use
he makes of the royal authority — he recommends for office persons in llie
colony, or appoints those selected by the minister: and he endeavours to
conduct his government according to the policy of the inqierial cabinet,
with a view to the present prosperity and future greatness of a country
in which Eng^nd has a deep interest ; and above all things, with the inten-
tion of preserving, against all opposition^ the unity of the empire.

To enable him to fulfil these great duties, it is obviou^y his interest,
and that of his advisers, to keep on his side the popular voice of the colony,
and to avoid giving occasion to discontent — ^redressing real, and dissipating,
by temperate discussion, all imaginary grievances.

According to the system proposed by the Earl of Durham, the advisers
of the Lieutenant Governor would not be officers who, in accordance with
the policy of the home government, endeavour to aid the Lieutenant Gover-
nor in conciliating the affections of the people ; but they must be the crea-
tures of the prevailing faction or party in the Assembly— advising the
Governor altogether with the view to the wishes of the House for the
moment, regardless of the opinions of the supreme Parliament, or those
of the Imperial Cabinet — and having (though nominally subordinate) the
power of forcing all their measures upon the Governor.

The colonial Governor must, in this case, be left without discretion
or responsibility, and follow whatever changes may occur; in his colony
he could take no directions from the minister of the crown, nor, indeed,
communicate with the supreme government, unless in the terms dictated by
his responsible advisers, to whose directions he must submit, far more com-
pletely than the Sovereigp to the advice of the cabinet The real Sovereign,
and the supreme cabinet, are lost sight of and forgotten, in the achninis-
tration of public affairs in the colony: and thus the responsibility to Parlia-
ment, which in England is produced by, and consistent with the powers

1791-1840] Constitutional Documents of Canada, 473

of supreme legisKation, being introduced into a colony where the supremacy
in the l^slative body does not exist, the weaker body, in fact, is, by a
political fiction, made the stronger. The dependency of the colony is at an
end ; and while the Sovereign no longer possesses a confidential servant in
the colony, the ministers of the crown, who are responsible for the preser-
vation of colonial connection, lose all authority to fulfil the duties of their
office.

Either this must be the course pursued by a Governor, with re^)onsible
advisers, or he must think for himself, independently of those advisers:
and, as a matter of course, throw himself for information and advice, upon
irregular and unknown sources. In such an event, the responsible advisers
resign — they have, perhaps, a majority in the Provincial Parliament; but
they may, notwithstanding, be very wrong. Then comes a dissolution of
the Provincial Parliament, and, perhs^s, an expression of public (H>i>iion,
by a bare majority, against the government — and probably, inimical to the
interests of the empire. Who, then, is to yield? The government must, in
fact, retire from the contest, whether ijfht or wrong, or carry on public
affairs without any advisers or public officers.

This cannot be done: so that, after all, the governor of the colony
most be responsible to the prevailing party in ^e colony; and, so far as
the empire is concerned, he becomes the sovereign of an independent
realm— having no discretion, and therefore no responsibility.

Under such a system, colonial dependence would practically be at an
end. If it be resolved, then, to force upon us an independence not yet
courted, why subject the colonies to the few miserable years of transition
from monarchy to democracy, which must inevitably follow? Why subject
the colony to the dissensions of party? Is it to foster a spirit of undying
enmity among a people disposed to dwell together in harmony and peace?
Far better would it be to unite them at once to an empire which, though
rival, and perhaps inimical to England, would, in such case .interfere suffi-
ciently between contending parties, to save them from each other.

If England withdraw her influence, and leave her governors to be the
shuttle between colonial parties, no loyalty now existing among any of
these parties will prevent their seeking another influence in the neigh-
bouring republic, to replace the one needlessly withdrawn; and as the
French of Lower Canada sought the alHaace of their ancient enemies, the
Anglo-American population of the neighbouring States, to give them the
means of overwhelming the British population — for the time left without
the comitenance or support of the British government — so vdll the losing
party, in either colony, seek some external influence to aid their cause.
Eiigland refuses the umpirage, and there can be no doubt but that it will be
readily offered, before many years, to the United States.

Ireland and Scotland had once independent legislatures; but never,
when under the British crown, had they anything approaching to govern-
ments responsible to their respective people — ^yet the government of them
became impractioiible, the moment it approached to a participation of equal
political rights, and they were united with England . because government in
the different parts of an empire, must be conducted with a view to some
supreme ruling power, which is not practicable with several separate and
independent legislatures.

The plan of the Earl of Durham is to confine the functions of the
local legislatures to affairs strictly colonial, but this limitation of powers
is not practicable under his Lordship's system.

It is perfectly true that it is not for the interest of England to main-
tain a continual struggle with the local legislature, for the purpose of
upholding any class of persons in the colonies, as the servants of the
Crown ; but it is no less true, that the honour and interests of the Empire
are intimately involved with local administration, and that if Governors of
colonies are to be left unsupported by the Imperial Government, and to
have their advisers diosen for them by the prevailing party, the usefulness
of the Governors must be at an end, — ^there must either by continual col-
lision between them and the other public servants in the colonies, or the

474 Constitutional Documents of Canada. [1791-1840

Governors must yield up their judgments and consciences to the keeping
of the factions which agitate the countries they are appointed to govern.

In small communities, the future is continually sacrificed to present
convenience, but the very temporary nature of the interests which ix&uence
the politics of a country like this, with a changing population, with no
barriers between the inception of public will and its expression — the com-
paratively little personal influence held by any, from considerations of
property, or personal attachment — the ephemeral character of the topics
which sway elections and elevate men for the moment into public favour,
with almost a certainty of sinking with the reflux of the wave which lifted
them into view, operate against the growing up of that steady influence cap-
able of giving stability to politics, or of defining the views of party. The peo-
ple are individually essentially free— free from landlords— free from employ-
ers— free from the influence of great wealth, as well as from that of high
station in the few ; every man does as it seems best in his own eyes. The
consequence is, that it is scarcely possible to know, for any continuance,
what the views of the prominent parliamentary^ men are, except on a few
questions: no considerable number of them tmnk alike, and ail, by turns,
find themselves in a minority many times during a parliamentary session.

This state of things does not arise from any modification of political
institutions, but from the individual independence of the population— caused
by the ease with which landed property is acquired. In ^gland, political
leaders think for the people : in America, the people think for the members
of Parliament ; and as the people is not bound to consistency, like individuals
of note, its appetite for change, and for the proposal and attempt to carry
absurd and extravagant measures, is, and must be gratified from time to
time, "none obstante" the consistency of politicians.

The same course of politics is found in the United States, where the
President, the Senate, and the House of Representatives constantly Bnd
their measures negatived by each other, and where members are constantly
instructed by their constituents, according to the popular whim of the
hour. We therefore do not find what is strictly called Executive responsi-
bility, or necessity of continual accordance of government with the popular
voice; and measures have, even between the short intervals of the Presi-
dential elections, time to be popular and unpopular, two or three times over.
The French Canadian party form, perhaps, the only political combination in
America with consistency of principle, and this is because th^ have leaders
who direct the general opinion. They are consequently the only party
whose representatives could by any possibility lay down any tangible prin-
ciples upon which they would conduct a government. In this Province, as
in the United States, popular will must influence the conduct of govern-
ment in all things not essentially wrong or chimerical, and in these the
government must be strong enough to resist, and be known to have the
power of resistance for a sufficient time, to permit more cool and quiet
consideration on the part of the constituency.

A curious example of this species of legislation is found in a discus-
sion, which has occupied a great part of the present session, on the absorb-
ing topic of the Clergy Reserves. It has been taken up and discussed upon
principles of liberality and concession, on all sides; the parties, unable to
agree upon any mode of appropriation, have, as a final measure, referred
the issue to the Imperial Parliament

It would be almost impossible to enumerate the various modes of dxs-
^ibution proposed, with and without the approbation of government, on
this question, which would undoubtedly, in English politics, be considered
one upon which the existence of a ministry must depend. Suffice it to
say that, almost every member had a plan of his own; some had two or
three plans fresh from their constituents — ^yet, strange to say, the house
could not agree, — that is to say, there was a number sufficient to negative
every plan proposed, and to prevent the reference of the matter to England,
up to the last day of the session.

In this paradoxical state of affairs, which of the contending^ parties
should form the colonial cabinet?

1791-1840] Constitutional Documents of Canada. 475

This, or something approaching to it, not being an unusual condition
of politics, it may easily be supposed that few, ii any persons, possess
sufficient influence to conduct affairs; and from this state of things, it is
to be presumed, has arisen the practice in all colonial governments with
legislatures, of the governors standing as mediators between parties, geld-
ing and leaning to the popular voice, but resisting it with the authority of
their office, when it was manifestly in error.

It must be supposed that had the system proposed by the Earl of Dur-
ham been long since adopted, the popular will would have prevailed to a
far greater extent than heretofore, and yet most of the practical evils found
in the colonies have arisen from measures popular at the time of their
enactment

The preservation of the French language, laws, and institutions, and
the consequent perpetuation of the contest between the races, so strongly
deprecated by the Earl of Durham, was a popular measure, and must have
prevailed even more injuriously, and even destructively, under a responsible
government.

The concessions of public lands to U. £. Loyalists and their children,
to militia, and other grantees not resident upon the lands, which now form
an acknowledged public grievance, were popular measures : the persons who
benefited by them being the population of the country, and those who com-
plain of them not being yet arrived.

The partiamentary grants for local works, and the disposal of funds
by commissioners named by the legislature, and the abuse of this patron-
age are evidently founded upon, and rising out of, the parliamentary
influence sought to be made supreme, and are evils which might have been
greatly exaggerated, but could not have been lessened by responsible Gov-
ernment. In fact they prove that governors should oftener take the respon-
sibility of resisting the popular voice than they have been hitherto accus-
tomed.

The very change in political sentiments, produced by the constant intro*
duction of new population from Great Britain, shows that legislation in
these colonies ought to be conducted with some view to the interests of
those not represented in the legislature, but who may soon form the great
mass of the subjects of the Crown in America. A responsible cabinet
must, however, look exclusively to the party of the day, and in its favour
neglect the great future interests of the Province.

In short, local and sectional interests are felt too strongly and directly
in elective bodies, in small conununities, to permit of consistent legislation
on general principles, and the objects to be gained during the short period
for which the majority hold their influence, are of too much consequence,
compared wiUi distinct general results, to permit of the perfectly tmcnecked
course which would result from responsible government.

Although the points are few in which it is the interest of England
directly to interfere with local and internal affairs in the colonies, your
Committee are at a loss to conceive how, in a government so independent
as this is proposed to be made of England, these few points can by any
means be excluded from the control of the local parliament — ^a disagree^
ment with the cabinet and legislature on the subject of foreign trade ,immi-
gration, disposal of lands, or any of the excluded topics, will just as readily
induce a stoppage of the supplies, with all the consequences, as any of the
questions within the range of local legislature, and if we can suppose cases
in which the interests ox the empire and that of the colony should be dif-
ferent, it is vain to expect that any set of public servants who should
espouse the general interests could continue in authority.

Even in the question of peace and war, excluded alike from local legis-
lation in the several states of America, as in the colonies, we have seen
how nearly in the states of Michigan, New York, and Maine, the prevalence
of popular opinion produced a terrible national war: how the arm of gov-
ernment was paralysed, and the licentious and outrageous conduct of the
populace encourag:ed by local authorities, because of the influence of this
excluded and forbidden question upon the elections of local governors and

476 Constitutional Documents of Canada. [1791-1840

local legislatures: — and it cannot be questioned that little more exacerba-
tion of the tmblic mind in Upper Canada, would have caused such a desire
for reprixu and retaliation, as would have placed any local responsible
cabinet, desirous to maintain peace on the border, in direct collision with
the popular voice.

A stronger instance of the necessity for interference in local affairs
than the recommendation of the British Government for a merciful course
towards the prisoners presented, could scarcely have occurred, for it has
justly been observed, that the honour of England would suffer, if life were
taken unnecessarily. But to^prevent its being taken to a much greater
extent than has been permitted, required much firmness in the advisers of
the government, and much reliance on their part on the Imperial authorities
for support in the htunane course recommended by them.

To conclude this subject, your Committee would observe, that so long
as England holds sway in the colonies, there will be a majority seeking
for power in the Provinces ; and a minority for justice and protection, and
impartial government. The moment the provincial magnates are made
supreme by the proposed system, interference to do justice will be a breach
of faith; and let it be recollected, that if England refuse the umpirage
between contending parties, there is a power at hand, ready and anxious
to join with either, and watching for the favourable opportunity.

From these reasonings, it appears evident, that the expenses of mili-
tary defence in Canada are not to be avoided by a partial independence, or
by anything short of abandonment. These expenses have not been incurred
in consequence of any want of popular concessions : they have been caused
by the unprincipled and outrageous conduct of the border Americans, which
can only be held in check by military defences, or by the influence of Bri-
tish power, upon the American people, through their government.

Referring to the causes of the late insurrection, your Committee would
observe, that it is not to be contended, that the influence over the public
mind, caused by Sir Francis Head having placed the question at issue in
such a light as to show political evils arising from the reform system so
strongly as to produce the change in the elections of 18J6, could either
produce or excuse rebellion. The question at issue involved consequences
of vital importance: nor could the rebellion be produced or excused by
comparisons made by the public, to the disadvantage of the Reformers.
The only pretence amongst all those urged, havinf^ any colour of argument,
is the alleged corruption at the elections, and the influence then obtained
by government But this pretext seems, upon examination, as unfounded
as the others : a people who will permit themselves, in a country in which
the elective franchise is so widely diffused, to be bribed or influenced into
returning an overwhelming majority to parliament, are not the most likely,
therefore, to rise in rebellion against their own decision; and as to the
fact of corruption on the part of the government, so far from there being
any means of attempting such a course, it is with great difficulty that the
government can find the means of carrying on itself, without any such
expensive interference with the rights of electors. If the assertion were
not too absurd for dispute upon it, reference might be had to the returns
from the public offices, and to the proceedings in iht Assembly, in which
the reformers were invited, in vain, to sustain any one of these accusations,
as a full refutation of the charge of corrupt interference influencing the
elections.

That dissatisfaction prevailed amongst the defeated party, as in all
other cases, is admitted— and that the elected members did not possess the
confidence of those who voted against them, was to be expected ; but that
the successful majority were thereby driven into despair of good govern-
ment, or were discontented with tlxir own mode of putting members of
their own choice into power, is not only contradicted by the argument that
the remedy would always be in their own hands, but by the fact of the
enthusiastic loyalty with which the populace of the country, chiefly those
who formed the majority in the late elections, rallied round the veiy men
and the governor, by whom, according to the complaint of the reformers,

1791-1840] ConstituHofiol Documents of Canada. 477

they had been disappointed and betrayed. Your Committee are of opinion,
that the proximity of the American frontier — ^the wild and chimerical
notions of civil government broached and discussed there — the introduction
of a very great number of border Americans into this Province as settlers
-who, with some most respectable and ¥rorthy exceptions, formed the bulk
of tile reformers, who carried these opinions so far as disaffection — to-
Gpether with the existence of actual rebellion, and the expectation of a
general rising in Lower Canada, emboldened a portion of the minority to
rise in rebelhon in this Province, in the hope of achieving the overthrow
of the Government with foreign assistance.

Is it because reformers, or a portion of them, can command the sym-
pathies of the United States, and of Lower Canadian rebels, that the inter-
nal affairs of a British colony must be conducted so as to please them?
Where would the colonial government have looked for support and de-
fence 4n its time of real danger, had proscription, and discouragement, and
disregard, been the portion of those who hatd shown, at the elections, that
they were willing to sacrifice a portion of popular influence, to the great
object of retaining British connection?

How painfully must such men be excited ,at reading, in Lord Durham's
Report, what appears to be a justification of the course taken by the dis-
affected, without one word of approval of those who risked and endured
so much in defence of British supremacy. In what manner, we ask, did
the dominant party make use of Uie occasion, to persecute or disable the
whole body of their political opponents? Who were the numbers of per-
fectly innocent men thrown into prison, and who suffered in person, pro-
perty, and character? And what severe laws were passed in Upper Canada,
under colour of which individuals very generally esteemed, were punished
'without any form of trial?

That some unauthorized individuals were prone to insult those whom
they viewed, at the moment, as a fallen enemy„ must have been the case.
That the individuals, thus insulted, may have felt themselves aggrieved and
annoyed, cannot be doubted — that a great many were thrown into prison
(against whom the clearest proof of high treason was in the hands of the
magistracy) , but who were released without trial, a mercy which they most
thankfully accepted, can easily be proved. That they were perfectly inno-
cent, could only have been placed beyond dispute by a trial, but in the cases
of the great number of individuals arrested, there were not only good
grounds of suspicion, but means of proof of guilt, and it would be far,
indeed, from being the interests of the parties themselves to provoke an
inquiry.

^ It is true, that magistrates, somietimes looking to the circumstances of
their own innnediate neighbourhoods, rather than to the policy of the
Government at large, proceeded with more zeal and strictness than the case
demanded ; but what good reason for complaint has the criminal, arrested
for high treason, in the discovery, that the magistrate, by whose authority
he is arrested, has a political leaning different from himself?

It is stated, in Lord Durham's Report, that it was generally believed, that
the pardon of Samuel Lount, and Peter Matthews,^ was solicited by no
less than thirty thousand of their countrymen. The number of petitioners
— men and women — who petitioned for these criminals, appear, upon exam-
ination, to be four thousand, five hundred, and seventy- four ; such exag-
gerations necessarily refute themselves.

It is one of the most distressing effects of the publication of the Earl
of Durham's Report, that His Lordship thus seems to condemn the execu-
tion of these men. If they really ougnt to have been spared, the publica-
tion of such a sentiment, from one in high authority, cannot restore them,
but it must give rise to feelings, on the part of their friends, and their
political party (who may never have imagined such a possibility as the
escape from punishment of every one of the leaders of a rebellion, which
inflicted so much calamity upon the Province), but who will now think

^ Samuel Lount and Peter Matthews took an active part in the Mackenrie Rebel-
lion. They were escecuted in April, 1838.

478 Constitutional Documents of Canada. [1791-1840

that, had die Earl of Durham been in this Province, high treason would
have been considered much in the same light as a riot at an election.

Your Committee having animadverted on the principal topics in the
report of the High Commissioner, beg, ere they conclude, to observe that,
as regards Upper Canada, Lord Durham could not possibly have any per-
sonal knowledge, the period of his sojourn in that Province being of such
very short duration. Your Committee regret that His Lordship should
have confided the task of collecting information to a person, who, be he
whom he may, has evidently entered on his task, with the desire to exalt
the opponents of the'colonial government in the estimation of the High
Commissioner, and to throw discredit on the statements of the supporters
of British influence, and British connection — ^that he should, in such an
attempt have laid himself open to severe censure, was to be expected. Your
Committee have, however, through a feeling of respect for Her Majest/s
Commissioner, refrained from commenting on his Report, in the terms
which they honestly avow they think it merits, confident that their forbear-
ance will meet the desires of your Honourable House, and be equally in
accordance with the wishes of the family compact hereinbefore mentioned.

All which is respectfully submitted.

J. S. Macaulay,

Chainnan,
Committee Room,

Legislative Council

nth day of May, \S39,

CXXXVI

LORD JOHN RUSSELL ON CANADIAN AFFAIRS, JUNE, 1839*

[Trans. : J. H. Chisholm, The Speeches and Public Letters of Joseph Howe

(2 vols., 1909).]

There is another question upon which I am now going to state an
opinion, which question, I think, is of the very greatest importance and
upon which Lord Durham has expressed an opinion contrary to that enter-
tained by this House — I^mean the question with respect to the responsibility
of the individual holding office of Governor in the province. Lord Durham
has stated that an analogy existed between the representative of the Crown
in the Colony and the constitutional responsibility of the ministers in this
country. He states that as soon as the ministers of the Crown have lost
the confidence of the House of Commons in this country they cease to be
ministers, and that they could not go on with the government with a con-
stant minority. {le adds that, it is certainly a most unusual case for a
ministry to go on for several months 1ft a minority, and he tlien ikttempts
to apply that principle to the government of Canada. Now, the resolution
of this House on this subject was in these termyr- "Resolved, That while it
is expedient to improve the commission of the Executive Council of
Lower Canada, it is unadvisable to subject it to that responsibility de-
manded by the House of Assembly of that Province*." This House upon
my motion came to that resolution, and I must own that there is nothing
in this report which has at all, in my mind, shaken the argument by which
at the time I supported that resolution. It does not appear to me that
you can subject the Executive Council of Canada to the responsibility
which is fairly demanded of the ministers of the executive power in this
country. In the first place, there is an obvious difference in matter of form
with regard to the instructions under which the Governor of a colony acts.
The Sovereign in this country receives the advice of the ministers and acts

* This speech was delivered on the introduction of the Act of Union, 3 June, 1839.
It led to the famous open letters addressed to Lord John Russell (see Nos. CXXXVII-
CXL), which are invaluable in the literature of English political thought.

* See No. CXXIV.

1791-1840] Constitutional Documents of Canada, 479

by the advice of those ministers, and indeed there is no important act of
the Crown for which there is not some individual minister responsible.
There responsibility begins and there it ends. But the Governor of Canada
IS acting, not in that high and unassailable position in which the Sovereign
of this country is placed. He is a Governor receiving instructions from
the Crown on the responsibility of a Secretary of State. Here, then, at
once, is an obvious and complete difference between the Executive of this
country and the Executive of a colony. The Governor might ask the
Executive Council to propose a certain measure. They might say that
they could not propose it unless the members of the House of Assembly
would adopt it, but the Governor might reply that he had received instruc-
tions from home commanding him to propose that measure. How, in that
case, is he to proceed ? Either one power or the other must set set aside, —
either the Governor or the House of Assembly ; or else the Governor must
become a mere cipher in the hands of the Assembly and not attempt to
carry into effect the measure which he is commanded by the home Govern-
ment to do. But if we endeavour to carry out this analogy, there is one
case that all the world allows is a case in which it could be applied — I mean
the case of foreign affairs. If the Assembly of New Brunswick in the late
collision carried on a dispute with the North American States — (Here
some interruption occurred which gave rise to cries of "Order, Order.")
The subject (continued the noble Lord) is certainly a very important one,
and although I may express myself in very inadequate terms yet I do
conceive that it is in my opinion one of the most important points contained
in Lord Durham's report and one on which I differ with him. I ought to
state the grounds of that difference. I say if the Assembly of New Bruns-
wick had been disposed to carry the point in dispute with the North
American States hostilely and the Executive Council had been disposed
to aid them, in my opinion the Governor must have said that his duty to
the Crown of this country and the general instructions which he had re-
ceived from the minister of the Crown, did not permit him to take that
course, and, therefore, he could not agree with the Executive Council to
carry into effect the wish of the majority of the Assembly. That is allowed.
Does not tficn this very exception destroy the analogy you wish to draw,
when upon so important a point as that of foreign affairs, it cannot be
sustained? Again neither could this analogy be maintained with regard
to trade between Canada and the mother country or Canada and any other
foreign country; how then can you adopt a principle from which such
large exceptions are to be made? If you were to do so you would be con-
tinually on the borders of dispute and conflict] the Assembly and the
Kjkmmilft Uil the one hand requiring a certain course to be pursued, while
the Governor on the other hand would be as constantly declaring that it
was" a course he could not adopt; so that instead of furnishing matter of
content and harmony in these Provinces, you would be affording new mat-
ter for dispute and discontent, if you were to act upon this supposed
analogy. Biut supposing you could lay down this broad principle and say
that all external matters should be subject to the home Government and
all internal affairs should be governed according to the majority of the
Assembly, could you carry that principle into effect? I say we cannot
abandon the responsibility which is cast upon us as ministers of this great
empire. I will put a case, one merely of internal concern, that occurred
only the other day. Let us suppose that a of&cer of Militia in Upper
Canada after an action, was to order that the persons taken in that action
should be put to death on the field. I can conceive it possible, in a state
of exasperation and conflict with the people of a neighbouring state, that
the Assembly might applaud that conduct and might require that it should
be the rule, and not the exception, that all invaders of their territory should
be treated in that manner and that the parties should be put to death with-
out trial. Supposing that to be the case, could the Government of this
country adopt such a rule? Could the Secretary of State for the Colonies
sanction such a rule, "and not decide, as his honourable friend the Under
Secretary had done, that 'such a practise would meet with his decided

480 Constitutional Documents of Canada. [1791-1840

reprehension? It is quite impossible to allow it to be laid down as a general
principle that any part of the government of this country, conducted by
ministers having the sanction of this House shall be overruled by a colony,
and that such colony shall not be subject to the general superintending
authority of the Crown of these realms. I can conceive, sir, and I think
that it would be the part of wisdom and justice to say, that there are
matters affecting the internal affairs of these Provinces, — that there are
matters in which neither the Imperial Parliament nor the general Govern-
ment need interfere and on which they should be anxious to consult the
feelings of the people of the colonies. It seems to me, sir, as much a rule
of sense as of generosity, that there are some questions on which it would
not be desirable that, on the opinion of the Secretary of State for the
G>lonies, the opinion of the House of Assembly should be put on one
side. I know no reason why the Legislative Assembly^ whether of each
separatelyT^r of both Pfoviiicea unileil,"Stt6ul(l not be listened to with
. ddference^ hutf ant' not prepared to lay jdowaas a j)rinciple — a new prin-
I ciple— for the future government of the colonies, that we ought to subject
I the Executive there to the same restrictions as prevail in this country.
' Rtsviued, That it Is the opinion of this House that It is expedient to
form a legislative union of the Provinces of Upper and Lower Canada, on
/ the principles of a free and representative government, in such manner as
may most conduce to prosperity and contentment of the people of the united
Province.

Resolved, That it is expedient to continue till 1842 the powers vested

f in the Governor and special Council of Lower Canada by an Act of last

session, with such alterations of those powers as may be deemed advisable.

CXXXVII

JOSEPH HOWE'S LETTERS TO LORD JOHN RUSSELL*

[Trans.: J. H. Chisholm, op, cit.]

Halifax, Nova Scotia [Sept. 18, 1839].
My Lord, — I beg your Lordship to believe that no desire to sedc for
notoriety beyond the limited sphere in which Provindence has placed me,
tempts me to adress these letters to you. Bom in a small and distant
Province of the empire, and contented with the range of occupation that
it affords, and with the moderate degree of influence which the confidence
of some portion of its population confers, I should never have thoogfat of
intruding upon your Lordship, had not the occupations of my past life, and
the devotion to them of many days of toil and nights of anxious inquiry
led me to intertain strong opinions upon a subject which your Lordship
has undertaken recently to discuss; and which, while it deeply concerns
the honour and the interests of the empire, appears to be, by Her Majestjr's
present ministers, but little understood. Whether or not the Anglo-Saxon
population, upholding the British flag on this side of the Adantic, shall
possess the right to influence, through their representatives, the Govern-
ment under which they live, in all matters touching their internal aflEairs
(of which their fellow-subjects living elsewhere know nothing and with
which they have no right to interfere) is a question, my Lord, that involves
their happiness and freedom. To every Nova Scotian it is no light matter
that the country of his birth, in whose bosom the bones of a hardy and
loyal ancestry repose, and whose surface is possessed by a population in-
ferior in none of the physical, moral, or mental attributes which distinguish
his race, to any branch of the gre^t British family, should be free and
happy. I share with my countrymen their solicitude on this subject; I and
my children will share their deep disgrace^ if the doctrines decendy 'acttli-
buted to your Lordship are to prevail to the utter exclusion of us ail from

^ For the history of Responsible Goyemfflent in the Maritime Provinces, tec J. H-
Chisholm. op. cH., Haiuuiy, Th€ Life and Tim^s of Sir Lton^d TUUy; J. W. Longtey,
Joseph Howe; W. L. Grsat, The Tribufif of Nova ScotU.

179M840] Constitutional Documents of Canada. 481

the blessings atld advantag^es of responsible government^ based upon the
I>ftrnct|{|eS7nnbat Constitntion which your Lordship'^ foiefathers laboured
tcT establish and ours have, taught us to revere. To the consciousness of
sdcfat' and political degradation which must be Aiy portion, if the future
government of North America is arranged upon the principles recently
avowed by the ministry, I am reluctant that the reflection should be added
that the colonists were themselves to blame in permitting a great question,
without ample discussion and remonstrance, to be decided upon grounds
which they knew to be untenable and untrue. In addressing your Lordship
on such a topic, it is gratifying to reflect that your past life is a guarantee
that the moment that you are satisfied that a greater amount of freedom
and happiness can be conferred on any portion of your fellow-subjects than
they now enjoy, without endangering the welfare of the whole — ^when once
convinced that the great principles of the British Constitution can be
more widely extended, without peril to the integrity of the empire — ^you
will not hesitate to lend the influence of your great name and distmguished
talents to the good old cause "for which Hampden died in the field and
Sidney on the scaffold.**

Lord Durham's Report on the affairs of British North America appears
to have produced mudi excitement in England. The position which his
Lordship occupies as a politician at home naturally draws attention to
whatever he says and does ; and the disclggurfs made in the Report inust
appear so strange to many ana the "rehie^Tes suggested so bold and original
to many more, that I am not surprised at the notice bestowed by friends
and foes on this very important ciocument. From what I have seen, how-
ever, it IS evident that his Lordship is paying the penalty of party connec-
tion; and that his opinions on Canadian affairs, instead of being tried on
their merits, are in many cases applauded or opposed, as his views of
British or Irish politics happen to be relished or condemned. It is almost
too much to expect that my feeble voice will be heard amidst the storm of
praise and censure that this Report has raised ; and yet there may be some,
who, disliking this mode of estimating a state paper, or distrusting the
means of ju^ing possessed by many who express opinions, but whose
practical experience of the working of colonial constitutions has been but
slight — if indeed they have had any — ^may feel disposed to ask, What is the
thought of the Report in the colonies? Are its leading features recognized
as true to nature and experience there? Are the remedies suggested ap-
proved by the people whose future destinies they are to influence and
control?

The Report has circulated for some months in the colonies, and I feel
it a duty^ to state the grounds of my belief that his Lordship in attributing
maliy If nQLalli?f our. colonial evils and disputes to the absence of respon-
slDility m our .rulcrs^.to those whom tfjey are l^alU^d id govern, Is entirely
warranted b^ ituL kaowUdge of every intelligent colonist; that the remfedy*
pointed out, while it possesses the merits of being extermely simple and/
cmmcntly British, — making them so responsible, is the only cure for thoso
eyis short of arrant quackery ; the only secure foundation upon wWch th^
power of the Crown can be established on this continent, so as to defy
internal machination and foreign assault. ^

It appears to me that a very absurd opinion has long prevailed among
many worthy people, on both sides of the Atlantic, tha| the selection of an (
Executive Council, who, upon most points of domestic policy, will differ )
from the great body of the inhabitants and the majority of their repre- (
sehtfttifes, is imKspensahle to the very existence of cblontat constitutions ; \
and" that ^if it were otherwise, the colony would fly off, by the operation of )
some latent principle of mischief, which I have never seen very clearly •
defined. By those who entertain this view, it is assumed, that Great
Britain is indebted for the preservation of her colonies, not to the naturaA
affection of their inhabitants — ^to their pride in her history, to their par-\
ticipation in the benefit of her warlike, scientific or literary achievements, — \
but to the disinterested patriotism of a dozen or two persons, whose names \
are scarcely known in England, except by the clerks in Downing Street; ^

482 Constitutional Documents of Canada. [1791-1840

who are remarkable for nothing above their neighbours in the colony,
except perhaps the enjoyment of offices too richly endowed; or their
zealous efforts to annoy, by the distribution of patronage and the manage-
ment of public affairs, the great body of inhabitants, whose sentiments they
pannot change.

I have ever held, my Lord, and still hold to the belief, that the popula-
tion of British North America are sincerely attached to the parent State;
that they are proud of their origin, deeply interested in the integrity of the
empire an.d not anxioiu for the establishment of any other form of govern-
ment here then that which ^ou. enjoy at home; whidi, while it has stood the
test of ages and purified itself by successive peaceful revolutions, has so
developed the intellectual, moral, and natural resources of two small Islands,
as to enable a people, once comparatively far behind their neighbours
in influence and improvement, to combine and wield the energies of a
dominion more vast in ^tent and complicated in all its relations than any
ether in ancient or modem times. Why should we desire a severance of
old ties that are more honourable than any new ones we can form? Why
should we covet institutions more perfect than those which have worked
so well and produced such admirable results? Until it can be shown that
there are forms of government, combining stronger executive power with
more of individual hberty; offering nobler incitements to honourable am-
bition, and more security to unaspiring ease and humble industry; why
should it be taken for granted, either by our friends in England, or our
ei'emies elsewhere, that we are panting for new experiments; or are dis-
posed to repudiate and cast aside the principles of that excellent G)nstitu-
tion, cemented by the blood and the long experience of our fathers and
upon which the vigorous energies of our brethren, driven to apply new
principles to a field of boundless resources, have failed to improve? This
jUispin'on i&ja. libel upon the c^lppist an(}..UPpOLihe- Cottfititution he daims
as his inheritance; and the prmciples of which he believes to be as appli-
cable to all ih)e npigsnciBi of 4he eotmtrsr wh«f • he isesides, as they have
proved to be to those of the fortunate Islands in which they were first
developed.

g If the conviction of this fact were at once acknowledged by the intelli-
tent and influential men of all parties in Britain, colonial misrule would
if peedily end and the reign of order indeed commence. This ts not a party
question. I can readily understand how the Duke of Wellington amd Sir
Robert Peel may differ from your Lordship or the Earl of Durham as to
whether measures should be carried, which they believe would impair, and
you feel will renovate, the Constitution; but surely none of these distin-
guished men would msh to deny the Constitution itself to large bodies of
British subjects on this side of the water, who have not got it, who are an-
xious to secure its advantages to themselves and their children; who, while
they have no ulterior designs that can by any possibility make the concession
dangerous, can never be expected to be contented with a system the very
reverse of that they admire; and in view of the proud satisfaction with
which, amidst all their manly struggles for power, their brethren at home
survey the simple machinery of a government, which we believe to be,
like the unerring principles of science, as applicable to one side of the
Atlantic as to the other, but which we are nevertheless denied.

Many persons, not familiar with the facts, may wonder how this
occurs, and may be disposed to doubt the correctness of my assertion. It
seems strange that those who live within the British Empire should be
governed by other principles than those of the British Constitution; and
vet it is true, notwithstanding. Let me illustrate the fact, by a few refer-
ences to British and Colonial affairs. In England the government is invari-
ably trusted to men whose principles and policy the mass of those who
possess the elective franchise approve and who are sustained by a majority
in the House of Commons. The Sovereign may be personally hostile to
them ; a majority ai the House of Lords may oppose them in that august
assembly ; and yet they govern the coun-tiy until, from a deficiency of talent,
or conduct, or from ifi fortune, they nnd their representative majority

1791-1840] Constitutional Documents of Canada. 483

diminished, and some rival con^inatioli of able and influential men in
condition to displace them. If satisfied that the Commons truly reflect
the opinions of tile constituency, they resign ; if there is any doubt, a dis-
solution is tried, and the verdict of the country decides to which party its
destinies are to be confided. You, in common with every Englishman living
at home, are so familiar with the operation of this system, and so engrossed
with a participation in the ardent intellectual competition it occasions, that
perhaps you seldom pause to admire what attracts as little attention as the
air you breathe. The cabman who drives past St. Paul's a dozen times a
day, seldom gazes at its ample outline or excellent proportions; and yet
tiiey impress the colonist with awe' and wonder and make him regret that
he has left no such edifice in the west.

As a politician, then, your Lordship's only care is, to place or retain
your party in the ascendant in the House of Commons. You never doubt
for an instant that if they are so, they must influence the policy and dis-
pense the patronage of the Government. This single ?rff ?4^}r?ih^r .jprin-
ciple of letting the majority govern, you carry out m all your corporations,
1 1iilifi_.dini] pnMir rnminiiii i and associations; and no more suspect that
there. is-'danger in it or that the minority are injured when compelled to
stjbmit, than you see injustice in awarding a cup at Epsom or Doncaster
to the horse that has won rather than to the animal which has lost the race.
The effects of this system are perceptible everywhere, A peer of France,
under the old regime, if he lost the smiles of the court suffered a sort of
political and social annihilation. A peer of England, if unjustly slighted
by the Sovereign, retires to his estate, not to mourn over an irreparable
stroke of fortune, but to devote his hours to study, to rally his friends, to
connect himself with some great interest in the state, whose accumulating
strength may bear him into the counsels of his Sovereign, without any
sacrifice of principles or diminution of self-respect. A commoner feels, in
England, not as commoners used to feel in France, that honours and influ-
ence are only to be obtained by an utter prostration of spirit, the foulest
adulation, the most utter subserviency to boundless prerogatives, arbitrarily
exercised, — but, that they are to be won in open arenas, by the exercise of
those manly qualities which command respect ; and by the exhibition of the
ripened fruits of assiduous intellectual cultivation, in the presence of an
admiring nation, whose decision ensures success. Hence there is a self-
poised and vigorous independence in the Briton's character by which he
strangely contrasts with all his European neighbours. His descendants in
the colonies^ notwithstanding the difficulties of their position, still bear to
John Bull, m this respect, a strong resemblance; but it must fade if the
system be not changed; and our children, instead of exhibiting the bold
front and manly bearing of the Briton, must be stamped with the lineaments
of low cunning and sneaking servility, which the practical operation of
colonial government has a direct tendency to engender.

From some close observation of what has occurred in Nova Scotia and
in the adjoining colonies, I am justified in the assertion, that the English
rule is completely reversed on this side of the Atlantic. Admitting that in
Lower Canada, in consequence of the state of society which Lord Durham
has so well depicted, such a policy may have been necessary ; surely there is
no reason why ^e people of Upper Canada, Nova Scotia, New Brunswick,
Prince Edward Island, and Newfoundland, should, on that account, be
deprived of the application of a principle which is the comer-stone of the
British Constitution — the fruitful source of responsibility in the Govern-
ment, and of honourable characteristics in the people. H the Frenchmen
in one Province do not understand, or cannot be entrusted vrith this valu-
able privilege, why should we, who are all British or of British descent, be
deprived of what we do understand and feel that we can never be pros-
perous and happy without?

Your Lordship asks me for proofs. They shall be given.

Looking at all the British North American Colonies, with one single
exception, so far as my memory extends, although it has sometimes hap-
pened that the local administration has secured a majority in the Lower

484 Constitutional Documents of Canada. [1791-18TO

House, I never knew an instance in which a hostile majority could displace
an Executive Council, whose measures it disapproved ; or could, in fact,
change the policy or exercise the slightest influence upon the administrative
operations of the Government The case which forms the exception was,
that of the Province of New Brunswick; but there the struggle lasted as
long as the Trojan war — ^through the existance of several Houses of
Assembly; and was at length concluded by an arrangement with the auth-
orities at home after repeated repeals and two tedious and costly delega-
tions to England. But the remedy applied, even in that case, though
satisfactory for the time, can have no application to future difficulties or
differences of opinion. Let us suppose that a general election takes place in
that Province next year and that the great body of the people are dissatis-
fied with the mode in which the patronage of the Government has been
distributed and the general bearing of the internal policy of its rulers.
If that colony were an English incorporated town, the people would have
the remedy in their own hands; if they were entrusted with the power
which as British subjects of right belongs to them, they would only have
to return a majority of their own way of thinking; a few men would
change places ; the wishes of the majority would be carried out, and by no
possibility could anything occur to bring the people and their rulers into
such a state of collision as was exhibited in that fine Province for a long
series of years. But under the existing system, if a hostile majority is
returned what can they do? Squabble and contend with a executive whom
they cannot influence; see the patronage and favour of Government lav-
ished upon a minority who annoy, but never outvote them; and, finally,
at the expiration of a further period of ten years, appeal by delegation to
England ; running the hazard of a reference to a clerk or a secretary whose
knowledge of the various points at issue is extremely limited — ^who_ has no
interest in them, and who, however favourably disposed, may be displaced
by some change in the position of the parties at home before the negotia-
tions are brought to a close.

In 1836, a general election took place in Nova Scotia; and when the
Legislature met for the despatch of business, it was found that the local
government had two-thirds of the members of the representative branch
against them. A fair-minded Englishman would naturally conclude that
the local cabinet, by a few official changes and a modification of its policy,
would have at once deferred to the views and opinions of so large a
majority of the popular branch. Did it do so? No. After a fierce struggle
with the local authorities, in which the revenue bills and the appropriations
for the year were nearly lost, the House forwarded a strong address to the
foot of the throne, appealing to the Crown for the redress of inveterate
grievances, the very existence of which our colonial rulers denied, or which
they refused to remove.

To give your Lordship an idea of the absurd anomalies and ridiculoas
wretcKedness of our system up to that time, it is only necessary to state,
that a Council of twelve persons administered the goyernment, and at the
same time formed the upper branch of the Legislature, sitting invs^iably
with closed doors. Only five of these twelve gentlemen were partners in
on private bank, five of them were relations, two of them were heads of
departments, and one was the Chief Justice, who in one capacity had to
i administer the law he had assisted to make, and then in a third to advise
{ the Governor as to its execution. To heighten the absurdity of the whole
I affair, it is hardly necessary to add, that only nine of these twelve men
■ were members of a particular Church, which, however, useful or respectable
* only embraced one-fifth of the whdTe population of the Province. To the
passage of certain measures for the regulation of our currency, the de-
rangement of which was supposed to be profitable to those who dealt in
money, the bankers were said to have opposed their influence. Any attempt
at reduction of the expense of the revenue departments, the heads of which
sat at the board, was not likely to prevail; while the patronage of the
Government was of course distributed by the nine Churchmen, in a way
not very satisfactory to the four-fifths of the people who did not happen

1791-1840] Constitutional Documents of Canada. 485

to belong to that communion. Such a combmation as this never could have
g:rown up in any colony where the English principle of responsibility had
been in operation. Indeed, there was something so abhorrent to British
feeling and justice in^tfae- whole affaii 4iiai Losd GleoAlg. at «fiee decided
th^t-it'was '^too bad" ; and, while in Her Majesty's name he thanked the
Coiuimjus -for the rejpresentation they had made, he directed the Governor
to dissolve the old Council and form two new ones free from the objec-j
tions which the Assembly had urged.

Had the instructions given been fairly carried out, there is little doubt
thac in Nova Scotia, as in New Brunswick, the people and their representa-
tives would have been contented for a time; and would have felt that, in
extreme cases, an appeal from their local rulers to the Colonial Secretary
wjuld be effectual. The existing machinery of government might have
been supposed to be adequate to the necessities of the country, with perhaps
an entire revision and repair at the hands of the master workmen at home
once in ten years, or whenever the blunders of subordinates in the colony
had completely clogged its operations.

Butmark the result. The Governor was instructed to call into the new
CounfllS Ihos? vrliu 'possess the confidence of the country." Now, you in
England are simple enough to betlciVe, that when the Whigs have, in a
house of six hundred and sixty-eight members, a majority of eight or ten,
they possess the confidence of the country; and if their majority should
happen to be double that number, you would think it droll enough if they
were excluded from political influence, and if the new creations of peers
and selections for the Cabinet should all be made from the ranks of their
opponents. This would be absurd at home, and yet it is the height of
\visdom in the colonies. At the time these commands were sent out, the
party who were pressing certain economical and other reforms in Nova
ScoHa were represented by two-thirds of the members of the popular
branch. The relative numbers have occasionally varied during the past
ihr^ sessions. At times, as on the recent division upon a delegation, the
reformers have numbered thirty-three to eleven, in a House of forty-six.
On some questions the minority has been larger, but two-thirds of the
whole may be fairly taken as the numerical superiority on all political ques-
tions, of the reformers over their opponents. It will scarcely be believed,
♦^^!i^ iin Fng^^"^, thp*; in the new appointments^ By'ielndi 'a more popular
charactT was-ta.bfi given to the Councils, six gentlemen were taken from'
the minorij^ a(^ ttflCtwaijoini the ranks of tne majority. So that those
who had been tnanked for making representations to the Queen and who
were pressing for a change of policy, were all passed over but two ; while
those who had resisted and opposed every representation, were honoured
by appointments and placed in situations to render any such change utterly
hopeless. The Executive Council, the local cabinet or ministry, therefore,
contained Qiie or two persons of moderate views, not selected from the
House; one from the majority, and eight or ten others, to render his voice /
very lilce that of the "man crying in the wilderness." He held his seat ^
about half a year and then resigned ; feeling that while he was sworn to
secrecy and compromised by the policy he had not approved he had no
influence on the deliberations of the Cabinet or the distribution of patron-
age. Things were managed just as much in accordance wjth the royaly ,^
instru(jron£wigi "respect lolhgXcgisTa'tr^^ ^uiicll, The pack was shuffledr
th^^irie^ was'To'remaTh the same. "The members of the majority, as I
haTe-sJtid before, were "air^lmwtted in the new creation of peers, but one ;
while from the House and beyond it some of the most determined sup-
porters of old abuses were selected ; and among them, a young lawyer who
had shown a most chivalrous desire to oppose everything Her Majesty so
graciously approved ; and who, in the excess of his ultra zeal, had, upon the
final passive of the address to the Crown, when almost all his friends
deserted him, voted against the measure in a minority of four.

^^^^JJlTIIi/^T^^^ J ^''^'^^^P hcn^-fr |ti.ii 111 itVt4fnfitratinn of the correctness I
of Lord "Durham's observations, and may judge of the chance the present I
system oiferr of good-colonial government, even when the people have the \

486 Constitutional Documents of Canada, [1791-1840

Queen and th^ r^]jppi q1 <so/»fA»i|ry ^^^ th»ir side. Such policy would wither
a1Hnjp'<6 m the Nova Scotians, if they did not confide in the good sense and

i'ustice of their brethren within the four seas. We do not believe that the
Parliament, press, and the people of England, when rightly informed, will
allow our local authorities "to play such tricks before high heaven" or
"^"Worce us to live under a system so absurd, so anti-British, so destructive of
every manly and honourable principle of action in political affairs. The
House of Assembly, as a last resort, after ample deliberation, determined
to send two members of that body as delegates to England, to claim the
rights of Englishmen for the people of this country. YouT-Xordship's
declaration tel]sjcDe«. that on this point they will be unsuccessful; but ^tient
perseverence is a political characteristic of the stock from which we_fpriqg.
V^ You askme lot i^e .renied;|r. Lord Durhamhas' st&ied H* distinctly :
the CdhmtaT Uo vernors must oe com"maifdSHtrgoVCTir'^y"ltiF^rid''^Tlhose
f who possess the confidence of the people, and are supported by a majority
/ of the representative branch. Where is the danger? ^_ what rnfuyf|urnr*
I is it to the people of England, whether half-a-dozen persons, in lyuiflO^^^
■ majority have confidence, but of whom they know nothing and care Tess,
manage our local affairs; or the same number, selected from the minority,
and whose policy the bulk of the population distrust? Suppose there was
at this moment a majority in our Executive Council who think with the
Assembly, what effect would it have upon the funds? Would the stocks
fall ? Would England be weaker, less prosperous or less respected, because
the people of Nova Scotia were satisfied and happy?

But, it is said, a colony being part of a great empire must be governed
*• by different principles from the metropolitan state. That, unless it be
/ handed over to the minority it cannot be governed at all ; that the majority,
, when they have things their own way, will be discontented and disloyal;
' that the very fact of their having nothing to complain of will make them
• desire to break the political compact, and disturb the peace of the empire.
Let us fancy that this reasoning were applied to Glasgow, or Aberdeen, or
to any other town in Britain, which you allow to govern itself. And what
else is a Province, like Nova Scotia, than a small community, too feeble to
.interfere with the general commercial and military arrangements of the
Government; but deeply interested in a number of minor matters, which
only the people to be afiFected by them can wisely manage ; which the minis-
try can never find leisure to attend to, and involve in inextricable confusion
when they meddle with them? You allow a niillion of p#<^lc. tn gnvam
themselves in the very capital of the kingdom ; and yet Her Majesty- lives
in the tntdst of them witnout any apprehension of danger, and feels the
more secure, the more satisfaction and tranquillity they exhibit. Of course,
if the Lord Mayor were to declare war upon France, or the Board of
Aldermen were to resolve that the duties on brandy should no longer be
collected by the genera] revenue officers of the kingdom, everybody would
laugh, but no one would apprehend any great danger. Should we, if Lord
Durham's principles be adopted, do anything equally outri, check us, for
you have the power ; but until we do, for your own sakes — for you are as
much interested as we are — for the honour of the British name, too often
tarnished by these squabbles, let us manage our own affairs, pay our own
officers, and distribute a patronage, altogether beneath your notice, among
those who command our esteem.

The Assembly of Nova Scotia asked, in 1837, for an irlrrtivr I tgitht*"'*
Council, or for such other reconstruction of the local g/^^**t^«n^ti» ^^ -n^^M
ensure responsibility. After a struggle ol_thtee-.^fiai:s^.j7eJu^3renot got
either. The demAnd fdr an elective upper branch was made under the
itnpression^ that two Houses chosen by the people would sufficiently check
an Executive exempt from all direct colonial accountability. From what
has occurred in the Canadas; from the natural repugnance which the
House of Peers may be supposed to entertain upon this point ; from a
stj-ong desire to preserve in all our institutions the closest resembfiuiee vr
^V those of our mother country ,a responsible Executive CouncH, as recom-
^mended by Lord Durham, would be preferred. nit6 the l^racticaibnfty' of

(

1791-1840] Constitutional Documents of Canada. 487

his Lordship's plan of a union of all the colonies under one government,
I do not intend to enter; that is a distinct question; and whenever it is
formally propounded to the local Legislatures, will be gravely discussed
upon its own merits; but whether there be union or not, the principlj^ of
responsibility to the poj[Wiaf branch' musf'be Tnlroduced tetfe'attThe colonies ^
imiJliniii ilVli^j'TT Ti iTn only sinlpTeantfsafCTemcdr ^oran hivcterate and
vcTT'Oflmimon disease. It is mere mockery to tell us that the Governor
himself is responsible. He must carry on the government by and with the
few officials whom he finds in possession when he arrives. He may flutter
and struggle in the net, as some well-meaning Governors have done, but he
must at last resign himself to his fate ; and like a snared bird be content
whh the narrow limits assigned him by his keepers. I have known a
Governor bullied, sneered at, and almost shut out of society, while his
obstinate resistance to the system created a suspicion that he might not
become its victim ; but I never knew one, who, even with the best intentionsi
and the full concurrence and support of the representative branch, backed!
by the confidence of his Sovereign, was able to contend on anything likej
fair terms, with the small knot of functionaries who form the Councils, filll
the offices, and wield the powers of the Government The plain reason is,'
because, while the Governor is amenable to his Sovereign, and tllC WMbtrs
of ABseriibiy a*"* COntfttTIeOy their constituents, these men are not respKon-
sibl^ atatt; and can always protect and sustain each other^ whether assailed
by Hie 'representatives of the Sovereign or the representatives of the people.
It Is indispensable, ■'ttren, to the dignity, to the independence, to the useful-
ness of the Governor himself, that he should have the power to shake off
this thraldom, as the Sovereign does if unfairly hampered by faction ; and
by an appeal to the people, adjust the balance of power. Give us this truly ,
B ritish privilege, and colonial grievances will soon become a scarce article '
m the English market.

'"TRFptocts'that encircle the sun, warmed by its heat and rejoicing in
its effu^ence, are moved and sustained, each in its bright but subordinate
career, bv the same laws as the sun itself. Why should this beautiful
example be lost upon us? Why should we run counter to the whole stream
of British experience; and seek, for no object worthy of the sacrifice, to
govern on one side of die Atlantic by principles the very reverse of those
found to work so admirably on the other. The employment of steamers
will soon bring Halifax within a ten days' voyage of England. Nova Scotia
will then not be more distant from London than the north of Scotland and
the west of Ireland were a few years ago. No time should be lost, there-
fore, in giving us the rights and guards to which we are entitled; for
depend upon it the nearer we approach the mother country, the more we
shall admire its excellent constitution, and the more intense will be the
sorrow and disgust with which we must turn to contemplate our own.

CXXXVIII

JOSEPH HOWE TO LORD JOHN RUSSELL

[Trans. : J. H. Chisholm, op. cit.]

My Lord, — I have read the speech delivered by your Lordship on the
3rd of June, as reported in The Morning Chronicle, several times ; and beg
your Lordship's attention to what I conceive to be the rational solution of
the difficulties raised in that speech to the concession of the principle of
local responsibility Had your Lordship been more familiar with the prac-
tical workings of the existing colonial constitutions, and with the feelings
of the people who smart under the mischiefs they produce, you would not,
perhaps, have fallen into some errors by which that speech is disfigured;
nor have argued the question as one in which, the obvious, manifold, and
.vital interests of the colonists were to be sacrificed to fear of some vague
and indefinite injury that might be sustained by imperial interests, if ex ecu-

488 Constitutional Documents of Canada. , [1791-1840

tive power were taken from the ignorant and given to the well-informed—

if it passed from the hands of officers to whom but a nominal responsibility

can attach, into those of men subject to constant scrutiny, and, whenever

they faii in their duty, liable to exposure and disgrace.

I Lord Durham recommends that the English nilfir i^ which, those who

I conduct public affairs resign when they bav« lost the confidence of the

I Commons, should be applied to the Executive Couucillors in North Amer-

1 ica. ^'Yord* Lordship denies the existeac£ of the analogies upon which Lord

I Durham's views are based : —

i "It does not appear to me that you can subject the Executive Cotmcil
of Canada to Uie responsibility which is fairly demanded of the ministers
of the executive power in this cotmtry. In the first place, there is an
obvious difference in matter of form with regard to the instructions under
which the Governor of the colony acts. The Sovereign in this country
receives the advice of the ministers, and acts by the advice of those min-
isters ; and indeed there is no important act of the Crown for which there
is not some individual minister responsible. There responsibility begins,
and there it ends. But the Governor of Canada is acting, not in that high
and unassailable position in which the Sovereign of this country is placed.
He is a Governor receiving instructions from the Crown on the responsi-
bility of a Secretary of State. Here then, at once, is an obvious and com-
plete difference between the executive of this country and the executive
of a colony."* *

Now« my Lord, let me beg your Lordship's attention to a few of the
reasons why I conceive that such an argument as this ought not to stand
in the way of the permanent peace, prosperity, and happiness of a million
and a half of human beings. "The Sovereign in England receives the ad-
vice of the ministers and acts by the advice of those ministers;" — but are
there no limits assigned by law, within which those advisers are bound to
keep?— ^nd is not the Sovereign bound to know and to apprise the country
when tney over-step them? What is the question at issue now between
the Whigs and Tories? Is it not, whelJier, according to the spirit and
practice of the Constitution, Sir Robert Peel had or had not a right to
advise the changes in Her Majesty's household^ upon which he insisted,
before he would consent to form an administration? Suppose the present
Cabinet were to advise Her Majesty to cut off Sir Robert's ears, or to
bombard the city of London, would she obey, or would she not say, "Gen-
tlemen you are exceeding your powers, and unless you conduct yourselves
with more discretion, you must resign?" It is plain, therefore, that there
are bounds beyond which even in the mother country, neither the advisers
nor the monarch can pass ; and none who seek colonial responsibility are
so mad as to require, that corresponding restrictions shall not be binding
here ; that there shall not be a limit beyond which no Executive Councillor
can pass, and over which no representative of Majesty will consent to be
driven? These bounds must be clearly defined in the Act of Parliament
which establishes the new system, or in the instructions sent to the Gov-
ernors, to be communicated to the Legislatures; and which they may, if
they see fit, embody in a bill, which, so long as it exists, shall be, to all
intents and purposes, the Constitution of the Colony.

But, your Lordship says: — "The Governor is acting, not in that high
and unassailable position in which tlie Sovereign of this country is placedL"
Why should he not occupy a position nearly as independent: and be per-
fectly unassailable, so long as he does not interfere (as the Sovereign
would not dare to do) with matters for which others are responsible; nor
allow himself, or his Council, to overstep those 4>oundaxies which British
subjects on both sides of the Atlantic, for the protection of their mutual
rights and interests, have established; and for a jealous recognition of
which he, in case bad advice be given him, is alone responsible? ^The
^ Queen's position is unassailable only so long as she does no act whicnThe
'^Constitution does not permit to be done. The Governor, if assailed, would
in Ite manner turn to the Constitution of the colony committed to his
»Sec No. CXXXVI.

/

1791-1840] Constitutional Documents of Canada. 489

care; and show that on the one hand he had neither trenched upon the
rights essential to the security of colonial liberty, nor, on the other, timor-
ously yielded aught which the laws for the protection of imperial interests
made it criminal to yield.

Your Lordship is mistaken, therefore, in supposing that the Sovereign
is divested of all responsibility; although I admit it is much more difficult
to call him or her to an account than it would be the Governor of a colony.
If the Queen were to deprive Sir Robert Peel of his ears or open a few
batteries upon London, an imeute or a revolution would be the only
remedy ; but a Governor, if he consented to an act which shut out British
manufacturers, or was tempted to levy war upon a friendly state, could
be called to account without difficulty or delay ; and, hence, I argue, that
the facility and certainty of inflicting punishment for offences of this sort
would prevent their commission; and operate as a sufficient guard to the
imperial interests, which your Lordship seem to anxious to protect If it
be said that the people in a colony may sustain councillors who f^ive uncon-
slilulionat advice, my answer is, that tue same Uiiug may occur m England
Wh«nrit does, a peaceful modification of the Constitution, or a revolution
follows ; but these cases are not so frequent as to excite alarm, nor is there
any reason to believe that they will be more so in the colonies, whose power
to enforce improper demands is so questionable.

"He is a Governor receiving instructions from the Crown, on the
responsibility of a Secretary of State." This passage suggests some reflec-
tions which I feel it my duty respectfully to press upon your Lordship's
attention. One of the evils of the existing system, or rather haphazard
mode of government, devoid of all system, is the various readings given to
the medley of laws, usages, and Colonial Office despatches, by which we
are at present ruled. An excellent illustration of the difliculty of obtaining
an interpretation of these, about which there can be no mistake — ^which he
who runs may read — ^may be furnished by contrasting the views put forth
by your Lordship with those acted upon by Sir Francis Head^ ; and which,
after a bloody- rebellion, brought on to prove the value of his theory, he
still avows in every succeeding edition of his Narrative, with a consistency
and complacency worthy of all praise. 'The responsibili^," says your
Lordship, **r€sts on the Secretary of State" "The responsibility," says Sir
Francis Head, in every act of his government and in every page of his
book, "rests on me" From the moment of his entering into Upper Canada,
he threw overboard all the instructions from the Colonial Secretary (who,
accordfaig to your Lordship ought to have been obeyed, for he was alone
reViFuiislble-} ; he struck out a course of policy entirely new; commenced
"putting the padlock on the mind," to be followed by some hundreds of
handcuffs «n-the wrists, and padlocks on the body. His language to Lord l^- "-
Glenelg throughout was, "You must support me" — "The fear is that /
will not be supported at the Colonial Office." In fact, from first to last,
Sir Francis gave instructions to, instead of receiving them from, the
Secretary of State; and finding that Lord Glenelg would not permit him
to try his experiments in government, and combat the fiery dragon of
democracy in the bosom of a British Province, at the cost of a good deal
of blood and treasure, and the prospects of a foreign war, without occasion-
ally offering a little advice, liie worthy Baronet resigned; and has ever
since been publishing his complaints to the world and claiming its sympathy,
as a sufferer for conscience' sake, in upholding the only correct reading of
colonial constitutions, and which the Secretary of State, and the Whig
Government of which he was a member, did not understand. The doctors
in this case differed ; and the patient was left prostrate, mangled, bleeding
and exhausted, likening to their altercations, but suffering from evei^
gash made to convmce each other at her expense ; and there she lay, until
recently; when, beginning to suspect that both had been talking nonsense
and trying absurd experiments, she lifted her languid head, stretched out

^ Head was LieutenAnt-Goyemor of Upper Canada from January, 1836, to March,
1838. He pnbliahed a highly characteristic account of his rule entitled A Ntarroitw*
(3rd Edn., JLondon, 1839).

490 CoKstitutional Documents of Canada, [1791-1840

her wounded limbs, and began to fix her eyes upon the only remedy by
which health could be restored.

Let us, in order to convince ourselves that the conclusion to which
Upper Canada is coming after all her sufferings is a sound one, examine
the two prescriptions and modes of treatment ; and ascertain whether either
contains anything which ought to rescue it from the oblivion that invariably
doses over the nostrums by whidi the science of politics, like the science
of medicine, is often disfigured for a time.

A colony where the Governor is atone respotuubk is Sir Francis Head'5
interpretation tJt ttrr system uA2£r wluch we live. It is one very much
affected by colonial Governors everywhere. Unlimited power within a
wide Province is a beautiful idea for an individual to indulge, especially
when it is attended with but little risk and only nominal responsibility.
Of all the British colonial Governors who have wielded this vast authority;
plumed themselves upon the possession of these plenary powers; and, in
the exercise of them, vexed, distracted, and excited to disaffection one
Province after another, how many have been tried and punished? How
many have met with even a reprimand from the ministry, or a cold look
from the Sovereign whose authority they had abused? I leave your Lord-
ship, whose historical reading has been much more extensive than mine,
to point out the instances; I have searched for them in vain. It is true
that debates in Parliament occasionally arise upon such subjects ; but these,
judging by their practical effect, can hardly be taken into account «Jl. Gov-
ernor knows wdl thatr &o long as he hokiftofiw»» 4he ministry by whom Tie
Wss 'appointed wifl defend him ; that their msjortty in the Commons pre-
cludes the possibility of a vote of censure being paucd against him- that
the Duke, under whom he probably served, having a majority in the Upper

'^ouse, he is perfectly safe, so long as he commits no act so flagrant as
to outrage the feelings of the nation; and which, coming home to the
heart of every man and woman in England, would make it unsafe for any
parliamentary combination to attempt to protect him. Thus fenced in
during his administration, what are his perils when he retires? The colon-
ists, too happy when rid of the nuisance to be vindictive, and hoping better
things from a successor, of whom they are unwilling to suspect any evil,
cease to complain ; his Excellency is removed to another Province, with a
larger salary, to act the same farce over there; or retires to his estates in
the mother country, to form one of that numerous body of ex-Governors

t who live upon the consciousness of having, once within their lives at least,
wielded powers within a wide range and over the destinies of many thou-
sands of their fellow-beings, such as are never permitted to be wielded by
any individual, however high his rank or widely extended his influence,
without full and ample responsibility, within the British Islands themselves.
These men, whether they go into Parliament or notj always sympathize

\ with Governors abroad acting upon their darling theory ; and, as mey are

.' often consulted by ministers who know perhaps a little less than ttiem-
sdves, they are always at hand to stifle the complaints of the colonists when
appeals are made to England.

Your Lordship will perceive, therefore, that when a Governor declares,
as did Sir Francis Head, that the responsibility rests on him, he merdy
means that he is about to assume extensive powers, for tiiree or four,
perhaps for eight or ten years, without the shadow of a chance of his ever
being called to account for anything he may do or leave undone. To enable
you to form some idea of the peace, prosperity and satisfaction likely to
be diffused over a Province, by a Governor acting upon these principles
and exercising these powers, let me request your Lordship to imagine that,
after twenty or thirty years of military service, by which I have become
disciplined into a contempt for civil business and a fractious impatience of
the opinions of all beneath me in rank. Her Majesty has the right, and
gradously deigns to exerdse it, of making me Mayor of Liverpool. Fancy
that, up to the moment when the information is conveyed to me, though I
have heard the name of that dty several times and have some vague notion
that Liverpool is a large commercial port in England; yet that I nei^r

1791-1840] Constitutional Documents of Canada. 491

know on what river or on which side of the island it is situated, nor have^
the least knowledge of its extent, population, requirements or resources; the''
feelings, interests, prejudices or rights of its inhabitants. Within a month,
having had barely sufficient time to trace out the situation of the place upon |
a map, read a book or two about it, hear an under-secretarv talk an hour .'
or two of what neither he nor I understand; receive a packet of instruc- (
tions — of which half-a-dozen different readings may be given — and be- \
come thoroughly inflated with my own consequence, I find myself in \
Liverpool; and feel that I am the great pivot upon which aU its civil admin- i
istration, its order and defence, its external relations with the rest of the /
empire and the rest of the world turns: the fountain from which its •
intemal patronage is to flow ; and to which all, for a long period of years,
must look for social and political ascendency, if they have no merit; and,
if they have, for a fair consideration of their claims.

Your Lordship will readily believe, that a man thus whisked away
from the pursuits which have occupied his thoughts for years and plunged
into a new scene, surrounded by human beings not one of whose faces he
ever saw before; called to the consideration of a thousand topics, with
almost any one of which the assiduous devotion of half a life would be
required to make him familiar; and having to watch over vast interests,
balance conflicting claims, decide on the capacity of hundreds, of whose
characters, talents and influence he is ignorant ; to fill offices, of the ^uties
of which he has not the slightest conception ; — ^that a man so situated, must
either be very vain or very able, if he is not appalled at the extent of the
responsibility he has assumed; and must be an angel of light indeed, if he
does not throw the good city of Liverpool into confusion. This, my Lord,
is no fancy sketch; no picture, highly colored to produce effect, but which
on ■ tlusir 'examination, an artist would cast aside as out of drawing ; it is a
faiUifut representation of what occurs in some British colony almost every
year*

But it may be said, all this is granted, and yet there is the Le^slature
to influence and instruct. Liverpool shall still serve for illustration, and
we will presently see to what extent the representative branch operates on
the conduct of a gentleman who assumes the responsibility and is placed
in the circumstances described. Let us suppose that the city charter gives
me for my advisers, from the moment I am sworn in, ten or a dozen indi
viduals, some of them heads of departments, enjoying large salaries and
much patronage; others, perhaps, discarded members of the popular
branch; and not a few selected by no rule which the people can clearly
understand, but because they happened to flatter the vanity of one or other
of my predecessors, or to be connected with the families, or favourable to
the views or interests of some of those by whom they were advised. This
bod^, be it observed, by usage never departed from, hold their situations
as Councillors for life ; the people have no control over them, neither have
I ; they are sworn not to iniarm upon each other, nor is it necessary that
they riwuld; because, as I have assumed the responsibility, and they fof
thehrowtt hiterest favour the theory, if anything goes wrong they can lay
the Usme on me. This t>ody then, which owes no allegiance to the people
oI'LlveipOOt] which often, in Jact, has an interest the very reverse of
theirs; ^ich, suspected of usurpation and improper influence, pays back
the imputation with unmeasured contempt; and hardly one-fifth of whose
number could, by any possibility, be thus honoured if their seats depended
on popular selection ; this body I am compelled to call around me in order
that my administration may commence, for without some such assistance,
I am unable to take a single step. They come; and there sit, at the first
council board, the responsible Mayor, who knows nothing and nobody, and
his irresponsible advisers, who, if they do not know everything — and they
are seldom greater witches than their neighbours — ^know their friends, a
lean minority of the citizens, from their enemies, the great majority; and
are quite aware that, for their interest, it is necessary that I should be
taught, as soon as possible, to despise the latter and throw myself into the
arms of the former. Will any sensible man, calmly viewing the relative

1

492 Constitutional Documents of Canada. [1791-1840

situations, opportunities and powers of the parties, believe that any act of
administration done, or any appointment made for the first six months,
is my act or my appointment? I may choose between any two or three
persons whose names are artfully set before me, when an office is to be
filled, and if determined to show my independence may choose the worst;
but I must choose from the relatives and friends of my advisers, or from
the small minority who support them in the hopes of preferment; for to
that section the whole of the^ity patronage must be religiously confined;
and it is of course so managed, that I scarcely know or have confidence
in anybody else.

Can your Lordship believe that such a state of things would give
satisfaction to the citizens? Would they not b^in to grumble and complaisi
to warn, to remonstrate, and to expose the machinations and manoevures
of the monopolists? It would be very odd, and they would be very strange
Englishmen if they did not. But as I have come to Liverpool to demon-
strate the beauties of this system of city government, which I highly ap-
prove ; as I have assumed the whole responsibility and become inflated with
the consciousness of my extensive powers ; and, above all, as I am taught
by my advisers to look upon every complaint of the system as a libel upon
my judgment and an insult to my administration — I very soon begin to
dislike those who complain ; to speak and write contemptuously of them in
private and in public; to denounce any who have the hardihood to suggest
that some alterations are required, by which the opinions and rights of the
majority shall be respected, as men dangerous to the peace of the city and
disaffected towards Her Majesty's person and government; until, in fact,
Liverpool becomes very like a town, in the olden time, in which the in-
habitants generally being hostile to their rulers, the latter retire to the
citadel, from which they project every sort of missile and give every species
of annoyance.

By-and-by the time arrives for the legislative branches of the city
government to assemble. One of these being elected at short periods, under
a low franchise, which includes the greater body of the independent citi-
zens, may be taken as a fair reflection of all their great interests, their
varied knowledge, passions and prejudices; the other is a body of life
l^islators, selected by my advisers from among their own relatives and
friends; with a few others, of a more independent character, to save ap-
pearances, but in which they always have a majority of faithful and deter-
mined partisans. The business commences ; the great majority of members
in the representative branch^speaking the matured opinions of the people
—complain of the system and of the advisers it has placed around me;
expressing the fullest confidence in me, whom they cannot suspect of wish-
ing to do them harm, but asking my co-operation towards the introduction
of changes without which, they assure me, the city never can prosper.
But my advisers having a few of their adherents also in this body, they are
ih^fructed' to declare any change unnecessary ; to dirow every obstruction
m the way: to bully and defame the most conspicuous of those who expose
the evils ot the existing system; and to denounce them all as a dangerous
combination, who, with some covert design, are pressing, for factiotts ob-
jeets, a series of frivolous complaints. Of course, as the minority speak the
sentiments which I have imbibed and put themselves forward as my per-
sonal champions on all occasions, they rise in my esteem exactiy in the
same proportions as the other party are depressed, until they become special
pets; and, from their ranks, as opportunities occur, all vacancies are sup-
plied, either in the list of irresponsible advisers who in my name carry on
the government, or in the number of life legislators, who do their bidding
in the upper branch.

I respectfully b^ your Lordship to ponder over these passages, which
I assure you are true to nature and to experience; and ask yourself, after
bringing home such a state of affairs to the bosom of any British city, how
long it would be uncomplainingly endured? or how long any ministry, duly
informed of the facts, would wish it to continue? Look back, my Lord,
and you will find in every rotten corporation, swept away by the immortal

1791-1840] Constitutional Documents of Canada. 493

act of which your Lordship was one of the ablest defenders, a resemblance •
to our colonial gorermnents as they at present stand, too strong to be mis- ^
t^ien; and let me venture to hope, that the man who did not spare corrup-
tion so near the natioaaL centre of vitality, who did not hesitate to comblt
these hydra-headed minorities, who swarming over England, everywhere
asserted their right to govern the majorities, will not shrmk from applying
his own principles — the great principles of the Constitution — ^to these more *
distant, but not less imporant portions of the empire.

Your Lordship will, perhaps, urge that Sir Francis Head succeeded in
pleasing the people and getting the majority on his side. Admitting the
full force that die worthy Baronet gives to this case, it is after all but the
exception to the general rule. The true history of events in Upper Canada,
I believe to have been this : A small but desperate minority had determined
on a violent revolution; this party might have contained some men so
wicked that a love of mischief and a desire for plunder were the governing
principles, and others, moved by an attachment to republican institutions;
but small as it was, the greater number of those found in its ranks had been
driven there by the acts of another equally small and equally desperate min-
ority, who had long monopolized, — and, under the present system, may and
will monopolize for a century to comte — ^the whole power and patronage of
the government, dividing among them the revenues of the country. The great
mass of the people of Upper Canada belonged to neither of these %wwl« -of
desperadtfes. They were equally determined with the one, to uphold British
connection; and as equally determined with the other, to get rid of a wretch- .
ed ayftcm of irresponsible administration, under the continuance of which ►
they well knew the Province could never prosper. When Sir Francis Head
arrived, he entered the colony — ^if we are to believe his own account of the
matter — almost as ignorant as my imaginary Mayor of Liverpool. Sir
Francis admits his ignorance, but denies the consequences that must be
deduced from it: that he was led and influenced, in the first acts of his
administration,' until the compact found him ripe for their own purposes and
embroiled even with the moderate men on the other side. Then commenced
that extraordinary flight of proclamations, addresses and declamatory ap-
peals ; which, winged with the ready pen of a professional author and shot
from the long bow of the family compact, created so much false excite-
ment, and carried so much misrepresentation into every comer of the
Province. In these the great question at issue in Upper Canada-^which
was one between the interests of the family compact and the principles of (
the British Constitution — was winked out of sight; and the people, not )
ontrof that, but of the surrounding colonies, were mad^ to^efffeve fflat^
they were to choose between British and republican institutions; that Sir,
Frtmcls and the family compact (Archdeacon Strachan with the Clergy y»
Reserves, orie-sdventh of the Province; and Attorney-General Hagerman/'
with the corrupt patronage and influence of administration, under theit .x
arms) represented the former; and Mackenzie, and his band of desper^
adoes, tfie latter. Thus appealed to, the British population everywhere, ai
the cunning men at Sir Francis' elbow well knew they would, said, with one
voice: "If .that is the question, then we are for the British Constitution; .
and hurrah for Sir Francis HeadT Mackenzie was an outlaw in a week;'
his snufeK-banrd of desperadoes was scattered by the energy of the people,
the great mass of whom never dreamed of breaking the connection with the
mother country. TJien came the period in which the compact glorified
themsslves and Sir Francis; the fever of loyal excitement in which the
nriscraWr' mftiority of officials — feeling strong in the success of their
manoeuvres and still stronger in the strdigth of British thousands pro-
fusely spent, regiments of militia to be ofiicered, equipped and paid — ^began
to wreak their vengeance upon every man who had been known to be
hostile -to their monopoly ; and to identify opinions, not more extreme when
thorongfaly understood, than those held by the most moderate section of
the >A^igs in England, with "privy conspiracy and rebellion." But the period
was fast approaching when this tmnaturad excitement was to subside;
when hundreds of thousands of British subjects, looking steadily through

)

494 ConstitHtional Documents of Canada, [1791-1840

the mists that had been raised around them were to ask of each other:
"Has this case be<^n. decided jifMMi the triM isauei Was that the question?"
FdT evidence of the solemnity with which this inquiry has been put and
the all-pervading unanimity with whidi it has been answered, I refer your
\ Lordship to the meetings which have been held in every section of the
Province; to the opinions boldly expressed by every newspaper — with a
few, chiefly venal exceptions — printed in Upper Canada; to the bold and
determined stand taken by many of the bravest and ablest men who crushed
Mackenzie's rebellion and beat back the sympathizers on the frontier; to
the extraordinary union of Orangemen and Catholics, Methodists, Baptists,
Churchmen and Presbyterians; whose watchwords are British connection
and British responsibility, and down with die compact, and the absurd idea
cherished by Sir Francis Head, of a government in which the whole respon-
ibility rests on the Governor. If your Lordship doubts the utter explosion
f your theory, even in this Province, where for a time I admit it seemed
flourish, the approaching general elections will furnish evidence enough,
d even Sir Francis, if he were to come out a^in with another sheaf of
oclamations and addresses, and preach this unitarian doctrine of respon-
ility, would no longer be listened to by the Upper Canadians, who have
braced a higher and purer faith.
Haying, as I conceive, then, shown your Lordship that the idea of a
colony in which nobody is responsible but the Governor, while his respon-
sibiH^ is only nominal, however delightful it may appear in the eyes of
$ those who have been or hope to be Governors, is one that never can be
t a favourite with the colonists and has been repudiated and rejected by
X thcMe iff them among whom, for a limited period and under a system of
delusion, it seemed to flourish ; let me turn your Lordship's attention for a
few moments to the doctrine maintained by Lord Glenelg against Sir
Francis Head and now put forth by your Lordship in opposition to the
Earl of Durham — that the Colonial Secretary is alone responsible, and that
the Governor is an agent governing the Province by instructions from him.
Whatever new readings may be given of our unwritten constitutions,
this is the one which has always been and always will be the favourite
with Colonial Secretaries and undersecretaries, and by which every clerk
in Downing Street, even to the third and fourth generation yet to come,
will be prepared to take his stand. And why? Because to deprive them ot
this much-talked-of responsibility, which means nothing, would be to de-
prive them of the power to which they cling; and of the right of meddling
interference with every petty question and every petty appointment in
thirty-six different colonies. While things remain as they are, the very
uncertainty which reigns over the whole colonial system invests the Secre-
tary of State with a degree of power and influence, the dim and shadowy
oudine of which can scarcely be measured by the eye; but which, from its
boundless extent and multiform and varied ramifications and relations,
possesses a fascination which few men have been bom widi patriotic
moderation to resist. Though a Secretary of State, mav occasionally have
to maintain, in a particular Province, a doubtful struggle for the whole
responsibility and the whole of the power, with some refractory Governor
like Sir Francis Head ; yet even there bye. must exercise a good deal of
authority and enjoy a fair share of influence; while in all others his word
is ttw aad his infliience almost supreme. A judge, a crown o£Ecer, a secre-
tary, or a land surveyor cannot be appointed without his consent; a silk
gown cannot be given to a lawyer without his sanction ; while his word is
required to confirm the nomination of Legislative Councillors for life and
irresponsible Executive Councillors, in every Province, before the Queen's
mandamus is prepared. The very obscurity in which the real character
of colonial constitutions is involved of course magnifies the importance
and increases the influence of the gentleman who claims the right to ex-
pound them. More than one-half the colonists who obtain audiences in
Downing Street are sent there by the mystifications in which the principles
of the system are involved ; while the other half are applicants for oflGtces,
which under a system of local responsibility would be filled up, as are the

1791-1840] Constitutional Documents of Canada. 495

civic offices in Manchester and Glasgow, by the party upon whose virtue
and ability the majority of the inhabitants relied. Adopt Lord Durham's
principle, and , abaYC .alL. give to each colony a welhiMned constltutTdD
hir^wY HjTKp _^^k» prinripU anrT embodied in a bit!, and *^e office" will be-
come a des^rl- ^The scores of worthy people with spirits weary of the
anoniafous ana cruel absurdities of the system and sincerely laboring to
remove them, now daily lingering in the ante-rooms, would be better em-
ployed elsewhere, in adorning and improving the noble countries which
gave them birth, and whose freedom they are labouring to establish ; while
at least an equal number of cunning knaves, whose only errand is to seek
a share of the plunder, had much better be transferred to the open arenas
in which, under a system of responsibility, public honours and official
emolument could only be won. But then the office of Colonial Secretary
would be shorn of much power, which, however tmwisely exercised, it is
always delightful to possess; and the dim but majestic forms of authority
which now overshadow half the world would be chastened into reasonable
compass; with boundaries, if less imposing and picturesque, for all prac-
tical purposes more simple and more clearly defined. Nor would under-
secretaries and clerks have so many anxious and often faWliiiig"visitors,
suliciliiig Oit'lf p^tronage^ listening to their twaddle, wondering at the\r
ignorance, and yet struggling with each other for their smiles. The mother
country would, it is true, liear less of colonial g[rievances; Parliament
would save much time now devoted to colonial questions ; and the people of
England would now and then save a few millions sterling, which are
required to keep up the existing system by force of arms. But these are
small matters compared with the dignity of a Secretary of State.

Here, then, my Lord, you have the reason why your reading of our
constitutions is the favourite one in Downing Street Let us see now
whether it is more or less favourable to rational freedom and good govern-
ment in the colonies, than that advocated by Sir Francis Head. Your
authority and that of Lord Glenelg is with me in condemning his, which I
have done, as deceptive and absurd ; he will probably join me m denouncing
yours, as the most impracticable that it ever entered into the mind of a
statesman to conceive.

The city of Liverpool shall again serve us for the purposes of illustra-
tion. Turn back to the passages in which I have described a Mayor,
ignorant of everything, surrounded by irresponsible but cunning advisers,
who for their own advantage, embroil him with a majority of the citizens,
while his countenance and the patronage created by the taxes levied upon
the city are monopolized by a miserable minority of the whole; and in-
sulted and injured thousands, swelling with indignation, surround him on
every side. After your Lordship has dwelt upon this scene of heartburning
and discontent—of general dissatisfaction among the citizens— of miserable
intrigue and chuclding triumph, indulged by the few who squander the
resources and decide upon the interests of the many, but laugh at their
murmurs and never acknowledge their authority— to> me beg, of you to
reflect whether matters would be made better or worse, if the Mayor of /
Liverpool was footmd, in every important act of his administration, to ask /
the jdirectinn of, and throw the responsibility on another individual, who /
never skw the city, who knows less about it than even himself, and who!
reflides, not in London, at a distance of a day's coaching from him, but/
«cro5S^ the Atlantic, in Halifax, Quebec, or Toronto, and with whom it isf
impossible to communicate about anything within a less period than i
couple of months. Suppose that this gentleman in the distance possesses a
veto upon every important ordinance by which the city is to be watched,
lighted and improved — by which docks are to be formed, trade regulated,
and one-third of the city revenues (drawn from sources beyond tihe con-
trol of the popular branch) dispensed. And suppose that nearly all, whose
talents or ambition lead them to aspire to the higher offices of the place,
are compelled to take, once or twice in their lives, a voyage across the
Atlantic to pay their court to him — ^to solicit his patronage and intrigue
for the preferment, which under a better system would naturally result

496 Constitutional Documents of Canada. [1791-1840

from manly competition and eminent services within the city itself. Your
Lordship is too keen-sighted and I trust too frank, not to acknowledge
^ that no form of govennnent cotxld well be devised more ridictilous than
this ; that under such no British city could be expected to prosper ; and that
with it no body of Her Majesty's subjects, within the British Islands them-
selves, would ever be content Y^tthis, myj^nrdi is an )llBstolUQn.flf JOPr
own theory; this is the system pTCpCfinoed by Lord NormanDy* as the
bm4' ttie^iyreSetlt -Cabinet can devise. And may 1 not respectfuHy^emand
why British subjects in Nova Scotia, any more than their brethren in
Liverpool, should be expected to prosper or be contented under it; when
experience has convinced them that it is miserably insufficient and decep-
tive, repugnant to the principles of the constitution they revere, and but a
poor return for the steady loyalty which their forefathers and themselves
have maintained on all occasions?

One of the greatest evils of the colonial constitution as interpreted
by your Lordship is, that it removes from a province every description of
responsibility, and leaves all the higher functionaries at liberty to lay every
kind of blame at the door of the Secretary of State. The Governor, if the
colonists complain, shrugs his shoulders and replies that he will explain
the difficulty in his next despatch, but in the meantime his orders must be
obeyed. TThe Executive Councillors, who under no circumstances are
responsible for anything, often lead the way in concentrating the ire of the
people upon the Colonial Secretary^ who is the only person &ey admit their
right to blame. It is no uncommon thing to hear .them, in Nova Scotia,
sneering at him in public debate; and in Cafiada they are accused of stand-
ing by while Lords Glenelg and Melbourne were hanged in effigy and
burned in the capital, encouraging the populace to pay this mark of respect
to men, who, if your Lordship's theory is to be enforced, these persons at all
events should have the decency to pardon, if they cannot always defend.

I trust, my Lord, that in this letter I have shown you that in contem-
plating a well-defined and limited degree of responsibility to attach to
Executive Councillors in North America, I have more strictly followed the
analogies to be drawn from the constitution, than has your Lordship, in
supposing that those officers would necessarily overstep all bounds ; that in
divesting the Governor of a vague and deceptive description of respon-
sibility, which is never enforced, and of a portion of authority which it is
impossible for him wisely to exercise, and yet holding him to account for
what does fall within the scope of his character as Her Majesty's repre-
sentative— the constitutional analogy is still preserved, his dignity left
unimpaired, and the difficulties of his position removed. I trust also that
I have proved to your Lordship that the colonial constitutions, as they at
present stand, are but a medley of uncertainty and confusion; that those
by whom they are administered do not understand them; and lastly, that
whether Sir Francis Head's interpretation, or your own be adopted, neithei
offers security for good government; the contest between them merely
involving a difference of opinion as to who is to wield powers that neither
governors nor secretaries can usefully assume, and which of these officers
is nominally to bear the blame of blunders that both are certain to commit.

^ Russell's predecessor and Glenelg's successor in the Colonial Office.

1791-1840] Constitutional Documents of Canada, 497

CXXXIX

JOSEPH HOWE TO LORD JOHN RUSSELL

[Trans.: J. H. Chishohn, op, cit.1
My Lord, <

The next passage of the Speech of the 3rd of June, which I am bound
to notice, is that in which you say: —

"The Governor might ask the Executive Council to propose a certain
measure They might say that they could not propose it unless the members
of the House of Assembly would adopt it, but the Governor might reply
that he had received instructions from home commanding him to propose
that measure. How, in that case, is he to proceed? Either one power or
the other must be set aside ; either the Governor or the House of Assembly ;
or else the Governor must become a mere cipher in the hands of the
Assembly, and not attempt to carry into effect the measures which he is
commanded by the Home Government to do."

This objection is based upon the assumption, that the interests of the
mother country and those of the colonies are not the same ; that they must
be continually in a state of conflict ; and that there must be some course of
policy necessary for the Imperial Government to enforce, the reasons for
which cannot be understood in the colonies, nor its necessity recognized
This may have been the case formerly in the West Indies, where the con-
flict was one between^ the ideas engendered by a state of slavery and a
state of freedom; but it is not true of the. North American Provmces, to
the condition and claims of which my observations are chiefly confined.
Of an the questions which have agitated or are likely to agitate Nova
Scotia, New Brunswick, or Prince Edward Island, how few, when rightly
understood, can be said to involve any Imperial interests ; or trench upon
any principle dear to our brethren at home, or the concession of which
could disturb the peace of the Empire? Have any of these colonies claimed
the right to regulate the foreign trade or foreign policy of the Empire?
Have they ever interfered, except to carry out the views of Her Majesty's
Government, with any of the military or naval operations? Have they
exposed a grievance, the continued existence of which is indispensable to
the well-being of the British Islands ; or demanded a right, the concession
of which would not be serviceable to themselves, without doing the least
injury to the people of Britain? For what have they asked? For the
control of their own revenues and the means of influencing the appointment
and acts of the men who are to dispense them ; and who are, besides, to
distribute hundreds of petty oflices, and discharge functions manifold and
various within the Colony itself? The people of England have no know-
ledge of these matters, nor any interest in them, to give them the right to
interfere. Interference does much mischief to the Colonists, and can do
no good to their brethren across the water. If British statesmien would let
these things alone — ^and it is over these only that we claim to enforce
responsibility — and confine themselves to those general arrangements affect-
ing the whole Empire, of which we admit them to be the best judges, and
in the conduct of which we never asked to take a part, it would be impos-
sible to conceive how such a case could arise as that supposed by your
Lordship, or how the Governor could be charged with "a measure which his
Executive Council would not dare to propose." Admitting that there might
be some subjects requiring discussion in the Provinces, but which the
Colonists were not prepared to adopt, surely an Executive Councillor could
he got, even if he were opposed to the views of the ministers, to submit
the measure and explain those views to the popular branch ; or might there
not be "open questions" in the Colonies as at home?

The conclusion at which my mind arrives, then, after the best atten-
tion that I can give to this branch of the subject, is, that if thp duties and
responsibilities of government are fairly and judiciously divided be-,
tween the Imperial and Colonial authorities, no such case as that assumed

by your Lordship can occur ; and, if it should, surely the good sense of all

FF

/^

498 Constitutional Documents of Canada. [1791-1840

parties concerned may safely be trusted, to avoid any violent or unpleasant
collision. But did it never occur to your Lordship to inquire, whether the very
evil anticipated, as an insuperable objection to the new system, does not dis-
figure and annually occur under the old? What else were the Executive
Councillors in Upper and Lower Canada doing for a series of years but "^pro-
posing certain measures/' to be as certainly rejected bv the popular branch?
What else are they about now in Newfoundland? What but this were they
doin^ in New Brunswick, down to the close of Sir Ardiibald Campbell's
Administration? In all these Provinces a state of constant collision be-
tween the Executive and the popular branch, which could by no possibility
arise under the system I contemplate, would answer the objection, even if
the difficulty suggested could be fairly taken into account. If it be said
that the Councillors now do not refuse to propose measures, I answer. But
if the Legislatures invariably reject them, docs government gain anything,
or is public business advanced by the system? What a figure did the
Executive cut in Nova Scotia, in 1838, when the Councillor who brought
down from the Governor a ^ave proposition, led the opposition against it ?
And how stand things in this Province nowr Are not all the Councillors
selections from a lean minority of the commons, in which body almost
every debate terminates in a vote of implied want of confidence in them ;
and where the Governor they surround has, on several occasions, only been
saved from an insulting vote of censure by the good temper and modera-
tion of the majority? This is a state of things too ridiculous to be long
continued. To me it seems essential that Her Majesty, in every colony,
should be represented by an Executive not only willing "to attempt** but
"able to cariy" any measures that it may be necessary to propose.

The next objection taken by your Lordship to tiie introduction of Pro-
vincial responsibility, one eminently calculated to have weight with the
body you addressed, and to alarm the timid everywhere, was drawn from
an application of the principle, to the management of foreign affairs. "If,"
says your Lordship, "the. Assembly of New Brunswick had been disposed
to carry the point in dispute with the North American States hostilely. and
the Executive Council had been disposed to aid them, in my opinion the
Governor must have said that his duty to the Crown of this country, and
the general instructions which he had received from the minister of the
Crown, did not permit him to take that course, and, therefore, he could not
agree with the Executive Council to carry into effect the wish of the
Assembly. That is allowed. Does not, then, its very exception destroy the
analogy you wish to draw, when, upon so important a point as that of
foreign affairs, it cannot be sustained?" Your Lordship, in delivering this
passage, of course, was not aware that, without the alteration of a single
syllable, you answered the very objection that yourself had raised. If ue
Executive Council of New Brunswick advised Sir John Harvey to declare
war upon the State of Maine, "he must have said that his duty to the
Crown and his instructions did not permit him to take that course." Most
certainly he would, if a measure so ridiculous had been attempted in New
Brunswick, which nobody, who knows anything of that Province, could
for a moment imagine. I do not believe that there are ten men in it, cer-
tainly there are not fifty in all the lower Provinces put together, who do
not know that the Sovereign alone has the right to declare war upon for-
eign powers; and who are not willing that, upon all the relations of the
Colonies with these, and with each other, the Imperial Government shall
decide. A few of the New Brunswickers blamed Sir John Harvey for not
acting upon Her Majesty's instructions to maintain exclusive jurisdiction
over the disputed territory, notwithstanding the advice received . from the
Minister at Washington; but, if those instructions had not existed, and
had not been positive, no one would have been idiot enough to suppose that
Sir John Harvey would have been bound to make war, on a point of honour
or policy newly discovered by his Executive Council, and upon which Her
Majesty s government had had no opportunity to decide. Suppose, when
Parliament was granting a charter to Hull, it >vas objected that the Mayor
might be advised to make war upon Sweden (and, in the case of an elec-

1791-1840] ConsHtuHonal Documents of Canada, 499

tive officer, the danger would be greater than if he were appointed by the
Crown,) would not the same House of Commons that thought it unsafe to
let a Colony manage its internal affairs for fear it would engage in foreign
wars, laudi at the possibility of such an absurdity being committed by any
body of Englishmen out of Bedlam? Why then should it be taken for
granted that we are not English in our habits and opinions, our education
and training, our capacity to discern the boundaries of authority; and that
therefore it would be unsafe to depend upon our wisely exercising ]powers,
which, in the British Islands, millions exercise for their own security and
without danger to the state? In the case of Hull, if the objection were
gravely urged, the ready answer would be, "No greater powers can be
exercised than are granted in the bill; and if there is the least danger of
the the city authorities doing anything so ridiculous, put in a clause that
shall restrain them." And I say — after soberly protesting that the very
suspicion of such an attempt is an insult to die understanding, and an
imputation upon the character of our population, which they do not deserve
— that if you wish "to make assurance doubly sure/' put a clause into the
bill which concedes the principle of responsibility so far as relates to
domestic affairs, and by which all such belligerent Councillors shall be
expressly restramed.

Whether this point were or were not thus defined, that any Executive
Council, merely because they were responsible to the people, would, after
receiving such an answer as your Lordship admits a British Governor
must give, proceed in defiance of his authori^, to levy war upon a friendly
state, I cannot for a moment believe. If they did, they would certainly so
completely fail, and render themselves so supremely ridiculous, that the
attempt would not be likely to be repeated, at least for a century to come.
LrCt us suppose the case to have occurred in New Brunswick: that the
Executive Council being responsible, had advised Sir John Harvey to pro-
ceed hostilely ; and that, on his declining, they had levied war. In the first
place, as all the regular troops were at Sir John's disposal, as Commander-
in-Chief within the Province, and not merely as civil Governor, they not
only could not have moved a soldier, but would have had the whole military
force of that and the adjoining Provinces agjainst them. As the Governor's
order to the colonels and officers commanding the militia is indispensable
before a single step can be taken, under the laws by which that force is
embodied, of course no hostile order would have been given, nor could
those laws have been modified or changed without Sir John's assent. And
if it be urged, that volunteers would have flocked to the aid of the Execu-
tive Council, may I not inquire where they would have obtained arms and
ammunition, when all the military munitions and stores were deposited in
military warehouses, under the care of commissaries and officers of ord-
nance responsible only the Crown? Oh I no, my Lord, whatever effect such
imaginary cases as these may have on men ait a distance, unacquainted with
the state of society in British America and the general intelligence which
prevails ; here they are lauded at, as the creations of a fertile imagination
taxed to combat political improvements that were feared without being
understood. If, even under the federative government of the United
States, in which eadi state is much more independent of the central author-
ity than any Colony would be under the system I contemplate, this right of
private war has only been once asserted, by a single State, in more than
half a century, and then was scouted all over the Continent, is it to be sup-
posed that British subjects will pay less respect to the authority of thei*
Queen than do republican Americans to that of their President?

There is one bare possibility, which your Lordship has not suggested,
in opposition to the new system, and yet it is scarcely more ridiculous than
some that have been urged ; that the Colonial Councillors might claim the
control of the squadron upon the North American coast, as well as of the
land forces, in their anxiety to engage in foreign wars. The danger in this
case would be nearly as great as in the other; for, in modern warfare, a
fleet is nearly as necessary as an army; and yet, it is certain that the
admiral Upon the station would know how to treat such a claim, should it

500 Constitutional Documents of Canada. [1791-1840

be preferred by a Council, who, in the wanton exercise of authority, were
disposed to transgress all bounds?

The next objection which I am bound to notice, is given in the report:
"Let us suppose that an officer of the militia in Upper Canada, after an
action, was to order that the persons taken in that action should be put to
death on the field. I can conceive it possible, in a state of exasperation
and conflict with the people of the neighbouring States, that the Assembly
might applaud that conduct, and might require that it should be the role
and not the exception, — ^that all invaders of their territory should be treated
in that manner, and that the parties should be put to death without trial
Supposing that to be the case ; could the Government of this country adopt
such a rule? Could the Secretary of State for the Colonies sanction such
a rule, and not decide, as my honourable friend the under-secretary has
done, that the practice should meet with his decided reprehension?"

Now, mv Lord, admitting that such a case might occur once in half a
century, under the new system, let me remind your Lordship that it has
already occurred under the old. If it is to have any weight, the fact of its
occurrence in a Province in which the Executive Council is irresponsible
and the Colonial Secretary is in the exercise of his full powers, makes in
favour of my argument; while I have a right to denv, until proof is
furnished, that it could occur, if matters were more wisely ordered, and a
more rational system established, by which all temptations to foreigners to
make inroads into British Provinces, speculating upon the disaffection of
the people, would be removed. But, my Lord, life has been taken under
jrour system — ^"death" has been inflicted "without trial," illegally, as you
mfer — and has any punishment followed? Have the laws been vindicated?
No!. Then why not? Simply, I presume, because your beautiful mode
of government has produced such a state of things in a British Province,
that the ministers of the Queen dare not bring the man charj^ed with this
high offence to trial. Under a system of responsibility, by which the popu-
lation were left to manage their domestic affairs, I hold ihat no such viola-
tion of law would be likely to ocurr, and, that if it did, investigation would
be as safe, and punishment as certain, as though a crime had been com-
mitted in Middlesex, or Surrey.

I have thus disposed, my Lord, of the military questions; and, as I
have left Her Majesty and her representatives in full control of the army
and navy and of the militia force of British America, and have asserted
no claim of the Colonists to interfere with foreign treaties and diplomatic
arrangements affecting the empire at large ; I think, if peace be not main-
tained with foreign states, the punishment for offences strictly military be
not awarded, the blame will not rest with the Executive Councillors, who
are to exercise no jurisdiction over these matters, and cannot be responsible
if others fail in their duty.

Let me now turn to another class of objections, arising out of our Col-
onial and foreign trade. "Again," says your Lordship, "neither could this
analogy be maintained with regard to trade between Canada and the
mother country, or Canada and any other country. How then can you adopt
a principle from which such large exceptions are to be made? If you were
to do so, you would be continually on the borders of dispute and conflict;
the Assembly and the Executive, on the one hand, requiring a certain
course to be pursued, while the Governor, on the other hand, would be as
constantly declaring that it was a course he could not adopt; so that, in-
stead of furnishing matter of content and harmony in these Provinces, yoa
would be affording new matter for dispute and discontent if you were to
act upon this supposed analogy." Now, my Lord, I feel it my duty to state,
that you may take from any part you please to select, of England, Ireland,
or Scotland, two hundred thousand persons, and among them you will not
find a larger number than are to be found in Nova Scotia, well informed
as to the degree of authority in matters of trade, which, for the good of the
whole empire and the preservation of the advantages in which all are to
participate, it is necessary to confide to the care of the Sovereign and the

1791-1840] Constitutional Documents of Canada, 501

wisdom of the Imperial Parliament The great corporations of London,
of Bristol, and of Liverpool, do not presume to interfere with these, except
by petition and remonstrance, neither do we. Each of these cities has the
right to levy small duties within their own limits, for matters of internal
regulation ,or to aid public improvements; and these rights they exercise,
in common with us, when they do not contravene any Briti^ statutes
necessary for the protection of the trade of the empire. But, if it can be
shown that a law bears uneqtlally upon London or Halifax, and that a
flagrant case of hardship exists; or if the industry of any portion of the
people, either in England or the Colonies is taxed, while no corresponding
advantage is reaped by any other portion; or that 4f reaped, it is an unfair
and illegitimate advantage, — an appeal is made to Parliament We have
hitherto been contented, although not directly represented in that Assem-
bly, to abide the result of that appeal ; or to pass bills, taking our chance of
their being assented to in England. The same thing would occur, even if
the Executive Council was responsible; for, upon this point, there is no
part of our population prepared to set up absurd or irrational claims. If
Parliament ^ould undertake to legislate directly against our interests; to
cut up our commerce, and prevent the growth of domestic industry; and,
after fair notice and ample proof of injury, were to persist in such a
course ; why then a state of things would arise, which similar policy pro-
duced elsewhere, in other times, and upon the results of which either
responsible or irresponsible Councils would exercise but little influence.
But, as political economists at home are every day becoming convinced that
the more liberty they afford to the Colonist to conduct his commercial oper-
ations the greater will be his demand for British manufactures ; and as, un-
der the .guidance of this enlightened policy, the laws of trade and naviga-
tion are annually becoming less restrictive, it is not probable that difficulties,
which were never insuperable, will all of a sudden admit of no rational
remedy; or that the boundaries of Colonial and Imperial authority, now so
well understood, and the recognition of which is so easily enforced, will
often be called in question on either side. If the Colonists assert rights
which do not belong to them, and persist in their contumacy, disturbing
solemn treaties and setting acts of Parliament at naught; why then they
have broken the social compact, it is a case of rebellion and they must be
put down.

Let us reduce the difficulty to practice, for the purpose of illustration.
Suppose that both branches of the Legislature pass a law by which a heavy
duty is laid on British broadcloths, and those from the United States
are admitted duty free ; and that the Executive Council, being responsible,
advise the Lieutenant-Governor to assent to it Such an absurd piece of
bad faith as this could never be attempted in the lower Provinces ; for pub-
lic opinion would never sanction any interference with the general laws,
not intended to remedy abuses, or that struck at Colonial without promot-
ing British prosperity; nor would any changes be popular which violated
the fraternal comity by which British subjects everywhere are bound to
encourage and protect each other. But I have supposed the law passed and
presented. The Governor would say in this case, as he now invariably
says — ^as your Lordship admits he must say, if urged to provoke a foreign
war: "Gentlemen, you are exceeding your powers. To legislate for your
own advantage is one thing; to legislate directly against ^our brethren at
home, for the advantage of foreigners, is another. This bill must be either
modined or rejected, or reserved for Her Majest/s assent before it can
go into operation." If the parties ur^ng it persisted, a dissolution might
be tried, and an appeal to British subjects, in a case where the Governor
was clearly right and his advisers wrong, would never be made in vain;
particularly when aided by the Constitutional opposition, which, under a
system of responsibility and manly competition, would exist in every
Colony. But if it failed; and such an almost impossible thing were upon
the cards, as that a majority could be found in Nova Scotia to sustain
such an act, or anything bearing a resemblance to it, then a case would
have occurred for the interference of the Imperial authorities, who ^ould'

502 Constitutional Documents of Canada, [1791-1840

say to us franldy: If you will come into imnatural and hostile coUisica,
the wealcest has die most to fear.

Had your Lordship been as familiar with the mode of dealing with
such subjects as most Colonists are who have watched the proceedings of
Colonial Assemblies, you would have been satisfied that no danger was to
be apprehended from violent collisions about matters of trade. When a
new duty is proposed in Nova Scotia or a reduction suggested, the first
question asked on all sides is, Will the proposition violate the letter or
does it even run counter to the spirit of the Imperial Acts? If it does,^
eight cases out of ten, the person bringing the measure forward drops it,
on being assured of the fact In the ninth case, where a doubt exists as to
the policy and wisdom of Imperial legislation it is found, on inquiry, that
the clause which seemed to press upon us, originated in a wide view over
the whole field of commerce, whidi British statesmen, often better than
others whose positions afford fewer advantages, are enabled to take and
that its repeal would inflict an injury and not confer a benefit. The tenth
case is perhaps one in which the Imperial Parliament, either from haste,
or prejudice, or insufficient information, has committed an error in poli-
tical economy, or inflicted a wound upon Colonial without benefiting British
industry. In this case (and they only occur once in a great while) no one
ever dreams, that, as your Lor<dship expresses it, the Imperial Legislature
is to be "overruled" by that of the colony. We never ooubt but that an
appeal to the good sense and the justice of our brethren over the wzttr
will be successful. A bill is passed, perhaps, to meet the difficulty; and an
explanation of the facts and reasoning in which it originated, is sent with
it, in the form of an address to the throne, and in most cases is found to
be successful.

This is the mode at present. What reason is there to suppose that it
would be much changed, if we had an Executive Council, whose powers
and responsibilities did not extend to matters of general commerce, already
provided for by Imperial legislation? If we are so fond of violent con-
flicts and factious opposition, what hinders us from indulging our propen-
sities now? Shall we be less considerate the more kindly we are treated?
Shall we have less respect for Imperial legislation, when we see that it
leaves us the entire management of our domestic affairs and only deals
with those great interests which transcend our authority and are beyond
our control? Suppose twelve Nova Scotians, who are not responsible to
any authority under Heaven, are made accountable to the rest of their
countrymen, shall we have a man the more for forcible resistance than we
have now — or a gun,a pike, a bomb, or a barrel of powder?

I have thus, my Lord, gone over the arguments urged by your Lordship
in the speech of the 3rd of June. I have omitted none that appear to me
to have the slightest bearing upon the ^at question at issue, and I trust
I have given to each a fair and satisfactory answer. I have written
not only under a solemn sense of duty, but with a full assurance that
sophistry, woven around this question, either on one side of the Atlantic
or the other, would be torn to shreds in the conflict of acute and vigorous
minds now engaged in its discussion. Had your Lordship, in announcing
the decision of the Cabinet, forborne to state the reasons upon which
that decision was founded, I mighty like counsel at the bar under similar
circumstances, have .felt myself compelled to acquiesce in a judgment.
neither the justice nor the policy of which I could fathom. But when the
arguments were stated, and when I saw a question involving the peace and
security of six extensive Provinces, and the freedom and happiness of a
million and a half of British subjects, disposed of by a mode of reasoning
which I knew to be deceptive and unsound, — ^when I saw, in fact, that the
parties claiming their rights were to be turned out of court, with all the
arguments and all the evidence on their side, I felt that to remain silent
would be to deserve the social and political degradation which this unjust
decision was to entail on my countrymen and myself; to earn the Helot
mark of exclusion from the blessings of that Constitutional freedom,
which our forefathers struggled to bequeathe ; and which we should never

1791-1840] Constitutional Documents of Canada. 503

cease to demand, as a patrimony that runs with our blood, and cannot be
rightfully severed from our name

Joseph Howe.

CXL

JOSEPH HOWE TO LORD JOHN RUSSELL

[Trans.: J. H. Chisholm, op. cU.]

My Lord, — The business of factious demagogues of all parties is to
find fault with everything, to propose nothing practical, to op-
pose whatever is suggested, to misrepresent and to defame.
The object of honest and rational politicians ought to be to un-
derstand each other — to deal frankly, abhoring concealment, that
mistakes may not be made about facts, terms or intentions ; to deal fairly,
£:ivtng credit for a desire to elicit truth, and a wish to weigh in a just
balance both sides of every question. Having put before you such evidence
as I hope will lead your Lordship's mind to the conclusion that the system
by which the North American Colonies are at present governed, must be
abandoned, it is not improbable that your Lordship may inquire what it is
that we are desirous to substitute for that system? The demand is a rea-
sonable one. The party who seek this change are bound to prove that they
have a safe and intelligable remedy for the evils of which they complain.
If I cannot show your Lordship that, without endangering the authority
of the mother country over her Provinces, weakening the constitutional
powers of the Crown, or trenching on the high privileges and wide range
of duty assigned to the Imperial Parliament, a better form of government
than that which I am anxious to overturn — one more nearly conforming
to the practice and spirit of the Constitution, as understood at home — to
the wants and peculiar situation of these Colonies, and less repugnant to
the feelings and prejudices of Englishmen everywhere, can be established,
then I must quit the field of argument, and cannot complain if your Lord-
ship adheres to your own opinions.

From what has been already written, it will be seen that I leave to the
Sovereign, and to the Imperial Parliament, the uncontrolled authority over
the military and naval force distributed over the Colonies ; that I carefully
abstain from trenching upon their right to bind the whole empire, by
treaties and other diplomatic arrangements, with foreign states ; or to regu-
late the trade of the Colonies with the mother country ,and with each other.
I yield to them also the same right of interference which they now exercise
over Colonies and over English incorporated towns ; whenever a desperate
case of factious usage of the powers confided, or some reason of state,
affecting the preservation of peace and order, call for that interference.
As the necessity of the case, the degree and nature of this interference,
would always be fully discussed by all parties concerned, I am not afraid
of these great powers being often abused, particularly as the temptations to
use them would be much lessened if the internal administration were im-
proved.

The Colonial Secretary's duties should be narrowed to a watchful
supervision over each Colony, to see that the authority of the Crown was
not impaired, and that Acts ot Parliament and public treaties were honestly
and firmly carried out; but he should have no right to appoint more than
two or three officers in each Province, and none to intermeddle in any in-
ternal affair, so long as the Colonial Government was conducted without
conflict with the Imperial Government and did not exceed the scope of its
auUiority. This would give him enough to do, without heaping upon him
duties so burdensome and various that they cannot be discharged with
honour by any man, however able; nor with justice or safety to the millions
whose interests they affect His responsibility should be limited to the
extent of his powers ; and as these would be familiar to every Englishman,

504 Constitutional Documents of Canada, [1791-1840

exposure and punishment would not be difficult, in . case of ignorance,
incapacity or negle(;t

I have shown, in the illustration drawn from the city of Liverpool,
that most Governors come out to Colonies so ignorant of their geography
and topography, climate, productions, commerce, resources and wants ; and
above all, of the parties, passions and prejudices which divide them ; and of
the character, talents and claims of the men by whom the population are
influenced and led, that for the first six or twelve months they are like
overgrown boys at school. It is equally clear, that while the business of
government must move on, and the administration commence from the day
on which the new Governor arrives, the schoolmasters, from whom all his
facts are derived — from whom he gathers his views of internal affairs, and
his impressions, not only of different parties, but of individuals in each
party, — a|"e the irresponsible Executive Councillors, whom the present sys-
tem calls around him ; and who, possessed of such advantages, rarely fail,
before he can by any possibility escape from their toils, to embroil him
with the popular branch of the Legislature, and the mass of the people by
whom it is sustained.

Now let us suppose, that when a Governor arrives in Nova Scotia, he
finds himself surrounded, not by this irresponsible Council, who represent
nothing except the whims of his predecessors and the interests of a few
families (so small in point of numbers, that but for the influence which
oftice and the distribution of patronage give them, their relative weight in
the country would be ridiculously diminutive) , but by men who say to him :
"May it please Your Excellency, there was a general election in this
Province last month, or last year, or the year before last, and an adminis-
tration was formed on the results of that election. We, who compose the
Council, have ever since been steadily sustained by a majority of the com-
mons and have reason to believe that our conduct and policy have been
satisfactory to the country at large/' A Governor thus addressed, would
feel that at all events he was surrounded by those who represented a
majority of the population; who possessed the confidence of an immense
body of the electors, and who had been selected by the people who had
the deepest interest in his success, to ^ive him advice and to conduct the
administration. If he had doubts on this point — if he had reason to believe
that any factious combination had obtained office improperly, and wished
to take the opinions of the country ; or if the Executive Council sought to
drive him into measures not sanctioned by the charter; or exhibited a
degree of grasping selfishness which was offensive and injurious, he could
at once dissolve the Assembly and appeal to the people: who here, as in
England, would relieve him from doubt and difficulty ; and, fighting out the
battle on the hustings, rebuke the Councillors if they were wrong. This
would be a most important point gained in favour of the Governor; for
he is now the slave of an irresponsible Council, which he cannot shake off ;
and is bound to act by the advice of men, who, not being accountable for
the advice they give, and having often much to gain and nothing to lose
by giving bad advice, may get him into scrapes every month, and lay the
blame on him. The Governors would, in fact, have the power of freeing
themselves from thraldom to the family compacts, which none of them can
now escape by the exercise of any safe expedient known to our existing
Constitutions. It will be seen, too, that by this system, whatever sections
or small parties might think or say, the Governor could never, by any
possibility, become, what British Governors have of late been everywhere,
embroiled with the great body of the inhabitants over whom he was sent to
preside. The Governor's responsibility would also be narrowed to the care
of the Queen's prerogative, the conservation of treaties, the mUitary de-
fence, and the execution of the Imperial Acts; the local administration
being left in the hands of those who understand it, and who were respon-
sible. His position would then be analogous to that of the Sovereign--he
could do no wrong in any matter of which the Colonial Legislature had the
right to judge; but would be accountable to the Crown, if he betrajred the
Imperial interests committed to his care.

L791-1840] Constitutional Documents of Canada. 505

Ejcecutive Councillors now are either heads of departments, or mem-
>ers of the two branches who are generally favourable to the policy of
hese, and disposed to leave their emoluments intact. One or two persons,
>f more independent character, and slightly differing from the others upon
I few points are sometimes admitted ; but a vast preponderance in favour
)f the views of the official compact, is always, as a matter of course, main-
:ained. The heads of departments are always very well paid for their
Touble in governing the country, by the enormous official salaries they
-eceive; their colleagues are either looking for office, or have means of
)roviding for Uieir relatives and friends; while, if it should so happen,
hat such a thing as a Colonial Executive Councillor can be found for any
ength of time, in office, who has not served himself or his friends, the
itle, and consciousness of possessing for life the right to approach and
id vise every Governor, and pive a vote upon every important act of admin-
stration, without a possibility of being displaced or called to account for
inything said or done, is no mean reward for the small amount of labour
ind time bestowed. Formerly, these people, in addition to other benefits,
>btained for themselves and their .friends immense tracts of crown land.
This resource is now cut off, by the substitution, of sales for free grants ;
>ut, looking at the Executive Council, or Cabinet, as it exists in any of the
>Jorth American Provinces at present, we find a small lot of individuals,
responsible neither to the Queen, the Secretary of State, the Governor nor
:he people ; who owe their seats to neither, but to their relatives and friends
:hrough whose influence and intrigues they have been appointed ; and who,
kvhile they possess among them some of the best salaries and nearly all the
;>atronage of the country, have a common interest in promoting extrava-
gance, resisting economy, and keeping up the system exactly as it stands.
It will be perceived, that such a body as this may continue to govern a
Colony for centuries; like the Old Man of the Mountain, who got upon
Sinbad's back, ordinary exertions cannot shake it off. To understand
more clearly how un-English, how anti-constitutional, how dangerous this
body is, it is only necessary to. contrast it with what it ought to resemble,
but never does. In England, the government of the country is invariably
carried on by some great political party, pledged to certain principles of
foreign or domestic policy, which the people for the time approve ; but the
rabinet in a Colony is an official party, who have the power for ever to
keep themselves and their friends in office, and to keep all others out, even
though nineteen out of every twenty of the population are against them,
^hat would the people of England say, if some twenty families, being in
possession of the Treasury, Horse Guards, Admiralty, Colonial Office, had
ihe power to exclude Whigs, Tories, and Radicals; to laugh at hostile
.rotes in the Commons, and set the country at defiance ; to defend each other
igainst the crown and the people; to cover ignorance, incapacity, corrupt
ion, and bad faith Would they bear such a state of things for a week?
/\nd yet your Lordship seems to think that we should bear it, for an
ndefinite period, with patience.

Now for this body I propose to substitute one sustained by at least a
najority of the Electors; whose general principles are known and ap-
>roved; whom the Governor may dismiss, whenever they exceed their
cowers; and who may be discharged by the people whenever they abuse
:hem; who, instead of laying the blame, when attacked, upon the Gov-
ernor, or the Secretary of State, shall be bound, as in England, to stand
jp and defend, against all comers, every appointment made and every act
lone under their administration. One of the first results of this diange
HTOuld be to infuse into every department of the administration a sense
Df accountability, which is now nowhere found — to give a vigorous action
lo every vein and artery now exhibiting torpidity and languor — and to
place around the Governor, and at the head of every department of public
iff airs, the ablest men the Colony could furnish ; men of energy and talent,
instead of the brainless sumphs, to whom the task of counselling the
Governor, or administering the affairs of an extensive department, is often
;x)mmitted under the present system. In England, whether Whigs, Tories

506 Constitutional Documents of Canada. [1791-1840

or Radicals are in, the Queen is surrounded, and the public departments
managed, by some of the ablest men tiie kingdom can produce. But sup-
pose a mere official faction could exclude all these great parties froni
power, how lQ«ig would the government possess the advantage of superior
abilities to guide it? Would it not at once fall far below the intellectual
range which it now invariably maintains?

Butj it may be asked, would not the sudden introduction of this system
work injustice to some who have taken offices, in the expectation of holding
them for life? Perhaps it might, but even if this were unavoidable, the
interests of individuals should give way to the public good. The Borough-
mongers had the same objections to the Reform Act, recorders and town-
clerks to that which cleansed the corporations. This, like all minor diffi-
culties, might easily be provided for ; and I am sure that there are but few
of those seeking to establish res^nsible government who desire to over-
turn even a bad system in a spirit of hearUess vindictiveness.

The Colonies, having no hereditary peerage^ the Legislative G>iincil has
been constructed to take it place. From the dimculty of making it harmon-
ize whh the popular branch, some politicians in Lower Gmada — and it was
said that the Earl of Durham, at first, inclined to the opinion — thought it
might be abolished. I think there is no necessity for this ; first, bccanse it
would destroy the close resemblance which it is desirable to maintain be-
tween our Institutions and those of the mother country; and again, because
a second legislative diamber, not entirely dependent upon popular favour,
is useful to review measures and check undue haste or corruption in the
popular branch. Besides, I see no difficulty in maintaining its independence,
and yet removing from it the character of annual conflict with the repre-
sentative body, by which it has been everywhere distinguished.

The main object of the Executive Council being the preservation of a
system by which they enjoy honours, office and patronage, uncontrolled
and uninfluenced by the people ; and they having the nomination of Legis-
lative Councillors, of course, they have always selected a majority of those
whose interests and opinions were their own, and who could help them to
wrestle with, and fight off the popular branch. Hence the constant col-
lision, and general outcry against the second chamber. The simple remedy
for all this appears to be, to introduce the English practice: let the people
be consulted in the formation of the Executive Council; and then die
appointments to the Legislative will be more in accordance with the public
sentiment and general interest, than they are now. I should have no
objection to the Legislative Councillors holding their seats for life, b>
which their independence of the Executive and of the people would be
secured, provided they were chosen fairly by those to whom, from time to
time, the constituency, as at home, entrusted the privilege ; and not as they
are now selected, to serve a particular purpose, and expressly to wrangle,
rather than to larmonize with the popular branch. The House of Lords
includes men selected by all the administrations which the peoi^e of Britain
have called into power. The Houses of Lords, in the Colonies, have been
created by all the administrations which the people never could influence
or control.

Some members of the second branch should, of course, have seats in
the Executive Council, because in that Chamber also, die acts and the
policy of the government would require to be explained; but here, as in
England, though very desirable, it would not be essential that the admin-
istration should always be sustained by a majority in the Upper House.

One of the first effects of a change of system would be a decided
improvement in the character of all the Colonial Assemblies. The great
centre of political power and influence would in the Provinces, as at home,
be the House of Commons. Towards that body the able, the industrious,
the eloquent, and the wealthy, would press with ten times the ardour and
unanimi^ which are now evinced; because then, like its great prototype b
Britain, it would be an open and fair arena, in which the choice spirits of
the country would battle for a share in its administration, a participation
in its expenditure, and in the honour and influence which pubHc employ-

1791-1840] ConsHttHional Documents of Canada, 507

ment confers. Now a bon vivant, who can entertain an aide-de-camp; a
good looking fellow, who dances with a Governor's lady; or a cunning
one, who can wheedle a clerk or an under-secretary in Downing Street,
may be called to take a part in governing a Province for the period of his
natural life. Then, these disreputable and obscure channels of advance-
ment would be closed ; and the country would understand the reason, and
feel the necessity for every such appointment; and the population would
be driven to cultivate those qualities which dignify and adorn our nature,
rather tiian debase it. Now, any wily knave or subservient fool feels that
his chance is as good as that of the most able and upright man in the
Colony; and far better if the latter attempts to pursue an independent
course ; then, such people would be brought to their proper level, and made
to win their honours fairly before they were worn.

Another improvement would be the placing of the government of a
Colony, as it always is in England, in a majority in the Commons, watched,
controlled, and yet aided by a constitutional opposition. Under the present
system, the government of a colony is the opposition of the Commons and
often presents in that body the most unseemly and ridiculous figure. Num-
berless instances might be given of this. The three Executive Councillors
who sit in the Assembly of Nova Scotia have been resisting, in miserable
minorities, on a dozen divisions during the last two sessions, votes by
which the Commons recorded a want of confidence in them and their
party; and, in fact, the government, instead of taking the lead in public
measures with the energy and ability which should belong to a govern-
ment, cannot take a single step in the Assembly without the sanction of its
opponents. Every emergency that arises and for which an administration
ought to be secure of a majority, presents some absurd illustration of the
system. When the border difficulties with the State of Maine occurred
last winter, the Government of Nova Scotia had not the power to move a
single man of the militia force (the laws having expired), or to vote a
single shilling, until the majority came forward, as they always have done,
in the most honourable manner, and, casting aside all political differences,
passed laws for embodying the militia, and granted £100,000 to cariy on
the war. But, will your Lordship believe, wUl it be credited in England,
that those who voted that money ; who were reH>onsible to their constitu-
ents for its expenditure, and without whose consent ( for they formed two-
thirds of the Commons) a shilling could not have been drawn, had not a
single man in the local cabinet by whom it was to be spent, and by whom,
in that trying emergency, the Governor would be advised. Nor are things
better when the Legislature is not in session. In consequence of the estab-
lishment of steam navigation, a despatch was sent out this spring, after
the House was prorogued, requiring the Governor of this Province to put
the main roads in thorough repair. Of course he had no means to accom-
plish the object, nor could his Executive Council guarantee that a single
shilling thus expended would be replaced or that a vote of censure would
not be passed upon him if he spent one ; and to obviate the difficulty, they
were seen consulting and endeavouring to propitiate the members of the
majority, whose places, upon such terms, they were contented to occupy
and to which, as far as I am concerned, if such humiliations are to be die
penalty, they are heartily welcome.

It has been objected to the mode proposed, that it would lead to the
rotation of office, or extensive dismissals of subordinates, practised in the
United States. But no person abhor^ that system more than myself, nor
has it found any favour in the Colonies, where the British practice is
preferred, of removing the heads of departments only. To those who are
afraid of the turmoil and excitement that would be produced, it is only
necessary to say, that if upon the large scale on which the principle is
applied at home, there is no great inconvenience felt, how much less have
we to fear where the population is not so dense, the comgpetition not so
active, nor the prizes so gigantic A ministry that in England lasts two
or three years is supposed to fulfil its mission; and a quadrennial bill is
considered unnecessary, because Parliament, on the average, seldom sits

508 Constitutional Documents of Canada, [1791-184C

longer than three or four years. As, under a system of responsibility, the
contest for power would be fought out here as it is in England, chiefly on
the hustings ; an administration would, therefore, last in Nova Scotia until
the quadrennial bill was passed, for six years certainly — two years more
than the Governor, unless specially continued, is expected to hold his ap-
pointment; and if it managed judiciously, there would be nothing to pre-
ment it from holding the reins for twenty or thirty years. Of course, an
Executive Council in the Colonies should not be expected to resign upon
every incidental and unimportant question connected with the details of
government; but, whenever a fair and decisive vote, by whidi it was
evident that they had lost the confidence of the country, was roistered
against them, they should either change their policy, strengthen their hands
by the accession of popular talents and principles, or abandon their seats
and assume the duties and responsibilities of opposition. If there was any
doubt as to what the nature of such votes should be, the Parliamentary
usage would be the guide on this as on all minor matters.

One of the greatest evils of the present form of government is, that
nothing like system or responsibility can be carried into any one branch
of the public service. There are, exclusive of military and road commis-
sions, nearly nine hundred offices to be filled, in the Province of Nova
Scotia alone ; all essential to the administration of internal affairs, not one
of them having anything to do with InYperial interests. And will it be
believed in England, that the whole of this patronage is in the hands of a
body whom the people can never displace? that the vast majority in the
Commons have not the slightest influence in its distribution? while the
greatest idiot who gives his silent and subservient vote in the minority,
is certain of obtaining his reward ? But the evil does not stop here. It is
utterly impossible for the people either to bring to punishment or to get rid
of a single man of the whole nine hundred, if the local government chooses
to protect him.

Perhaps the most cruel injury that the system inflicts on the Colonists,
arises from the manner in which they are compelled to conduct their in-
ternal improvements. This has been noticed by Lord Durham. But per-
haps his Lordship did not fully comprehend the reasons which render the
mode — ^however anomalous and injurious — in some degree acceptable to the
constituency, in order that other evils may be prevented, which might be
a great deal worse. It will be perceived that the nine hundred offices
already referred to, are generally distributed by the irresponsible official
party in such a way as to buy their peace or to strengthen their influence
in the country. Let us see how this operates in practice. Suppose a county
sends to the Assembly four representatives, all of whom support the local
government; the patronage of that county is of course at their disposal, to
strengthen their hands, and to keep down all opposition; but should the
whole be hostile to the compact, then it is used to foster opposition and
create a party to displace them. If there is a division of sentiment among
the members, those who support are always aided in mortif3dng and get-
ting rid of those who attack the Government. Though but one of the four
is an adherent of the compact, every man in the county knows, that his
influence is worth much more than that of the other three; that, while one
can obtain any favour that he wants for a friend or partisan, the others
cannot, unless by the barter of a corrupt vote or the sacrifice of principle,
even obtain justice. Now, if besides these nine hundred offices, about five
hundred commissions for the expenditure of the surplus revenues of the
country upon roads, bridges and internal improvements, were given over
to be disposed of in the same way, the hands of the compact would be so
much strengthened that it would be still more easy to create a party in a
county, to endanger the seat of any member who ventured to give an inde-
pendent vote. To obviate this risk, which was seen at an early period
to menace the independence of the Commons, it was determined that the
members from each county should recommend the commissioners for the
expenditure of moneys within it; and this, being acquiesced in by the
Governors for some time before its political bearing was much regarded b>

1791-1840] Constitutional Documents of Canada. 509

the compact, has grown into usage which they have not ventured openly
to attack; although, as they still contend that the right of appointment is
in the Executive they seldom fail to show their power and vent their feel-
uiffs, by petty alterations almost every year. The advantages of this ai
rangement are that the majority of the constituency — and not the minority,
as in every other case— distribute the patronage under this branch of ex-
penditure ; and, as the members who name commissioners have a great deal
of local Imowledge, and are, moreover, responsible to the people, they can
be called to account if they abuse this trust But still, from the very nature
of things, it is liable to abuse. Road commissions may be multiplied and
sums unwisely expended to secure votes at the next election ; or to reward,
not a good road maker but a zealous partisan. The Executive has not tlie
control^ it would have if these men were selected by the Government ; and
the legislative power, which should be used to unmask corruption, is some-
times abused to afford it shelter. The remedy which our compacts always
suggest, like all their remedies for political discrepancies, aims at the ex-
tension of their own influence and the firmer establishment of their own
power. They are loud, upon all occasions, in denouncing the corruption
of the road system. The minority in the Assembly are elo<^uent on the
same theme; while, through the columns of some newspaper m their pay,
they are always pouring forth complaints, that the roads are wretchedly
bad and that they will never be better until the expenditure is placed in
their hands. It will be perceived, however, that to follow their advice,
would be to make what is admitted on all hands to have its evils, a great
deal worse; because, if these nominations are taken from those who pos-
sess local information, and given to men who have little or none, who will
not be .advised by those who have, and who can be called to account by
no power known to the Constitution ; — besides a great deal more of blun-
dering being the result, the partial responsibility, which now makes the
system barely tolerable, would be entirely removed. Political partisans
would still be rewarded; but, instead of all parties in the country sharing
the patronage (for members of the minority, as well as of the majority,
make these appointments), it would be confined only to those who sup-
ported the compact ; and who, however imbecile, ignorant or corrupt, would
then be, as every other officer in the Colony is now, independent of any
description of public control. If any doubt could be entertained as to
whether the public would lose or gain by the change, evidence enough
might be gathered; for some of the vilest jobs and most flagrant cases of
misinanagement that disgrace the history of the road service in Nova
Scotia, have been left as monuments of the ignorance or folly of the com-
pact, whenever they have taken these matters into their own hands.

But, make the Governor's advisers responsible to the Assembly, and
the representatives would at once resign to them the management of such
affairs. It would then be the business of the Executive, instead of leaving
the road service to the extemporaneous zeal or corrupt management of
individuals, to come prepared, at the commencement of each session, with
a general review of the whole system; and, supported by its majority, to
suggest and carry a comprehensive and intelligible scheme, embracing the
whole of this service, accounting for the previous year's expenditure and
appointments, and accepting the suggestions of members as to the plans
of the current year. We should then have an Executive to which every
commissioner would be directly accountable ; to which he could apply for
instructions from January to December; and which, being itself responsible,
would be careful of its proceedings ; and yet, being more independent than
individual members are in dealing with their own constituents, would be
more firm and unyielding where it was right. This is the simple, and I am
satisfied that the only safe remedy for the abuses of the road system. To
take the distribution of commissions fromfiftymen, possessed of much local
knowledge and partially responsible ,to give it to twelve others having less
information and subject to no control, would be an act of madness. For-
tunately, in this, as in all other cases, we have no occasion to seek for new
theories, or try unsafe experiments ; let us adopt the good old practices of

510 ConsHtutional Documents of Canada, [1791-1840

our ancestors and of our brethren ; let us "keep the old paths," in which,
while there is much facility, there is no danger.

My Lord, there is an amiment used against the introduction of Execu-
tive responsibility, by Sir Francis Head, which it may be well to notice,
because it has been caught up by shallow thinkers everywhere, and is
often ur^d with an air of triumph, that, to those who look beyond the
surface, is somewhat ridiculous. It is said, that if this principle had been
in operation, Papineau'and Mackenzie would have ministers in the respec-
tive Provinces they disturbed! But, do those who urge this objection
ever stay to inquire whether, if there had been responsibility in the Canadas,
either of these men could have assumed so much consequence as to be able
to obstruct the operations of Government and to create a rebellion in a
British Province? Nothing made a dictator tolerable in ancient Rome
but a sense of common danger arising out of some unusual and disastrous
posture of affairs, which rendered it necessary to confide to an individual
extraordinary powers — to raise one man far above all others of his own
rank — to substitute his will for the ordinary routine of administration,
and to make the words of his mouth the laws of the land. When the
danger passed away, the dictator passed away with it. Power, no longei
combined in one nrighty stream, the eccentric violence of which, though
useful might be destructive, was distributed over the surface of societ>%
and flowed again through a thousand small but well-established channels,
everywhere stimulating and refreshing, but nowhere exdting alarm. In poli-
tical warfare, this practice of the ancients has been followed by the modems
with good success. O'Connell in Ireland, and Papineau and Mackenzie in
Canada grew into importance, from the apparent necessity which existed for
large masses of men to bestow upon individuals unlimited confidence, and
invest them with extraordinary powers. I wish that the two latter, instead of
provoking the maddest rebellions on record, had possessed the sound sense
and consummate prudence which have marked every important step in the
former's extraordinary career. But, who believe that, if Ireland had had
"justice" instead of having it to seek, that ever such a political phenomenon
as the great agitator would have appeared to challenge our admiration and
smite the oppressors with dismay? And who dreams that, but for the
wretched system upheld in all the Colonies, and the entire absence of
responsibility, by which faction or intrigue were made the only roads to
power, either of the Canadian demagop^ues would ever have had an induce-
ment, or been placed in a position to disturb the public peace? I grant that
even under the forms that I recommend, such men as Papineau and Mac-
kenzie might have existed; that they mi^ht have become conspicuous and
influential; and that it is by no means improbable that they would have
been Executive Councillors of their respective Provinces, advising the
Governors and presiding over the administration of their internal anair<;.
But suppose they had; would not even this have been better than two
rebellions^the scenes at Windsor, St Charles and St. Eustache — ^the fron-
tier atrocities — ^and the expenditure of three million sterling, which will
be the cost before the accounts are closed? Does any man in his senses
believe, if Mackenzie or Bidwell could have guided the internal policy
and dispensed the local patronage according to the British mode, that either
of them would have been so mad as to dream of turning Upper Canada
into a Republic; when, even if they succeeded, they could only hope to be
Governors for a few years, with powers very much more restricted and
salaries not more ample than were theirs for life or as long as they pre-
served their majority? Possessed of honours and substantial power, (not
made to feel that they who could most effectually serve the Crown, were
excluded by a false system from its favour, that others less richly endowed
might rise upon their ruins), would these men have madly rushed into
rebellion with the chances before them of expatriation or of an ignominious
death?

You well know, my Lord, that rebels have become exceedingly scarce
at home, since the system of letting the majority govern has become firmly
established ; and yet they were as plentiful as blackberries in the good old

1791-1840] Constitutional Documents of Canada, / 511

times, when the soverei^s contended, as Sir Francis Head did lately, that
they only were responsible. Turn back and you will find that they be^an
to disappear altogether in England about 1688, and that every political
change that makes the Executive more completely responsible to the Legis-
lature and the Legislature to the country at large, renders the prospects of
a new growth, "small by degrees and beautifully less." And yet, my Lord,
who can assure us, that if the sovereigns had continued, as of old, alone
responsible; if hundreds of able men all running the same course of
honourable ambition, had not been encouraged to watch and control each
other; and if the system of governing by the minority and not by the
majority, and of excluding from power all who did not admire the mode,
and quarrelled with the court, had existed down to the present day ; — ^who,
I ask, will assure us, that Chatham and Fox, instead of being able ministers
and loyal men, might not have been sturdy rebels? Who can say that even
your Lordship, possessed of the strong attachment to liberty which dis-
tinguishes your family, might not,-Hlespairing of all good government
under such a system, — instead of using your influence to extend by peaceful
improvements the happiness of the people,~be at this moment in the field
at their head and struggling, sword in hand, to abate the power of the
Crown? So long as the irresponsibility principle was maintained in Scot-
land, and the viceroys and a few bishops and courtiers engrossed the
administration, there were such men as Hume and Lindsay, and such things
as assemblies in Glasgow, general tables in Edinburgh, and armed men^ in
every part of that noble country, weakening the Government, and, resisting
the power of the Crown; and up to the period when Lord Normanby,
assumed the government of Ireland and it became a principle of admin-
istration that the minority were no longer to control the majority and shut
them out from all the walks of honourable ambition, what was the attitude
in which Mr. O'Connell stood towards the Sovereign? Was it not one of
continual menace and hostility, by which the latter was degraded and the
former clothed with a dangerous importance? And what is his attitude
now? Is it not that of a warm-hearted supporter of the Queen, whose
smiles are no longer confined to a faction but shed over a nation, every
man of which feels that he is free to obtain, if he has the ability and the
good fortune to deserve, the highest honours in her power to bestow?
Daniel O'Connell (and perhaps it may be said that his tail suggested a
comparison) is no longer a political comet blazing towards the zenith and
filling the terror-stricken beholders with apprehensions of danger and a
sense of coming change; but a brilliant planet revolvin^^ in an orbit with
the extent of which all are familiar, and reflecting bzck to the source of
light and honour the beams which it is proud to share. Who any longer
believes that O'Connell is to shake the empire and overturn the throne?
And who doubts, had he despaired of justice, but he too might have been
a rebel; and that the continued application to Ireland of the principles 1
denounce, would have revived the scenes and sufferings through which she
passed in 1796?

If, my Lord, in every one of the three great kingdoms from which the
population of British America derive their origin, the evils of which we
complain were experienced and continued until the principles we claim as
our birthright became firmly established, is it to be expected that we shall
not endeavour to rid ourselves, by respectful argument and remonstrance,
of what cost you open and violent resistance to put down ? Can an English-
man, an Irishman or a Scotchman, be made to believe, by passing a month
upon the sea, that the most stirring periods of his history are but a cheat
and a delusion ; that the scenes which he has been accustomed to tread with
deep emotions are but mementoes of the folly, and not, as he once fondly
believed, of the wisdom and courage of his ancestors; that the principles
of civil liberty, which from childhood he has been taught to cherish and to
protect by forms of stringent responsibility, must, with the new light
breaking in upon him on this side of the Atlantic, be cast aside as useless
incumbrance? No, my Lord, it is madness to suppose that these men, so
remarkable for carrying their national characteristics into every part of

512 Constitutional Documents of Canada. [1791-1840

the world where they penetrate, shall lose the most honourable of them
all, merely by passing from one part of the empire to another. Nor is it
to be supposed that the Nova Scotians, New Bninswickers and Canadians
— a race sprung from the generous admixture of the blood of the three
foremost nations of the world — ^proud of their parentage and not unworthy
of it, to whom every stirring period of British and Irish history, every
great principle which they teach, every phrase of freedom to be gleaned
from them, are as familiar as househcJld words, can be in haste to forget
what they learnt upon their parents' Imees; what those they loved and
honoured clung to with so much pride, and r^^rded as beyond all price.
Those who expect them thus to belie their origin, or to disgrace it, may
as soon hope to see the streams turn back upon their fountains. My Lord,
my countrymen feel, as they have a right to feel, that the Atlantic, the
great highway of communication with their brethren at home, should be
no barrier to shut out the civil privileges and political rights, which more
than^anything else, make them proud of the connection ; and iiiey feel also,
that there is nothing in their present position or their past conduct to
warrant such exclusion. Whatever impression may have been made b>
the wholesome satire^ wherewith one of my countrymen has endeavoured
to excite the others to still greater exertions; those who fancy that Nova
Scotians are an inferior race to those who dwell upon the ancient home-
stead or that they will be contended wiUi a less degree of freedom, know
little of them. A country that a century ago was but a wilderness and is
now studded with towns and villages, and intersected with roads, even
though more might have been done under a better system, affords some
evidence of industry. Nova Scotian ships, bearing the British flag into
every quarter of the globe, are some proofs of enterprise; and the success
of the native author, to whom I have alluded, in the wide field of intellec-
tual competition, more than contradicts the humorous exaggeration by
which, while we are stimulated to higher efforts, others may be for a
moment misled. If then our ri^ht to inherit the Constitution be clear; it
our capacity to maintain and enjoy it cannot be questioned; have we done
anything to justify the alienation of our birthright? Many of the original
settlers of this Province emigrated from the old Colonies when they were
in a state of rebellion — ^not because they did not love freedom, but because
they loved it under the old banner and the old forms; and many of their
descendants have shed their blood, on land and sea, to defend the honour
of the crown and the integrity of the empire. On some of the hardest
fought fields of the Peninsula, my countrymen died in the front rank, with
their faces to the foe. The proudest naval trophy* of the last American
war was brought by a Nova Scotian into the harbour of his native town;
and the blood that flowed from Nelson's death wound in the coclq>it of the
Victory mingled with that of a Nova Scotian stripling* beside him struck
down in the same glorious fight. Am I not then justified, my Lord, in
claiming for my countrymen that Constitution, which can be withheld
from them by no plea but one unworthy of a British statesman — the tyrant's
plea of power? I know that I am; and I feel also, that this is not the race
that can be hoodwinked with sophistiy, or made to submit to injustice
without complaint. All suspicion of disloyalty we cast aside, as the pro-
duct of ignorance or cupidity; we seek for nothing more than British
subjects are entitled to; but we will be contended with nothing less.

My Lord, it has been said, that if this system of responsibility were
established, it would lead to a constant struggle for oflice and influence,
which would be injurious to the habits of our population and corrupt the
integrity of the public men. That it would lead to the former I admit;
but that the latter would be a consequence I must take leave to deny, until
it can be shown, that in any of the other employments of life, fair com-

* Chief Justice Haliburton's Sam Slick. (See Professor Pelham Edgar's artkie
on Catiftdian Literature in The Cambridge History of Ewtlish Liierature.)

' The American frigate Chesapeake, captured off Boston hj the Shannon, was
brought into Halifax on 6 June, 1813, oy Lieutenant, afterwards Admiral Sir Ptoto
Wallis, a native of Nova Scotia.

* Midshipman G. A. Westphal.

1791-1840] Constitutional Documents of Canada, 513

petition has that effect. Let the bar become the bar only of the minority,
and how long would there be honour and safety in the profession? Let the
rich prizes to be won in commerce and finance be confined to a mere
fragment, instead of being open to the whole population; and I doubt
whether the same benefits, the same integrity, or the same satisfaction
would ^race the monopoly, that now spring from an open, fair and manly
competition, by which, while individuals prosper, wealth and prosperity are
gathered to the State. To be satisfied that this fair competition can with
safety, and the greatest advantage be carried into public as well as into
private affairs, it is only necessary to contrast the example of England
with that of any Continental nation where the opposite system has been
pursued. And if, in England, the struggle for influence and office has.
curbed corruption and produced examples of consistency and an adherence
to principle extremely rare in other countries, and in none more so than
in Uie Colonies, where the course pursued strikes at the very root of manly
independence, why should we apprehend danger from its introduction or
shrink from the peaceful rivalry it may occasion? But, my Lord, there
is another view that ought to be taken of this question. Ought not British
statesmen to ask themselves, is it wise to leave a million and a half of
people, virtually excluded from all participation in the honourable prizes
of public life? There is not a weaver's apprentice or a parish orpluin in
Elngland, that does not feel that he may, if he has the talent, rise through
every grade of office, municipal and national, to hold the reins of govern-
ment and influence the destinies of a mighty empire. The Queen may be
hostile, the Lords may chafe, but neither can prevent that weaver's appren-
tive or that parish orphan from becoming Prime Minister of Enjgland.
Then look at the United States, in which the son of a mechanic in the
* smallest town, of a squatter in the wildest forest, may contend, on equal
^ terms, with the proudest, for any office in twenty-eight different States;
and having won as many as contents him, may rise, through the national
i- grades, to be President of the Union. There are no family comjpacts to
^ exclude these aspirants; no litUe knot of irresponsible and self-elected
councillors, to whom it is necessary to sell their principles, and before
r whom the manliness of their nature must be prostrated, before thty can
< advance. But, in the Colonies, where there are no prizes so splendid as
these, is it wise or just to narrow the field and confine to little cliques of
irresponsible politicians, what prizes there are? No, my Lord, it is neither
just nor wise. Every poor boy in Nova Scotia (for we have the feelings
of pride and ambition common to our nature) knows that he has the same
right to the honours and emoluments of office as he would have if he lived
in Britain or the United States ; and he feels, that while the great honours
of the empire are almost beyond his reach, he ought to have a chance of
dispensing the patronage and guiding the administration of his native
f country without any sacrifice of principle or diminution of self*respect.
i: My Lord, I have done. If what has been written corrects any error

^ into which vour Lordship or others may have fallen, and communicates
f. to some, either in Britain or the Colonies, information upon a subject not
f- generally understood, I shall be amply repaid. Your Lordship will perhaps
y pardon me for reminding you, that, in thus eschewing the anon3rmous and
putting my name to an argument in favour of Executive responsibility for
the North American colonies, I am acting under a sense of deep respon-
^ sibility myself. I well know that there is not a press in the pay of any
p of the family compacts, that will not misrepresent my motives and pervert
^ my language ; that there is not an over-paid and irresponsible official, from
i Fundy to the Ottawa, whose inextinguishable hostility, I shall not have
^ earned for the remainder of my life. The example of your Lordship will,
f however, help me to bear these burdens with patience. You have lived and
prospered, and done the State good service, and yet thousands of corrupt
boroughmongers and irresponsible corporators formerly misrepresented and
^^ hated you. Should I live to see the principles for which I contend, oper-
f ating as beneficially over British North America, as those immortal acts,
which provoked your Lordship's enemies, do in the mother country, I shall

514

Constitutional Documents of Canada, [1791-1840

be gratified by the reflection, that the patriotic and honourable men now
contending for the principles of the British Constitution, and by whose
side, as an humble auxiliary, I am proud to take my stand, whatever they
may have suffered in the struggle, did not labour in vain. — I have the
honour to be, with the highest respect, your Lordship's humble admirer,
and most obedient servant,

Joseph Howe.

31 Geo. lU,
cap. 31.

The Special
Cotmcilto
consist of not
less than
twenty mem-
bers, and no
business to be
transacted
unless eleven
be present.

Repeal of pro*
riston of 1
and 2 Vict.,
cap. 9, pre-
rentinc the
making of
permanent
laws; but all
permanent
laws to be
laid for thirty
days before
Parliament
prerious to be-
•— 'confirmed.

CXLI

AN ACT TO AMEND AN ACT OF THE LAST SESSION OF

PARLIAMENT FOR MAKING TEMPORARY PROVISION

FOR THE GOVERNMENT OF LOWER CANADA*

(2 & 3 Victoria, c. 53.)

17th August, 1839.

Whereas, an Act was passed in the thirty-first year of the reign of his
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 Pro-
vince of Quebec in North America,' and to make further provision for the
Government of the said Province," whereby among other things it was
enacted that there should be within each of the Provinces of Upper Canada
and Lower Canada respectively a Legislative Council and an Assembly, to
be constituted in manner therein described, and with such powers and
authorities as therein mentioned: And whereas an Act was passed in the
last session of Parliament, intituled "An Act to make temporary Provision
for the Government of Lower Canada," whereby it was enacted that from
the proclamation of the Act until the first day of November one thousand
eight hundred and forty so much of the said Act of the ^rty-first year of
the reign of his Majesty, King George the Third, and of any other Act or
Acts of Parliament, as provides for the Constitution or calling of a Legis-
lative Council or Assembly for the Province of Lower Canada, or confers
any powers or functions upon them or either of them should cease; and
by the said Act now in reatal provision is made in the meantime for the
appointment by his Majesty of a Special Council for the affairs of Lower
Canada, and for the making of laws or ordinances for the Government of
the said Province by the Governor thereof, with the advice and consent of
the maiority of the Councillors present at any meeting of the Council:
And whereas it is expedient that some of the provisions contained in the
said lastly-recited Act should be altered: Be it therefore enacted by the
Queen's ntost 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 aumori^ of the same, that the number of Council-
lors forming the Special Council in manner provided by the said Act passed
in the last session of Parliament shall not be less than twent^r, and tnat no
business shall be transacted at any meeting of the said Special Council at
which there are not present at least eleven Councillors.

II. And be it enacted that from and immediately after the passing of
this Act so much of the said recited Act passed in the last Session of nr-
liament as provides that no law or ordinance made by the Governor of the
said Province of Lower Canada, with such advice and consent as therein
mentioned, shall continue in force beyond the first da^ of November, one
thousand eight hundred and forty-two, unless continued by competent
authority, shall be and the same is hereby repealed : Provided always that
every law or ordinance which by the terms and provisions thereof shall be
made to continue in force after the said first day of November, one thou-
sand eight hundred and forty-two, shall be laid before both Houses of

<This Act was passed after the Aet of Union was withdrawn in 1839 (see Ho.
CXLII, note), pending Poolett Thomson's report on Canadian affairs.

1791-1840] ConsfUuHomU Documents of Canada. 515

Parliament within thirty days after a copy thereof shall be received by one
of her Majest/s Principal Secretaries of States, under the provisions of
the said Act of the last Session of Parliament, if Parliament shall be then
sitting, or otherwise within thirty days after the then next meeting of Par-
liament ; and no such law or ordinance shall be confirmed or declared to be
left to its operation b^r her Majesty until such law or ordinance shall first
have been uud for thirty days before both Houses of Parliament, or in
case either House of Parliament shall, within the said thirty days, address
her Majesty to disallow any such law or ordinance.

III. And be it enacted that from and immediately after the passing Repeal of the
of this Act so much of the said recited Act passed in the last Session ^^^^}?^?^
Parliament as provides that it shall not be lawful, by any such law ot\^^^^^^"
ordinance as therein mentioned to impose any tax, duty, rate, or impost, hlEtmc taxa-
save only in so far as any tax, duty, rate, or impost, which at the passingtion;lmtno
of that Act was payable within the said Province of Lower Canada, might j^^*^J|^^
be continued, shall be and the same is hereby repealed: Provided always forpublic
that it shall not be lawful for the said Governor with such advice and con- ^.™ ^
sent as aforesaid, to make any law or ordinance imposing, or authorizing ng^^pai
the imposition of any new tax, duty, rate, or impost, except for carrying goTernment;
into effect local improvements within the said Province of Lower Canada, ^ad such

or any district or other local division thereof, or for the establishment or {l^^p^opriat-
maintenance of police, or other objects of municipal government, within ed by Gov-
any city or town or district or other local division of the said Province : emaeat.
Provided also that in every law or ordinance imposing or authorizing the
imposition of any such new tax, duty, rate, or impost, provision shall be made
for the levying, receipt, and appropriation thereof by such person or per-
sons as shadl be therroy appointed or designated for that purpose, but that
no such new tax, .rate, duty, or impost shall be levied by or made payable
to the Receiver-General or any other public officer employed in the receipt
of her Majesty's ordinary revenue in the said Province; nor shall any such
law or ordinance as aforesaid provide for die appropriation of any such
new tax, duty, rate or impost by the said Governor, either with or without
the advice of the Executive Council of the said Province, or by the Com-
missioners of her Majesty's treasury, or by any other officer of the Crown
employed in the receipt of her Majesty's ordinary revenue.

IV. And be it enacted that from and after the passing of this Act Rep«»! ©f A*
so much of the said recited Act passed in the last session of Parliament as t'i^dL2^v1ct!,
provides that it shall not be lawful for any such law or ordinance as therein ca^. 9, prohi*-'
mentioned to repeal, suspend, or alter anv provision of any Act of thel>}^i>v»< .
Parliament of Great Britain, or of the Parliament of the United Kingdom, Jf^to of Pa?.
or of any Act of the Legislature of Lower Canada, as then constituted, Uament; but
repealing or altering any such Act of Parliament, shall be and the same is'^^^^lP^
hereby repealed: Provided always, that it shall not be lawful for the said £* j^^fy}*^
Governor, with such advice and consent as aforesaid, to make any law or or Spiritual
ordinance altering or affecting the Temporal or Spiritual rights of ^^c^^^/'^ti
Clergy of the United Church of England and Ireland, or of the Ministers ^lU^l^^ *
of any other reli^ous communion, or altering or affecting the tenure of of tenure,
land within the said Province of Lower Canada, or any part thereof, save

so far a» 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 aforesaid, to provide for the extinction of any Seignorial rights
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, withm 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 made by the Jj^j^f-J^ij**
said Governor, with such advice and consent as aforesaid, shall, before the in GoMttig,
passing or enactment thereof, be published at length in the public Gazette

of the said Province of Lower Canada. Defimt* f

VI. And be it enacted that for the purposes of this Act the person Govcraor.

516 Constitutional Documents of Canada, [1791-1840

authorized to execute the Commission of Governor of the Province of
Lower Canada shall be taken to be the Governor thereof.

mendeletc ^^^* ^"^ ^ ** enacted that this Act may be amended or repealed by

^ * any Act to be passed during the present session of Parliament.

CXLII

LORD JOHN RUSSELL TO THE RIGHIT HON. C. POULETT

THOMSON'

[Trans.: Imperial Blue Books relating to Canada, Vol. XHL]

Downing Street,
7th September, 1839.

Sir, — The Queen having been pleased to confide to you the Govern-
ment of the British provinces in North America, I now transmit to you the
various Commissions under the Great Seal, which authorize you to assume
and execute that office. The intimate knowledge which, as one of Her
Majesty's confidential advisers, you have acquired, of the progress of Cana-
dian anairs during the last few years, and of the views of Her Majesty's
Government on that subject, relieves me from the necessity of entering on
various explanations, which it would otherwise have been my duty to
afford you. But it is fit that I should on the present occasion record for
your guidance the intentions of the Ministers of the Crown on the principal
topics of Canadian policy, on which you will be called, as the governor o'f
those provinces, to co-operate with them.

The Bill introduced into the House of Commons during the present
session of Parliament, embodied, as you are aware, the results of deliberate
reflection on the various suggestions contained in the reports of the Earl
of Durham. Tlie hope of passing that measure into a law before the Par-
liamentary recess was defeated by various circumstances which occurred,
and especiallv by the intelligence which, in the commencement of the month
of June reached us from the Lieutenant-Governor of Upper Canada, of the
state of public opinion in that colony, as expressed by the resolutions of
the Council and Assembly. We have never concealed from ourselves that
the success of any plan for the settlement of Canadian affairs must depend
on the concurrence and support of the provinces themselves. To learn
their deliberate wishes, and to obtain their co-operation by frank and unre-
served personal intercourse, will therefore be the first and most important
of the duties which you will be called upon to perform.

In our anxiety thus to consult, and as far as may be possible, to defer
to public opinion in the Canadas on the subject of constitutional changes.
Her Majesty's Government must be understood as entertaining a very
strong conviction in favour of the policy of the measure which they have
proposed for the adoption of Parliament. Attaching minor importance to
the subordinate details of that Bill, we have found no sufficient reason for
distrusting the principles on which it proceeds. These are — ^a legislative
Union of the two provinces — a just regard to the claims of either province
in adjusting the terms of that Union — the maintenance of the three estates
of the provincial legislature — the settlement of a permanent civil list for
securing the independence of the judges, and to the executive government
that freedom of action which is necessary for the public good — and the
establishment of a system of local government by representative bodies,
freely elected in the various cities and rural districts. From any of these

^ The union of the two Provinces was decided on as a result of Durham's Rtpcrt.
In 1838 a bill for that purpose was introduced, but withdrawn by the GoTemment.
owing to the protest from Upper Canada. It can be read in Public Bills, 1839, Vol. I.
The new Governor-General, Charles Poulett Thomson^ afterwards Lord Sydenham, was
instructed to gather further information on Canadian affairs and to forward it to
England. He reached Quebec September 17, 1839, and his work in Canada is illus-
trated in the following documents, which also throw light on the growing changes in
British Colonial policy. For Sydenham't rule in Canada see A. Shortt, Lord Sydemh&m.

1791-1840] Constitutional Documents of Canada. 517

principles Her Majesty's Government would be most reluctant to recede.
After a full investigation of every other plan which has been suggested
they have not been able to discover in any but this, the reasonable hope of
a satisfactory settlement. It will, therefore, be your first duty to endeavour
to obtain for that measure, such an assent in its general principles, and such
a correction of its details, as may render it acceptable to the provinces, and
productive of permanent advantage. There are various modes by which
this object may be accomplished, and in giving an outline of them, Her
Majesty has commanded me to express to you her reliance upon your judg-
ment, to be formed upon the spot, as to the employment of such as may be
most conducive to the contentment and advantage of her Canadian sub-
jects.

I. You may appoint, by authority of the executive, a certain number
of persons of weight and experience, selected from each province, to frame
articles of Union, to be afterwards proposed to the legislature of Upper
Canada.

2. Yon may assemble the legislature of Upper Canada, and propose
to them the appointment of a certain number of Commissioners, to confer
with others named by the special Council of Lower Canada.

3. If you find that your overtures to the assembly of Upper Canada
are not met in a fair, conciliatory, and reasonable spirit, you may proceed
to dissolve the present assembly, and appeal to the sense of the inhabitants
of the Province. But in the late unsettled state of the province, in the
presence of repressed disaffection, with the necessity of a second dissolu-
tion before the assembly of the united province can meet — this step must
not be resorted to, without the gravest deliberation.

In whatever method you may proceed. Her Majesty's Government will
expect to receive from you, founded on competent authority, such a plan
of representation, with a division into cities and districts, as may enable
them to lay the scheme before Parliament with confidence in the data on
which it has been formed, and in the justice of the general arrangement.

I will not now argue on a further supposition, viz., that from difficulty
of detail, or mutual disinclination, the plan of Union may be found alto-
gether impracticable. Should you find, after all your efforts, that such is
the result, you will lose no time in comtifunicating to me, for Her Majesty's
information, the grounds of your oni^ion, and the nature of any alterna-
tive which may seem to you more Mpductive to the general good.

But above all things, it is important to avoid unnecessary delay. The
discussion, which has already been protracted at the expense of so much
evil, and still greater hazard to the interests of the Canadian provinces,
and of this kingdom, cannot be too speedily brought to a close. Her
Majest/s Government will,' therefore, anxiously await the result of your
inquiries as to the state of public opinion in the Canadas respecting the
proposed Union, and the terms on which in your opinion it should be
effected. I earnestly trust that it may be received in this country by a
period sufficiently early to enable us to communicate it to Parliament at
the commencemient, or soon after the commencement, of the session of
1840, and then to proceed at once with such measures as may be required
to meet the exigencies of the case.

The intelligence which has reached me from Upper Canada, makes it
probable that you may be called upon for some explanation of the views of
the Ministers of the Crown, on a question respecting which the Bill to
which I have referred is necessarily silent. I allude to the nature and
extent of the control which the popular branch of the united legislature
will be admitted to exercise over the conduct of the executive government,
and the continuance in the public service of its principal offi-
cers. But it is evidently impossible to reduce into the form of a
positive enactment a constitutional principle of this nature.' The importance
of maintaining the utmost possible harmony between the policy of the

>For iUtwtrations of Riuaeiri dictum in connexion with the Tmriout conttitntions
of the Mlf-fOTeminff iiarts of die Empire, tee Jenkyns, BriHth Rnlt and JwritdicHon
bey<md the Seas, pp. 61 ff. (Oxford, 1902.)

518 Constitutional Documents of Canada, [1791-1840

legislature and of the executive govemmefit admits of no question, and it
will of course be your anxious endeavour to call to your counsels and to
employ in the public service those persons who, by their position and char-
acter, have obtained the general confidence and esteem of the inhabitants
of the province.*

The militaiy defence of the Canadas is another object of common
interest to both provinces, on which it is necessary that you should be
apprized of the views of Her Majest/s Government. In the corre^Kmd-
ence between Lord Glenelg and Sir John Colborne, and especially in the
despatches of the latter, you will find a full discussion of tiie plans which
have been devised for that purpose. Amongst them is a scheme for extended
fortifications, to be erected and maintaind at an expense, which it is not
evident will be compensated by any equivalent advantage. For the present.
at least, notwithstanding the deference so justly due to the opinions of that
distinguished 0£Bcer, the Ministers of the Crown cannot recommend the
adoption of this scheme. On the other hand, the plan suggested from this
country and sanctioned by Sir John Colbome, of creating military settle-
ments on the frontier, on the principle of veteran battalions, appears to die
Ministers of the Crown as at once the most effective and the most econo-
mical plan of defence which could be pursued. Measures will be taken,
with the least possible delay, for carrying it into effect ; and in the mean-
time you will discourage and prevent, as far as may be compatible with the
public safety, either the augmentation, or the continuance on foot of the
volunteers, or the sedentary corps, which were embodied during the last
winter as a reinforcement to the regular army. On all subjects of this
nature, however, you will consult Sir Richard Jackson,' whose judgment
and military knowledge will be of the greatest service to you.

The only topic which it remains to notice, as affecting the two Cana-
dian provinces alike, is that of raising an emigration fund from the pro-
ceeds of the sales of the Crown lands. Unfortunately, the very elaborate
report communicated to me by Lord Durham on this subject, serves but to
confirm, and t% place in a still clearer light, the difficulties by which, as we
were previously aware, the promotion of this most important object is
obstructed. Such is the extent of land alienated, and so inconsiderable the
proportion which still remains vested in the Crown, that the hope of ren-
dering any effectual aid to emigration by the sale of sudi laoids, cannot at
present be reasonably entertained. TIm necessary preliminary to the intro-
duction of any such system, would be uie resumption of the lar^ tracts of
land held by grantees in a barren and unprofitable state. This could be
effected only by the imposition of a tax on uncleared land, and by enact-
ments for the collection of that tax, to insure the due execution of the
law. In the Lower Province there exists, at the present time, no aotfaority
by which such a tax could be imposed. In the Upper Province it is hardly
to be expected that, in the present state of affairs, the difficulties which
encompass the subject will be effectually overcome. Amongst the benefits
to be anticipated from the union of the provinces, it is not the least import-
ant that the united legislature would be able to act upon subjects of this
nature with a great comparative freedom from the undue bias of local
interests, and with a large view to the permanent improvement of the
provinces.

Such being the principal subjects of common interest to the two pro-
vinces, to which vour attention will be immediately called, I have next to
notice those which will relate exclusively to the province of Lower Canada.

The Act* which has been passed m the last session of Parliament,^ in
amendment of the Act of the first vea r of Her Majestv's reign, providing
for the temporary administration of the Government of Lower Qmada, will
relieve you and the Special Council from many of the impediments by
which your immediate predecessor has been encountered in the attempt to
promote the internal interests of the province. Sir John Colbome's de-

1 See No. CLII.

' Sir Richard Downea Jackson, Commander-in-Chief of the forces.

*See No. CXU.

1791-1840] Constitutional Documents of Canada. 519

spatches/ and especially that of the 15th of March, 1839, have pointed out
very clearly many objects of great pablic utility, which he was unable to
advance, in consequence of the restrictions under which the legislative
powers confided to him and to the Special Council were exercised. To
these your attention will of course be given. Much as the suspension of
constitutional government in Lower Canada is to be regretted, it will not
be without a very considerable compensation, if, during the interval,
arrangei^ents should be maturely and wisely made for securing to the
people at large the benefit of those social institutions from which, in former
times, the thoughts of the local legislature were diverted, by the contro-
versies which then agitated the. provincial society.

The establishment of Municipal Institutions for the management of
all local aflfairs, will be among the most important of the subjects to which
your attention will be called. On this subject I would refer you to the
report of the Earl of Durham, and the Appendix marked C, liy which it
is accompanied. Althouf[ht the commissioners whom his Lordship appointed
to investigate the question were unable, from the shortness of the time, to
submit to him any conclusive recommendations rejecting it, the informa-
tion which they collected will prove of much advantage to you. On the
importance of such institutions I need not enlarge. Your acquaintance
with the svstem of municipal government in this country, will point out to
you that there is no mode m which local affairs can be so properly adminis-
tered, and that they form, at the same time, the most appropriate and
effectual means of training the great body of the people to the higher
branches of legislation.

The promotion of education among all classes of the people will also
engage your earnest attention. On this subject I can add nothing to the
information afforded by the reports of the Earl of Gosford, and his col-
leagues, and the Earl of Durham. It will afford Her Majesty's Govern-
ment the most sincere satisfaction to co-operate with you in anv measures
which you may adopt for the furtherance of this important object.

In any view which can now be taken of the affairs of British North
America, it is obvious that those of Upper Canada must occupy a very
prominent place. I am persuaded that the zeal for the public good, and
the superiority to considerations of a nature merely personal, by whldi the
present Lieutenant-Governor has been distinguished during his long career
of public service, will obviate the risk of any dissatisfaction being enter-
tained bv him, if you should find it necessary, for a time, to assume in
person the administration of the government of Upper Canada, and during
that period, to supersede him in the discharge of his functions. In the
prosecution, therefore, of your endeavour to obtain as much a^eement as
possible in the pkin to be hereafter submitted to the Imperial Parliament,
you will not hesitate to repair to Toronto. When there, you would, of
course, avail yourself of the experience which Sir George Arthur has
acquired, and of the assistance which he will have both the ability and the
disposition to afford yoci.

The first topic which will engage your attention in Upper Canada is
the present financial state of the province. This has been most elaborately
explained in the Lieutenant-Governor's recent despatches. Embarrassing
as the immediate state of the question is, it is yet gratifying to learn from
those communications, that the difficulties in which the provincial treasuiy
is involved, originate in causes which do not affect the wealth or the ulti-
mate resources of the province. Having undertaking great internal im-
provents, especially those of the Welland and Rideau canals, with inade-
quate resources, the works have been very imperfectly convicted, and the
returns are absorbed in a succession of repairs, which would not have been
required if the canals had been originally formed with a greater command
of capital These works having also been effected by borrowed money,
the loans have been raised at a higher rate of interest than would have been
required if the credit of the province had not been diminished by the ab-

'TlieM despatches are in Imp trial Blue Books rtlating to Canada and in British
ParKamsniary Papers, 1839. Vol. XXXII; 1840, Vol. XXXI.

520 Constitutional Documents of Canada, [1791-1840

sorption of its revenues in such, undertakings. Further, it appears that the
provincial treasury might have been recruited ¥dth no perceptible addition
to the public burdens, if it had been possible to increase, to a moderate
extent, the duties of import on goods introduced for consumption. Bat,
under the combined influence of these causes, the expenditure has at length
far exceeded the receipt ; and some measures for reinstating the provincial
treasury in a secure condition have become indispensable.

Her Majesty's Government willingly acknowledge the great advantage
which will arise from extending to Upper Canada such aid as the revenue
of Great Britain could afford, consistently with a due r^^d to the interest
of this kingdom, and of the other members of the entire at large. This is,
however, a subject for distinct consideration. For the present I shall con-
fine my attention to the remedial measures adopted by the local legislature
in their last session.

Of these, the first was the raising a loan by Government debentures,
which was sanctioned by a Bill, entitled "An Act to afford further Polities
to negotiate debentures for the completion of certain works."

llus Bill was reserved for the signification of Her Majesty's pleasore.
and has been confirmed by the Queen in CoundL

The second financial measure of the year was the enactment of a Bill,
authorizing the issue of treasury notes to the amount of £250,000 sterling,
for £1 ead. This Bill has also been reserved for the signification of Her
Majest^s pleasure. I regret to state that Her Majesty cannot be advised
to confirm it. The issue of such an amount of small inconvertible paper
money, as a resource for sustaining the public credit, is not to be justified
even by the present exigency of public a&irs. The effect of the measure
on the currency and monetary transactions of Upper Canada, and on the
value of private property throughout the province, must be sach as to
counterbalance any advantage which could be obtained from this temporary
relief. If the credit of the country can be made available to sustain for a
time the transactions of the local treasury in a less hazardous and objec-
tionable form, you will accede to any plan of that nature. It is only as a
temporary expedient that any such resource will be requisite; and it is of
great importance to the future welfare of the province, that the scheme
devised to meet the pressure of the passing day should not be such as to
preclude the early return to a more salutary course of financial operations.

A third measure of the same general character has been adopted by
the local legislature, to provide for the indemnity of the sufferers by hostile
incursions from the United States. The Bill for this purpose, entitled "An
Act to ascertain and provide for the payment of all just claims arising
from the late rebellion and invasions of this province," has also been
reserved for the signification of Her Majesty's pleasure. I fear that Her
Majesty's assent to this Bill, in its present form, cannot be given. The
objection is not to the measure itself, in the propriety of which Her
Majesty's Government entirely concur; but we think it impossible to advise
the Queen to assent to an Act, which, if so sanctioned, would, by the terms
of the preamble, convey a pledge from Her Majesty that the charge of this
indemnity should be ultimately borne by the British treasury. The principle
involved in this declaration is of too much importance to be thus inci-
dentally recognised, even supposing it to be right that it should be admitted
at alL Neither could Her Majesty properly affirm, in so solemn a manner,
her acquiescence in this daim on the revenue of this countrv. unless it had
been previously sanctioned by Parliament, — a sanction whidi has not been,
and which could not hitherto have been, obtained. If a similar Bill should be
passed, ¥dth the omission of tiie preamble, you will readily concur in the
enactment of it^

The Legislature of Upper Canada have also passed a Bin, which has in
like manner been reserved, for settling a civil list on Her Majesty in
exchange for the Crown revenues of the province. It is with sincere

1 The LegiiUtttre of Canadrn passed an Act in its first Session desliaff wM Sckd-

lion losses ss fsr as the old ProTince of Upper Canada was concerned. F«r '

Canada, see No. CLXV.

1791-1840] Constitutional Documents of Canada. 521

regret that I am compelled to announce that this is also a measure from
which, in its present form, the assent of the Crown must be withheld. The
effect of it is to exclude from the protection of the grant the clergy, who
at present derive their maintenance from the Crown revenue, and of whom
the great majority have resorted to Upper Canada on the assurance that
their stipends would be thus secured to them. Now as this charge has
been lawfully fixed upon the Crown revenue, and as the Crown has no
other resource from which it could be paid, it is impossible to accept the
proposed civil list on such terms. Anxious as Her Majesty's Government
are to defer to the representatives of the people of Upper Canada in all
matters connected with the internal government of that province, they
cannot consent to a measure which would practically involve a violation
of the pledged faith of the Crown. We cannot decUne the obligation of
maintaining the rights of the clergy in question; and I can only express
my hope that the local legislature may concur with the Ministers of the
Crown a5 to the propriety of re-enacting this Bill, with the addition of the
charge necessary for the maintenance of those rights. The burthen will
cease with the hves of the present incumbents, and is now in the course of
a progressive diminution.

The last of the reserved Bills of the late Session has reference to the
long controverted subject of the clergy reserves. To this Bill the Rojral
assent could not have lawfully been given, until it had been laid for JO days
before either House of Parliament. It was not until the 15th August that
I received from the Lieutenant-Governor the document necessaiy to enable
me to fulfil the requisition of the Constitutional Act of 1791. It was,
therefore, impossible that the Bill should be finally enacted by the Queen
in Council until after the commencement of the Parliamentary Session of
1840. But had this difficulty not arisen, there were other motives which
would have effectually prevented the acceptance of this measure by Her
Majesty. Parliament delegated to the local legislature the right of appro-
priating the clergy reserves, and the effect of the Bill is to retransfer this
duty from the local legislature to Parliament, with a particular restriction.
I am advised by the law officers of the Crown that this is an unconstitu-
tional proceeding. It is certainly unusual and inconvenient. Her Majesty
cannot assume that Parliament will accept this delegated office, and if it
should not be so accepted the confirmation of the Bill would be productive
of serious prejudice, and of no substantial advantage. It would postpone
indefinitely the settlement of a question which it much concerns the wel-
fare of the provinces to bring to a close ; besides I cannot admit that there
exist in this country greater facilities than in Upper Canada for the adjust-
ment of this controversy; on the contrary, the provincial legislature will
bring to the decision of it an extent of accurate information as to the wants
and general opinions of society in that country, in which Parliament is
unavoidably deficient. For all these reasons Her Majesty will decline to
^ve her assent to this Bill.^

I have thus adverted to the principal topics which will engage your
attention as Governor-General of British North America, in reference to
the two Canadas, omitting many minor questions which will form the sub-
ject of future correspondence, and passing by for the present all that
relates to the affairs of New Brunswick, Nova Scotia, and Prince Edward
Island. I reserve these for consideration hereafter.

Finally, I am commanded to direct that in all the provinces of British
North America you will inculcate upon the minds of The Queen's subjects
Her Majesty's ued determination to maintain the connexion now subsist-
ing between them and the United Kingdom, and to exercise the high

^In 1853 die Britiah Parliament recognized that the Parliament of Canada had
the rii^t to settle the question of the Clergr Resenres, provided that respect was given
to all vested interests. In 1854, the Canadian Parliament passed a measure (18 Vic-
toria, c. 2), under the guidance of Attomev-General John A. Macdonald, by which the
cxistinff cuims of the clergy were made a first charge on the funds, the Muance being
dividea among the municipalities according to population. (See L§g%tla*W€ Attimblj
Jomm^ls, Cmn^dm, 1854-5, pp. 193 ff.)

522 Constitutional Documents of Canada. [179M84C

authority with which She has been invested by the favour of Divine Pro-
vidttce, for the promotion of their happiness and the security of her
dooiinions.

I have, etc.,

(Signed) J. Russell.

CXUII

RUSSELL TO POULETT THOMSON

[Trans.: Imperial Blue Books relating to Catutda, VoL XIII.]

Downing Street,

IMh October, 1839.
Sir,

It appears from Sir George Arthur's despatches that you may encounter
much difficulty in subduing the excitement which prevaUs on the question
of what is called "Responsible Government" I have to instruct 3rou, how-
ever, to refuse any explanation which may be construed to imply is
acquiescence in the petitions and addresses upon this subject I cannor
better commence this despatch than by a reference to the resolutions of
both houses of Parliament, of the 28th April and SHh May, in the y^r 1837.

The Assembly of Lower Canada having reputedly pressed this point
Her Majesty's confidential advisers at that period diought it necessan
not only to explain their views in the conmtiunications of the Secretary of
State, but expressly called for the opinion of Parliament on the subjea
The Crown and the two houses of Lords and Conunons having thm
decisively pronounced a judgment upon the question, you will consider
yourself precluded from entertaining any proposition on the subject

It does not appear, indeed, that any very definite meaning is general^
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 prove the cause of embarrassment and danger.

The constitution of England, after long struggles and alternate success
has settled into a form of government in* which the prerogative of ^
Crown is undisputed, but is never exercised without advice. Hence tbe
exercise only is questioned, and however the use of the authority may be
condemned, the authority itself remains untouched.

This is the practical solution of a great problem, the result of a conte*:
which from 1640 to 1690 shook the monarchy, and disturbed the peace of
the country.

But if we seek to apply such a practice to a colony, we shall at once
find ourselves at fault The power for which a minister is responsible Id
England, is not his own power, but the power of the Crown, of which he
is for the time the organ. It is obvious that the executive councillor of a
colony is in a situation totally different The Governor under whom he
serves, received his orders from the Crown of England. But can the
colonial council be the advisers of the Crown of England? Evidently not*
for the Crown has other advisers, for the same functions, and with superior
authority.

It may happen ,therefore, that the Governor receives at one and the
same time instructions from the Queen, and advice from his executive
council, totally at variance with each other. If he is to obey his instmc*
tions from England, the parallel of constitutional responsftility entireb
fails ; if, on the other hand, he is to follow the advice of his councfl, he is
no longer a subordinate officer, but an independent sovereign.

There are some cases in which the force of these objections is so mani-
fest, that those who at first made no distinction between the constitution
of the United Kingdom, and that of the colonies, admit their strength.
I allude to the questions of foreign war, and international relatione,
whether of trade or diplomacy. It is now said that internal government is
alone intended.

But there are some cases of internal government, m which the bonov

1791-1840] Constitutional Documents of Canada. 523

of the Crown or the faith of Parliament, or the safety of the state, are $o
seriously involved, that it would not be possible for Her Majesty to dele-
gate her authority to a ministry in a colony.

I will put for illustration some of the cases which have occurred in
that very province where the petition for a responsible executive first
arose — I mean Lower Canada.

During the time when a large majority of the assemjily of Lower
Canada followed M. Papineau as their leader, it was obviously the aim
of that gentleman to discourage all who did their duty to the Crown within
the province, and to deter all who should resort to Canada with British
habits and feelings from without. I need not say that it would have been
impossible for any minister to support, in the Parliament of the United
Kingdom, the measures which a ministry, headed by M. Papineau, would
have imposed upon the Governor of Lower Canada; British officers pun-
ished for doing their duty ; British emigrants defrauded of their property ;
British merchants discouraged in their lawful pursuits — would have loudly
appealed to Parliament against the Canadian ministry, and would have
demanded protection.

Let us suppose the Assembly as then constituted, to have been sitting
when Sir John Colbome suspended two of the judges. Would any coun-
cillor, possessing the confidence of the Assembly, have made himself
responsible for such an act? And yet the very safety of the province
depended on its adoption. Nay, the very orders of which your Excellency
is yourself the bearer, respecting Messrs. Bedard and Panet, would never
be adopted, or put in execution by a ministry depending for existence on
a majority led by M. Papineau.

Nor can anyone take upon himself to say that such cases will not
again occur. The principle once sanctioned, no one can say how soon its
application might be dangerous, or even dishonourable, while all will agree
that to recall the power thus conceded would be impossible.

While I thus see insuperable objections to the adoption of the principle
as it has been stated, I see little or none to the practical views of colonial
government recommended by Lord Durham, as I understand them. The
Queen's Government have no desire to thwart the representative assemblies
of British North America in their measures of reform and improvement.
They have no wish to make those provinces the resource for patronage at
home. They arc earnestly intent on giving to the talent and character of
leading persons in the colonies, advantages similar to those which talent
and character, employed in the public service, obtain in the United King-
dom. Her Majesty has no desire to maintain any system of policy among
her North American subjects which opinion condemns. In receiving the
Queen's commands, therefore, to protest against any declaration at vari-
ance with the honour of the Crown, and the unity of the empire, you are
at the same time instructed to announce Her Majesty's gracious intention
to look to the affectionate attachment of her people in North America,
as the best security for permanent dominion.

It is necessary for this purpose that no official misconduct should be
screened by Her Majesty's representative in the provinces; and that no
private interests should be allowed to compete with the general good.

Your Excellency is fully in possession of the principles which have
guided ERer Majesty's advisers on this subject; and you must be aware that
there is no surer way of earning the approbation of The Queen, than by
maintaining the harmony of the executive with the legislative authorities.

While I have thus cautioned you against any declaration from which
dangerous consequences might hereafter How, and instructed you as to the
general line of your conduct, it may be said that I have not drawn any
specific line beyond which the power of the Governor on the one hand,
and the privileges of the Assembly on the other, ought not to extend. But
this must be the case in any mixed government. Every political constitu-
tion in which different bodies share the supreme power, is only enabled to
exist by the forbearance of those among whom this power is distributed.
In this respect the example of England may well be imitated. The sove-

/

524 Constitutional Documents of Canada. [1791-184^

reign using the prerogative of the Crown to the utmost extent, and th^
House of Commons exerting its power of the purse, to carry all its resoln
tions into immediate effect, would produce confusion in the country in lesj
than a twelve-month. So in a colony: the Governor thwarting, cveq
legitimate proposition of the Assembly; and the Assembly continualli
recurring to its power of refusing supplies, can but disturb all politica
relations, embarrass trade, and retard the prosperity of the people. Eacl
must exercise a wise moderation. The Governor must only oppose thi
wishes of the Assembly where the honour of the Crown , or the interest!
of the empire are deeply concerned; and the Assen^ly must be ready ti
modify some of its measures for the sake of harmony, and from a reveren
attachment to the authority of Great Britain.

I have, etc., '

(Signed) J. Russell,

CXLIV

RUSSELL TO POULETT THOMSON

[Trans. : Imperial Blue Books relating to Canada, Vol. XIII.] |

Downing Street, '

16** October, 1839.
Sir,

I am desirous of directing your attention to the tenure on which public
offices in the gift of the Crown appear to be held throughout the British
Colonies. I find that the governor himself and every person serving^ under
him are appointed during the royal pleasure, but with this important dif-
ference. The Governor's commission is, in fact, revoked whenever the
interests of the public service are supposed to require such a change in the|
administration of local affairs. But the commissions of all other public
officers are very rarely indeed recalled, except for positive misconduct
I cannot learn that during the present or the two last reigns, a sing^le in-
stance has occurred of a change in the subordinate colonial omcers, except
in cases of death or resignation, incapacity or misconduct This system o(
converting a tenure at pleasure into a tenure for life, originated probably
in the practice, which formerly prevailed, of selecting all the higher class
of colonial functionaries from persons who, at the time of their appoint-
ment, were resident in this country; and, amongst other motives which
afforded such persons a virtual security for the continued possession cf
their places, it was not the least considerable, that, except on those terms,
they were unwilling to incur the risk and expense of transferring^ their
residence to remote, and often to unhealthy climates. But the habit which
has obtained of late years of preferring, as far as possible, for places of
trust in the colonies, persons resident there, has taken away the strongest
motive which could thus be alleged in favour of a practice to which there
are many objections of the greatest weight. It is time, therefore, that a
different course should be followed, and the object of my present com-
munication is to announce to you the rules which will be hereafter ob-
served oti this subject in the province of Lower Canada.

You will understand, and will cause it to be made generally known.
that hereafter the tenure of colonial offices held during Her Majesty's
pleasure, will not be regarded as equivalent to a tenure during good beha
viour; but that not only will such officers be called upon to retire from
the public service as often as any sufficient motives of public policy may
suggest the expediency of that measure, but that a change in the person
of the governor will be considered as a sufficient reason for an^ alterations
which his successor may deem it expedient to make in the list of public
functionaries, subject of course to the future confirmation of the sovereiga

These remarks do not extend to judicial offices, nor are they meant to
apply to places which are altogether ministerial, and which do not devolve
upon the holders of them duties, in the right discharge of which the char-

/^91-1840] Constitutional Documents of Canada, 525

:ter and policy of the government are directly involved. They are in-
nded to apply rather to the heads of departments than to persons serving
} clerks or in similar capacities under them. Neither do they extend to
ficers in the service of the Lords Commissioners of the Treasury. The
inctionaries who will be chiefly, though not exclusively, affected by them,
:e the Colonial Secretary, the Treasurer, or Receiver-General, the Sur-
jyor-General, the Attorney and Solicitor-General, the Sheriff or Provost
[arshal, and other officers, who, under different designations from these
re entrusted with the same or similar duties. To this list must also be
Ided the members of the council, especially in those colonies in which the
egislative and Executive Councils are distinct bodies.

The application of these rules to officers to be hereafter appointed will
e attended with no practical difficulty. It may not be equally easy to
iforce them in the case of existing officers, and especially of those who
lay have left this country for the express purpose of accepting the offices
icy at present fill. Every reasonable indulgence must be shown for the
^pectations which such persons have been encouraged to ^orm. But even
I these instances it will be necessary that the right of enforcing these
^gulations should be distinctly maintained in practice, as well as in theory,
> often as the public good may clearly demand the enforcement of them.
: may not be unadvisable to compensate any such officers for their dis-
>pointment, even by pecuniary grants, when it may appear unjust to dis-
snse with their services without such an indemnity.

I have, etc.,

(Signed) J. Russell.

CXLV

POULETT THOMSON TO RUSSELL

[Trans. : Imperial Blue Books Relating to Canada, 1839-40, Vol. XI I. J

Government House, Montreal,
ISth November, 1839.
[y Lord,

1 have the honour to inform your Lordship, that having summoned
le Special Council by proclamation to meet on Monday, the 11th instant,
then submitted to them the question of the re-union of the two provinces
I Upper and Lower Canada, and solicited their opinion respecting it.

On Thursday, the 14th instant, I received from that body the address
I which, and of my answer, I have the honour to enclose copies; and I
icewise transmit an extract from the journals, from which your Lordship
ill learn their proceedings.

I, beg your Lordship to remark, that the members composing the
pecial Council remain the same as during the administration of my pre-
icessor. It may be necessary hereafter, in the exercise of my discretion,
) make some alterations, with a view to increase the efficiency of that
3dy; but I felt, that as the opinions of Her Majesty's Government in
jgard to the union are well known, it was extremely desirable that I
lould, if possible, submit the consideration of that important question to
Council in whose selection I had myself had no voice.

It appeared to me that to secure due weight in the mother country to
le judgment of a body so constituted, it was indispensable to avoid even
le possibility of an imputation that I had selected for its members those
ily whose opinions coincided with my own.

I had moreover every reason to believe, from the motives which guided
ly predecessor in his choice, that the Council contains a very fair repre-
mtation of the state of feeling in the different districts of the province.

For these reasons I determined on making no alteration whatever;
id it is with great satisfaction that I can now refer to the opinions of this
3dy adopted almost unanimously. Their views as to the wrgency. of the
tiion, and the advantages likely to result from it to the province, are set

526 Constitutional Documents af Canada. [1791-1840

forth in their address in terms so forcible as to leave me nothing to say
with reference to their opinion. But I must add, that it is my decided
conviction, grounded upon such other opportunities as I have enjoyed since
my arrival m this country of ascertaining the state of public feeling, that
the speedy adoption of that measure by Parliament is indispensable to the
future peace and prosperity of this province.

All parties look with extreme dissatisfaction at the present state ot
government. Those of British origin, attached by feeling and education to
a constitutional form of Government, although they acquiesced at the time
in the establishment of arbitrary power, as a refuge from a yet worse
despotism, submit with impatience to its continuance, and regret the loss,
through no fault of their own, of what they consider as their birthright.
Those of the French Canadians who remained loyal to their Sovereign and
true to British connexion share the same feelings. Whilst among those
who are less well-affected or more easily deceived, the suspension of all
constitutional rights affords to reckless and unprincipled agitators a con-
stant topic of excitement.

All parties therefore, without exception, demand a change. On the
nature of that change there exists undoubtedly some difference of opinion.

In a country so lately convulsed, and where passions are still so much
excited, extreme opinions cannot but exist; and accordingly, while some
persons advocate an immediate return to the former constitution of this
province, others propose either the entire exclusion from political privil-
eges of all of French origin, or the partial dismemberment of the province,
with the view of conferring on one portion a representative system, while
maintaining in the other a despotism.

I have observed, however, that the advocates of these widely different
opinions have generally admitted them to be their aspirations, rather than
measures which could practically be adopted, and have been unable to sug-
gest any course except the union, by which that at which they aim, namely,
constitutional government for themselves, could be permanently and safely
established. There exists, too, even amongst these persons, a strong and
prevailing desire that the Imperial Legislature should take the settlement
of Canadian affairs at once into its own hands rather than that it should be
delayed by a reference to individual opinions, or to the schemes which may
be put forward by different sections of local parties.

The large majority, however, of those whose opinions I have had the
opportunity of learning, both of British and French origin, and of those,
too, whose character and station entitle them to the greatest authority,
advocate warmly the establishment of the union, and that upon terms of
perfect fairness, not merely to the two provinces, but to the two races
within this province. Of the extent to which this feeling, with regard to
the upper province is carried, your Lordship will find a most conclusive
proof in the resolution of the Special Council respecting the debt of Upper
Canada. By this resolution a large sum, owing by that province on account
of public works of a general nature, is proposed to be charged on the joint
revenues of the United Province. Upon other details of the arrangement
the same feeling prevails. It would be, however, useless for me to trouble
your Lordship with respect to them, until I have had the opportunity of
ascertaining the views and opinions entertained by the people of Upper
Canada. If, however, as I trust, the principle of re-union should meet with
their assent, I am of opinion that it can only be in consequence of demands
of an unwarrantable character upon their part, that difficulty will arise in
settling the principal terms.

I have, etc.,

(Signed) C. Poulett Thomson.

ENCLOSURE I

To his Excellency the Right Honourable Charles Poulett Thomson, one ot
Her Majesty's most Honourable Privy Council, Governor-General of
British North America, and Captain-General, and Govemo?-in-Chief.
in and over the Provinces of Lower Canada and Upper Canada, Nova

1791-1840] Constitutional Documents of Canada. 527

Scotia, New Brunswick, and the Island of Prince Edward, and Vice-

Admiral of the same.
May it please your Excellency,

We, Her Majesty's dutiful and loyal subjects, the Special Council for
the affairs of Lower Canada, at a meeting convened by your Excellency,
under the authority and in pursuance of the statute in this behalf provided,
beg leave respectfully to return to your Excellency our thanks for youi
considerate care of the interests of this province, in having called our
attention to Her Majesty's gracious message to both Houses of the Imperial
Parliament, relative to the reunion of the provinces of Upper and Lower
Canada, upon which important subject your Excellency has been pleased
to desire the opinion of the Special Council.

In conformity with the desire of your Excellency, we have applied our
deliberate consideration to the various complex interests and objects m-
volved in the measure of reuniting the two provinces, and we most heartily
express our humble gratitude to Her Majesty, for having granted her high
sanction to a measure, which from our local knowledge and the experience
we have had of the government of these provinces, and of their past and
present political state, we deem to be essential to their future peace and
welfare, and for the good, constitutional, and e£Bcient government of them,
under the protecting care and authority of Her Majesty, and the adoption
of which we are intimately convinced has become of indispensable and
urgent necessity.

In considering this contemplated measure, we have directed our atten-
tion to a few of the more prominent and important provisions, fit, as we
conceive, to be embraced in it; and the views entertained by us on them,
as well as on the measure itself, we have embodied in certain resolutions,
which we have now the honour humbly to submit to your Excellency, as
containing our opinion on the important subject, respecting which it has
pleased your Excellency to consult us.

(Signed) J. Stuart^ Chairman.

Special Council, Montreal,

14** November, 1839.

ENCXOSURE II

special Council,
Wednesday f \Zth November, 1839.

Resolved — ^That under existing circumstances, in order to provide
adequately for the peace and tranquillity, and the good, constitutional, and
efficient government of the provinces of Upper and Lower Canada, the
reunion of these provinces under one legislature, in the opinion of this
Council, has become of indispensable and urgent necessity.

Resolved — ^That the declared determination of Her Majesty, conveyed
in Her gracious message to Parliament to reunite the provinces of Upper
and Lower Canada, is in accordance with the opinion entertained by this
Council, and receives their humble and ready acquiescence.

Resolved — That among the principal enactments, which, in the opinion
of this Council, ought to make part of the Imperial Act for reuniting the
provinces, it is expedient and desirable that a suitable civil list should be
provided for securing the independence of the judges, and maintaining the
executive government in the exercise of its necessary and indispensable
functions.

Resolved — That regard being had to the nature of the public debt of
Upper Canada, and the objects for which principally it was contracted,
namely, the improvement of internal communications, alike useful and
beneficial for both provinces, it would be just and reasonable, in tiie opinion
of this Council, that such part of said debt, as has been contracted for this
object, and not for def raymg expenses of a local nature, should be charge-
able on the revenues of both provinces.

Resolved — ^That the adjustment and settlement of the terms of the
reunion of the two provinces, may, in the opinion of this Council, with all
confidence be submitted to the wisdom and justice of the Imperial Parlia-

526 Constitutional Documents af Canada, [1791-1840

forth in their address in terms so forcible as to leave me nothing to say
with reference to their opinion. But I must add, that it is my decided
conviction, grounded upon such other opportunities as I have enjoyed since
my arrival m this country of ascertaining the state of public feeling, that
the speedy adoption of that measure by Parliament is indispensable to the
future peace and prosperity of this province.

All parties look with extreme dissatisfaction at the present state ot
government Those of British origin, attached by feeling and education to
a constitutional form of Government, although they acquiesced at the time
in the establishment of arbitrary power, as a refuge from a yet worse
despotism, submit with impatience to its continuance, and regret the loss,
through no fault of their own, of what they consider as their birthright.
Those of the French Canadians who remained loyal to their Sovereign and
true to British connexion share the same feelings. Whilst among those
who are less well-affected or more easily deceived, the suspension of all
constitutional rights affords to reckless and unprincipled agitators a con-
stant topic of excitement.

All parties therefore, without exception, demand a change. On the
nature of that change there exists undoubtedly some difference of opinion.

In a country so lately convulsed, and where passions are still so much
excited, extreme opinions cannot but exist; and accordingly, while some
persons advocate an immediate return to the former constitution of this
province, others propose either the entire exclusion from political privil-
eges of all of French origin, or the partial dismemberment of the province,
with the view of conferring on one portion a representative system, while
maintaining in the other a despotism.

I have observed, however, that the advocates of these widely different
opinions have generally admitted them to be their aspirations, rather than
measures which could practically be adopted, and have been unable to sug-
gest any course except the union, by which that at which they aim, namely,
constitutional government for themselves, could be permanently and safely
established. There exists, too, even amongst these persons, a strong and
prevailing desire that the Imperial Legislature should take the settlement
of Canadian affairs at once into its own hands rather than that it should be
delayed by a reference to individual opinions, or to the schemes which may
be put forward by different sections of local parties.

The large majority, however, of those whose opinions I have had the
opportunity of learning, both of British and French origin, and of those,
too, whose character and station entitle them to the greatest authority,
advocate warmly the establishment of the union, and that upon terms of
perfect fairness, not merely to the two provinces, but to the two races
within this province. Of the extent to which this feeling, with regard to
the upper province is carried, your Lordship will find a most conclusive
proof in the resolution of the Special Council respecting the debt of Upper
Canada. By this resolution a large sum, owing by that province on accomit
of public works of a general nature, is proposed to be charged on the joint
revenues of the United Province. Upon other details of the arrangement
the same feeling prevails. It would be, however, useless for me to trouble
your Lordship with respect to them, until I have had the opportunity of
ascertaining the views and opinions entertained by the people of Upper
Canada. If, however, as I trust, the principle of re-union should meet with
their assent, I am of opinion that it can only be in consequence of demands
of an unwarrantable character upon their part, that difficulty will arise in
settling the principal terms.

I have, etc.,

(Signed) C. Poulett Thomson.

ENCLOSURE I

To his Excellency the Right Honourable Charles Poulett Thomson, one ot
Her Majesty's most Honourable Privy Council, Governor-General of
British North America, and Captain-General, and Govemo?-in-Chicf.
in and over the Provinces of Lower Canada and Upper Canada, Nova

791-1840] Constitutional Documents of Canada, 527

Scotia, New Brunswick, and the Island of Prince Edward, and Vice-

Admiral of the same,
if ay it please your Excellency,

We, Her Majesty's dutiful and loyal subjects, the Special Council for
he affairs of Lower Canada, at a meeting convened by your Excellency,
mder the authority and in pursuance of the statute in this behalf provided,
>eg leave respectfully to return to your Excellency our tiianks for youi
onsiderate care of the interests of this province, in having called our
ttention to Her Majesty's gracious message to both Houses of the Imperial
Parliament, relative to the reunion of the provinces of Upper and Lower
Canada, upon which important subject your Excellency has been pleased
0 desire the opinion of the Special Council.

In conformity with the desire of your Excellency, we have applied our
leliberate consideration to the various complex interests and objects m-
olved in the measure of reuniting the two provinces, and we most heartily
xpress our humble gratitude to Her Majesty, for having granted her high
anction to a measure, which from our local knowledge and the experience
/e have had of the government of these provinces, and of their past and
resent political state, we deem to be essential to their future peace and
welfare, and for the good, constitutional, and efficient government of them,
inder the protecting care and authority of Her Majesty, and the adoption
•f which we are intimately convinced has become of indispensable and
irgent necessity.

In considering this contemplated measure, we have directed our atten-
ion to a few of the more prominent and important provisions, fit, as we
onceive, to be embraced in it; and the views entertained by us on them,
s well as on the measure itself, we have embodied in certain resolutions,
irhich we have now the honour humbly to submit to your Excellency, as
ontalning our opinion on the important subject, respecting which it has
leased your Excellency to consult us.

(Signed) J. Stuart, Chairman.

Special Council, Montreal,

I4th November, 1839.

ENCLOSURE 11

Special Council,
Wednesday^ Uth November, 1839.

Resolved — ^That under existing circumstances, in order to provide
dequately for the peace and tranquillity, and the good, constitution^, and
fficient government of the provinces of Upper and Lower Canada, the
eunion of these provinces under one legislature, in the opinion of this
Council, has become of indispensable and urgent necessity.

Resolved — ^That the declared determination of Her Majesty, conveyed
n Her gracious message to Parliament to reunite ^e provinces of Upper
nd Lower Canada, is in accordance with the opinion entertained by tiiis
Council, and receives their humble and ready acquiescence.

Resolved — ^That among the principal enactments, which, in the opinion
f this Council, ought to make part of the Imperial Act for reuniting the
•rovinces, it is expedient and desirable that a suitable civil list should be
rovided for securing the independence of the judges, and maintaining the
xecutive government in the exercise of its necessary and indispensable
unctions.

Resolved — That regard being had to the nature of the public debt of
Jpper Canada, and the objects for which principally it was contracted,
tamely, the improvement of internal communications, alike useful and
eneficial for both provinces, it would be just and reasonable, in tiie opinion
•f this Council, that such part of said debt, as has been contracted for this
ibject, and not for defraying expenses of a local nature, should be charge-
ble on the revenues of both provinces.

Resolved — ^That the adjustment and settlement of the terms of the
eunion of the two provinces, may, in the opinion of this Council, with all
onfidence be submitted to the wisdom and justice of the Imperial Parlia-

528 Constitutional Documents of Canada, [1791-1840

ment, under the full assurance that provisions of the nature of those
already mentioned, as well as such others as the measure of reunion may
require, will receive due consideration.

Resolved — ^That in the opinion of this Council, it is most expedient with
a view to the security of Her Majesty's North American provinces, and
the speedy cessation of the enormous expense now incurred by tht parent
state for the defence of Upper and Lower Canada, that the present tem-
porary legislature of this province should, as soon as practicable, be suc-
ceeded by a permanent legislature, in which the people of these two
provinces may be adequately represented, and their constitutional rights
exercised and maintained.

CXLVI
POULETT THOMSON TO A FRIEND

[Trans.: G. Poulett Scrope, Memoir of the Life of the Rt. Honourable
Charles, Lord Sydenham, (2nd Edn., London, 1844.]

Toronto, November 20th and December 8th, 1859.

I have succeeded in Lower Canada in far less time and with greater
ease than I could have expected from Sir John Colbome's account to me
of the state of feeling, especially in his own council. The fact is, that his
council ran riot, and did not know how to proceed. I have given them my
opinion strongly, at the same time that I expressed my willingness to hear
and give due weight to theirs. This course has shortened business (for
there is a strong wish to be guided by the Home Government), and pro-
duced unanimity. So far, therefore, as the Lower Province is concerned,
I look upon the Union as settled. The decision, too, I have reason to know,
gives the greatest satisfaction to the Province generally ,and nearly all arc
prepared to accept the measure, if it can be carried through Parliament.
with the utmost cordiality. The fact is, that all parties there are dead-sick
of the present state of things, and desire a return to Coastituional Govern-
men. Of course the extremes have their different crotchets for arriving
at this end. The ultra-French desire an immediate return to the old Con-
stitution. The ultra-British the disfranchisement of the French Canadians.
But even they have been satisfied, I believe, by a little management and a
good deal of firmness, that both were equallv out of the question, and have
now joined with the great mass who hold the middle opinion in favour of
the Union measure. The "Canadian" and the "Montreal Herald" lie down
together upon this point. In short, the unanimitv is wonderful.

I have now the Upper Province to deal with, which will, I fear, be a
more difficult matter. But I do not despair; and certainly, so far as all
the real interests of the country are concerned, the Union is far more
necessary to Upper Canada than to the other. If it were possible, the best
thing for Lower Canada would be a depotism for ten vears more ; for, in
truth the people are not yet fit for the higher class of self-government—
scarcely indeed, at present, for any description of it ; and by carrying one-
self the measures which a House of Assembly will probablv never carry,
one might g^dually fit them for both, and at all events, leave them an
amount of good institutions which the United Legislature, when it came,
could not destroy. But in Upper Canada the case, as it appears to me, is
widely different. The state of things here is far worse than I had expected.
The country is split into factions animated with the most deadly hatred
to each other. The people have got into the habit of talking so mncfa of
separation, that they begin to believe in it. The Constitutional party is as
bad or worse than the other, in spite of all their professions of loyalty.
The finances are more deranged than we believed even in England. The
deficit, £75,000 a year, more than equal to the income. All public works
suspended. Emigration going on fast from the province. Every man's pro-
perty worth only half what it was. When I look to the state of Govern-
ment, and to the departmental admitaistration of the province, instead of

\

1791-1840] Constitutional Documents of Canada. 529

beiiiff surprised at the condition in which I find it, I am only astonished it
has been endured so long. I know that, much as I dislike Yankee insti-
tutions and rule, I would not have fought against them, which thousands
of these poor fellows, whom the Compact call rebels, did, if it were only to
keep up sudi a Government as they got. The excitement upon "Responsible
Government" is g^eat. Not that I believe the people understand what they
are clamouring for by that word ; but that they feel the extreme uneasiness
of their situation, owing to the financial embarrassments ,and hate the
dominant party in the Government with intense hatred. I do not wonder
at the cry for Responsible Government, when I see how things have been
managed.

Then the Assembly is such a House ! Split into half a dozen different
parties. The Government having none — and no one man to depend ont
Think of a House in which half the members hold places, yet in which the
Government does not command a single vote; in which the placemen
generally vote against the Executive ; and where there is no one to defend
the Government when attacked, or to state the opinion of views of the
Governor! How, with a popular assembly. Government is to be conducted
under such circumstances is a riddle to me. I am now more than ever
satisfied that the Union affords the only chance of putting an end to the
factions that distract the country ; the only means of recruiting its finances
by persuading Great Britain to help the Upper Canada Exchequer; the
only means by which the present abominable system of government can be
broken up, and a strong and powerful administration, both departmental
and executive, be formed. And unless the people will assent to the general
outline of it, and Parliament will then carry the details, upon whidi they
would never agree, with a high hand, the province is lost. From all that I
can heap or see, I would not give a year's purchase for our hold of it, if
some great stroke is not given which shall turn men's thoughts from the
channel in which they now run, and give a fresh impetus to public works,
emigration, and the practical improvement of the country's resources.

It is indeed a pity to see this province in such a state. It is the finest
country I ever knew, even what I have seen of it in a circle of thirty or
forty miles from here; and by the accounts I receive the upper part is
even superior. Lower Canada is not to be named in comparison. The
climate, the soil, the water-power, and facilities of transport, finer than
anything in North America.

Whether in their present state of violent excitement I shall be able to
persuade the people to come to reasonable terms, I cannot venture to say ;
but I am sure it is the last and only chance. After having brought — and
— ^to think that the French Canadians ought to have their full share of the
representation^ I shall not despair of anything. But what I hear, and have
as yet seen, of the House of Assemblv, is not encouraging. If they are not
willing, however, I shall appeal to the people without hesitation; for the
state of things admits of no delay, and no half measures.

CXLVII

POULETT THOMSON'S MESSAGE TO LEGISLATURE OF UPPER

CANADA

[Trans.: Christie, op cit. Vol. V.]

December 7th, 1859.

In pursuance of the intention expressed in his speech from the throne,
the Governor General desires now to bring under the con^deration of the
House of Assembly, the subject of the re-union of this Province with
Lower Canada, recommended by Her Majesty in her gracious message to
both Houses of Parliament on die third of May last.

For several years the condition of the Canadas has occupied a large

portion of the attention of Parliament. That they should be contented and

HH

530 Constitutional Documents of Canada. [1791-1840

prosperous — that the ties which bind them to the parent state should be
strengthened — ^that their administration should be conducted in accordance
with the wishes of the people, is the ardent desire of every British* states-
man— ^and the experience of the last few years amply testifies that tfie
Imperial Parliament has been sparing neither of the time it has devoted to
the investigation of their affairs, nor of the expenditure it has sanctioned
for their protection.

The events which have marked the recent history of Lower Canada,
are so familiar to the House of Assembly, that it is unnecessary for the Gov-
ernor General further to allude to them. There, the constitution is sus-
pended, but the powers of the Government are inadequate to permit of the
enactment of such permanent laws as are required for the benefit of the
people.

Within this Province the finances are deranged — ^public improvements
are suspended — ^private enterprise is checked — ^the tide of emigration sp
essential to the prosperity of the country and to the British connexion, has
ceased to flow — ^while by many, the general system of Government is de-
clared to be unsatisfactory.

After the most attentive and anxious consideration of the state of these
Provinces, and the difficulties under which they respectively labour, Her
Majestvs' advisers came to the conclusion, that by their re-union alone
could those difficulties be removed. During the last session of the Imperial
Le^slature they indeed refrained from pressing immediate legislation, but
their hesitation proceeded from no doubt as to the measure or its necessity.
It arose solely to ascertain more fully the opinions of the Legislature of
Upper Canada, and to collect information from which the details might be
rendered more satisfactory to the people of both Provinces.

The time then is now arrived beprond which a settlement cannot be
postponed. In Lower Canada it is indispensable to afford a safe and prac-
ticable return to a constitutional government, and so far as the feelings of
the inhabitants can be there ascertained, the measure of the re-union meets
with approbation.

In Upper Canada it is no less necessary, to enable the Province to meet
her financial embarrassments, and to proceed in the development of hei
natural resources. There are evidently no means in this Province of ful-
filling the pecuniary obligations which have been contracted, but by a
great increase in the local revenues. But so long as Lower Canada remains
under her present form of Government, neither Province possesses any
power over the only source from which that increase can be drawn. Nor
even, were it possible to restore a representative constitution to Lower
Canada, unaccompanied by the union, would the position of this Province
be much improved; since past experience has shown the difficulty of pro-
curing assent to any alteration of the customs laws suggested from hence.

This Provjnce has engaged in undertakings, which reflect the highest
honour on the enterprise and industry of her inhabitants. The public
works which she has completed or commenced, have been conceived in a
spirit worthy of a successful result. But additional means are indispens-
able to avert the ruin of some, and secure the completion of others. Nor
will that alone suffice; Lower Canada holds the key to all those improve-
ments. Without her co-operation, the navigation for which nature has
done so much and for which this Province has so deeply burthened itseff.
must remain incomplete, and a barrier be opposed to the development of
those great natural resources which the hano of Providence has so lavishly
bestowed on this country.

With a view to remove all those difficulties: to relieve the financial
embarrassments of Upper Canada: to enable her to complete her public
works and develop her agricultural capabilities: to restore constitutiooll
government to Lower Canada: to establish a firm, impartial, and vigorous
government for both ; and to unite the people within them in one common
feeling of attachment to British institutions and British connexion, the
union is desired by Her Majesty's Government; and that measure alone,
if based upon just principles, appears adequate to the occasion.

1791-1840] CotisHtutional Documents of Canada, 531

Those principles, in the opuiion of Her Majesty's advisers, are, a jnst ^
resard to the claims of either Province in adjusting the terms of the anion ^
— ^Qie maintenance of the three estates of the Provincial Legislature; — the ^..
settlement of a permanent civil list for securing the independence of the
judges and to the executive government that freedom of action which is ^•
necessary for the public good, and the establishment of a system of local
government adapted to the wants of the people.

It was with great satisfaction then that Her Majesty's Government
learnt that upon the question of the union itself the House of Assembly
had pronounced their decided judgment during their last session; and it
will only remain for the Governor General now to invite their assent to the
terms upon which it is sought to be effected. Their decision was indeed
accompanied W recommendations to which the government could not
agree ; but the Governor General entertains no doubt that, under the altered
circumstances, they will no more be renewed. It will be for the Imperial
Parliament, guided bv their intimate knowledge of constitutional law, and,
free from the bias of local feelings and interests, to arrange the details of
the measure.

The first of the terms of re-union, to which the Governor General
desires the assent of the House of Assembly, is equal representation of
each Province in the united legislature. Considering the amount of the
population of Lower Canada, this proposition miriit seem to place that
Province in a less favourable position dian Upper Canada ; but, under the
circumstances in which this Province is placed, with the increasing popu-
lation to be ex]>ected from immigration, and having regard to the com-
merdal and agricultural enterprise of its inhabitants, an equal apportion-
ment of representation appears desirable.

The second stipulation to be made is the grant of a sufficient civil list.
The propriety of rendering the Judicial bench independent alike of the
Executive and the Legislature, and of the furnishing the means of carrying *
on the indispensable services of the government admits of no question, and
has been affirmed by the Parliament of Upper Canada in the acts passed
b^ them for effecting those objects. In determining the amount of the
civil list, the House of Assembly may be assured that the salaries and
expenses to be paid from it will be csuculated by Her Majesty's Govern-
ment with a strict regard to economy and the state of the provincial
finances.

Thirdly, the Governor General is prepared to recommend to Parlia- ^
ment, that so much of the existing debt of Upper Canada, as has been con-
tracted for public works of a general nature, should, after the union, be
charged on the joint revenue of the United Province. Adverting to the
nature of the works for which this debt was contracted, and the advantage
which must result from them to Lower Canada, it is not unjust that that
Province should bear a proportion of their expenses.

On these principles, the Governor General is of opinion that a re-union
of the two Provinces may be effected — equitable and satisfactory in its
terms, and beneficial in its results to all classes. He submits them to the
consideration of the House of Assembly, in the full conviction of their
importance, and in the hope that they will receive the assent of that House.
Fortified by the expression of their opinion, Her Majesty's Government
and Parliament will be able at once to apply themselves to the full develoj)-
ment of the scheme, and to the consideration of the provisions by which ft
may be carried into effect with the greatest advantage to the people of
both Provinces.

If in the course of their proceedings, the House of Assembly should de-
sire any information which it is in the power of the Governor General to
afford, they will find him ready and anxious to communicate with them
franldy and fully, and to aid, by all the means in his power, that settlement
on which he firmly believes that the future prosperity and advancement of
these Colonies mainly depend.

532 ConstitutiofuU Documents of Canada, [1791-1840

CXLVIII

POULETT THOMSON TO A FRIEND

[Trans.: Scropc, op. cit]

December 12th, 1839.
I am not a bit afraid of the responsible government cry. I have already
done much to put it down in its inadmissible sense; namely, the demand
that the council shall be responsible to the assembly, and that the governor
shall take their advice, and be bound by it. In fact, this demand has been
made much more for the people than by thenk And I have not met with
anyone who has not at once admitted the absurdity of claiming to put the
council over the head of the governor. It is but fair, too, to say that every
thing has in past times been done by the different governors to excite the
feelings of the people on this question. First, the executive council has
generally been composed of the persons most obnoxious to the majority of
the assembly. And next, the governor has taken extreme care to make
executive council. So the people have been carefully taught to believe that
every act of his own go forth to the public on the responsibility of the
the governor is nobody, and the executive council the real power, and that
by the governor himself. At the same time they have seen that power placed
in the hands of their opponents. Under such a system it is not to be won-
dered at if our argument founded on the responsibility of the governor to
the home government falls to the ground. I have told the people plainly
that, as I cannot get rid of my responsibility to the home government, I
will place no responsibility on the council ; that they are a council for the
governor to consult, but no more. And I have 3ret met with no "responsible
government*' man who was not satisfied with the doctrine. In fact there is
no other theory which has common sense. Either the governor is the
sovereign or the minister. If the first, he may have ministers, but he can-
not be responsible to the government at home, and all colonial government
becomes impossible. He must therefore be the minister, in which case he
cannot be under the control of men in the colony.

CXLIX

RESOLUTIONS OF LEGISLATIVE COUNCIL OF UPPER

CANADA*

[Trans.: Imperial Blue Books relating to Canada, Vol. XII.]

December 14, 1839.

Resolved, 1 — ^That the events which have lately marked the history of
Lower Canada — ^the consequent necessity for a suspension of her constitu-
tion, and the inadequacy of the powers of Government existing there, for
the enactment of permanent laws, such as are required for the benefit of
the people, present a state of public affairs in the sister Province, deeply
to be deplored by this house, as well from a disinterested anxiety for the
welfare of a people so nearly connected with Upper Canada, as in con-
sideration of the injurious consequences resulting to this community, from
a continuance of the unsettled political condition of the Lower Province.

Resolved, 2 — That the present derangement of the finances of Upper
Canada — the total suspension of her public improvements — ^the paralyzed
condition of private enterprise — ^the cessation of immigration, and the
apparent impossibility of the removal of these evib, without the united
efforts of both the Canadian Provinces — make the adoption of some great
measure necessary, which will restore prosperity to the QinadaSp. and renew
confidence at home and abroad in the stability of their political institutions.

' These Resolutions were carried by a "large majority." They were sent to Eaglaad
with the document which follows ia an explanatory despatch xrom Thomson.

1791-1840] Constitutional Documents of Canada, 533

Resolved, 3 — That considering the hopelessness arising from past
experience, and from a view of the political condition of Lower Canada, of
ever realizing, in separate legislatures, the unity of feeling or action in
measurs effecting equally the interests of both provinces, on which the
prosperity or safety of either may essentially depend, a re-union of the
Provinces of Upper and Lower Canada has, in the opinion of this house,
become indispensable for the restoration of good government within these
colonies, and for the preservation of their institutions in connexion with
the parent state.

Resolved, ^That for these urgent reasons, the assent of this house be
expressed to the enactment of the important measure of re-union of the
Provinces of Upper and Lower Canada, recommended by Her Majesty to
both Houses of ParUament, and to the houses of the Provincial Legisla-
ture by His Excellency the Governor General ; and that such assent, on the
part of this house, be given on the following terms :

First — ^That there be an equal representation of each Province in the
United Legislature.

Secondly — ^That a sufficient permanent civil list be granted to Her Ma-
jesty, to enable Her Majesty to render the judicial bench independent alike
of executive power and popular influence, and to carry on the indispensable
services of government.

Thirdly — ^That the public debt of this Province, contracted for public
works of a general nature, shall, after the union, be charged on the joint
revenue of the united Province.

Resolved, 5 — ^That in yielding this ready concurrence to the measure of
the re-union of the provinces, strongly recommended by Her Majesty, the
Legislative Council of Upper Canada rely upon the wisdom and justice of
their most gracious Sovereign, and of Her Majesty's Parliament, for devis-
ing the details of the plan of re-union, and for the establishment of such
a system of government in the united Province, as will tend to the develop-
ment of its natural resources, and enable it, with the blessing of Divine
Providence to pursue steadily, and free from distractions by which the
country has lately been divided, the course of prosperity and happiness,
which the best interests of the people of Canada, and of the empire, alike
require not to be longer impeded.

CL

RESOLUTIONS OF THE HOUSE OF ASSEMBLY OF UPPER

CANADA

[Trans. : Imperial Blue Books relating to Canada, Vol. XII.]

December 23rd, 1838.
Resolved — ^That the House Assembly, at its last session, declared that,
in their opinion, a United Legislature for the Canadas, on certain terms,
was indispensable, and that further delay must prove ruinous to their best
interests, and that His Excellency the Governor General, by his message
to this house, has announced, that with a view to remove the difficulties of
these Provinces, to relieve the financial embarrassments of Upper Canada,
to enable her to complete her public works, and develop her agricultural
capabilities, to restore constitutional government to Lower Canada, to estab-
lish a firm, impartial, and vigorous government for both, and to unite the
people within them in one common feeling of attachment to British insti-
tutions and British connexion ; the legislative union of Upper and Lower
Canada has been recommended by Her Majesty to the Imperial Parlia*
ment ; and His Excellency the Governor General has invited the assent of
this house to certain specified terms, upon which the union may be estab-
lished. It, therefore, becomes the duty of the representatives of the people
of this Province carefully to consider the provisions by which this measure
may be carried into effect, with the greatest security to their future peace,

534 Constitutional Documents of Canada. [1791-1840

welfare and good fovenunent, and the permanent connexion of these
Colonies with the British empire.

Resohed, — ^That this house concur in the proposition that there be an
equal representation of each province in the United Legislature.

Resohed, — ^That this house concur in tiie proposition, that a snffideat
civil list be granted to Her Majesty, for securmg the independence of the
judges and to the Executive Government that freedom of action whidi is
ncessary for the public good. The jp^rant for the person administering the
Government, and for the Judges of the several Superior Courts to be per-
manent, and for the officers conducting the other departments of the piiblic
service, to be for the life of the sovereign, and for a period of not less
than ten vears.

Resohedr-Thzt the public debt of this Province shall after the union,
be charged on the joint revenue of the United Province.

CLI

ADDRESS FROM THE HOUSE OF ASSEMBLY OF UPPER

CANADA*

[Trans. : Imperial Blue Books relating to Canada, Vol. XII.]

January 13, 1840.
Most Gracious Sovereign:

We your Majesty's most dutiful and loyal subjects the Commons of
Upper Qmada, in Provincial Parliament assembled, beg permission to
approach your Majesty with renewed expression of our unwavering attach-
ment to your Majesty's royal person and government.

During the present session of your Provincial Parliament, a subject
more important than any that has ever engaged the attention of the repre-
sentatives of the people, has been brought under their consideration in pur-
suance of the commands of your Majesty, by your Majest/s Governor
General of these Provinces, namelv, the legislative re-union of Upper and
Lower Canada. In the message of His Excellency to the two branches of
the legislature, thev are informed that "after the most attentive and anxious
consideration of the state of these Provinces, and of the difficulties under
which they respectively labour, your Majesty's advisers came to the con-
clusion that by their re-union alone could these difficulties be removed: that
during the last session of the Imperial Legislature they refrained from
pressing immediate legislation, but their hesitation proceeded from no
doubt as to the principle of the measure, or its necessity; it arose solely
from the desire to ascertain more fully the opinions, of the legislature of
Upper Canada, and to collect information from which the detaOs might be
rendered more satisfactory to the people of both Provinces."

The House of Assembly deeply feel this additional proof of your
Majesty's solicitude for their happmess and prosperity; and it will ever be
held by them in grateful remembrance.

In pursuance of the message referred to, the House of Assembly lost
no time in taking into consideration three distinct propositions submitted
by your Majesty's Governor General as the basis on which the re-union
might be established, namely : First — equal representation of each Province
in the United Legislature: Secondly~-the grant of a sufficient dvil list;
and thirdly — ^that the public debt of this Province be charged on the joint
revenue of the United Province.

In the discussion of these propositions, it happened that some of the
members^ of this house apprehending the greatest danger to our dvil and
political institutions, and even to our connexion with the parent state, were

^Thit Addrett wu Knt to EnglMid hf TkooMon in a coTerinc de^atck ducd
18 January, 1840. The Gorernor-Gcneral cxptained tkat it was to be mteryretcd rather
"at some raggestiont" and not at oTcrriding tke cooaent already given to the vnioa
of the ProTincca.

1791-1840] Constitutional Documents of Canada, 535

opposed to the union on any. terms, wiule of those who supported the
measure, there were many who were not wholly free from apprehensions
as to the result, and who regarded it as a hazardous experiment, unless in
addition to terms submitted by the Governor General, certain details cal-
culated to secure their connexion with the Imperial crown, should accom-
pany their concurrence with the terms proposed. A majority, however^
Sve their unconditional assent to the propositions above mentioned, in the
Uest confidence, that your Majesty, in calling the attention of the Imperial
Parliament to the union, would at the same time recommend the adoption
of every necessary safeguard to the maintenance of British interests and
British supremacy. It is in this confidence that we now humbly submit to
your Majesty's most gracious consideration the following propositions,
which, in the opinion of this house, are calculated to secure the great end,
in expectation whereof the assent to the union was given:

And first, we respectfully entreat your Majesty, that the use of the
English language in all judiaal and legislative records be forthwith intro-
duced; and that at the end of a space of a given number of years, after
the union, all debates in the Legislature shsul be in English. And as a
matter of justice to your Majesty's subjects in Upper Canada, we earnestly
and confidently appeal to your Majesty, to admit their right to have the
seat of the Provincial Government established within this Province. It
cannot be denied to the people of this Colony, that if favour is to be shewn
to either Upper or Lower Canada, their claim stands pre-eminent; inde-
pendent of which, the moral and political advantages of the consession are
too obvious and undeniable to admit of dispute.

It is with the most sincere satisfaction that this house has received
from your Majesty's representative the assurance that the bill introduced
into the House of Commons during the last session of the Imperial Legis-
lature, is not to be "considered as embodying the provisions which may
hereafter be adopted by the Imperial Parliament" And, "that it His
Excellency's intention to recommend to Her Majesty's Government, in the
new measure that must be introduced, to adhere as much as possible to
existing territorial divisions for electoral purposes, and^ to maintain the
principle of the constitutional act of 1791, with regard to the tenure of seats
in the Legislative Council."

We would further respectfully submit the necessity of providing that
the members of the legislature should possess a stake in the country equal
to that now required by the laws of this Province, that, to the call of public
duty, that of private interest may be added, as an inducement to wise and
careful legislation ; and for this purpose we trust that a sufficient qualifica-
tion in real estate will be required from any person holding a seat in the
legislature.

We would also respectfully suggest to your Majesty the paramount
subject of emigration from the British Isles, which we consider the best
calculated to render the United Province British in fact as well as in
name. No time, in our humble opinion, should be lost, in the establishment
and vigorous prosecution of a well organized system of emigration, cal-
culated to afford every possible facility to the settlement of that extensive
domain, the proceeds of which have been proposed to be surrendered to
the cpntrol of the Provincial Legislature, upon certain terms and conditions,
which in Upper and Lower Canada is at present in right of the crown, at
your Majesty's disposal.

We have no desire to interfere unnecessarily in questions of detail,
which more immediately affect the sister Province; but we cannot omit
respectfully soliciting your Majesty's attention to the introduction of a
system of municipal government into Lower Canada, in order to provide
for local taxation, and under local management, oh the same principles as
have obtained in Upper Canada, where the system established by the Pro-
vincial Legislature, after repeated and careful revision, has in its operation
proved highly satisfactory to the people.

We would, lastly, desire humbly to assure your Majesty, that to the
principles on which our constitution has been established, to the representa-

536 Constitutional Documents of Canada. [1791-1840

tive mode of cpvemment under a monarchy, and to a permanent connexion
with the Brkish empire, and a dutiful allegiance to our Sovereign, the
people of Upper Canada most faithfully and firmly adhere.

It is only from apprehensions of danger on these most important mat-
ters, that doubt or difficulty has been felt in assenting to the union ; and we
therefore now humbly trust that your Majesty, fully acquainted with our
situation, will not confine your royal consideration to the claims that are
referred to in this address, or in any other proceeding of this house, but
that continuing to us that gracious and generous protection we have hither-
to experienced from your Majesty and the British nation, your Majesty
will add such future safeguards as in your wisdom may be thought neces-
sary and desirable to protect your faithful subjects in the peaceful enjoy-
ment of their laws and liberties, and to perpetuate their connexion with
your Majesty's crown and empire.

Allan N. Macnab, Speaker.
13th January, 1840.

CUI

POULETT THOMSON TO HOUSE OF ASSEMBLY OF UPPER

CANADA

[Trans. : Legislative Assembly of Canada, Journals (1841), App. BE.]

In answer to the address from the House of Assembly of the 13th De-
cember, respecting communications received from her MajestVs principal
Secretary of State on the subject of Responsible Government, the Governor
General regrets that it is not in his power to communicate to the House
of Assembly the de^atches upon the subject referred to.

The Governor General has received Her Majesty's commands to ad-
minister the Government of these Provinces in accordance with the well
understood wishes and interests of the people, and to pay to their feelings,
as expressed through their representatives, the deference that is justly due
to them.*

These are the commands of Her Majesty, and these are the views with
which Her Majesty's Government desire that the administration of these
Provinces should be conducted; and it will be the earnest and anxious
desire of the Governor General to discharge the trust committed to him, in
accordance with these principles.

CUII

THE UNION ACT, 184<f

(3 & 4, Victoria, c 35.)

An Act to re-unite the Provinces of Upper and Lower Canada, and for tht

government of Canada.

23rd July, 1840.

Whereas it is necessary that provision be made for the good govern-
ment of the Provinces of Upper and Lower Canada, in such manner as

> On 13 December, 1839, the House of Aasembly of Upper Canada aaked Tkomion
for copies of RusseU's despatdies on "responsible coremment." This document is the
reply to that address. Thomson merely quotes the despatch printed above (see No.
CaLII). On Auffust 17, 1841, in reply to an address from the LegislatiTe Assembly
of Canada, he laid copies of Russell's despatches before the House. They are printed
in LegitloHve Assembly of Canada, Journals (1841), App. BB. I have ooUated the
copies found in the Imperial Blue Books with those in the Journals,

* Poulett Thomson sent home a Bill for Union differing from the Bill of 1838 (see
pp. 551 ff. This Bill with some changes was passed 23 July, 1840. The Union came
into operation by a proclamation issued Feb. 5, 1841, and in the following Jtmc the
first Parliament of Canada met at Kingston. Sydenham died in the foUowmg Sep-
tember.

791-1840] Constitutional Documents of Canada. 537

lay secure the rights and liberties and promote the interests of all classes
f her Majest/s subjects within the same: And whereas to this end it is
xpedient that the said Provinces be reunited to form one Province for
be purposes of executive g^ovemment and legislation: Be it therefore
nacted by the Queen's Most Excellent Majesty, by and with the advice
nd consent of the Lords Spiritual and Temporal, and Commons, in the
resent Parliament assembled, and by authority of the same, that it shall Declaration
c lawful for her Majesty, with the advice of her Privy Council, to declare, **' U"***"*
r to authorize the Governor-General of the said two Provinces of Upper
nd Lower Canada to declare by proclamation that the said Provinces upon,
rom, and after a certain day in such proclamation to be appointed, which
ay shall be within fifteen calendar months next after the passing of this
kcty shall form and be one Province under the name of the Province ot
Canada, and thenceforth the said Provinces shall constitute and be one —
Vovince under the name aforesaid upon, from and after the day so ap-
ointed, as aforesaid.

II. And be it enacted that so much of an Act* passed in the session xcudl^G. 3,
f Parliament held in the thirty-first year of the reign of George the Third, c 3l!
itituled, "An Act to repeal certain parts of an Act passed in the fourteenth

ear of His Majesty's Reign, intituled 'An Act for making more effectual

^revision for the Government of the Province of Quebec in North Amer-

:a,' and to make further Provision for the Government of the said Pro-

ince," as provides for constituting and composing a Legislative Council

nd Assembly within each of the said Provinces respectively, and for the

laking of laws; and also ^e whole of an Act" passed in the session of

Parliament held in the first and second years of the reign of her present J ^**2^'"-»

ifajesty, intituled "An Act to make Temporary Provision for the Govern-

lent of Lower Canada;" and also the whole of an Act* passed in the

ession of Parliament held in the second and third years of the reign of her 2 and 3 Vic,

resent Majesty, intituled "An Act to Amend an Act of the last Session of *^- ^^•

Parliament for making Temporary Provision for the Government of Lower

Canada ;" and also the whole of an Act^ passed in the session of Parliament

eld in the first and second years of the reign of his late Majesty, King aomt a

Villiam the Fourth, intituled "An Act to amend an Act of the fourteenth J^^3^ ^ ^- *»

ear of His Majesty, King George the Third, for establishing a fund

awards defraying the Charges of the Administration of Justice and the

Support of the Civil Government in the Province of Quebec in America ;" ^^ G- 3, c. 88.

hall continue and remain in force until the day on which it shall be de-

lared by proclamation, as aforesaid, that the said two Provinces shall

onstitute and be one Province as aforesaid, and shall be repealed on, from

nd after such day: Provided always that the repeal of the said several

ids of Parliament shall not be held to revive or give any force or effect to

ny enactment which has by the said Acts, or any of them, been repealed

»r determined

III. And be it enacted that from and after the reunion of the sa»d£dpow«S"of
wo Provinces there shall be within the Province of Canada one Legislative Jugftatnre.
Council and one assembly to be severally constituted and composed in theT
(lanner herein-after prescribed, which shall be called 'The Legislative \ ^
Council and Assembly of Canada ;" and that within the Province of Canada ^

er Majesty shall have power, by and with the advice and consent of the
aid Legislative Council and Assembly, to make laws for the peace, welfare,
nd good government of the Province of Canada, such laws not being
epugnant to this Act, or to such parts of the said Act passed in the
hirty-first year of the reign of his said late Majesty as are not hereby
epealed", or to any Act of Parliament made or to be made and not hereby
epealed, which does or shall by express enactment or by necessary intend-
cient extend to the Provinces of Upper and Lower Canada, or to either ot

1 Conatitntional Act, || 2-32. (See No. LV).

» Sec No. CXXVIII.

> See No. CXLI.
4 3^^ jfQ_ cX^

* i.e. Constitutional Act of 1791. (See No. LV.)

538 Constitutional Documents of Canada. [1791-1840

them, or to the Province of Canada ; and that all such laws being passed b>
the said Legislative Council and Assembly and assented to by her Majest),
or assented to in her Majesty's name by the Governor of the Province o:
Canada, shall be valid and binding to all intents and purposes within the
Province of Canada.
Appomttnent IV. And be it enacted that for the purpose of composing the Legis-

CounSbn^ lative Council of the Province of Canada it shall be lawful for her Majespr.
before the time to be appointed for the first meeting of the said Legis-
lative Council and Assembly, by an instrument under the sign manual, to
authorize the Governor in her Majesty's name, by an instrument under
, the Great Seal of the said Province, to summon to the said LegislatKe
\ Council of the said Province such persons, being not fewer than twenty,
^ 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 tc
summon to the said Legislative Council such other person or persons as
^~ her Majesty shall think fit, and that every person who shall be so sum-
moned shall thereby become a member of the Legislative Council of the
Qiwlifijeatioii Province of Canada : Provided always, that no person shall be summoned
Q»unSulon!^ to the said Legislative Council of the Province of Canada who shall not be
of the full age of twenty-K)ne years, and a natural-bom 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 Legislature of either of the
Provinces of Upper or Lower Canada, or by an Act of the Legislature of
the Province of Canada.
Twjure •! ^ V. And be it enacted that every member of the Legislative Council

ConnciUor ^^ ^^^ Province of Canada shall hold his seat therein for the term of his
, life, but subject nevertheless to the provisions hereinafter contained for
' " vacating the same.
R«{ifn«tion VI. And be it enacted that it shall be lawful for any member of the

Cou^lor. L^islative Council of the Province of Canada to resign his seat in the
said Legislative Council, and upon such resignation the seat of such Legis-
lative Councillor shall become vacant.
Victttincseat VII. And be it enacted that if any Legislative Councillor of the

byabieace. Province of Canada shall for two successive sessions of the Legislature
^ of the said Province fail to give his attendance in the said Lei^slative
Council, without the permission of her Majesty or of the Governor of the
said Province signified by the said Governor to the Legislative Council, or
shall take any oath or make any declaration or acknowledgment of alle-
giance, 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 immunities of a sitbject or citizen of any foreign state or
power, or shall become bankrupt, or take the benefit of any law relating
to insolvent debtors, or become a public defaulter, or be attainted of trea-
son, or be convicted of felony or of any infamous crime, his seat in such
Council shall thereby become vacant.
Trial of VIII. And be it enacted that any question which shall arise respecting

questioM. j^j^y vacancy in the Legislative Council of the Province of Canada, on occa-
sion of any of the matters aforesaid, shall be referred by the Governor oi
the Province of Canada to the said Legislative Council, to be by the said
Legislative Council heard and determined: Provided always that it shall
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 judgment of her Majest>\
given with the advice of her Privy Council thereon, shall be final and
conclusive to all intents and purposes.
ApiJ^gJ*^ 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 appoint another in his stead.

.791-1840] Constitutional Documents of Canada. 539

X. And be it enacted that the presence of at least ten members ofQuomm.
he said Legislative Council, including the Speaker, shall be necessary to
constitute a meeting for the exercise of its powers; and that all questions DiTtsion.
vhich shall arise in the said Legislative Council shall be decided by a
najority of voices of the members present other than the Speaker, and (;;„iing Tote.
vhen the voices shall be equal the Speaker shall have the casting vote.

XL And be h enacted that for the purpose of constituting the Legis- 5j«^<>j^« ^«
ative Assembly of the Province of Canada it shall be lawful for the "* ^'
[Governor of the said Province, within the time hereinafter mentioned and^
:hereafter from time to time as occasion shall require, in her Majesty's
lame and by an instrument or instruments under the Great Seal of the
said Province, to summon and call together a Legislative Assembly in and -
Tor the said Province.

XIL And be it enacted that in the Legislative Assembly of the Pro-^JST^r^cadi
/ince of Canada, to be constituted as aforesaid, the parts of the said province.
Province which now constitute the Provinces of Upper and Lower Canada
respectively, shall, subject to the provisions hereinafter contained, be repre-
sented by an equal number of representatives to be elected for the places
and in the manner hereinafter mentioned.

XIII. And be it enacted that the County of Halton in the Province Covnty of
of Upper Canada shall be divided into two ridings, to be called respectively**'****'*'
the East Riding and the West Riding ; and that the East Riding of the said
County shall consist of the following townships, namely: Trafalgar,
Nelson, Esquesing, Nassagaweya, East Flamborough, West Flamborough,
Ering, Beverley ; and that the West Riding of the said County shall consist

of the following townships, namely: Garafraxa, Nichol, Woolwich, Guelph,
Waterloo, Wilmot, Dumfries, Puslinch, Eramosa ; and that the East Riding
and West Riding of the said County shall each be represented by one mem-
ber in the Legislative Assembly of the Province of Canada.

XIV. And be it enacted that the County of Northumberland in thegPJgJ®'
Province of Upper Canada shall be divided into two ridings, to be called isq^.
respectively the North Riding and the South Riding; and that the North
Riding of the last-mentioned County shall consist of the following town-
ships, namely: Monaghan, Otonabee, Asphodel, Smith, Douro, Dummer,
Belmont, Methuen, Burleigh, Harvey, Emily, Gore, Ennismore; and that

the South Riding of the last-mentioned County shall consist of the follow-
ing townships, namely : Hamilton, Haldimand, Cramak, Murray, Seymour,
Percy; and ^e North Riding and South Riding of the last-mentioned
County shall each be represented by one member in the Legislative Assem-
bly of the Province of Canada.

XV. And be it enacted that the County of Lincoln in the Province o^^^"^***
Upper Canada shall be divided into two 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 unitmg 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.

XVI. And be it enacted that every county and riding, other than those Other conaty
herein-before specified, which at the time of the passing of this Act was^J^^JJJJ"^5^
by law entitled to be represented in the Assembly of the Province of Upper can^^
Canada, shall be represented by one member in the Legislative Assembly of

the Province of Canada.

XVII. And be it enacted that the City of Toronto shall be "presented JjJJn^^?";,
by two members, and the towns of Kingston, Brockville, Hamilton, Com- upper Camula.
wall, Niagara, London, and Bytown shall each be represented by one mem-
ber in the Legislative Assembly of the Province of Canada.

XVIII. And be it enacted that every county which before and at the^j^g5*2Sf
time of the passing of the said Act of Parliament*, intituled "An Act to Lower (>nada.
make temporary provision for the Government of Lower Canada" was ^ ^nd 2 Vict.,
entitled to be represented in the Assembly of the Province of Lower Can- ^ '*

> See No. CXXVIIL

540 Constitutional Documents of Canada, [1791-1840

ada, except the Counties of Montmorency, Orleans, L'Assomption, La
Chesnaye L'Acadie, Laprairie, Dorchester and Beauce hereinafter men-
tioned, 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 comities of Montmorency and

consUttt- ^ Orleans shall be united into and form one county to be called the County
encyof of Montmorency; and that the said Counties of L'Assomption and La

Lower Caiiida.(3}|^SQ2^ye 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 I>orchester and Beauce shall be united into and
form one 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.
Town con- XX. And be it enacted that the Qties of Quebec and Montreal shall

LowwS^di.^^^ be represented by two members, and the Towns of Three lUvers and
Sherbrooke shall each be represented by one member in the Legislative
Assembly of the Province of Canada.
Boundaries of XXI. And be it enacted that for the purpose of electing their several
cities and representatives to the said Legislative Assembly, the cities and towns here-
settleVbydie i^before mentioned shall be deemed to be bounded and limited in such
Governor. 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.
Returning XXII. And be it enacted that for the purpose of electing the mem-

Officers, ijgrs of the Legislative Assembly of the Province of 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, ridings, cities, and towns, which shall be represented in the
Legislative Assembly of the Province of Canada, subject nevertheless to
the provisions hereinafter contained.
Tenn of office XXIII. And be it enacted that no person shall be obliged to execute
oi^^ming ^j^^ g^j^j office of Returning Officer for any longer 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.
Writs of XXIV. And be it enacted that writs for the election of members to

election. serve in the Legislative Assembly of the Province of Canada shall be

issued by the Governor of the said 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, ridings, 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
Legislative Council of the said Province, or from any other 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 summoned as aforesaid, the
writ for the election of a new member 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.

791-1840] Constitutional Documents of Canada. 541

XXV. And be it enacted that it shall be lawful for the Governor of Time Md
le Province of Canada for the time being to fix the time and place of^^j^^g
olding elections of members to serve in the Legislative Assembly of the elections,
lid Province, until otherwise provided for as hereinafter mentioned,

iving not less than eight days' notice of such time and place.

XXVI. And be it enacted that it shall be lawful for the Legislature JjJ^JJJJJ^^

f the Province of Canada, by any Act or Acts to be hereafter passed, ^^ of repretentt

Iter the divisions and extent of the several counties, ridings, cities, andtion.

}wns which shall be represented in the Legislative Assembly of the Pro-

ince of Canada, and to establish new and other divisions of the same,

nd to alter the appointment of representatives to be chosen by the said

ounties, ridings, cities, and towns respectively, and make a new

nd different apportionment of the number of representatives to be

hosen in and for those parts of the Province of Canada which now con-

titute the said Provinces of Upper and Lower Canada respectively, and

1 and for the several districts, counties, ridings, and towns in the same,

nd to alter and regulate the appointment of returning officers in and for

lie same, and make provision in such manner as they may deem expedient

or the issuing and return of writs for the election of members to serve

1 the said Legislative Assembly, and the time and place of holding such

lections; Provided always that it shall not be lawful to present to the^"^***

lovemor of the Province of Canada for her Majesty's assent any bill

i the L^islative Council and Assembly of the said Province by which

he number of representatives in the Legislative Assembly may be altered,

inless the second and third reading of such bill in the Legislative Council

nd L^slative Assembly shall have been passed with the concurrence of

wo-thirds of the members for the time being of the said Legislative

^uncil, and of two-thirds of the members for the time being of the said

legislative Assembly respectively, and the assent of her Majesty shall not

t given to any such bill unless addresses shall have been presented by the

'^islative Council and the Legislative Assembly respectively to the Gov-

mor, stating that such bill has been so passed.

XXVIL And be it enacted that until provisions shall otherwise ^cJ^tfonlSJs
nade by an Act or Acts of the Legislature of the Province of Canada all of the two
he laws which at the time of the passing of this Act are in force in the Provinces to
Province of Upper Canada, and all the laws which at the time of t^e 3tSed!!***^
assing of the said Act of Parliament*, intituled "An Act to make tempor-
ry provision for the Government of Lower Canada" were in force in the
'rovincc of Lower Canada, relating to the qualification and disqualification J ^^ ^ ^*^*-'
if any person to be elected, or to sit or vote as a member of the Assembly
n the said Provinces respectively, (except those which require a qualifica-
ion of property in candidates for election, for which provision is herein-
fter made), and relating to the qualification and disqualification of voters
t the election of members to serve in the Assemblies of the said Provinces
cspectively and to the oaths to be taken by any such voters, and to the
K)wers and duties of returning officers, and the proceedings at such elec-
ions, and the period during whdch such elections may be lawfully con-
inued, and relating to the trial of controverted elections and the proceedings
ncident thereto, and to the vacating of seats of members, and the issuing
nd execution of new writs in case of any seat being vacated otherwise than
« a dissolution of the Assembly, shall respectively be applied to elections
|f members to serve in the Legislative Assembly of the Province of Canada
or places situated in those parts of the Province of Canada for which such
aws were passed. .

XXVin. And be it enacted that no person shall be capable of being Jf^^^JJf
ilected a member of the Legislative Assembly of the Province of Canada ,
vho shall not be legally or equitably seised as of freehold, for his own
ise and benefit, of lands or tenements held in free and common soccage,
)r seised or possessed, for his own use and benefit, of lands or tenements
leld in fief or in roture, within the said Province of Canada, of the value
jf five hundred pounds of sterling money of Great Britain, over and above

» Sec No, CXXVIII.

542

Constitutional Documents of Canada, [1791-1840'

Dcdaratioii
of caadidAtct
for cleedoB.

".

"i

i*M

tt .

n .

Persons mak
iotf false
declaration
liable to the
penalties
of perjury.

Place and
times of
holding
Parliament.

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 oflficer, make
the following declaration:

"I A.B,, do declare and testify that I am duly seised at law or in

"equity as of freehold, for my oum use and benefit, 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 (as 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 renis,

mortgages, charges and incumbrances charged upon, or due and payable

out of, 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 the purpose of qualifying or enabling me to be

"returned a member of the Legislative Assembly of the Province of

"Canada,"

XXIX. And be it enacted that if any person shall knowingly and
wilfully make a false declaration respecting his qualification as a candidate
at any election as aforesaid, such person shall be deemed 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 perjury in the place in which such false dedaration shall have
been made.

XXX. And be it enacted that it shall be lawful for the Governor of
the Province of Canada for the time being to fix such place or places within
any part of the Province of Canada, and such times for holding the first
and every other session of the Legislative 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 judge advisable and most con>
sistent 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.

XXXL And be it enacted that there shall be a session of the Legis-
Lative Council and Assembly of the Province of Canada once at least in
every /ear, 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 nevertheless to be sooner prorogued or dissolved by the Governor
of the said Province,
th flh XXXn. And be it enacted that the Legislative Council and Assembly

Lei§S«ture. o^ the Province of Canada shall be called 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 aforesaid.

XXXin. And be it enacted that the members of the L^slati^e
Assembly of the Province of Canada shall, upon the first assembling after
every general election, proceed forthwith 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 proceed
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 twenty
members of the Legislative Assembly of the Province of (Janada, including
the Speaker, shall be necessary to constitute a meeting of the said Lc^s-
lative Assembly for the exercise of its powers; and that all questions
which shall arise in the said Assembly shall be decided by the majority
of voices of sudi members as shall be present, other than the Speaker, and
when the voices shall be equal the Speaker shall have the casting voice.

Duration of
Parliament.

First calling

Election of
the Speaker.

Quorum.

DiTision.

'"^^ vote.

791-1840] CottstituHonal Documents of Canada. 543

XXXV. And be it enacted that no member, either of the Legislative No member
Council or of the L^islative Assembly of the Province of Canada, shall ^^^^^u
« permitted to sit or vote therein until he shall have taken and subscribed uken tke fol-
he following oath before the Governor of the said Province, or beforc'<J^n«5**k
ome person or persons authorized by such Governor to administer such *^""*
tath :

"If A.B*, do sincerely promise and swear that I will be faithful ^i^^^SfeHAa
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 per- *

son, crown, and dignity; and that I xvill do my utmost endeavour to dis-
close 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 this I do swear without any equi-
vocation, mental evasion, or secret reservation, and renouncing all pardons
and dispensations from any person or persons whatever to the contrary.

so HELP ME odd/'

XXXVI. And be it enacted that every person authorized by law to Affirmation
riake an affirmation instead of taking an oath may make such affirmation h»^ead of
n every case in which an oath is hereinbefore required to be taken. ^

XXXVII. And be it enacted that whenever any bill which has 1>c^^Tlv'|^
assed by the Legislative Council and Assembly of the Province of JJJ^nf to S8u.
^nada shall be presented for her Majesty's assent to the Governor of the

aid Province, such Governor shall declare according to his discretion,
»ut subject nevertheless to the provisions contained in tnis Act, and to such
nstructions as may from time to time be given in that behalf by her
vfajcsty, her heirs or successors, that he assents to such bill in her
tfajesty's name, or that he withholds her Majesty's assent, or that he
eserves such bill for the signification of her Majesty's pleasure thereon.

XXXVIII. And be it enacted that whenever any bill, which shall DiMllowanoe
lave been presented for her Majesty's assent to the Governor of the said®'Wlta
*rovince of Canada, shall by such Governor have been assented to in her****"
Majesty's name, such Governor shall by the first convenient opportunity
ransmit to one of her Majesty's principal Secretaries of State an authentic

opy 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 Secre-
ary of State, for her Majesty by Order in Council to declare her disallow-
nce of such bill; and that such disallowance, together with a certificate
tnder the hand and seal of such Secretary of State certifying the day on
rhich such bill was received as aforesaid, being signified by such Governor
0 the Legislative Council and Assembly of Canada by speech or message
0 the Legislative Council and Assembly of the said Province, or by pro-
lamation^ shall make void and annul the same from and after the day of
uch signification.

XXXIX. And be it enacted that no bill which shall be reserved forA«««nttobllU
he signification of her Majesty's pleasure thereon shall have any force "•^"^

r authority within the Province of Canada until the Governor of the said
Vovince shall signify, either by speech or message to the Legislative
^uncil and Assembly of the said Province, or by proclamation, that such
ill has been laid before her Majesty in Council and that her Majesty has
een pleased to assent to the same ; and that an entry shall be made in the
oumals of the said Legislative Council of every such speech, message,
r proclamation, and a duplicate thereof duly attested shall be delivered
0 the proper officer to be kept amongst the records of the said Province ;
nd that no bill which shall be so reserved as aforesaid shall have any
orce or authority in the said Province unless her Majesty's assent thereto
hall have been so signified as aforesaid within the space of two years
rom the day on which such bill shall have been presented for her Majesty's
issent to the Governor as aforesaid.

544

Constitutional Documents of Canada. [1791-1840

A*^"*^ M ^^' P*"<*vidcd always, and be it enacted that nothing herein contained

tteooTernor. ^^^^^^ \^ construed to limit or restrain the exercise of her Majesty's pre-
rogative in authorizing, and that, notwithstanding this Act and any other
Act or Acts passed in the Parliament of Great Britain, or in the Parliament
of the United Kingdom of Great Britain and Ireland, or of the Legislature
of the Province of Quebec, or of the Provinces of Upper or Lower Canada
respectively, it shall be lawful for her Majesty to authorize the Lieutenant-
Governor of the Province of Canada to exercise and execute, within such
parts of the said Province as her Majesty shall think fit, notwithstanding
the presence of the Governor within the Province, such of the powers,
functions, and authority, 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 Government of the Pro-
vinces of Upper and Lower Canada respectively, or of either of them, and
which from and after the said reunion of Uie said two Provinces shall be-
come vested in the Governor of the Province of Canada ; and to authorize
the Governor of tfie 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, perform 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
Government of the Provinces of Upper and Lower Canada respectively,
and which from and after the union of the said Provinces 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 audiority of the Governor of the Province of Canada shall not
be abridged, altered, or in any way a£Fected otherwise than as her Majesty
shall think proper to direct

XLI. And be it 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 ot
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 Assem-
bly 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 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 this enactment shall not be construed to prevent translated copies of
any such documents being made, but no such 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.^

XLIL And be it enacted that whenever any bill or bills shall be
passed by the Legislative Council and Assembly of the Province of Canada
containing any ^provisions to vary or repeal any of the provisions now in
force contained in an Act' of the Parliament of Great Britain passed in the
fourteenth year of the reign of his late Majesty King George the Third,
intituled "An Act for making more effectual provision for the Government
14 G. 3, c. 83. 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, respecting the
accustomed 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

' Lord Tohn Russell explained tliat this section only dealt with En^liah as the
language of "original record." There is nothing, howerer, in this accUon acain*
French as the language of debate, and indeed it was used as such from the time of
first Union Parliament. For the repeal of this section, see No. CLXXIII and note.

« No. XXV.

Language of

LegislatiTe

records.

Ecclesiastical
and Crown
rights.

1791-1840] Cotistitutional Documents of Canada, 545

mentioned Act respecting the allotment and appropriation of land for the
support of the Protestant clergy within the Province of Canada, or respect-
ing the constituting, erecting or endowing of parsonages or rectories within
the Province of Gmada, or respecting the presentation of incumbents or
ministers of the same, or respecting the tenure on which such incumbents
or niinisters 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 etl]03rment or exercise of any form or mode of
religious worship, or shall impose or create any penalties, burdens, dis-
abilities, 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 accus-
tomed 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 worship, 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 Province; every such bill or bills shall, 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 Province 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 desiring
that, in order to give effect to the same such bill or bills may be transmitted
to England without delay, for the purpose of its being laid before Parlia-
ment previously to the signification of her Majesty's assent thereto.

XLin. Aid whereas by an Act" passed in the eighteenth year of theColonltl
reign of his late Majesty King George the Third, entitled "An Act for *■*""•■•
removing all Doubts and Apprehensions concerning Taxation by the Par-
liament of Great Britain in any of the Colonies, Provinces, and Plantations
in North America and the West Indies ; and for repesding so much of an IS G. 3» c 12.
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 Par-
liament of Great Britain would not impose any duty, tax, or assessment
whatever, payable in any of his Majesty's Colonies, Provinces, and Planta-
tions 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 liie same shall be respec-
tively 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 necessary for the general benefit of the Empire that such power of
regulation 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 conditions 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 Parlia-
ment of the said United Kingdom for establishing regulations and pro-
hibitions, or for the imposing, levying, or collecting duties for the regula*

^ For repeal of this enactment, see No. CLXXIV.

* See No. XXXIII. 11

«
<«
li
»«

u
it

«

546 Constitutional Documents of Canada. [1791-1840

tion 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 Legislative 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 thereof : 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 pro-
vided) in such manner only as shall be directed by any law or laws whidi
may be made by her Majesty, by and with the advice and consent of the
Legislative Council and Assembly of such Province.
ASS2d°Pro XLIV. And whereas by the laws now in force in the said Province

UteTotieen't o^ Upper Canada the Governor, Lieutenant-Governor, or person adminis-
Beachaad tering^the Government of the said Province, or the Chief Justice of the
VoS^^ ^° /said Province, together with any two or more of the members of the
Mffilnd''^ Executive Council of the said Province, constitute and are a Court of
Court of Appeal for hearing and determining all appeals from such judgments or

l'^S^t CanacU s^'^^^ces as may be lawfully brought before them : And whereas by an
° Act of the Legislature of the said Province of Upper Canada, passed in

the thirty-third year of the reign of his late Majesty King George the
Third, intituled '*An Act to establish a Court of Probate in the said Pro-
< Laws of vince, and also a Surrogate Court in every District thereof," there was and
3?Sr3^^'*^>s established a Court of Probate in the said Province, in which Act it
Se8s.'2,'c.8.) was enacted that the Governor, Lieutenant-Governor, or person adminis-
tering the Government of the said last mentioned Province should preside,
and that he should have the powers and authorities in the said Act speci-
fied: And whereas by an Act of the Legislature of the said Province of
l^pner Canada. ^Pl^'' ^^^^^t Passed in the second year of the reign of his late Majesty
2 wr4. c. 8.) 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 that his Majesty's Court of King's Bench 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 the Legislature
ff^^'r'^ A ^^ ^^c s^id Province of Upper Canada passed in the seventh year of the
7 ?5!4/c!^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 Chan-
cellor ; 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 per-
son administering the Government of the said Province: And whereas by
^^^ an Act of the Legislature 'of the Province of Lower Canada, passed in
adaT^ a 3.) ^^^ 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 Government, the members of the Executive Coun-
cil of the said Provmce, the Chief Justice thereof and the Chief Justice to
be appointed for the Court of King's Bendi at Montreal, or any five of
them, the Judges of the Court of the District wherein the judgment ap-
pealed from was given excepted, should constitute a Superior Court of
Civil Jurisdiction or Provincial Court of Appeals, and should take cog-
nizance of, hear, try, and determine all causes, matters, and things appealed
from all civil jurisdictions and Courts wherein an appeal is by law allowed,
i>e it enacted that until otherwise provided by an Act of the Legislature ot

1840-1867] ConsHtutiofuU Documents of Canada. 547

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 person administering the Govern-
ment of the said Province of Upper Canada, or the members or any numbet
of the members of the Executive Council of the same Province, or was
vested in and may be exercised by the Governor, Lieutenant-Governor, or
the person administering the Government of the Province of Lower Can-
ada, and the members of the Executive 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 respectively; and that until otherwise provided
by Act or Acts of the Legislature of die 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 L^islature 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 Council 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 functions Power* to be
which by the said Act passed in the thir^-first year of the rei^ of his l2itcg*"jj*^'*y
Majesty, King George the Third, or by>any other Act of Parliament, or by with the '
any Act of the Legislature of the Provinces of Upper and Lower Canada Executive
respectively, are vested in or are authorized or required to be exercised by Ji?J5^i:
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 Provinces 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
ire not repugnant to or inconsistant 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 "'i
case may require with such Executive 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 Execu-
tive Council is not required.

XLVL And be it enacted that all laws, statutes, and ordinances which Exittinf
at the time of the union of the Provinces of Upper and Lower Canada ^^•■•^**1-
shall be in force within the said Provinces or either of them or any part
of the said Provinces respectively, shall remain and continue to be of the
same force, authority, and effect in those parts of the Province of Canada
which now constitute the said Provink:es respectively as if this Act had noL
been made, and as if the said two Provinces had not been united as afore-
said, 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 the authority
of this Act be repealed or varied by any Act or Acts of the Legislature of
the Province of Canada.

XLVIL And be it enacted that all the courts of civil and criminalCottruof
jurisdiction within the Provinces of Upper and Lower Canada at the time J«»*>.cc. Com-
of the union of the said Provinces, and all legal commissions, powers, and q^^,!^'^^^
authorities, and all officers, judicial, administrative, or ministerial, within
the said Provinces respectively, except in so far as the same may be abol-
ished, altered, or varied by or may be inconsistent with the provisions of
this Act, or shall 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

548 Constitutional Documents of Canada. [1791-1840

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 aforesaid.

Proviuons XL VIII. And whereas the Legislatures of the said Provinces of

tem^rvy Upper and Lower Canada have from time to time passed enactments, which

Acts. 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

session of the L^slature of the Province in which the same were passed** ;

be it therefore enacted that whenever the words, "and from thence to die

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, the said words shall be construed to extend and apply to

the next session of the Legislature of the Province of Canada.

Repeal of XLIX. And whereas by a certain Act passed in the third year of the

part of 3 G. 4. j.^igj^ qI j^jg jg^^g Majesty, Kin^ George the Fourth, intituled, "An Act to

regulate the Trade of the Provmces 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 prescribinff the course of proceeding to be pursued by

such arbitrators ; be it enacted that the said r«toited provisions of the said

last-mentioned Act, and all matters in the same Act contained, which are

consequent to or dependent upon the said provisions or any of them, shall

be repealed.

Sct*wo*Pr^i ^ ^^^ ^ ** enacted that upon the union of the Provinces of Upper

vtaces to form and Lower Canada, all duties and revenues over which the respective

a Consolidated Legislatures of the said Provinces before and at the time of the passing of

Fan?"^ this Act had and have power of appropriation, shall form one 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.

Consolidated LI. And be it enacted that the said consolidated revenue fund of the

tobecharKd^'^^^'"^* ^^ Canada shall be permanently charged with all the costs,

withexpe^ charges, and expences incident to the collection, management, and receipt

of collection, thereof, such costs, charts, and expences, being subject nevertheless to

etc* be reviewed and audited in such manner as shall be directed by any Act

of the Legislature of the Province of Canada.

srantedMr^ LI I. And be it enacted that out of the consolidated revenue fund of

manentlTfor ^^ Province of Canada there shall be payable in every year to her Majesty.

the Senrices her heirs and successors, the sum of forty-five thousand pounds for defray-

A an^^«30%K) '"^ ^^ expence of the several services and purposes named in the Sdiedule

for the life marked A to this Act annexed^ ; and during the life of her Majesty, and for

of Her five years after the demise of her Majesty, there shall be payable to her

five years ^^icsty, her heirs and successors, out of the said consolidated revenue

foUowinf for fund, a further sum of thirty thousand pounds, for defraying the expence

those in of the several services and purposes named in the Schedule marked B. to

Schedule B. ^i^jj j^^^ annexed ; the said sums of forty-five thousand pounds and thirty

thousand pounds to be issued by the Receiver-General in discharge of sudi

warrant or warrants as shall t>e from time to time directed to nim under

the hand and seal of the Governor; and the said Receiver-General shall

account to her Majesty for the same, through the Lo^d H%h Treasurer or

Lords Commissioners of her Majesty's Treasury, in such form and manner

as her Majesty shall be graciously pleased to direct

How the , LIII. And be it enacted that, until altered by any Act of the Legis-

appropriation lature of the Province of Canada, the salaries of the Governor and oi the

granted may Judges shall be those respectively set against tiieir several offices in the

be varied. 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

^ It has not been thought necessary for the purpose of this Tolnme to repriat the
two Schedules of the Act.

1791-1840] Constitutional Documents of Canada. 549

appropriated to any of the services or purposes named in the said Schedule
B. ; and that the amount of saving which may aiccrue from any such altera-
tion in either of the said schedules shall be appropriated to such purposes
connected with the administration of the Government of the said Province
as to her Majesty shall seem fit ; and that accounts in detail of the expendi-
ture of the several sums of for^-five thousand and thirty thousand pounds
hereinbefore granted, and of every part thereof, shall be laid before the
Li^islative Council and Legislative Assembly of the said Province within
thirty days next after the bep^inning of the session after such expenditure
shaU 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
of 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 of the persons t« whom the same shall have been granted, shall be
laid in every year before the said Legislative Council and Legislative
Assembly.

LIV. And be it enacted that during the time for which the said Su^^njjjjr of
several sums of forty-five thousand pounds and thirty thousand pounds i^^^nea of
are severally payable the same shall be accepted and taken by her Majesty the Crown.
by way of Ciyil List, instead of all territorial and other revenues now at
the disposal of the Crown, arising in either of the said Provinces of Upper
Canada or Lower Canada, or in the ProviiKe of Canada, and that tiiree-
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 produce of the said territorial and other
revenues now at the disposal of the Crown within the Province of Canada
shall be also paid over in like manner to the account of the said consol-
idated revenue fund.

LV. And be it enacted that the consolidation of the duties and^^v^^l*
revenues of the said Province shall not be taken to affect the payment out[|^\|^^f^*^
of the said consolidated revenue fund of any sum or sums hereto fore Province.
chained 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 Legislature of the Province by which
such charges were severally authorized.

LVL And be it enacted that the expences of the collection, manage- "Hic order of
ment, and receipt of the said consolidated revenue fund shall form ^l^^^e^nMU-
first chai]B;e thereon; and ths^t the annual interest of the Public Debt of dated Fund to
the Provinces of Upper and Lower Canada, or of either of them, at the be:— -let,
time of the reunion of the said Provinces shall form the second cl^^iVCQ^fi^^Hon*
thereon; and that the payments to be made to the clergy of the United 2nd, Interest
Church of England and Ireland, and to clergy of the Church of Scotland, of uie debt;
and to ministers of other Christian denominations, pursuant to any law or
usage whereby such payments before or at the passing of this Act were^^^j^J^™*^
or are legally or usually paid out of the public or Crown revenue of either
of the Provinces of Upper and Lower Canada, shall form the third Charge 4tli and Sth,
upon the said consolidated revenue fund; and that the said sum of ^orty- Civil Lut;
five thousand pounds shall form the fourth charge thereon; and that the^|^^2^
said sum of thirty thousand pounds, as long as the same shall continue to ready made
be payable, shall form the fifth charge thereon; and that the other charges on tbe Public
upon the rates and duties levied wiUiin the said Province of Canada here- **^'*'*"**
inbefore reserved shall form the sixth charge thereon, so long as such
chatves shall continue to be payable.

LVIL And be it enacted that, subject to the several payments hereby g^i^j^^ioili^
charged on the said Consolidated Revenue Fund, the same shall be appro- above charges,
priated by the Legislature of the Province of Canada for the public service ^eConaoU-
in such maxiner as they shall think proper: Provided always that all bills |f^ ^^^[^""^
for appropriating any part of the surplus of the said consolidated revenue approiiriatcd

550

Constitutional Documents of Canada, [1791-1840

by the Pro-
vincial LegU*
lature, by
bills, etc.

TownahipA
to be con-
stituted.

Powers of
Governor,
now to oe
exercised.

Magdalen
Islands mar
beannexea
to the Island
of Prince
Edward.

Interpretation
clause.

Act may be
amended, etc.

fund, or for imposing any new tax or import, shall originate in the Legis-
lative 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 appropriation 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.

LVIII. And be it enacted that it shall be lawful for the 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 townships are not already constituted,
and to fix metes and bounds thereof, and to provide for the election and
appointment of township of&cers therein, 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 proclamation, and
shall have the force of law from a day to be named in each case in such
proclamation.

LIX. And be it enacted that all powers and authorities expressed in
this Act to be given to the Governor of the 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, by his
Royal Proclamation,' bearing date the seventh day of October in the third
year of his reign, was pleased to declare that he had put the coast of
Labrador from the River St. John to Hudson's Straits, with the islands ot
Anticosti and Madelaine and all other smaller islands lying on the said
coast, under the care and inspection of the Governor 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 sinlce the tenth day of
February in the year one thousand 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 Province of Quebec
as created and established by the said Proclamation ; be it hereby declared
and enacted that nothing in this or any other Act contained shall be con-
strued to restrain her Majesty, if she shall be so pleased, from annexing
the Magdalen Islands in the Gulf of St. Lawrence to her Majesty's Island
of Prince Edward.

LXL And be it enacted that in this Act, unless otherwise 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 Successors,
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 Can-
ada" are to be understood as comprehending the Governor, Lieutenant-
Governor, or person authorized to execute the Office or the functions of
Governor of the said Province.

LXn. And be it enacted that this Act may be amended or repealed
by any Act to be passed in the present session of Parliament

^ For the historj. see H. P. Bigfar. The Growth of Municipal InsHtuticns in On-
tario; A. Shortt, The Beginning* *ff Municip%i Government in Onimi»: tmd coog
Nos. CUV. CLVI, CLVIU.

» Sec No. IV.

179M840] Constitutionai Documents of Canada. 551

CLIV

POULETT THOMSON TO RUSSELL

[Trans.: Imperial Blue Books relating to Canada, 184M3. Vol. XIV. J

Toronto,
\6th September, 1840.
My Lord.

I have the honour to acknowledge the receipt of a copy of the Act
for re-uniting the Provinces of Upper and Lower Canada, and for the
Government of Canada.

I have carefully perused the Act, and I observe with r^ret that some
alterations have been made from the original plan which I transmitted,
which will create difficulty and eni>arrassment here, especially the restric- .
tions introduced in the sdiedule for the Civil list, to which I before called
your attention. There is nothing, however, in those changes which will,
I believe, offer any insuperable obstacle to the working of tne Act

But it is with the deepest mortification that I find that the whole of ^
the system for the establishment of local government has been omitted >
from the Bill, and that Her Majesty's Government and Parliament have
contented themselves with the single legislative re-union of the two Pro-
V inces, without providing any machinery by which they can be satisfactorily
governed when united, or guarding against those evils which have been so
severely felt from the absence of local government, and the consequent
assumption by the assemblies of functions which did not properly belong
to them, evils which will now be increased tenfold, after the two provinces
shall have been placed under one government and one legislature.

I need scarcely recall to your Lordship's attention the circumstances
connected with this measure. In the year 1839, when the affairs of the
Canadas were under the consideration of Her Majesty's Government, and
it was determined, upon the recommendation of the Earl of Durham, to
re-unite the provinces, die Cabinet was so deeply impressed with the truth
of his declaration, of the absolute necessary of the establishment by Parlia-
ment of a system of local government simultaneously with the measure for
the union, that the plan then submitted and embodied in the Bill of that
year, proceeded altogether upon that principle. Five districts were created
apart from the central legislature, and the whole frame of the measure
was erected in accordance with it I need not either remind your Lordship
that whilst this was the unanimous opinion of the Cabinet, those members
of it who really took a deep interest in Canadian matters entertained so
strongly the opinion of the necessity of enforcing this principle, that they
would not have assented to any plan which involved its exclusion. The
Bill of 1839 was withdrawn, and I was deputed to obtain the assent of the
people and l^islature of the two Canadas to the imion, and to transmit a
plan for effecting it, and for the future government of the two provinces.
But in the instructions with which I was honoured with a view to my pro-
ceedings, I was emphatically told that one of the most important principles
to be kept in view in any measures for the future government of the
Canadas was "the establishment of a system of local government b^ repre-
sentative bodies freely elected in the various cities and rural districts."
"That after a full investigation of every other plan which has been sug-
gested, Her Majesty's Government have not been able to discover in any
but this the reasonable hope of a satisfactory settlement" "That attaching
minor importance to the details," "they cannot depart from these prin-
ciples."

Accordingly, in pursuance of the duty assigned to me, and having
obtained the assent of the legislators of the two provinces to the terms of
the union as they affected each in its relation to the other, or to the
Crown, I transmitted such a plan for local government as, whilst it entire-
ly established the principle for which Her Majestv's Government contended,
and the adoption of which they and I deemed indispensable, altogether
removed the defects of the scheme of last year, and was generally ac-

552 Constitutional Documents of Canada. [179^-1840

ceptable to the people. This plan received the cordial approbation of Her
Majesty's Government. Your Lord^ip did not indeed deem it expedient
to introduce to Parliament the clauses for carrying out the provisions for
the system which I transmitted to you, but you did more, for you called
upon Parliament to enable me to provide all the necessary machinery
myself, subject to the leading principles which I had recommended.

Unc^er such circumstances I should have been far less surprised to
find the Union Bill abandoned altogether by the Government, than this most
essential part of it withdrawn. I should certainly have infinitely preferred
that the Bill should have been deferred, rather than deprived of what ren-
dered it safe, or gave a fair chance of its being advantageous.

For if, before my better acquaintance with these colonies, the informa-
tion which I could acquire from the reports of others and from general
reasoning, had satisfied me of the necessity, to use the words of Lord
Durham, "of making the establishment of good municipal institutions for
the whole country a part of the colonial constitution;" the opportunity I
have now had of studying the state of the British North American pro-
vinces—of observing the social condition of the people, and the working
of the constitutions under which they have been govemed-4ias convinced
me that the cause of nearly all the di£Gk:ulty in the government of every
one of them, is to be found in the absence of any well oiganized system
of local government

^ Owing to this, duties the most unfit to be discharged by the general
legislature are thrown upon it; powers equally dangerous to the subject
and to the Crown are assumed by the Assembly. The people receive no
training in those habits of self-government which are indispensable to
enable them rightly to exercise the power of choosing representatives in
Parliament No field i^ open for the gratification of ambition in a narrow
circle, and no opportunity given for testing the talents or integrity of those
who are candidates for popular favour. The people acquire no habits of
self-dependence for the attainment of their own local objects. Whatever
uneasiness they may feel — whatever little improvement in their respective
neighbourhoods may appear to be neglected, affords grounds for complaint
against the executive. All is charged directly upon the Government, and
a host of discontented spirits are ever ready to excite these feelings. On
the other hand while the Government is thus brought directly in contact
with the people, it has neither any officer in its own coi^dence in the
different parts of these extended provinces from whom it can seek informa-
tion, nor is there any recognized body enjoying the public confidence with
whom it can communicate, either to determine what are the real wants and
wishes of the locality, or through whom it may afford explanation.

Hence the readiness with which a demand for organic changes in the
constitution has been received by the people.

Upon every consideration, Uierefore, I am of opinion that it was our
duty to seize the fir$t opportunity of supplying, through the Imperial Legis-
lature, this capital ommission in the constitution of these colonies, by the
establishment of a good system of local government; and although the
Act would, in fact, only have extended to the Canadas, I entertain no doubt
that with such an au&ority before them, similar provisions would have
been adopted by the legislatures in Nova Scotia and New Brunswick,
where the defect is no less glaring.

But it may be said, why not trust to the provincial legislatures for the
establishment of such mstitutions if they are needed?

Lord Durham has given the reply which certainly appeared last year
conclusive to Her Majesty's Government, and the correctness of which I
can now confirm — 'That it is vain to expect that such a sacrifice of power
will be voluntarily made by a representative body ;" and to this I may also
add, that although, after a considerable time and much excitement, tiie
people mi^ht compel their representatives to establish such a system, it is so
easy to mislead them by representations against taxation ; although no more
is in fact intended tham to give the power of taxation by themselves for
their own local objects : and the argument in favour of its being the dmiy

1791-1840] Constitutional Documents of Canada, 553

of the Government to find money for all their wants, is so specious and
popular, that it would probably be some time before the people exerted
themselves strenuously for this purpose; and when they did, I greatly
doubt whether it would be possible to obtain those checks s^ainst abuse
without which the system would fail ; and which it was my object to intro-
duce in the manner submitted by me to Her Majesty's Government and
approved by them.

With reference, therefore, to the future interests of all Her Majesty's
North American possessions, I deeply deplore the determination which has
been taken ; whilst with regard to the immediate and practical matter before
me — namely, the government of the two Canadas under the Union Act, I
confess that I am almost at a loss to conceive how it is proposed that it
should be conducted.

Under the provisions of the Union Act, not only will the general
affairs of a country 1,200 miles long be placed under the direction of one
executive authority, thus distant from places where it may be called upon
to act ; but the local concerns of every district, and even village, through that
vast extent of territory must be more or less under its superintendence, and
that too in matters of which it can know little or nothing. The provision
by which the initiative of all money votes is confined to the Governor, is a
most valuable and important change in the ^constitution of these provinces ;
but it places a responsibility on the executive which can only be exercised
under a system which relieves the public funds from demands for every
little paltry expenditure, and confines their application to matters of general
utility. As the Act now stands, the executive government will be called
upon to propose every grant of £5 or ilO for a road or a bridge 600 or 700
miles from the seat of government; of the merits of which it can know
nothing, and of which it can learn nothing, except through representations
which it has no opportunity of testing. If it acts, therefore, it will prob-
ably act wrong; if it does not, it is at once exposed to the reproach of
having neglected the interest of the locality which it was bound to consider
and advance. Whilst these duties are imposed upon it, too, no means what-
ever are afforded by which it can acquire information, or exercise the
slightest control. In Upper Canada it is true that there is some machinery
in the different districts now established by law, which will prevent the
executive from being wholly powerless. There is an organization in each
district of sheriffs, grand juries, etc. and the magistrates possess under the
provincial laws certain powers which^ although defective, still afford the
means of going on. But in Lower Canada this is entirely wanting; and
the division there for judicial purposes is of a character which affords no
assistance whatever with respect to the rural districts of the province.
The hand of the Government is entirely unknown and unfelt throughout
them. If I had to seek for information from any place from 10 to 150
miles from Quebec or Montreal, I possess no means whatever of obtaining
it, except from the authorities called into existence by the rebellion, and
for whose permanency there is no security whatever. If the executive
seeks to know the opinion of the people with regard to any improvement,
there is no one to whom application can be made. In a word, every country
district throughout the whole of the vast province of Lower Canada, is as
completely cut off from any connection with the executive, as if it were on
the other side of &e Atlantic, and under a different form of government.

I certainly was impressed with the opinion that the existence of this
state of things must be fully known to Her Majesty's government, and that
after the deliberate judgment Uiat had been arrived at last year, and the
instructions I had received, it was, therefore, unnecessary for me to have
repeated any statement, or have furnished any fresh argument in support
of the principle of local government.

It remains for me, however, now only to consider the course which I
can pursue under the determination which has been arrived at

Entertaining so strongly as I do the conviction that the principal
advantages intended by the Union Act are defeated by the omission of this
part of the scheme, I confess that I should strongly incline to defer acting

554 Constitutional Documents of Canada, [1791-1840

upon the powers conferred by it, and proclaiming the Union at all, until
Parliament had again had an opportunity of reconsidering these clauses.
But I must acknowledge that the delay which would thus arise, and the
reopening the Canada question in England, where unfortunately, all that
relates to this country is so little understocKl, would be probably attended
with greater evils, and I cannot, therefore, take on myself the responsibility
of recommending that course.

But failing this, it would be far more grateful to me, with the opinions
I hold on this subject, that Her Majesty's Government should confide the
attempt to work out this new measure to other hands than mine, and
nothing but the anxiety which I feel to discharge my duty to the Queen to
the last, and the deep interest which I now take in what concerns these
provinces, would lead me to attempt the task under circumstances which
I consider almost hopeless.

I am willing, however, if required, to yield to that consideration, and,
above all, to the feelings of the people here, of whose confidence I have
lately received so many and such flattering proofs, and I shall endeavour
to work out the Act as it stands, by such means as I possess.

For Upper Canada it is out of my power to make any provision. In
Lower Canada, however, I shall, with the assistance of the Special Council,
provide such a system as may supply a part at least of what was intended
to be given under the provisions of the Bill; at all events to the extent
which is necessary to carry out fully the different ordinances of that body
which have already passed, and provide for some local organization for
the wants of the country districts. The Council will, under any circum-
stances, meet the middle of next month, to complete its labours preparator>'
to the Union ; and I shall then propose to them measures to this effect

I shall then be able to proclaim the Union at the earliest period at
which, looking to the time when the elections could be held, and to the
financial concerns of both provinces, it would be possible, namely at the
beginning of January. The elections will take place as soon afterwards
as they conveniently can, and when the united Parliament meets, I shall
propose to them, on the part of the Government,^ to adopt for the whole
province a system of local government which will already have been in
operation here, with such additions as may appear necessary\

CLV

RUSSELL TO SYDENHAM

[Trans. : Imperial Blue Books relating to Canada, 1841-1843, Vol. XIV.]

Downing Street,

25th October, 1840.
My Lord,

I have received your Lordship's Despatch, No. 160, of the 16th Sep-
tember, pointing out the injurious consequences which you anticipate from
the departure in the Act for the reunion of Canada from the Bill which
you had proposed, and more particularly from the omission of legislative
provision for local government.

Partaking as I do in the general opinions which you have expressed
on this subject, I nevertheless could not supply the want of Canadian
authority for the municipal clauses, which induced Sir R. Peel and Lord
Stanley, friendly as they were to the Bill, to support their omission. I may
also observe that Mr. Gillespie and others in this country well acquainted
with Canada, concurred in the objections made to those clauses in the
House of Commons.

The benefit of municipal government being so great, it is difficult to
conceive that the legislature of the United Province can long resist the
introduction of a system so useful to the interests, and so directly tending

> Sec No. CLVII.

1791-1840] Constitutional Documents of Canada. 555

to increase the power of the people, when recommended warmly and
repeatedly by the executive of tlie province and supported by the Crown.

I have, etc.,

(Signed) J. Russell.

CLVI

SYDENHAM TO A FRIEND

[Trans.: Scrope, op, cit]

1840 (?)

No man in his senses would think for a moment of the Union without
its being accompanied by some sort of Local (Government, in which the
people may control their own officers, and the executive at the same time
obtain some influence in the country districts.

Without a breakwater of this kind between the Central (jovemment
and the people, (government with an Assembly is impossible in Lower
Canada, and most difficult in Upper Canada; and it is absurd to expect
that any good system can or will be established by the Provincial L^is-
lature, even if time admitted of its being proposed to them. No colonial
legislature will ever divest itself of the great power it now possesses of
parcelling out sums of money for every petty local job; and although by
the Uhion Bill the initiative of money votes will be confined to the Gov-
ernment, this provision will become null, because the moment that the
executive is called upon to provide for all these local expenses, with the
details of which it cannot be acquainted, it must renounce the task, and
leave it in the hands of the members themselves. A distinct principle must
be laid down, that all purely local expenses be borne by the localities them-
selves, settled and voted by them, and that only great works be paid for out
of the provincial funds.

Nor is it only with reference to the Canadas that it was all-important
for Parliament itself to have laid down the principle and details of Local
(government Since I have been in these Provinces, I have become more
and more satisfied that the capital cause of the misgovemment of them is
to be found in the absence of Local (jovemment, and the consequent exer-
cise by the Assembly of powers wholly inappropriate to its functions.
Members are everywhere chosen only with reference to the extent of job
for their particular district which they can carry. Whoever happens to
lead a party in the House, of twelve or fourteen members, may at once
obtain a majority for his political views by jobbing with other members
for votes upon them, or by rejecting their jobs as the penalty of refusal
oust them from their seats. This, indeed, is admitted by the best men of
all parties, and especially of the popular side. But it is equally admitted
that they cannot of themselves change the system. In both Nova Scotia
and New Brunswick I was told that if Parliament laid down a system of
Local (Government for Canada, then it was likely that in these provinces
too the Assembly would adopt it ; but, without that, it would be impossible
to get it done. So, by this step, if Lord John has really been forced to take
it, not only has all chance of the Union Bill working well been destroyed,
but also die hope of a change of system throughout all the Provinces.
Last year, if you remember, we made it a sine qua non to the Union ; in-
deed, our scheme was altogether based on it. The establishment of Muni-
cipal (jovemment by Act of Parliament is as much a part of the intended
sdieme of (Government for the Canadas as the union of the two Legis-
latures, and the more important of the two. All chance of good Govern-
ment, in Lower Canada especially, depends on its immediate adoption.

FIFTH PERIOD
1840-1867

FIFTH PERIOD
1840-1867

Lord John Russell was not prepared to accept in its entirety
Lord Durham's proposal for full responsible government, but in
his instructions to Sydenham, he at least shewed a new path to the
British Government (sec No. CXLII). Sydenham's plan of being
his own first minister and of calling to the service of the Govern-
ment the best men, without forming what we know technically as
a Cabinet, was well suited for a time of stress. The recent rebel-
lions had left memories out of all proportion to their importance.
The French-Canadians were full of melancholy suspicion, and
feared that Durham's suggestion for their absorption might be
attempted. Sydenham's successor, Sir Charles Bagot, went fur-
ther, but Sir Charles Metcalfe, who followed, had little belief in
the possibility of establishing full responsible government (see No.
CLX), and under him the old sore was re-opened. Fortunately,
Sir Robert Peel's ministry fell at another difficult moment in Cana-
dian history, and Lord John Russell came into power with Earl
Grey as Secretary of State for the Colonial Department. Almost
at once the new Government decided to grant full responsible
government, and the principle was laid down by Earl Grey him-
self: "This country has no interest whatever in exercising any
greater influence on the internal affairs of the colonies than is
indispensable either for the purpose of preventing any one colony
from adopting measures injurious to another or to the Empire at
large,"*

It has been impossible to give examples of documents which
would illustrate in full the development of representative govern-
ment in the Maritime Provinces. Joseph Howe's letters (Nos.
CXXXVII-CXL) prepared the way. Lord Falkland's failure in
Nova Scotia to imitate Sydenham's policy accelerated the develop-
ment and to his successor, Sir John Harvey, were sent despatches
in which the principles of full responsible government were laid
down (Nos. CLXI; CLXII). Nova Scotia and New Brunswick
passed through a comparatively uneventful history to their full
self-government.

In Canada, however, there were, after the Act of Union, eight
years of experimenting, and it was not till the arrival of Lord
Elgin as Governor-General that Canada had a system of Cabinet
Government in full working order. Elgin received similar instruc-
tions to those given to Sir John Harvey. With these as a working
scheme, he faced immediate issues and with him responsible
government triumphed. His correspondence (Nos. CLXIII-
CLXXII) illustrates hi^ purpose and throws light on the diffi-

> Earl Grey, Thf Colonial Policy of Lord John KmssoU, Vol. I., p. 17 (3 toIi.,
London, 1BS3).

cutties which he encountered. Earl Grey summed up his rule in
Canada: "In conformity with the principles laid down, it was
Lord Elgin's first object in assuming the government of the pro-
vince to withdraw from the position of depending for support on
one party into which Lord Metcalfe had, by unfortunate circum-
stances been brought. He was to act generally on the advice of
his Executive Council and to receive as members of that body
those persons who might be pointed out to him as entitled to be
so by their possessing the confidence of the Assembly. But he
was careful to avoid identifying himself with the party from the
ranks of which the actual Council was drawn, and to make it gen-
erally understood that, if public opinion required it, he was equally
ready to accept their opponents as his advisers, uninfluenced by
any personal preferences or objections."* New difficulties, how-
ever, continued to arise in the workings of the Canadian constitu-
tion which led up to and hastened Confederation.

Cabinet Government, as understood in Great Britain and as
set up in Canada by Lord Elgin, implies government by party*
Two strong parties are its usual and best guarantee for success.
In Canada the number of parties was legion — ^Upper Canadian
Reformers; Upper Canadian Conservatives; French-Canadian
Radicals; French-Canadian Conservatives, with a small, but effi-
cient, group that carried on the most extreme Tory traditions of
Upper Canada. It was impossible to combine parties of the same
name, for there was no common political platform behind a com-
mon name. Coalition government was die result, with all the
weaknesses to which such a form of government is heir. Then
the religious and racial difficulties did not tend to disappear under
the influence of parliamentary and election oratory. The issues
at stake, too, were often only local, in which Upper Canadian and
Lower Canadian had no common interest. These difficulties led
to serious consequences. We find two Premiers, one French, one
English. Before long it becomes a constitutional convention that
a ministry must command a majority in English-speaking as well
as in French-speaking Canada. The whole scheme of government
soon became full of anomalies, and ministries quickly followed
one another to defeat. Then came the party cry of "Representa-
tion by population," which threatened to overthrow the pact of the
Act of Union. The Civil War in the United States and the "Trent
Affair" helped to bring into relief the weakness of government in
Canada, and finally the Canadian Government fell back on the
untried scheme suggested in Lord Durham's Report — ^a federation
of British North America.

Large extracts have been made from the Confederation Debates
in the Canadian Parliament (No. CLXXVIII). These extracts
illustrate, as far as space would allow, every point of view. The
history can be followed in Pope, Confederation Documents (To-
ronto, 1895), and Memoirs of Sir John Macdonald (2 vols. 1894) ;
G. R. Parkm, Sir John Macdonald] J. H. Gray, Confederation of
Canada (Toronto, 1872).

1 Earl Grey, op, ctl., p. 213.

1840-1867] Constitutional Documents of Canada. 561

CLVII —

SYDENHAM'S SPEECH TO CANADIAN PARLIAMENT
[Trans.: Imperial Blue Books relating to Canada, 1841-43, Vol. XIV.]

ISth June, 1841.

Honourable Gentiemen of the Legislative Council, and Gentlemen of the

House of Assembly.

I have deemed it right to assemble you at the earliest period which
the circumstances of the Province and the duties imposed upon me by the
Imperial Act for the Union of the Canadas, under which this Legislature
is constituted, have admited ; and it is with sincere satisfaction that I now
meet you to deliberate on the great and important interests committed to
our charge.

A subject of Her Majesty, an inhabitant of this Provinces has been
forcibly detained in the neighbouring States charged with a pretended
crime. No time was lost by the Executive of this Province in remon-
strating against this proceeding, and provision was made for insuring to
the individual the means of defence pending the further action of Her
Majesty's Government. The Queen's Representative at Washington has
since been instructed to demand his release. Of the result of that demand
I am not yet apprised, but I have the Queen's commands to assure her
faithful subjects in Canada of her Majesty's fixed determination to protect
them with the whole weight of her power.

Arrangements were completed during the course of last summer by
which, under tiie directions of the Treasury, the rates of Postage between
all parts of this Colony and the United Kingdom were greatly reduced;
and a more speedy and regular conveyance of letters between different parts
of this Province has since been established by arrangements made by the
Deputy Postmaster-General under my directions. A commission has been
appointed by me to inquire into and report upon the Post-ofEce system of
British North America, and I confidently anticipate that the result of its
labours will be the establishment of a plan securing improvements in the
internal communication by post within the Colony equal to those which we
have already obtained in the communication with the mother-country.

Many subjects of deep importance to the future welfare of the Pro-
vince demand your early attention, upon some of which I have directed
bills to be prepared, which will be submitted for your consideration.

Amongst them, first in importance at the present juncture of affairs
is the adoption of measures for developing the resources of the Province
by well-considered and extensive public works. Tlie rapid settlement of
the country — the value of every man's property within it — ^the advancement
of his future fortunes are deeply affected by this question. The improve-
ment of the Navigation from the shores of Lake Erie and Lake Huron to
the Ocean — the establishment of new internal communications in the inland
districts are works requiring a great outlay, but promising commensurate
returns. To undertake them successfully large funds will undoubtedly be
required, and the financial condition of the Province, as it stands at present,
would seem to forbid the attempt But I have the satisfaction of inform-
ing you that I have received authority from Her Majesty's government to
state that they are prepared to call upon the Imperial Parliament to afford
their assistance towards these important undertakings. In the full belief
that peace and tranquillity will be happily re-established in this province,
under the constitution settled by Parliament, and that nothing but a relief
from its most pressing difficulties is wanting to its rapid advancement to
prosperity, they will propose to Parliament, by affording the guarantee of
the Imperial Treasury for a loan to the extent of no less than a million

> See Scrope, op, cii,, pp. 224 ff.

JJ

562 Constitutional Documents of Canada. [1840-1867

and a half sterling, to aid the Province, for the double purpose of diminish-
ing the pressure of the interest on the public debt, and of enabling it to
proceed with those great public undertakings whose progress during the
last few years has been arrested by the financial difficulties. I shall direct
a measure to be submitted to you embracing a plan for this purpose, and
I shall lay before you, for your information and that of the people of
Canada, extracts from the despatches which convey to me this most gratify-
ing assurance.

In immediate connexion with the outlay of capital upon public works
is the subject of emigration and the disposal and settlement of the public
lands. There exist within this Province no means so certain of producing
a healthy flow of immigration from the mother-country, and of ultimately
establishing the immigrant as a settler and proprietor within the Colony,
as the power of affording sure employment for his labour on his first
arrival. The assistance of Parliament for the public works which may be
undertaken here, will in great measure provide for this; but with a view
further to aid immigration, I am authorized to declare to you that Her
Majesty's government are prepared to assist in facilitating the passage of
the immigrant from the port at which he is landed to the place where his
labour may be made available, and that a vote of money for this purpose
will be proposed to the Imperial Parliament. The conditions which Her
Majesty s government attach to this measure will be submitted to you at
the same time that I shall draw your attention to a scheme for the settle-
ment and disposal of the public funds.

It appears highly desirable that the principle of local self-government,
which already prevails to some extent throughout that part of the Province
which was formerly Upper Canada, should receive a more extended appli-
cation there, and that the people should exercise a greater degree of power
over their own local affairs. I have directed a measure upon this subject
to be submitted to you, and I solicit your earnest attention to the establish-
ment of such a form of local government for those districts of the Pro-
vince which are unprovided with it, as may ensure satisfaction to the
people whilst it preserves inviolate the prerogative of the Crown, and main-
tains the administration of justice pure from party and popular excitement.

A due provision for the education of the people is one of the first
duties of the State, and in this Province, especially, the want of it ii
grievously felt. The establishment of an efficient system by which the
blessings of instruction may be placed within the reach of all is a work
of difficulty; but its overwhelming importance demands that it should be
undertaken. I recommend the consideration of that subject to your best
attention, and I shall be most anxious to afford you in your labours all
the co-operation in my power. If it should be found impossible so to
reconcile conflicting opinions as to obtain a measure which may meet the
approbation of all, I trust that at least steps may be taken by which an
advance to a more perfect system may be made, and the difficulty under
which the people of this Province now labour may be greatly diminished,
subject to such improvements hereafter as time and experience may point
out
Gentlemen of the House of Assembly,

The financial accounts of the Province will be immediately laid before
you, and I shall direct the estimates for the public service to be submitted
to you with the least possible delay. I rely upon your co-operation in the
financial measures which it will be my duty to propose to you for taking
advantage of the assistance which her Majesty's Government propose tr
afford, and for carrying into effect the public improvements which are
deemed most desirable. I shall earnestly endeavour that whatever yon ma>
appropriate for this latter purpose shall be economically employed and
rendered effective.
Honourable Gentlemen and Gentlemen,

In your wisdom and prudence I confide for the regulation of the
different important matters which must necessarily come before you.
Canada, united under a constitution which the Imperial Legislature has

1840-1867] Constitutional Documents of Canada. 563

framed with an earnest desire for the welfare of this portion of the British
Empire, cannot fail to prosper under prudent and sage counsels. The
generous aid which I have already announced to you, the determination
which I am also empowered to state upon the part of the Government to
devote annually a large sum for the military defences of Uie Province—
the fixed and settled determination which I have the Queen's commands to
declare that her North American possessions shall be maintained at all
hazards as part of Her Empire, are pledges of the sincerity with which the
mother-country desires to promote the prosperity of Canada, and to assist
in the well-working of the new institutions which it has established. The
eyes of England are anxiously fixed upon the result of this great experi-
ment Should it succeed, the aid of Parliament in your undertakings, the
confidence of British capitalists in the credit you may require from tnem,
the security which British people will feel in seeking your shores, and
establishing themselves upon your fertile soil, may carry improvement to
an unexampled height The rapid advance of trade and of immigration
within the last eighteen months, afford ample evidence of the effects of
tranquillity in restoring confidence and promoting prosperity. May no
dissensions roar the flattering prospect which is open before us. May your
efforts be steadily directed to the great practical improvements of which
the Province stands so much in need, and under the blessing of that Provi-
dence which has hitherto preserved this portion of the British dominions,
may your counsels be so guided as to ensure to the Queen attached and
loyal subjects, and to United Canada a prosperous and contented people.

CLVIII

SYDENHAM TO HIS BROTHER

[Trans.: Scrope, op, cit!]

28th August, 1841.

« « « « « 41

My last feat has been to carry the Municipal District Bill for Upper
Canada, word for word after my own ordinance for the Lower Province ;
thereby not only giving the complement to the Union (for you know I
always declared that without sudi institutions the Union could not work),
but setting up my own particular legislation by the sanction of the United
Parliament The bill has passed both Houses, and I proceed to-day in
state to g^ve it the royal assent, in order to make perfectly sure of its being
law, even if I were to quit this world the day after. But the trouble I
have had to do this has completely justified all my anticipations of the
next to impossibility of our getting such a measure through a Provincial
Assembly, and the utter hopelessness of the effort, but for the course
which I followed of dictating it, whilst I was dictator, for one part of the
province first One party hated the measure because it was to give power
to the people; another because it placed that power tmder wholesome
control by the Crown; a third because it deprived the members of the
Assembly of all their past power of jobbuig. But I beat them all three, to
the utter astonishment of the spectators ; and at last carried my work, the
Bill, the whole Bill, and nothing but the Bill, by a majority of forty- two
to twenty-nine, or more than one third. I have now accomplished all I
set much value on; for whether the rest be done now or some sessions
hence, matters little. The Bvt great works I aimed at have been got
through — the establishment of a board of works with ample powers*; the
admission of aliens; a new system of county courts; the regulation of the
public lands ceded by the Crown under the Union Act; and lastly, this
District Council Bill.

564 Constitutional Documents of Canada. [1840-1867

CLIX

RESOLUTIONS OF THE LEGISLATIVE ASSEMBLY OF CANADA,

1841*

[Trans.: Journals of the Assembly of Canada^ 1841, pp. 480 ff.]

I. Robert Baldwin's Proposals.

1. That the most important as well as the most undoubted of the
political rights of the people of this Province is that of having a Provincial
Parliament for the protection of their liberties, for the exercise of their
constitutional influence over the Executive Departments of their Govern-
ment and for legislation upon all matters which do not, on the grounds of
absolute necessity, constitutionally belong to the jurisdiction of the Imperial
Parliament, as the paramount authority of the Empire.

2. That the head of the Provincial Executive Government of the
Province being within the limits of his Government, the representative of
the Sovereign, is not constitutionally responsible to any other than the
authorities of the Empire.

3. That the representative of the Sovereign for the proper conduct
and eflBctent disposal of the public business is necessarily obliged to make
use of the advice and assistance of subordinate officers m the administra-
tion of his Government

4. That in order to preserve that harmony between the different
branches of the Provincial Parliament which is essential to the lutppy
conduct of public affairs the principal of such subordinate officers, advisers
of the representative of the Sovereign, and constituting as such the Pro-
vincial administration under him as the head of the Provincial Government,
ought always to be men possessed of the public confidence, whose opinions
and policy harmonizing with those of the representatives of the people,
would afford a guarantee that the well understood wishes and interests of
the people, which Our Gracious Sovereign has declared shall be the rule
of the Provincial Government", will at all times be faithfully represented to
the head of that Government, and through him to the Sovereign and Im-
perial Parliament

5. That as it is practically always optional with such advisers to con-
tinue in or retire from office at pleasure, this House has the constitutional
right of holding such advisers politically responsible for every act of the
Provincial Government of a local character, sanctioned by such Govern-
ment while such advisers continue in office.

6. That for the like reason this House has the constitutional right of
holding such advisers in like manner responsible for using, while tiiey
continue in office, their best exertions to procure from the Imperial author-
ities the exercise of their right of dealing with such matters affecting the
interests of the Province as constitutionally belong to those authorities,
in the manner most consistent with the well understood wishes and inter
ests of the people of this Province.

II. S. B. Harrison's Amendments to Baldwin's Proposals.

1. That the most important, as well as the most undoubted, of the
political rights of the people of this Province is that of having a Provincial
Parliament for the protection of their liberties, for the exercise of a con-
stitutional influence over the Executive Departments of their Government,
and for legislation upon all matters of internal Government

2. That the head of the executive Government of the Province beim^,
within the limits of his Government, the representative of the Sovereign is
responsible to the Imperial authority alone; but that, nevertheless, tbe
management of our local affairs can only be conducted by him, by and
with tiie assistance, counsel ^nd information, of subordinate officers in the
Province.

* These Resolutions were proposed by Robert Baldwin on Sept. 3, 1841. Hsrri-
son s amendflMnts, which were carried, are generally assigned to Sydeoham'a own pen.

* See No. CXUI.

1840-1867] Constitutional Documents of Canada, 565

3. That in order to preserve between the different branches of the
Provincial Parliament that harmony which is essential to the peace, welfare
and good Government of the Province the chief advisers of the representa-
tive of the Sovereign, constituting a Provincial administration under him,
ought to be men possessed of the confidence of the representatives of the
people, thus affording a guarantee that the well understood wishes and
interests of the people, which our Gracious Sovereign has declared shall
be the rule of the Provincial Government, will, on all occasions, be faith-
fully represented and advocated.

4. That the people of this Province have, moreover^ a right to expect
from such Provincial Administration, the exertion of their best endeavours
that the Imperial authority, within its constitutional limits shall be exer-
cised in the manner most consistent with their well understood wishes
and interests.

CLX
METCALFE TO STANLEY*

[Trans. : J. W. Kaye, Selections from the Papers of Lord Metcalfe, pp. 411

ff., London 1855.]

August 5, 1843.

My Lord, — Regarding Lord Sydenham as the fabricator of the frame
of government now existmg in this province, I have read his despatches to
her Majesty's Secretary of State with attention, in search of some explana-
tion of the precise view with which he gave to the local executive adminis-
tration its present form ; or of any clear understanding which he authorized
the colony to entertain on the mooted question of Responsible Government.

I find that in the early portion of his despatches, whenever the notion
of Responsible Government is alluded to, in the sense in which it is here
understood, he scouts it There are some remarkable passages in his letters
from Halifax, or about the time of his mission to Nova Scotia, which
indicate decisively his view of that question. In speaking of a vote of want
of confidence passed in the Legislative Assembly of that province, with
regard to a member or members of the Executive Council, he reprobates
such a vote as unconstitutional. He does not entertain the same opinion
of a petition from the House to her Majesty for the removal of the Gov-
ernor. This proceeding he regards as the constitutional mode by which a
colony may express its disapprobation of the administration of the govern-
ment, and seek redress against the measures of the Governor. Nothing
could more clearly define his view of the responsibility of a colonial Gov-
ernment, which evidently was, that the Governor is the responsible Govern-
ment ; that his subordinate executive officers are responsible to him, not to
the Legislative Assembly; and that he is responsible to the Ministers of
the Crown, and liable to appeals from the colony against his proceedings;
it being, at the same time, incumbent on him to consult local feelings, and
not to persist in employing individuals justly obnoxious to the community.

Regarding this as the view taken of the question by Lord Sydenham,
it is beyond measure surprising that he adopted the very form of adminis-
tration that was most assuredly calculated to defeat that purpose, and to
produce or confirm the notion of Responsible Government which he had
before reprobated ; that is, the responsibility of the executive officers of the
Government to the popular Legislative Assembly. In composing his Coun-
cil of the principal executive officers under his authority, in requiring that
they should all be members of the Legislature, and chiefly of the popular
branch, and in making their tenure of office dependent on their commanding
a majority in the body representing the people, he seems to me to have

> Metcalfe's despatdi Ulustrates the breaking down of Sydenham's system of "re*
sponsible government." Kaye's note is reprinted at the end of the despatch. For
Metcalfe's government, see J. C. Dent, Canada Since the Union oi 1841 (Toronto,
n. d.); and £. Gibbon Wakefield, (?) Vitw of Sir Charles Metcalfe's Government of
Canada (1844).

566 Constitutional Documents of Canada, [1840-1867

ensured, with the certainty of cause and effect, that the Council of the
Governor should regard themselves as responsible, not so much to the
Governor as to the House of Assenfbly. In adopting the very form and
practice of the Home Government, by which the principal Ministers of the
Crown form a Cabinet, adoiowledged by the nation as the executive admin-
istration, and themselves acknowledging responsibility to Parliament, he
rendered it inevitable that the Council here should obtain and ascribe to
themselves, in at least some degree, the character of a Cabinet of Ministers.
H Lord Sydenham did not intend this, he was more mistaken than from his
known ability one would suppose to be possible; and if he did intend it,
he, with his eyes open, carried into practice that very theory of Responsible
Colonial Government which he had pronounced his opinion decidedly
against

I cannot presume to account for this apparent inconsistency otherwise
than by supposing either that he had altered his opinion when he formed
his Council after the union of the two provinces, or that he yielded against
his own conviction to some necessity which he felt himself unable to resist
His despatches do not furnish any explanation as to which of these influ-
ences he acted under ; at least, I have not discovered in his latter despatches
any opinion on the subject on which he had previously declared his decision
against the theory, which he practically carried into effect, by avowedly
making the tenure of office dependent on the support of a majority in the
popular branch of the Legislature.

It is understood that he was little accustomed to consult his Council,
and that he conducted his administration according to his own judgment
His reputation for ability stands very high in this country; but it is be-
lieved that he could not have carried on his Government much longer
without being forced to yield to the pressure of the Legislative Assembly
on his Executive Council. Before the commencement of the first session
of the Parliament of Canada, the only session of the united province that
he lived, or ever intended, to go through, he was threatened with a vote of
want of confidence against a part of his Council— the very vote which he
had pronounced to be unconstitutional. This was averted during that
session by a division in the Reform party, but the session, I am informed,
was scrambled through with difficulty, the majorities reckoned on in sup-
port of the Government on some questions not exceeding one voice, and
there not bein^^ in every instance even that The first wedk of the session
was occupied m extorting from the meralbers of the Council an avowal of
their responsibility ta the majority, according to the popular construction
of Responsible Government The vote of want of confidence was averted
in that session only to be brought forward in the next, when, as is known,
the dread of it operated with decisive effect

I dwell on Lord Sydenham's administration because it has had most
important influence, Which is likely to be permanent, on the subsequent
government of this province. He established, among the last acts of his
administration, what is here called Responsible Government, and left the
problem of the success of that system in Colonial ^Government to be solved
by futurity. It may have been that to carry the measures which he had
immediately at heart he covld not avoid what he adopted.

The, term Responsible Government, now in general use in this colony',
was derived, I am told, from the marginal notes of Lord Durham's report
Previously to the publication of that document, the Democratic party in
Upper Canada had been struggling for a greater share than th^ possessed
in the administration of the Government of the country; but they had no
precise name for the object of their desires, and could not exactly define
their views. Lord Durham's report gave them the definition, and the words
Irresponsible Government, Responsibility of the Government, Responsfl)ility
of the Officers of the Government, occurring repeatedly in the maiginal
notes, it is said furnished the name. From that time "Responsible Govern-

> On May 14, 1829, however, a petition signed by over two tkonsand Ixih^bltaata
of Upper Canada was presented to the House of Commons asking for "a local
sible ministry."

1840-1867] Constitutional Documents of Canada, 567

ment" became the war-cry of the party. Lord Sydenham, on his arrival
in Upper Canada, had to encounter or submit to this demand. One of his
objects was to win the Reform party, the name assumed by the party m
question, and they could only be won by the belief on their part that
Responsible Government was to be conceded. In fact, Lord Sydenham,
whether intending it or not, did concede it practically by the arrangements
which he adopted, although the full extent of the concession was not so
glaringly manifested during his administration as in that of his successor.'

There appears to me to have been a great difference between the sort
of Responsible Government intended by Lord Durham and that carried
into effect by Lord Sydenham. On examining Lord Durham's report in
search of what may be supposed to have been his plan, I find diat he
proposes that all officers of the Government except the Governor and his
secretary should be responsible to the United Legislature; and that the
Governor should carry on his government by heads of departments, in
whom the United Legislature repose confidence. All this might be done
without impairing the powers of usefulness of the Governor. If the
secretary who issued the Governor's orders were not responsible to the
Legislature, there would be a great difference from the present arrange-
ment under which the provincial administration generally is carried on
through secretaries professedly so responsible. The general responsibility
of heads of departments, acting under the orders of the Governor, each
distinctly in his own department, might exist without the destruction of
the former authority of her Majesty's Government. In this scheme there
is no mention of the combination of these officers in a Council, to act bodily
with the character of a Cabinet, so as manifestly to impair the powers of
the responsible head of the Government. Lord Durham's general concep-
tion does not seem to have been, formed into a distinct plan, and when he
says that the responsibility to the Legislature of "all officers of the Govern-
ment except the Governor and his secretary should be secured by every
means known to the British constitution," he does not explain bv what
means this should be done ; and it is by the means of doing it that the plan
must be most materially affected.

Lord Sydenham realised the conception in the way most calculated to
weaken the authority of the Governor, and render the responsibility oi
the officers of the Government to the popular branch of the Legislature
complete, by transacting the business of the province through the provincial
secretaries, and making them and all the heads of departments a Council
responsible to the Legislature, and holding their seats by the voice of the
majority. As far as Lord Sydenham's despatches show, this was an
optional and spontaneous arrangement on his part, although clearly op-
posed in its natural consequences to the sentiments which he had previously
expressed.

Lord Sydenham's policy in Upper Canada was to win the party calling
themselves Reformers, to crush the party called the Family Compact, and
to form a Council of the moderate men of the Reform and Conservative
parties. In the two former of these objects he succeeded. In the latter
he must be said to have failed, for, although the Council so formed strug-
gled through one short session of the Legislature, it could not meet, or was
afraid to meet, the threatened storm in the next, and was broken up, the
Conservative portion retiring to make way for the French party, and what
was considered the extreme Democratic, or Reform party.

Lord Sydenham's policy in Lower Canada had been to subdue the
French party. In this he failed. They remained compact and exceedingly
embittered against Lord Sydenham. They united themselves with the
extreme Democratic party; these were strangely joined by the extreme
Conservative party; and this combination overthrew Lord Sydenham's
Council, which had been previously recruited by Sir Charles Bagot, with
accessions from both the Conservative and the Reform parties.

By these manoevres the French and Reform parties became united,
the Conservatives were thrown into a minority, and die ultra-Conservatives,

> Sir Charles Bagot.

568 Constitutional Documents of Canada. [1840-1867

who had aided in bringing about this change, were dropped by their recent
allies, in accordance with the terms of their alliance, which was only fox
offensive war against the Council.

The result of this struggle naturally increased the conviction thai
Responsible Government was effectually establi^ed. New councillors were
forced on the Governor-General, to at least one of whom he had a decided
antipathy. The Council was no longer selected by the Governor. It was
thrust on him by the Assembly of the people. Some of the new members
of the Council had entered it with extreme notions of the supremacy ot
the Council over the Governor — ^that is, of the necessity of his conforming
to their advice on all matters, great or small ; and the illness of Sir Charles
Bagot after this change threw the current business of administration
almost entirely into their hands, which tended to confirm these notions.
Subsequent experience has, I hope, modified these impressions, and pro-
duced a more correct estimate of the relative position of the Governor and
the CouncU; but it is obvious that the existence of a Council, in reality
appointed and maintained by a majority in the popular branch of the
Legislature, must tend to impair the power and influence of the Governor.
Whether this, in the end, will operate advantageously for the colony and
the mother country, time alone can positively show. I am disposed to think
that its immediate effects are injurious, presuming, as I do, that whatever
good it may seem to effect might have been produced in another way.

One evil of this kind of Responsible Government is, that it tends to
produce the government of a party. The Governor may oppose himself to
this, but will hardly be able to do so effectually. The Council will be apt
to think more of securing their own position than of cordially co-operating
in the accomplishment of his wishes. Their recommendations in matters
of patronage, which in the relations existing between them and the Gov-
ernor are likely to be often attended to, even without admitting their claim
to a monopoly, will be almost always in favour of partisans. Their sup-
porters look to them for the exclusive bestowal of places of emoluments,
and threaten openly to withdraw their support from them if they do not
favour their views. To maintain the majority by which they hold office
will be with them a primary concern; such, at least, is the tendency of the
circumstances of their position, without supposing the total absence of
higher and better motives.

Without a Council so circwnstanced, a Governor, acknowledging the
propriety and necessity of conducting his government according to tiie
interests and wishes of the people, and of conciliating and winning^ the
Legislature — and this might have been made a rule for the guidance of
Governors never to be departed from — might render his administration of
the government satisfactory to all parties, and obtain an influence con-
ducive to the preservation of affectionate relations between the mother
country and the colony, and to the welfare and interests of both. Under
the existing system, the Governor, it appears to me, is not likely to obtain
influence. If he and his Council are cordially united, he becomes, either in
reality or to appearance, a partisan, without any reason for his being sa
The credit of all the good that he may do will be assumed by them, or
ascribed ~ to them, by their party. All Uiat may be considered evil by the
other party he will have the discredit of allowing. If he evinces any dis-
position to conciliate the other parly, he becomes an object of distrust to
his Council and their party. Their interests and his, and with his those of
her Majesty's Government, are always distinct; for they have dieir inter>
ests as a party to guard, which must be distinct from those of her Majesty's
Government, as well as from any which the Governor may personally feel
with respect to the credit of his administration.

I will endeavour to describe my own position. I am not perfectly
satisfied with my Council, chiefly because they are under the influence of
party views, and would, if they could, drag me on with them in ^e same
course. The only effectual remedy would be to dismiss them, or such of
them as are most in the extreme on this point, and form another Council.

ft

\

L^ 1840-1867] Constitutional Documents of Canada. 569

^: But the consequence to be expected would bt, that a cry would foe raised

L- accusing me of hostility to Responsible Government. The new Council

would not be able to stand against a majority in the popular branch of

the Legislature, and I should either be obliged to take back those whom

I had dismissed, with a sort of disgrace to myself injurious to the efficiency

.; of my government, or be in a continual warfare with a majority in the

. * House of Assembly that would render my presence here of no benefit to

-J. her Majesty's service. Such a contest I would neither shrink from nor

^ yield to, if it became my duty to encounter it; but it is so desirable to

'^. avoid it, that it would require strong grounds to justify its being wilfully

J; incurred.

My objects are to govern the country for its own welfare, and to
^,. engage its attachment to the parent State. For these purposes it is my
.' wish to conciliate all parties ; and although this might be difficult, I do not
,1. perceive that it would be impracticable, if the Governor were free to act
'y thoroughly in that spirit ; but the accomplishment of that wish seems almost
^ impossible when the Governor is trammelled with a G>uncil deeming it
r. necessary for their existence that their own party alone should be consid-
V ered Sooner than abandon myself as a partisan to such a course, I would
dismiss the Council and take the consequences; but it is scarcely possible
to avoid the influence of party spirit in an administration in which every
adviser and every executive officer is guided by it ; and the chief difficulty
of my position, I conceive, is to act according to my own sense of what is
right^ and in opposition to this party spirit, without thereby breaking with
the Council and the majority that at present support them. The form of
administration adopted by Lord Sydenham appears to me to have put heavy
shackles on any Governor who means to act with prudence, and would not
recklessly incur the consequences of a rupture with the majority in the
popular Assembly. The meeting of the Legislature will probably enable
me to see my position more clearly. It is at present far from certain that
a change of councillors would produce any beneficial alteration in respect
to the difficulty noticed, for any Council appointed on the principle of
Canada Responsible Government would most probably have similar party
views, and the same pressure on them from their partisans.

It becomes a question whether Party Government can be avoided
The experiment of Responsible Government in this colony hitherto would
indicate that it cannot It seems to be inevitable in free and independent
States where Responsible Government exists; and the same causes are
likely to produce similar effects everywhere ; but there is a wide difference
between an independent State and a colony. In an independent State all
parties must generally desire the welfare of the State. In a colony sub-
ordinate to an Imperial Government, it may happen that the predominant
party is hostile in its feelings to the mother country, or has ulterior views
inconsistent with her interests. In such a case, to be obliged to co-operate
with that party, and to permit party government to crush those who are
best affected, would be a strange position for the mother country to be
placed in, and a strange part for her to act. This ought to have been well
considered before the particular system which has obtained the name of
Responsible Government was established. It is now, perhaps, too late to
remedy the evil. I have supposed an extreme and possible case without
intendmg to apply the description to the state of parties in this colony.
I trust that it is in a great degree inapplicable. It is nevertheless so far
applicable, that the party always known as the British Party in this pro-
vince is now in the minority. It will be my study to make all parties con-
tented and liappy; but that part of my task, I fear, is hopeless. It will
also be my study to promote loyalty to our gracious Sovereign, and attach-
ment to the British Empire. These feelings will be most successfully con-
firmed by an administration of the government satisfactory to the people,
and by a conviction on their minds that their interests are promoted by
British connexion. The acts of her Majesty's Government in guaranteeing
the loan for public works, and in facilitating the importation of Canada
wheat and flour into the United Kingdom, ought to have in this respect a

570 Constitutional Documents of Canada. [1840-1867

very beneficial tendency, as evincing a fostering care for the colony which
can hardly fail to be highly appreciated.

I have to apologise for some repetition in this despatch of sentiments
nearly the same as those expressed on former occasions on which I have
noticed the same subject. It is one which has unavoidably occupied much
of my attention, and is brought before me continually by daily occurrences.
I feel that the little power of usefulness that I might have had under
different circumstances is obstructed by the plan of administration intro-
duced into this colony; but that any attempt to remove the impediment
would most probably be still more injurious. I have therefore dilated on
the peculiarity of my position more frequently than may seem necessary;
and I trust that I shall not again trouble your Lordship on this topic

[The anticmations shadowed forth in the preceding despatch were soon
fulfilled. Sir Charles Metcalfe said truly that "the chief difficulty of his
position was to act according to his sense of what was right without
breaking with his Council." In a preceding despatch he had spoken of the
requirements of hi% Coimcil, and the impossibility of submitting to them
consistently with tlie duty that he owed to the Imperial Government "I am
required/' he said, "to give myself up entirely to the Council; to submit
absolutely to their dictation; to have no judgment of my own; to bestow
the patronage of the Government exclusively on their partisans; to pro-
scribe their opponents ; and to make some public and unequivocal declara-
tion of my adhesion to these conditions, including the complete nullification
of her Majesty's Government." But he was not disposed to purchase peace
on such terms as these. As the autumn advanced, the prospect of a rupture
with the Executive Council seemed more and more imminent: "At the end
of November the crisis came. The question which precipitated it at last
was a question of patronage. Metcalfe had appointed to his personal Staff
a French-Canadian officer who was distasteful to Mr. Lafontaine. The
appointment was intended to conciliate the French-Canadian community,
but it offended their chief. The leaders of both parties in the Council then
waited on the Governor-General, intent on advancing the pretensions oi
the Executive. They demanded that the Governor-General should make no
appointment without the sanction of his Ministers. During two long sit-
tings, on the 24th and 25th of November, Baldwin and Lafontaine press«i
their demands with energy and resolution ; but Metcalfe, in his own placid

way, was equally energetic and resolute On the 26th of November,

all Uie members of the Council, with the exception of Mr. DaJy, finding
that th^ could not shake the firmness of the Governor-General, resigned
their offices, and prepared to justify their conduct to Parliament and the
colony at large."]

CLXI

EARL GREY TO LIEUTENANT-GOVERNOR SIR JOHN HAVREY,

K..CB.

[Trans. : Imperial Blue Books relating to Canada, 1844-48, Vol XV.]

Extracts from a Despatch from Earl Grey to Lieutenant-Governor Sir
John Harvey, K.C.B., dated —

Downing Street, 3 November, 1846.

I have received your Despatch of the 15th September, marked "Private
and Confidential," in which you communicate to me vour views upon tilie
state of affairs which you have found on arriving in Nova Scotia.

'This and the despatch which follows contain the scheme of "foil rcspoasiMe

Etvernment" as worked out in Nora Scotia hy the Ueutenant-Govemor, Sr John
anrey, and m Canada hj Lord Etgin.

1840-T867] Constitutional Documents of Canada, 571

Circmnstances prevented me from answering your Despatch » as yon
wished me to have done, by the packet which left England on tbe 3d in-
stant; but the interval which has since eU4>sed has enabled me to devote
more time to the consideration of the questions which yon have brought
under my notice than the brief space between the arrival and the departure
of the North American packet would have allowed me to do.

I perceive, from your representation of the position of affairs in Nova
Scotia, that there are questions to be determined in respect to the govern-
ment of that'^province of no ordinary difficulty, and that it is of the utmost
importance that the first measures of your administration should be pre-
ceded by the most careful deliberation. The knowledge which I possess
of the local politics of Nova Scotia is at present too limited to enable me,
with confidence in my own judgment, to give you any positive and de-
tailed directions as to the course which circumstances may require you to
adopt in the present conjuncture ; but though it is out of my power to give
you such instructions, there are certain general principles which ought, as
I conceive, to govern your conduct in this and in similar cases ; and which,
as they a<hmt of being stated, ought, I think, to be communicated to you
for yoor guidance.

I shall advert first to the important topic of the composition of the
Legislative Council. In making appointments to this body, it ought un-
doubtedly to be the object of the administrator of the Government so to
compose it as to make it fairly represent the opinion of the majority of the
intelligent members of the community; but supposing the selection of the
present members to have been ill-advised, and that the Council in conse-
quence is not in harmony with public opinion, the question arises, what is
then the proper course to be adopted? Under such circumstances there
are two considerations to which it is necessary to advert. First, that it is
impossible to allow the Legislative Council to obstruct permanently the
passing of measures called for by public opinion, and sent up by the popu-
lar branch of the Legislature. Secondly, that it is a serious evil to be
compelled to make an Siddition to the members of this body for the purpose
of changing the character of the majority; since each such addition creates
both a precedent and a necessity for a similar and perhaps larger addition
whenever a change in public feeling gives the ascendancy to a new party
in the assembly. It is difficult to reconcile these almost conflicting con-
siderations, but this, in my opinion, mav be attempted with the greatest
hopes of success, by adopting as a rule that an addition is not to be made
to the Legislative Council with a view to changing the character of the
majority, except under circumstances of clear and obvious necessity. An
anticipation that public business will be impeded because there is a majority
in the Legislative Council attached to the political party which has not the
confidence of the colonyMs insufficient to justifjr the appointment of addi-
tional members. Practical inconvenience must have actually arisen, and to
a serious extent, before resort can with propriety be had to any measure
for increasing the number of the Council. If that body be found obstructing
pertinaciously the progressof public business, and the passing of laws which
public opinion demands, an addition to it would then be felt to be a just
and necessary measure, and would not excite the same indignation, on the
part even of those against whom it might be directed, as would be the case
if adopted on lighter grounds; while the probability is that the members
of the Legislative Council, knowing that if it should become necessary this
measure must ultimately be resorted to, will shrink from creating the
necessity by obstinately opposing themselves to the real opinion of the
intelligent classes of the community.

41 « « « « «

I come now to the second question which you have submitted to me in
your Despatch, namely, the propriety of dissolving the present House of
Assembly.

I am of opinion that under all the circumstances of the case, the best
course for you to adopt is to call upon the members of your present Execn-

572 Constitutional Documents of Canada. [1840-1867

tive Council to propose to you the names of the gentlemen whom they
would recommend to supply the vacancies, which I understand to exist, in the
present Board. If they should be successful in submitting to you an
arrangement to which no valid objection arises, you will of course continue
to carry on the government through them, so long as it may be possible to
do so satisfactorily, and as they possess the necessary support from the
Legislature. Should the present Council fail in proposing to you an
arrangement which it would be proper for you to accept, it would then be
your natural course, in conformity with the practice in analogous cases in
this country, to apply to the opposite party, and should you be able, through
their assistance, to form a satisfactory Council, there will be no impro-
priety in dissolving the Assembly upon their advice ; such a measure, under
those circumstances, being the only mode of escaping from the difficulty
which would otherwise exist of carrying on the government of the province
upon the principles of the constitution.

The object with which I recommend to you this course, is that of
making it apparent that any transfer which may take place of politiod
power from Uie hands of one party in the province to those of another is
the result not of an act of yours but of die wishes of the people them-
selves, as shown by the difficulty experienced by the retiring party in car-
rying on the government of the province according to the forms of the
constitution. To this I attach great importance; I have therefore to in-
struct you to abstain from changing your Executive Council until it shall
become perfectly clear that they are unable, with such fair support from
yourself as they have a right to expect, to carry on the government of the
province satisfactorily, and command the confidence of the Legislature.

Of whatsoever party your Council may be composed, it will be your
duty to act strictly upon the principle you have yourself laid down in the
memorandum delivered to the gentleman with whom you have communi-
cated, that, namely, "of not identifying yourself with any one party/' but
instead of this, "making yourself both a mediator and a moderator between
the influential of all parties." In giving, therefore, all fair and proper
support to your Council for the time being, you will carefully avoid any
acts which can possibly be supposed to imply the slightest personal objec-
tion to their opponents, and also refuse to assent to any measures
which may be proposed to you by your Council, which may
appear to you to involve an improper exercise of the authority of the
Crown for party rather than for public objects. In exercising, however,
this power of refusing to sanction measures which may be submitted to
you by your council, you must recollect that this power of opposing a
check upon extreme measures proposed by the party for the time in the
government, depends entirely for its efficacy upon its being used sparingly,
and with the greatest possible discretion. A refusal to accept advice ten-
dered to you by your council is a legitimate ground for its members to
tender to you their resignation, a course they would doubtless adopt should
thev feel that the subject on which a difference had arisen between you
and themselves was one upon which public opinion would be in their favour.
Should it prove to be so, concession to their views must, sooner or later,
become inevitable, since it cannot be too distinctly acknowledged that it is
neither possible nor desirable to carry on the government of any of the
British provinces in North America in opposition to the opinion of the
inhabitants.

Qearly understanding, therefore, that refusing to accede to the advice
of your council for the time being upon a point on which they consider it
their duty to insist, must lead to the question at issue being brought ulti-
mately under the decision of public opinion, you will carefully avoid allow-
ing any matter not of very grave concern, or upon which you cannot rea-
sonably calculate upon being in the end supported by that opinion, to be
made the subject of such a difference. And if, unfortunately, such a dif-
ference should arise, you will take equal care that its cause and the grounds
of your own decision are made clearly to appear in written documents
capable of being publicly quoted.

1840-1867] Constitutional Documents of Canada. 573

The adoption of this principle of actioni by no means involves the
necessity of a blind obedience to the wishes and opinions of the members
of your Council ; on the contrary, I have no doubt that if they see clearly
that your conduct is guided, not by personal favour to any particular men
or party, but by a sincere desire to promote the public good, your objections
to any measures proposed will have great weight with the Council, or
should they prove unreasonable, with the Assembly, or, in last resort, with
the public. '

Such are the g[eneral principles upon which the constitutions granted
to the North American colonies render it necessary that their government
should be conducted. It is, however, I am well aware, far ea^er to lay
down these general principles than to determine in any particular case what
is that line of conduct which an adherence to them should prescribe. In
this your own judgment and a careful consideration of the circumstances
in which you are placed must be your guide ; and I have only, in conclusion
to assure you that Her Majesty will always be anxious to put the most
favourable construction upon your conduct m the discharge of the arduous
duties imposed upon you by the high situation you hold in Her service.

CLXII

EARL GREY TO LIEUT-GOVERNOR SIR JOHN HARVEY, K.C.B.

[Trans. : Imperial Blue Books relating to Canada, 1844-48, V6L XV.]

Downing Street, 31 March, 1847.
Sir,

I have already acknowledged the receipt of your Despatch of the 2d
February, enclosing two letters to yourself from your Executive Council,
and I now propose to communicate the conclusions at which I have arrived
after that attentive consideration which I have felt due, as well to the
intrinsic merits of the views stated by your advisers, as to the respectable
source from which the statement emanates.

In doing so, it will be convenient that I should at the same time advert
to the correspondence which, soon after your assumption of the govern-
ment of Nova Scotia, you had with Mr. Howe and his friends.

Upon a careful comparison of these very able papers, in which die
members of your Council and their political opponents have stated their
respective views as to the manner in which the Executive Government of
Nova Scotia ought to be conducted, I am led to the conclusion that there is
not in reality so wide a difference of principle between the conflicting par-
ties as would at first sight appear to exist, and that it may not be impos-
sible to chalk out a system of administration to be hereafter adopted, to
which, without the slightest sacrifice of consistency, both might assent

On the one hand, I find that the members of your Council declare that
they "desire in no degree to weaken the responsibility of the Provincial
Grovemment to the Legislature," and I gather from the general tenor of
their papers of the 28th and SOth of January, that they are aware that, in
the present state of affairs, and of public opinion in Nova Scotia, it is
necessary that the Governor of the province should, in administrating its
affairs, have the advice and assistance of those who can command the con-
fidence of the Legislature, and more especially of that branch of the Legis-
lature which directly represents the people.

On the other hand, I can hardly doubt that the gentlemen of the oppo-
site party who have insisted so strongly upon the necessity of what is
termed "responsible government," would admit the justice and importance
of many of the arguments which have been used, in order to show the
danger and inconvenience of making the general tenure of offices in the
colonial service to depend upon the fluctuations of political contests in the
Assembly. I am the more 'convinced that the gentlemen of the opposition
will recognize the force of these arguments, because I observe in the

574 Constitutional Documents of Canada. [1840-1867

various papers in which they have stated their views, frequent references,
either direct or implied, to the practice of this country, as that which
affords the best model for imitation in laying down rules as to the manner
in which the government of Nova Scotia should be carried on. Now there
is scarcely any part of the system of government in this country which I
consider of greater value than that, which though not enforced by any
written law, but deriving its authority from usage and public opinion,
makes the tenure of the great majority of officers in the public service to
depend upon good behaviour. Although with the exception of those who
hold the higher judicial situations, or situations in which judicial inde-
pendence has been considered to be necessary, the whole body of ptfblic
servants in the United Kingdom hold their offices technically during the
pleasure of the Crown, in practice all but the very small proportion of
offices which are distinguished as political, are held independently of party
changes, nor are those who have once been appointed to them ever in point
of fact removed, except in consequence of very obvious misconduct or un-
fitness. Thus, in fact, though the legal tenure, "during good behaviour," is
rare, tenure during good behaviour, in the popular sense of the term, may
be said to be the general rule of our public service.

The exception is in the case of those high' public servants whom it is
necessary to invest with such discretion as really to leave in their hands
the whole direction of the policy of the empire in all its various depart-
ments. Such power must, with a representative government, be subject to
constant control by Parliament, and is therefore administered only by such
persons as from time to time enjov the confidence of Parliament as well
as of the Crown. These heads qf departments, or Ministers, together with
their Immediate subordinates who are required to represent or support
them in Parliament, are almost invariably members of one or other House,
and hold their offices only as long as they enjoy the confidence of Parlia-
ment

Though it is not without some inconveniences, I regard this system as
possessing upon the whole very great advantages. We owe to it that the
public servants of this country, as a body, are remarkable for their experi-
ence and knowledge of public affairs, and honourably distinguished by the
zeal and integrity with which they discharge their duties, without refer-
ence to party feeling; we owe to it also, that as the transfer of power
from one party in the State to another is followed by no change m the
holders of any but a few of the highest offices, political animosities are not
in general carried to the same height, and do not so deeply agitate the
whole frame of society as in those countries in which a different practice
prevails. The system wiUi regard to the tenure of office which has been
found to work so well here, seems well worthy of imitation in the British
American Colonies, and the small population and limited revenue of Nova
Scotia, as well as the general occupation and social state of the community,
are, in my opinion, additional reasons for abstaining, so far as regards that
province, from going further than can be avoided, without giving up the
principle of executive responsibility, in making the tenure of offices in the
public service dependent upon the result of party contests. In order to
keep the Executive Government in harmony with the Legislature, it is
doubtless necessary that the direction of the internal policy of Uie colony
should be entrusted to those who enjoy the confidence of the Provinci^
Parliament, but it is of great moment not to carry the practice of changing
public officers further than is absolutely necessary for the attainment of
that end, lest the administration of public affairs should be deranged by
increasing the bitterness of party spirit, and subjecting the whole machin-
ery of Government to perpetual change and uncertainty.

In the practical application of these views, there will, I am aware, be
room for considerable difference of opinion.

In this, as in all questions of classification, varying circumstances and
the various views taken by different men, will give rise to discussions and
occasional alterations with respect to particular offices. Your acquaintance
with what has passed, and is passing in the mother country, will suggest to

1840-1867] Constitutional Documents of Canada, 575

you instances in which the question has been raised, whether a particular
office should or should not be a Parliamentary dfice; and some in which
different offices have been deliberately removed from the one into the
other class.

The question how many of the public officers) in Nova Scotia ought to be
regarded as political, is one to be determined on the general principles I
have before laid down, and with reference to. various considerations aris-
ing from the peculiar exigencies of the public service, and the finances and
social state of tfie colony. The practical end of responsible government
would be satisfied bv the removabilitv of a single public officer, provided
that through him public opinion could influence the general administration
of affairs. Without quite assenting to the too modest estimate which your
present Council have given of the resources of .the province, I admit that
the smallness of the cmmnunity, its want of wealth, and the comparative
deficiency of a class i>ossessing leisure and independent incomes, preclude
it from, at present, enjoying a very perfect division of public employments.
Small and poor communities must be content to have their work cheaply
and somewhat roughly done. Of the present members of your Council,
the Attorney-General and Provincial Secretary, to whom the Solicitor-
General should perhaps be added, appear to me sufficient to constitute the
responsible advisers of the Governor. The holders of these offices shoulS
henceforth resnrd them as held on a political tenure. And, with a view to
that end, the Provincial Secretary should be prepared, in the event of any
change, to disconnect from his office that of the clerkship of the Council,
which seems to be one that should on every account be held on a more
permanent tenure.

It is possible that in the event of any change being rendered necessary
by the course of events in the Provincial Parliament, the party succeeding
to power might insist on increasing this number of political offices, by add-
ing to the list of those to be so regarded. In case such a question should
arise, I must leave it to your discretion, on a view of various local and
temporary circumstances, which I am unable at present to appreciate, to
form your own decision with respect to any such demand. I should feel
no objection to somewhat increasing the number of political offices (for
instance, by appointing a financial secretary and a responsible chief of the
department of public lands and works), should the expense of doing so,
without injustice to those now in the public service, be found to be not
more than the colonial revenue would conveniently bear. But I rely on
your using your influence to resist that disposition, which a party succeed-
ing to power often exhibits, to throw open the various offices of emolu-
ment to their friends, without sufficient regard to the mischiefs thereby
permanently entailed on the public service. And it is but due to what I
have seen of the conduct of uie principal advocates of responsible govern-
ment in Nova Scotia, to express m^ reliance on their public spirit and sober
estimate of their country^s position and interests, as the most effectual
safeguard against any abuse of power.

There is another safeguard which, even with the less considerate mem-
bers of any party, you will, I think, find sufficient to protect the public
interests against any great disposition unnecessarily to place offices hitherto
held on what has practically been a tenure of good behaviour, on one of a
more precaric^us nature. However desirous the people of Nova Scotia may
be to establish the principal of responsible government, they would I feel
assurd. shrink from effecting any reform, however just or necessary, at the
cost of injustice to individuals. Now, when individuals have engaged in
the public service under a belief, sanctioned by custom, that tfiey obtained
a tenure of their ofllces during good behaviour, it would be most unjust to
change that tenure to one of dependence en a parliamentary majority,
without ensuring them a provision that would make up for the loss of
official income. I think that the consideration that the grasping at any
particular office would necessitate the provision of an adequate pension for
its occupant, will be a salutary check on any disposition to carry party
government beyond its just limits.

576 Constitutional Documents of Canada. [1840-1867

This condition must be applied to the removal of those public officers
who now have seats in your Executive Council, unless where they have
clearly accepted office on an understanding to the contrary effect I cannot
suppose that the necessity of providing the requisite pensions will be
deemed by the Assembly an unreasonable accompaniment of the establish-
m^t of parliamentary government. And hereafter I think it would be
proper to recognise as an invariable rule, that no person should without
such provision he deprived of any office (except upon the ground of unfit-
ness or misconduct) , unless he had accepted it on the distinct understand-
ing that it was to be held 'virtually, as well as nominally, during pleausnre.

I entertain a strong conviction that the adoption of such a rule will be
found conducive not only to the interests of Uie holders of offices, but also
to those of the public, and to a true economy of the public money. As I
have already (^served, it is impossible to expect that men of superior capa-
city will devote themselves to the public service unless they are assured
that their employment will be permanent, or are offered emoluments so
larjgfe as to make up for the uncertainty of the tenure by which they are
enjoyed. If the emoluments of public employment are small, and its tenure
at the same time uncertain, a strong temptation is given to the holders to
endeavour to make up for these disadvantages by irregular gains, and
thus to give rise to practices equally injurious to the community in a
pecuniary and in a moral point of view.

You will observe thatj in the preceding observations, I have assumed
that those only of the pubhc servants, who are to be regarded as removable
on loMug the confidence of the Legislature, are to be members of the
Executive Council. This I consider to follow from the principles I have
laid down. Those public servants, who hold their offices permanently, must
upon that verjr ground be regarded as subordinate, and ought not to be
members of either house of 9ie Legislature, by which they would neces-
sarily be more or less mixed up in party struggles ; and, on the other hand,
those who are to have the general direction of affairs exercise that function
by virtue of their responsibility to the Legislature, which implies their be-
ing removable from office, and also that they should be members either of
the Assembly or of the Legislative Council. But this general direction of
affairs, and the control of all subordinate officers, it is the duty of the
Governor to exercise through the Executive Council; hence the seats in
that Council must be considered as in the nature of political offices, and if
held in connexion with other offices must give to these also a political
character. This^ however, leads me to observe, that if only two or three of
the principal omces are to be regarded as political, it may venr probably
be advisable to assign salaries to two or three of the Executive Councillors
as such. The Executive Council has duties of a very impcHtant character
to perform ; those duties, and the defects in the manner in which they had
then generadly been discharged I find thus described in a confidential de-
spatch which the late Lord Sydenham, then Mr. P. Thomson, addressed to
Lord J. Russell, from' Halifax, in the year 1840: —

"The functions of the Executive Council, on the other hand are, it is
"perfectly clear, of a totally different character. They are a body upon
"whom the Governor must be able to call at any or at all times for advice ;
"with whom he can consult upon the measures to be submitted to the
"Legislature, and in whom he may find instruments, within its walls, to
"introduce such amendments in the laws as he may think necessary, or to
"defend his acts and his policy. It is obvious, therefore, that those who
"compose this body must be persons whose constant attendance on the
"Governor can be secured; principally, therefore, officers of the Govcm-
"ment itself ; but, when it may be expedient to introduce others, men hold-
"ing seats in one or other House, taking a leading part in political life,
and above all exercising influence over the Assembly."

".

'The last, and, in my opinion, by far the most serious defect in the
"Government, is the utter absence of power in the Executive, and its total

1840-1867] Constitutional Documents of Canada. 577

u
»*.
ft

««,
<«
«f

l«
l<

"want of energy to attempt to occap3r the attention of the country upon
real improvements, or to lead the LMfislature in the preparation and adop-
tion of measures for the benefit of the colony. It does not apj^ear to
have occurred to any one that it is one of the first duties of the Govern-
ment to suggest improvements where the^ are wanted. That the constitu-
tion having placed the power of legislation in the hands of an Assembly
and a Council, it is only W acting through these bodies that this duty can
be performed, and that if these proper and legitimate functions of Gov-
ernment are neglected, the necessary result must be, not only that the
improvements wluch the people have a right to expect will be neglected,
"and the prosperity of the country checked, but that the popular branch of
"the Legislature will misuse its power, and the popular mind be easily led
"into excitement, upon mere abstract theories of government, to which
"their attention is directed as the remedy for the uneasiness they feel."

In this view of the proper functions of the Executive G>uncil I en-
tirely concur; but I greatly doubt whether they could be adequately dis-
charged by a Council composed of only two or three persons holding
ofiices in Uie public service, and of gentlemen serving gratuitously. It is
hardly possible to expect that those so serving^ should - devote any large
portion of their time to their public duties, and it therefore appears to me
highljr desirable that salaries should be assigned to at least one or two
seats in the Executive Council.

On such terms as these, which I have thus detailed, it appears to me
that the peculiar circumstances of Nova Scotia present no insuperable
obstacle to the immediate adoption of that system of parliamentary gov-
ernment which has long prevailed in the mother country, and which seems
to be a necessary part of representative institutions in a certain stage of
their progress.

I have thought it due to :^ou to enter thus fully into the practical diffi-
culties to be encountered in giving effect to those general principles which,
in my despatch of the 3d of November, I laid down for your guidance in
the selection of your responsible advisers. I am in hopes that the present
despatch will leave you in no doubt as to the course to be pursued by you
in the event of any changes of which you may anticipate the contingency.
I owed it to you to make myself clearly understood on this point; and I
trust that what I have now said, will be regarded by your Council as
amounting to such a declaration of my views as was requested by them in
their letter of the 30th January.

I have, etc.,

(Signed) Grey.

CLXIII,
ELGIN TO EARL GREY, 1847»

[Trans. : T. Walrond, Letters and Journals of Lord Elgin, 2nd Edn., Lon-
don, 1873.]

Several causes co-operate together to give to personal and party in-
terests the overweening importance which attaches to them in the estima-
tion of local politicians. There are no real grievances here to stir die
depths of the popular mind. We are a comfortable people, with plentv to
eat and drink, no privileged classes to excite envy, or taxes to produce irri-
tation. It were ungrateful to view these blessings with regret, and yet I
believe that the^ account in some measure for the selfishness of public men
and their indifference to the higher aims of statesmanship.

The comparatively small number of members of which the popular
bodies who determine the fate of provincial administrations consist, is also.
I am inclined to think, unfavourable to the existence of a high order of

. * For Elgin'i rale ia Canada, see Boiiriiiot, Lord Elgin, and G. If. Wronr* Lord
Btpin,

578 Constitutiofud Documents of Canada, [1840-1867

principle and feeling among official personages. A majority of ten in an
assembly of seventy may probably be, accor<fing to Cocker, equivalent to a
majority of 100 in an assembly of 700. In practice, however, it is far
otherwise. The defection of two or three individuals from the majority
of ten puts the administration in peril. Thence the perpetual patchwork
and trafficking to secure this vote and that, which (not to mention other
evils) so engrosses the time and thoughts of ministers, that they have not
leisure for matters of greater moment. It must also be remembered that
it is only of late that the popular assemblies in this part of the world have
acquired the right of determining who shall govern them — of insisting, as
we phrase it, that the administration of affairs shall be conducted by per-
sons enjoying their confidence. It is not wonderful that a privilege of this
kind should be exercised at first with some degree of recklessness, and that,
while no great principles of policy are at stauce, methods of a more ques-
tionable character for winning and retaining the confidence of these arbi-
ters of destiny should be resorted to. My course in these circumstances,
is, I think, clear and plain. It may be somewhat difficult to follow occa-
sionally, but I feel no doubt as tp the direction in which it lies. I give to
my ministers all constitutional support, frankly and without reserve, and
the benefit of the b^st advice that I can afford them in their difficulties. In
return for this, I expect that they will, in so far as it is possible for them
to do so, carry out my views for the maintenance of the connexion with
Great Britain and the advancement of the interests of the province. On
this tacit understanding we have acted together harmoniously up to this
time, although I have never concealed from them that I intended to do
nothing which may prevent me from working cordiallv with their oppon-
ents, if they are forced upon me. That ministries and oppositions ^ould
occasionally change places, is of the very essence of our constitutional
system, and it is probably the most conservative element which it contains.
By subjecting all sections of politicians in their turn to official responsi-
bilities, it obliges heated partisans to place some restraint on passion, and
to confine within the bounds of decency the patriotic zeal with which, when
out of place, they are wont to be animated. In order, however, to secure
these advantages, it is indispensable that the head of the Government
should show that he has confidence in the loyalty of all the influential par-
ties with which he has to deal, and that he should have no personal anti-
pathies to prevent him from acting with leading men.

I feel very strongly that a uovemor-General, by acting upon these
views with tact and firmness, may hope to establish a moral influence in
the province which will go far to compensate for the loss of power conse-
quent on the surrender of patronage to an executive responsible to the local
Parliament. Until, however, the functions of his oflke, under our amended
colonial constitution, are more clearly defined — until that middle term
which shall reconcile the faithful discharge of his responsibility to the
Imperial Government and the province with the maintenance of the quasi-
monarchical relation in which he now stands towards the community over
which he presides, be discovered and agreed upon, he must be content to
tread along a path which is somewhat narrow and slippery, and to find
that incessant watchfulness and some dexterity are requisite to prevent
him from falling, on the one side into the niant of mock sovereignty, or
on the other into the dirt and confusion of local factions.

1840-1867] Constitutional Documents of Canada. 579

CLXIV

ELGIN TO LADY ELGIN/ 1847

[Trans. T. Walrond, op. cU.]

I still adhere to my opinion that the real and effectual vindication of
Lord Durham's memory and proceedings will be the success of a Governor-
General of Canada who works out his views of government fairly. Depend
upon it, if this country is governed for a few years satisfactorily, Lord
£)urham's reputation as a statesman will be raised beyond the reach of
cavil. I do not indeed know whether I am to be the instrument to carry
out this work, or be destined, like others, who have gone before roe, to
break down in the attempt ; but I am still of opinion that the thing may be
done, though it requires some good-fortune and some qualities not of the
lowest order. I find on my arrival here a very weak Government ,almost
as much abused by their friends as by their foes, no civil or private secre-
tary, and an immense quantity of arrears of business. It is possible, there-
fore, that I may not be able to bear up against the difficulties of my situa-
tion, and that it may remain for some one else to effect that object, which
many reasons would render me so desirous to adiieve.

CLXV

ELGIN TO EARL GREY

[Trans. : Imperial Blue Books relating to Canada, Vol. XV.]

Government House, Montreal,
April 30, 1849.
My Lord,

I regret to state that rioting, attended with some consequences much
to be regretted, though happily with no injury to life, or, except in one
instance, to person, has taken place in the city of Montreal during the
last few days. I hasten to furnish your Lordship with an account of what
has actually occurred, lest you should be misled by exaggerated reports
conveyed through the United States.

2. In consequence of the unexpected arrival of vessels with merchan-
dize at the Port of Quebec, it became necessary for me to proceed, on a
short notice, to Parliament, on Wednesday last, in order to give the Royal
Assent to a Customs Bill which had that day passed the Legislative G>un-
cil; and I considered that, as this necessity had arisen, it would not be
expedient to keep the public mind in suspense by omitting to dispose, at
the same time, of the other Acts in which the two branches of the local
Parliament had at an earlier period of the session concurred, and which
still awaited my decision. Among these was the Act to provide for the
indemnification of parties in Lower Canada whose property was destroyed
during the Rebellion in 1837 and 1838, with respect to which, as your Lord-
ship is aware, much excitement has unhappily been stirred.

3. I herewith enclose, for your Lordship's perusal, a printed copy of
the Act in question, and I shall not fail by the first mail to furnish you
with full information respecting its character and objects, the circum-
stances which led to its introduction, and the grounds on which I resolved
after much reflection, to sanction it No money can be paid under it as
indemnity for a considerable period, so that Her Majesty's power of dis-
allowance can be exercised with effect, should Her Majesty be so advised,
notwithstanding the course which I have taken. As I am writing this
Despatch in haste, with a view to its transmission by way of New York,
I shall confine myself for the present to a statement of the proceedings by
which the peace of the city has been disturbed.

> Dftiifhter of Lord Durham.

580 Constitutional Documents of Canada. [1840-1867

4. In order, however, to render this narrative intelligible, I must
premise that for some time past the House of Assembly, as at present
constituted, has been the object of bitter denunciation, and not unfrequently
of reckless menace, on the part of a certain portion of the press of the
province, and more especially of that of Montreal. Your Lordship will
probably recollect that the body in question is the product of a general
election which took place about 18 months ago, under the auspices of the
political party now in opposition, and after a dissolution, to which I had
recourse on their advice, for the purpose of strengthening them in their
position as a Government. The result of this measure was in the las^
degree unfavourable to those who had recommended it; not, however, so
much so in Lower Canada, where the complexion of the representation was
little affected by the dissolution, as in the Upper Province, where several
constituencies, among which were some of the most populous, rejected
conservative in favour of liberal candidates. Qn a question of confidence
raised at the commencement of the session, immediately after the general
election, the Administration was defeated by a majority of more than two
to one, and a change of Government, as a matter of course, ensued.

5. This alteration in the political complexion of the Assembly, and
the change of Government consequent upon it, were therefore clearly and
distinctly traceable to a revulsion of sentiment in the British constituencies
of Upper Canada. In Lower Canada nothing had occurred to account
for either. This circumstance has, however, failed to secure for the de-
cisions of the popular representative body either forbearance or respect
from a certain section of those who profess to be emphatically the sup-
porters of British interests. To denounce the Parliament as French in its
composition, and the Government as subject to French influences, has been
their constant object, and the wildest doctrines have been broached with
respect to the right which belongs to a British minority of redressing
by violence any indignity to which it may be subjected from such a source.
T have now before me an article that appeared in one of the principal Eng-
lish newspapers of Montreal at a very early period of the session, of which
I transcribe the concluding paragraph, as illustrative of the temper and
language in which, even at that time, and before the public mind had been
excited by the discussion of the Rebellion Losses Bill, a portion of the
press ventured to criticise the proceedings of the local Parliament The
article treats of a measure affecting the townships, to which, I believe,
no great objection was raised in Parliament. It terminates, however, in the
words — ^"We arc very glad of it — the sooner the cloven foot is made
"visible the better; the obvious intention of that majority, composed of
"Frenchmen, aided by traitorous British Canadians, is to force French in-
"stitutions still further upon the British minority in Lower Canada. The
"intention is obvious, as we said, and we are glad that it is openly showa
"We trust that the party of the Government will succeed in every one of
"their obnoxious measures. When French tyranny becomes insupportable
"we shall find our Cromwell. Sheffield, in the olden times, used to be
"famous for its keen and well-tempered whittles ; well, they make bayonets
"there now, just as sharp and just as well-tempered. When we can stand
"tyranny no longer, it will be seen whether good bayonets in Saxon hand^
"will not be more than a match for a mace and a majority."

6. To persons accustomed to the working of constitutional government
m well-ordered communities, it may seem mcredible that such language
should be employed by the organs of any respectable party in reference to
a body comprising the freely-chosen representatives of a constituency,
formed on a most popular basis ; but the cause of the anomaly is apparent
enough to all who are acquainted with the history of Canada. For a series
of years the popular representative body and the Executive, supported by
the Legislative Council, were, in the Lower Province especially, in a con-
dition of almost constant antagonism. To revile the one was the surest
test of patriotism ; to denounce the other, of loyalty. In a society singu-
larly democratic in its structure, where diversities of race supplied special
elements of confusion, and where consequently it was most importmnt that

1840-1867] Constitutional Documents of Canada, 581

constituted authority should be respected, the moral influence of law and
Government was enfeebled by the existence of perpetual strife between
the powers that ought to have afforded to each other a mutual support.
No state of affairs could be imagined less favourable to the extinction of
national animosities, and to the firm establishment of the gentle and
benignant control of those liberal institutions which it is England's pride
and privilege to bestow upon her children.

7. I am not without hope that a steady adherence to the principles of
constitutional government, and the continuance of harmony between the
co-ordinate branches of the Legislature, may lead in process of time to
the correction of these evils; meanwhile, however, I must ascribe mainly
to the cause which I have assigned the tone of arrogant defiance with
which the resolutions, not of the Government only, but also of the Parlia-
ment are treated by parties who happen for the moment to be unable to
make their views prevail with either, and the acts of violence to which
this inflammatory language has in the present instance led.

8. That many persons conscientiously disapprove of the measure
respecting rebellion losses in Lower Canada which has been introduced by
the Government, and which the local Parliameftt has passed by large
majorities, and that in the minds of others it stirs national antipathies and
recollections of former conflicts, which designing politicians seek to im-
prove to their own selfish ends, cannot I fear, be doubted. It is therefore
emphatically a measure which should have been approached with calmness
and caution, by all at least who are not directly interested in the issue.
Unfortunately, however, this has been by no means the case. Not only
have appeals to passion of the most reckless description proceeded from
the local press, but they have received encouragement from quarters from
which they had little right to look for it Passages such as Uie following,
in which a London journal of influence treats of the British population as
affected by the measure in question: — "They are tolerably able to take
"care of themselves, and we very much misconstrue the tone adopted by the
"English press and English public in the province if they do not find some
"means of resisting the heavy blow and great discouragement which is
"aimed at them," are read wiUi avidity, and construed to mean that sym-
pathy will be extended from influential quarters at home to those who seek
to annul the obnoxious decision of the local Legislature, whatever be the
means to which they resort for the attainment of that end.

9. The scenes by which the city of Montreal has been lately disgraced,
are the natural fruits of an agitation of this character, operating on a
people of excitable temper, who have been taught to believe that a race
which they despise, and over which they have been wont to exercise do-
minion, has obtained through the operation of a constitutional system an
authority which it could not otherwise have acquired. Hence, more
especially, their vehement indignation against me personally, and the con-
viction, in many cases I doubt not perfectly sincere, that I have been guilty
of a serious dereliction of duty because I have not, as my predecessors
have often done before me, consented to place myself in the front of an
agitation to counteract the policy of Parliament. The nature of the con-
stitutional doctrines which practically obtain in this section of the com->
munity is curiously exemplified by the fact, that it is not the passage of the
Bill by an overwhelming majority of the representatives of the people,
or the acquiescence of the Council, but the consent of the Governor which
furnishes the pretext for an exhibition of popular violence.

10. When I left the House of Parliament after giving the Royal
Assent to several Bills, to which I have referred, I was received with
mingled cheers and hootings by a crowd by no means numerous which sur-
rounded the entrance to the building. A small knot of individuals consist-
ing, it has since been ascertained, of persons of a respectable class in
society pelted the carriage with missiles which they must have brought with
them for the purpose. Within an hour after this occurrence, a notice, of
which I enclose a copy, issued from one of the newspaper offices, calling a
meeting in the open air. At the meeting inflammatory speeches were made.

582 Constitutional Documents of Canada. [1840-1867

On a sudden, whether under the effect of momentary excitement, or in
pursuance of a plan arranged beforehand, the mob proceeded to the House
of Parliament where the members were still sitting, and breaking the win-
dows set fire to the building and burned it to the ground. By this wanton
act public property of considerable value, including two excellent libraries,
has been utterly destroyed. Having achieved their object the crowd dis-
persed, apparently satisfied with what they had done. The members were
permitted to retire unmolested, and no resistance was offered to the mili-
tary who appeared on the ground after a brief interval, to restore order,
and aid in extinguishing the flames. Ehjring the two following days a
good deal of excitement prevailed in the streets, and some further acts of
incendiarism were perpetrated. Since then the military force has been
increased, and the leadei;^ of the disaffected party have shown a disposition
to restrain their followers, and to direct their energies towards the more
constitutional object of petitioning the Queen for my recall, and the dis-
allowance of the obnoxious Bill. The proceedings of the House of Assem-
bly will also tend to awe the turbulent. I trust, therefore, that the peace
of the city will not be again disturbed. The newspapers which I enclose
contain full, and I believe pretty accurate, accounts of all that has occurred
since Wednesday last

11. The Ministry are blamed for not having made adequate provision
against these disasters; that they by no means expected that the hostility
to the Rebellion Losses Bill would have displayed itself in the outrages
which have been perpetrated during the last few weeks is certain. Perhaps
sufficient attention was not paid by them to the menaces of the opposition
press. It must be admitted, however, that their position was one of con-
siderable difficulty. The civil force of Montreal — ^a city containing about
50,000 inhabitants of different races, with secret societies and other agencies
of mischief in constant activity—consists of two policemen under the
authority of the Government, and seventy appointed by the Corporation.
To oppose, therefore, effectual resistance to any considerable mob, recourse
must be had in all cases either to the military or to a force of civilians
enrolled for the occasion. Grave objections^ however, presented them-
selves in the present instance to the adoption of either of these courses
until the disposition to tumult on the part of the populace unhappily mani-
fested itself in overt acts. More especially was it of importance to avoid
any measure which might have had a tendency to produce a collision be-
tween parties on a question on which their feelings were so strongly ex-
cited. The result of the course pursued is, that there has been no blood-
shed, and, except in the case of some of the ministers themselves, no
destruction of private property.

12. The proceedings in the Assembly have been important. I enclose
the copy of an address which has been voted to me by a majority of 36 to
16, expressive of abhorrence at the outrages which have taken place in the
cilb^ of Montreal, of loyalty to the Queen, and approval of my just and
impartial administration of the Government with my late as well as my
present advisers. Some of the opposition approve of the course which I
have taken with respect to the Rebellion Losses Bill, as appears from the
speeches of Messrs. Wilson and Gait, of which reports are given in the
newspapers which I enclose. Mr. Wilson is an influential member of the
Upper Canada conservative party, and Mr. Gait's views are the more im-
portant, because he has been returned to Parliament only a few days ago
by a Lower Canadian constituency which comprises a large British popu-
lation. Generally, however, as the amendments they have moved to the
address show, they desire to avoid committing themselves on this point
The votes against the Address may be thus classed : Sir A. M'Nab and his
party; my late ministers and their party; and Mr. Papineau. The first
acts with perfect consistency in voting as he has done on this question;
for he has always contended that government conducted on British prin-
ciples is unsuited to Canada. The course of the second class is less intel-
ligible; for, until the day on which they resigned their offices into my
hands, they uniformly expressed approval of the principles on which m>

1840-1867] ^ Constitutional Documents of Canada. 583

conduct as Governor-General was guided ; and these, as your Lordship well
knows, have undergone no change with the change of administration. Mi.
Papineau's vote conveys a useful lesson which will not, I trust, be lost
on persons who had been induced to believe that the persecution of which
I am now the object is really attributable to my having shown undue lenity
to those who were led by him into rebellion.

13. I have now furnished your Lordship with as clear a statement of
these important occurrences as I can give, and I can conclude by assuring
you that the city is perfectly tranquil, and that there is no present likeli-
hood of a renewal of disturbances. A few days will show what echo the
proceedings of the violent party awaken in Upper Canada, and to what
extent they are followed by reaction. Meanwhile it is my firm conviction
that if this dictation be submitted to, the government of this province by
constitutional means will be impossible, and that the struggle between
overbearing minorities, backed by force, and majorities resting on legality
and established forms, which has so long proved the bane of Canada,
driving capital from the province, and producing a state of chronic dis-
content, will be perpetuated. At the same time, I think that if I am unable
to recover that position of di^ified neutrality between contending parties
which it has been my unremitting study to maintain, and from which I
would appear to have been for the moment driven — not, as I firmly be-
lieve, through any fault of my own, but by the unreasoning violence of
faction — it may be a question with your Lordship whether it would not be
for the interests of Her Majesty's service that I should be removed from
my high office to make way for one who should not indeed hold views at
variance with mine with respect to the duties of a constitutional Governor,
but who should have the advantage of being personally unobnoxious to
any section of Her Majesty's subjects within the province.

I have, etc.,

Elgin and Kincarune.

CLXVI
ELGIN TO EARL GREY

[Trans. : T. Walrond, op. cit.]

Toronto,
March 23, 1850.
Lord John's speech* on the colonies seems to have been eminently
successful at home. It is calculated, too, I think, to do good in the colo-
nies ; but for one sentence, the introduction of which I deeply implore — the
sting in the tail. Alas for that sting in the tail I I much fear that when
the liberal and enlightened sentiments, the enunciation of which by one
so high in authority is so well calculated to make the colonists sensible
of the advantages which they derive from their connection with Great
Britain, shall have passed away from their memories, there will not be
wanting those who will remind them that, on this solemn occasion, the
Prime Minister of England, amid the plaudits of a full senate, declared
that he looked forward to the day when the ties which he was endeavouring
to render so easy and mutually advantageous would be severed. And
wherefore this foreboding? or, perhaps, I ought not to use the term fore-
boding, for really to judge by the comments of the press on this declara-
tion of Lord John's, I should be led to imagine that the prospect of these
sucking democracies, after they have drained their old mother's life-blood,
leaving her in the lurch, and setting up as rivals, just at the time when
their increasing strength might render them a support instead of a burden,
is one of the most cheering which has of late presented itself to the English
imagination. But wherefore then this anticipaiton — if foreboding be not

*0n February 8, 1850, Lord John Ruaaell deliTcrcd a speech in the House of
Commons in which he anticipated colonial independence, and stated that in making the
colonies fit for such an erent England would "hsTe the consolation of saying that [she
had] contrihuted to the happiness of the world."

584 Constitutional Documents of Canada. [1840-1867

the correct term? Because Lord John and the people of England persist
in atstuning that the Colonial relation is incompatible with maturi^ and
fall development And is this really so incontestable a truth that it is a
duty not only to hold but to prodaim it? Consider for a moment what is
the effect of proclaiming it in our case. We have on this continent two
great empires in presence, or rather, I should say, two great Imperial
systems. In many respects there is mudi similarity between them. In so
far as powers of self-government are concerned it is certain that our
colonists in America have no reason to envy the citizens of any state in the
Union. The f^rms differ, but it may be shown that practically the inhabit-
ants of Canada have a greater power in controlling their own destiny
than those of Michigan or New York, who must tolerate a tariff imposed
by twenty other states, and pay the expenses of war undertaken for objects
which they profess to abhor. And yet there is a difference between the
two cases; a difference, in my humble judgment, of sentiment rather than
substance, which renders the one a system of life and strength, and the
other a system of death and decay. No matter how raw and rude a terri-
tory may be when it is admitted as a state into the Union of the United
States, it is at once, by the popular belief, invested with all the dignity of
manhood, and introduced into a system which, despite the combativeness of
certain ardent spirits from the South, every American believes and main-
tains to be immortal. But how does the case stand with us? No matter
how great the advance of a British colony in wealth and civilisation; no
matter how absolute the powers of self -government conceded to it, it is
still taught to believe that it is in a condition of pupilage from which it
must pass before it can attain maturity. For one, I have never been able
to comprehend why, elastic as our constitutions^ system is, we should not
be able, now more especially when we have ceased to control the trade of
our colonies, to render the links which bind them to the British Crown at
least as lasting as those which unite the component parts of the Union. . .
.... One thmff is, however, indispensable to the success of this or any
other system of Colonial Government. You must renounce the habit oi
telling the Colonies that the Colonial is a provisional existence. You must
allow them to believe that, without severing the bonds which unite them to
Great Britain, they may attain the degree of perfection, and of social and
political development, to which organised communities of free men have
a right to aspire.

Since I began this letter I have, I regret to say, confirmatory evidence
of the Justice of the anticipations I had formed of the probable effect of
Lord John's ' declaration. I enclose extracts from two newspapers, an
annexationist, the Herald of Montreal, and a quasi annexationist, the
Mirror of Toronto. You will note the use they make of it. I was more
annoyed, however, I confess, by what occurred yesterday in Council. We
had to determine whether or not to dismiss from his offices a gentleman
who is both M.P.P., Q.C, and J.P., and who has issued a flaming manifesto
in favour, not of annexation, but of an immediate declaration of independ-
ence as a step to it. I will not say anything of my own opinion on the case,
but it was generally contended by the members of the Board, that it would
be impossible to maintain that persons who had declared their intention to
throw off their allegiance to the Queen, with a view to annexation, were
unfit to retain offices granted during pleasure, if persons who made a
similar declaration with a view to independence were to be differently dealt
with. Baldwin had 'Lord John's speech in his hand. He is a man of
singularly placid demeanour, but he has been seriously ill, so possibly his
nerves are shaken — at any rate I never saw him so much moved. ''Have
you read the latter part of Lord J. Russell's speech?" he said to me. I
nodded assent "For myself," he added, "if the anticipations therein ex-
"pressed prove to be well founded, my interest in public affairs is gone for
"ever. But is it not hard upon us while we are labouring, through good
"and evil report, to thwart the designs of those who would dismember the
"Empire, that our adversaries should be informed that the difference be-
"tween them and the Prime Minister of England is only one of time?

1840-1867] Constitutional Documents of Canada. 585

"If the British Government has really come to the conclusion that we are a
"burden to be cast of! whenever a favourable opportunity offers, surely
"we ought to be warned."

I replied that while I regretted as much as he could do the paragraph
to which he referred, I thought he somewhat mistook its import: diat I
believed no man living was more opposed to the dismemberment of the
Empire than Lord J. Russell ; that I did not conceive that he had any inten-
tion of deserting the Colonies, or of inviting them to separate from Eng-
land ; but that he had in the sentence in question given utterance to a purely
speculative, and in my judgment most fallacious, opinion, which was shared,
I feared, by very many persons both in England and the Colonies: that
I held it to be a perfectly unsound and most dangerous theory, that British
Colonies could not attain maturity without separation, and that my interest
in labouring with them to bring into full play the principles of Constitu-
tional Government in Canada would entirely cease, if I could be persuaded
to adopt it. I said all this, I must confess however, not without misgiving,
for I could not but be sensible that, in spite of all my allegations to tlie
contrary, my audience was disposed to regard a prediction of this nature,
proceeding from a Prime Minister, less as a speculative abstraction than
as one of that class of prophecies which wo^ their own fulfilment. I left
the Council Chamber disheartened, with the feeling that Lord J. Russell's
reference to the manhood of Colonies^^i^s more likely to be followed by
practical consequences than LamartiH^s famous "quand Vheure aura sonnf
invocation to oppressed nationalities. It is possible, indeed, that I exag-
gerate to myself the probable effects of this declaration. Politicians of
the Baldwin stamp, with distinct views and aims, who having struggled to
obtain a Government on British principles, desire to preserve it, are not,
I fear, very numerous in Canada ; the great mass move on with very inde-
finite purposes, and not much inquiring whither they are going. Of one
thing, however, I am confident: there cannot be any peace, contentment,
progrress, or credit in this colony while tiie idea obtains that the connection
with England is a millstone about its neck which should be cast off, as
soon as it can be conveniently managed. What man in his senses would
invest his money in the public securities of a country where questions
affecting the very foundations on which public credit rests are in perpetual
agitation; or would settle in it at all if he could find for his foot a more
stable resting-place elsewhere? I may, perhaps, be expressing myself too
unreservedly with reference to opinions emanating from a source which
I am no less disposed than bound to respect. As I have the means, how-
ever, of feeling the pulse of the colonists in this most feverish region, I
consider it to be always my duty to furnish you with as faithful a record
as possible of our diagnostics. And, after all, may I not with all sub-
mission ask, Is not the question at issue a most momentous one? What is
it indeed but this: Is the Queen of England to be the Sovereign of an
Empire, growing, expanding, strengthening itself from age to age, striking
its roots deep into fresh earth and drawing new supplies of vitality from
virgin soils? Or is she to be for all essential purposes of might and power,
Monarch of Great Britain and Ireland merely — ^her place and that of her
line in the world's history determined by the productiveness of 12,000
square miles of a coal formation, which is being rapidly exhausted, and
the duration of the social and political organization over which she pre-
sides dependent on the annual expatriation, with a view to its eventual
alienization, of tiie surplus swarms of her bom subjects? If Lord J.
Russell, instead of concluding his excellent speech with a declaration of
opinion which, as I read it, and as I fear others will read it, seems to make
it a point of honour with the Colonists to prepare for separation, had con-
tented himself with resuming the statements already made in its course,
with showing that neither the Government nor Parliament could have any
object in view in their Colonial policy but the good of the Colonies, and
the establishment of the relation between them and the mother-country on
the basis of mutual affection; that, as the idea of maintaining a Colonial
Empire for the purpose of exercising dominion or dispensing patronage had

586 Constitutional Documents of Canada, [1840-1867

been for some time abandoned, and that of regarding it as a hot-bed for
forcing commerce and manufacturers more recently renounced, a greater
amount of free action and self-government might be conceded to British
Colonies without any breach of Imperial Unity or the violation of any
principle of Imperial Policy, than had under any scheme yet devised fallen
to the lot of the component parts of any Federal or Imperial system; if he
had left these -great truths to work their effect without hazarding a con-
jecture which willy I fear, be received as a suggestion, with respect to the
course which certain wayward members of the Imperial family may be
expected to take in a contingency still confessedly remote, it WQuld, I
venture with great deference to submit, in so far at least as public feeling
in the Colonies is concerned, have been safer and better.

You draw, I know, a distinction between separation with a view to
annexation and separation with a view to independence. You say the
former is an act of treason, the latter a natural and legitimate step in
progress. There is much plausibility doubtless in this position, but, inde-
pendently of the fact that no one advocates independence in these Colonies
except as a means to the end, annexation, is it really tenable? If you take
your stand on the hypothesis that the Colonial existence is one with which
the Colonists ought to rest satisfied, then, I think, you are entitled to
denounce, without reserve or measure, those who propose, for some second-
ary object, to substitute the Stars and Stripes for the Union Jack. But if,
on the contrary, you assume that it is a provisional state, which admits of
but a stunted and partial growth, and out of which all communities ought
in the course of nature to strive to pass, how can you refuse to permit
your colonies here, when they have arrived at the proper stage in their
existence, to place themselves in a condition which is at once most favour-
able to their security and to their perfect national development? What
reasons can you assign for the refusal, except such as are founded on
selfishness, and are, therefore, morally worthless? If you say that your
great lubberly boy is too big for the nursery, and that you have no other
room for him in your house, how can you decline to adlow him to lodge
with his elder brethren over the way, when the attempt to keep up an
establishment for himself would seriously embarrass him?

CLXVII

ELGIN TO EARL GREY.

[Trans. : T. Walrond, op, cit.]

Toronto,

November 1, 1850.

Sir H. Bulwer spent four days with us, and for many reasons I am
glad that he has been here. He leaves us knowing more of Canada than
he did when he came. I think too that both he and Sir £. Head return to
their homes re-assured on many points of our internal policy, on which
they felt doubtful before, and much enlightened as to the real position of
men and things in this province.

With one important truth I have laboured to impress them, and I
hope successfully. It is this : that the faithful carrying out of the principles
of Constitutional Government is a departure from the American model,
not an approximation to it, and, therefore, a departure from republicanism
in its only workable shape. Of the soundness of this view of our case I
entertain no doubt whatever ; and though I meet with few persons to whom
it seems to have occurred (for the common belief of superficial observers
is that we are republicanising the colonies), I seldom fail in bringing it
home to the understanding of any intelligent person with whom I have
occasion to discuss it. The fact is, .that die American system is our oM
Colonial system with, in certain cases, the principle of popular election
substituted for that of nomination by the Crown. Mr. FUmore stands to

1840-1867] Constitutional Documents of Canada. 587

his Congress very much in the same relation in which I stood to my
Assembly in Jamaica. There is the same absence of effective responsibility
iii the conduct of legislation, the same want of concurrent action between
the parts of the political machine. The whole business of legislation in the
American Congress, as well as in the State Legislatures, is conducted in
the manner in which railway business was conducted in the House of
Commons at a time when it is to be feared that, notwithstanding the high
standard of honour in the British Parliament, there was a good deal of
jobbing. For instance, our Reciprocity measure was pressed by us at
Washington last session, just as a Railway Bill in 1845 or 1846 would have
been pressed in Parliament. There was no Government to deal with. The
interests of the Union, as a whole and distinct from local and sectional
interests, had no organ in the representative bodies; it was all a question
of canvassing this member of Congress or the other. It is easy to perceive
that, under such a system, jobbing must become not the exception but the
rule.

Now I feel very strongly, that when a people have been once thoroughly
accustomed to the working of such a Parliamentary system as ours, they
never will consent to revert to this clumsy irresponsible mechanism.
Whether we shall be able to carry on the war here long enough to allow
the practice of Constitutional Government and the habits of mind which it
engenders to take root in these provinces, may be doubtful. But it may
be worth your while to consider whether these views do not throw some
light on affairs in Europe. If you part with constitutional monarchies
there, you may possibly get something much more democratic; but you
cannot, I am confident, get American republicanism. It is the fashion to
say, "of course not; we cannot get their federal system;" but this is not
the only reason, there are others that lie deeper. Look at France, where
they are trying to jumble up the two things, a head of the State responsible
to the people who elect him, and a ministry responsible to the Government

CLXVIII

ELGIN TO EARL GREY

[Trans. : T. Walrond, op. cit.]

Toronto, December 17, 1850.
Although, as you observe, it seems to be rather idle in us to corres-
pond on what may be termed speculative questions, when we have so much
pressing business on hand, I venture to say a few words in reply to your
letter of the 23rd ult., firstly, because I presume to dissent from some of
the opinions which you advance in it; and, secondly, because I have a
practical object of no small importance in view in calling your attention to
the contrasts which present themselves in the working of our institutions
and those of our neighbours in the States. My practical object is this:
when you concede to the Colonists Constitutional Government in its in-
tegrity, you are reproached with leading them to Republicanism and the
American Union. The same reproach is hurled with anathemas against
your humble servant. Lord Stanley, if I rightly remember, in the debate
on Ryland's case last year, stated amid cheers, that if you were in the
habit of consulting the ministers of the Crown ih the Colony before you
placed persons on the colonial pension list, he had no hesitation in saying
you had already established a republic in Canada I Now, I believe, on the
contrary, that it may be demonstrated that the concession of Constitu-
tional Government has a tendency to draw the Colonists the other way;
firsly, because it slakes that thirst for self-government which seizes on all
British communities when they approach maturity ; and, secondly, because
it habituates the Colonists to the working of a political mechanism, whM
is both intrinsically superior to that of the Americans, and more unlike *t
than our old Colonial system.

588 ConsHtuHofuU Documents of Canada. [1840-1867

Adopting, however^ the views with respect to the superiority of the
tnachanism of our poHtical system to that of our neighbours, which I have
ventured to urge, you proceed to argue that the remedy is in their hands ;
that without abandoning their republicanism they and their confreres in
France have nothing to do but to dismiss their Presidents and to substitute
our constitution without a King, the body without the head, for their own,
to get rid of the inconveniences which they now experience ; and you quote
with approbation, as an embodiment of this idea, the project submitted by
M. Gr^vy and the Red Republicans to the French Constituent Assembly.

Now here I confess I cannot go along with you, and the di£Ference be-
tween us is a very material one ; for if die monarch be not an indispens-
able element in our constitutional mechanism, and if we can secure all the
advantages of that mechanism without him. I have drawn the wrong moral
from the facts. You say that the system the Red Republicans would have
estabUshed in France would have been the nearest possible approach to
our own. It is possible, I think, that we may be tending towards the like
issues. It is possible, perhaps probably, that as the House of Commons
becomes more democratic in its composition, and consequently more arro-
firant in its bearing, it may cast off the shackles which the other powers of
the State impose on its self-will, and even utterly abolish them; but I ven-
ture to beUeve that those who last till that day comes, will find that they
are living under a very different constitution from that which we now
enjoy; that they have traversed the interval which separates a temperate
and cautious administration of public affairs resting on the balance of
powers and interests, from a reckless and overbearing tyranny based on the
caprices and passions of an absolute and irresponsible body. You talk
somewhat lightly of the check of the Crown, although you acknowledge its
utility. But is it indeed so light a matter, even as our constitution now
works? Is it a light matter that the Crown should have the power of dis-
solving Parliament; in other words, of deposing the tyrant at will? Is it
a light matter that for several months in each year the House of Commons
should be in abeyance, during which period the nation looks on Ministers
not as ^aves of Parliament, but servants of the Crown? Is it a light mat-
ter that there should still be such respect for the monarchical principle,
that the servants of that visible entity yclept the Crown are enabled to
carry on much of the details of internal and foreign administration with-
out consulting Parliament, and even without its cognisance? Or do you
suppose that the Red Republicans, when they advocated the nomination of
a Ministry of the House of Assembly with a revocable mandat, intended to
create a Frankenstein endowed with powers in some cases paramount to,
and in others running parallel with, the authority of the omnipotent body
to which it owed its existence? My own impression is, that they meant a
set of delegates to be appointed, who should exercise certain functions of
legislative initiation and executive patronage so long as they reflected
clearly, in the former the passions, and in the latter the interests of the
majority for the time being, and no longer.

It appears to me, I must confess, that if you have a republican form
of government in a great country, with complicated internal and external
relations, you must either separate the executive and legislative depart-
ments, as in the United States, or submit to a tyranny of the majority, not
the more tolerable because it is capricious and wielded by a tyrant with
many heads. Of the two evils I prefer the former.

Consider, for a moment, how much more violent the proceedings of
majorities in the American Legislatures would be, how much more reddess
the appeals to popular passion, how much more frequently the permanent
interests of the nation and the rights of individuals and classes would be
sacrificed to the object of raising political capital for present uses, if de-
bates or discussions affected the tenure of office. I have no idea that the
executive and legislative departments of the State can be made to work
together with a sufficient degree of harmony to give the maximum of
stren^ and of mutual independence to secure freedom and the rights of
minorities, except under the presidency of Monarchy, the moral influence

1840-1867] Constitutional Documents of Canada. 589

of which, so long as a nation is monarchical in its sentiments, cannot, of
coarse, be measured merely by its recognized power.

CLXIX

ELGIN TO MR. GUMMING BRUCE

[Trans. : T. Walrond, op, cit.]

September, 1852.

As respects the matter of the report\ I am disposed to believe that,
viewing the question with reference to personal interests exclusively, my
removal from hence would not be any disadvantage to me. But, as to my
work here^ — there is the rub. Is it to be all undone? On this point I must
speak frankly. I have been' possessed (I use the word advisedly, for I fear
that most persons in England still consider it a case of possession) with
the idea that it is possible to maintain on this soil of North America, and
in the face of Republican America, British connection and British institu-
tions, if you give the latter freely and trustingly. Faith, when it is sincere,
is always catching; and I have imparted this faith, more or less thoroughly,
to all Canadian statesmen with whom I have been in official relationship
since 1848, and to all intelligent Englishmen with whom I have come in
contact since 1850— as witness Lord Whamcliffe, Waldegrave Tremenheere,
etc., etc. Now if the Governor ceases to posses this faith, or to have the
faculty of imparting it, I confess I fear that, ere long, it will become
extinct in other breasts likewise. I believe that it is equally an error to
imagine with one old-fashioned party, that you can govern such depend-
encies as this on the antiquated bureaucratic principle, by means of re-
scripts from Downing Street, in defiance of the popular legislatures, and
on the hypothesis that one local faction monopolises all the loyalty of the
Col<»iy; and to suppose with the Radicals that all is done when you have
simply told the colonists "To go to the devil their own way." I believe, on
the contrary, that there is more room for the exercise of influence on the
part of the Governor under my system than under any that ever was be-
fore devised ; an influence, however, wholly moral — ^an influence of suasion,
sympathy, and moderation, which softens the temper while it elevates the
aims of local politics.

It is true that on certain questions of public policy, especially with
regard to Church matters, views are propounded by my ministers which
do not exactly square with my pre-conceived opinions, and which I
acquiesce in, so long as they do not contravene the fundamental principles
of morality, from a conviction that they are in accordance with the general
sentiments of the community.

It is true that I do not seek the commendation bestowed on Sir F.
Head for bringing men into his councils from the Liberal party, and telling
them that they should enjoy only a partial confidence; thereby allowing
them to retain their position as tribunes of the people in conjunction with
the prestige of advisers of the Crown by enabling them to shirk responsi-
bility for any acts of government which are unpopular. It is true that I
have always said to my advisers, "while you continue my advisers you shall
enjoy my unreserved confidence; and en revanche you shall be responsible
for all acts of government."

But it is no less certain that there is not one of them who does not
know that no inducement on earth would prevail with me to bring me to
acquiesce in any measure which seemed to me repugnant to public morals,
or Imperial interests; and I must say that, far from finding in my advisers
a desire to entrap me into proceedings of which I might disapprove, I find
a tendency constantly increasing to attach the utmost value to my opinion
on all questions, local or general, that arise.

^ i.c. Lord Elgin's ntmoured recall by the new minlstiy under Lord Derby.

590 Cofistitutional Documents of Canada. [1840-1867

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. First-
ly, 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 recom-
mendation of the local executives. And, secondly, they should be con-
ferred, as much as possible, on the eminent persons who are no longer
actively en^ged in political life. If these principles be neglected, such dis-
tinctions 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 states-
men 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 Parlia-
ment can acquit itself of the obligation to impose its will upon the Colon-
ists, 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 lat-
ter?

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, tbe
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.

1840-1867] Constitutional Documents of Canada. 591

CLXXII

ELGIN TO THE COLONIAL SECRETARY, SIR GEORGE GREY

[Trans. : T. Walrond, op, «/.]

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 suspi-
cion 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 appre-
ciable 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
Conada.

14th August, 1848.
Whereas by an Act* past in the session of Parliament held in the3^j4Yj^^
third and fourth years of Her Present Majesty, intituled "An Act to re-c. 35.
unite the Provinces of ypper and Lower Canada, and for the Govemmen*
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 Legisla-
tive Assembly of the Province of Canada, and for prorguing and dissolv-
ing 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.

592 Constitutional Documents of Canada, [1840-1867

of what nature soever, of the said Legislative Council and Legislative
Assembly, and of each of them respectively, and all written or printed pro-
ceedings 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 svLcb. 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 Legisla-
tive Council and Legislative Assembly respectively, may have power to
make such regulations herein as to them may seem advisable : Be it there-
So much of ^^^ enacted by the Queen's most excellent Majesty, by and with the advice
recited Act as and consent of the Lords Spiritual and Temporal, and Commons, in this
enacts that aU present Parliament assembled, and by the authority of the same, that from
^aUbem ^^^ after the passing of this Act so much of the said recited Act as is
English. hereinbefore recited shall be repealed.'

repealed. jj. And be it enacted that this Act, or any part thereof, may be re-

Act may be pealed, altered, or varied at any time during the present session of Par-
amended, etc liament.

CLXXIV

THE UNION ACT AMENDMENT ACT', 1854
(17 & 18 Victoria, c. 118.)

An Act to empower the Legislature of Canada to alter the Constitution oj
the Legislative Council for that Province, and for other purposes.

11th August, 1854.
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," pro-
vides 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 Coun-
cil: 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 Parlia-
ment assembled, and by the authority of the same, as follows :
Power to the I. It shall be lawful for the Legislature of Canada, by any Act or

Canada to* ^^^? *° ^^ hereinafter for that purpose passed, to alter the manner of com-
alter the posing the Legislative Council of the said Province, and to make it consist

Constigrtion of such number of members appointed or to be appointed or elected by

lativc Council. i jjiig 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 re-
fuse a motion written in French. As a result of this refusal an address was sent to
England praj^ne for repeal. Gladstone replied, saying that the address would be fav-
ourably received (3 February, 1846), and this Act was accordingly passed without pro-
test, except from Lord Stanley in the House of Lords, who said that the official recog-
nition 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,

the future should contain a gradual effort "to establish an English population witk
£n{i;lish laws and language. . . .and to trust government to none but a decidedly English
legislature."

*This Act was passed in response to an address from the Canadian House of
Assembl/ (see Journals, 1853, and Hansard, Vol. CXXXIV. Ill Series). An Act was
passed in 1856 by the Canadian Legislature, providing for an elective Legislative
Council.

•No. CUII.

1840-1867] Constitutiofial Documents of Canada, 593

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 afore-
said 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 thirty-
five, section thirty-nine, which relate to bills so reserved for the significa-
tion 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 JJ^g^iiimMit
or Acts so assented to by her Majesty as aforesaid, all provisions of theto^>pl7to
said recited Act of Parliament of the third and fourth years of her Ma- the new Lcgis-
jesty, chapter tiiirty-five, and of any other Act of Parliament now in f orce ****^* ^**""*^"*
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 LegUJjtnre of
time to vary and repeal all or any of the provisions of the Act or Acts J;"^ ^^JJ*^
altering the constitution of the said Legislative Council: Provided always, constituting,
that any bill for any such purpose, which shall vary the qualification of thcnewLcgJs-
councillors, or the duration of office of such councillors, or the power of * ^ounci ;
the Governor to dissolve the Council or Assembly, shall be reserved by the
Governor for the signification of her Majesty's pleasure in manner afore-
said.

IV. It shall be lawful for the Legislature of Canada, by any Act oi "J.* ^/J^^^'
Acts reserved for the signification of her Majesty's pleasure, and whereto petty gnalifica-
her Majesty shall have assented as hereinbefore provided, to vary or repeal tion of mem-
any of the provisions of the recited Act of Parliament of the third and^j^^y
fourth years of her Majesty, which relate to the property qualification of
members of the Legislative Assembly.

y. So much of the twenty-sixth section of the said recited Act o^ Action* 26 of
Parfiament 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 num-
ber 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 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 Legisla-
tive Assembly respectively, and that the assent of her Majesty shall not be
^ven to any such bill unless addresses shall have been presented by the
Legislative Council and the Legislative Assembly respectively to the Gover-
nor stating that such bill has been so passed, is hereby repealed.

VI. The forty-second section of the said recited Act of Parliament, |«^°jA?"J^
providing that in certain cases Bills of the Legislative Council and Assem- c.^, 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 01 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 Par-
liament; and no Act heretofore passed, or to be passed by the Legislature

594 Constitutional Documents of Canada, [1840-1867

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.
?5*5_^?*»**«" 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.

of terms.

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.

3 and 4 Vict. Whereas by an Act* passed in the Session of Parliament holden in the

c. 35. *' third and fourth years of Her Majesty, chapter thirty-five, *Ho re-unite the

Provinces of Upper and Lower Canada, and for the Government of Can-
ada," it is amongst other things provided that the Governor of the Pro-
vince 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 tncm-
ber of the said Legislative Council to be Speaker of the said Legislative
d 11 Council, and to remove him and appoint another in his stead: And, whereas
Vict c. 118. ^y ^" ^^^ 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 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 num-
ber of persons appointed, or to be appointed, or elected by such persons
and in such manner as to the said Legislature mav 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 Gov-
ernor : And, whereas the said Le^slature, in pursuance of the powers con-
ferred 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 nine-
teenth 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 pro-
vide for the appointment or election of a Speaker of the Legislative Coun-
cil, 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 Parlia-
ment assembled, and by the authori^ of the same, as iFollows:

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 Legisla-
tive Council of the said Province by providing for the appointment or

» No. CUII.
»No. CLXXIV.

1840-1867] Constitutional Documents of Canada. 595

election 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 herein-
before recited sections of the said Acts of Parliament, and of the provi-
sions of the said recited or any other Acts of Parliament as relates to the
appointment of such Speaker.

CLXXVI

COLONIAL HABEAS CORPUS ACT, 1862

(25 & 26 Victoria, c. 20.)

An Act respecting the issue of Writs of Habeas Corpus out of England
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 execution
thereof throughout such colony or foreign dominion :

Be it therefore enacted by the Queen's Most Elxcellent 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. No writ of Habeas Corpus shall issue out of England, by authority Writ not to
of any judge or court of justice therein, into any colony or foreign do- gJJ^*" *°^p
minion of the Crown, where Her Majesty has a lawfully established court having (Court
or courts of justice having authority to grant and issue the said writ, and authorized to
to ensure the due execution thereof throughout such colony or dominion. •"■•"* •■"*•

2. Provided, that nothing in this Act contained shall affect or interfere Not to affect

with any right of appeal to Her Majesty in Council now by law existing, ri^t of

appeal.

CLXXVII

COLONIAL LAWS VALIDITY ACT, 1865

(28 & 29 Victoria, c 63.)

An Act to remove Doubts as to the Validity of Colonial Laws.

29th June, 1865.

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 Her Majesty's Definitions:
Possessions abroad, in which there shall exist a legislature as hereinafter "^^^^y*"
defined, except the Channel 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:

The terms "Legislature" and "Colonial Legislature" shall severally ||Lcgi8latare,"
signify the authority (other than the Imperial Parliament or Her Majesty ^op'J^J*' „
in Council), competent to make laws for any colony; i-egwiaturc.

The term "Representative Legislature" shall signify any Colonial "Repreaenu-
tiTeLegitla-
' In IMO tke Canadian Legtalatnre pasted an Act to proridc for the election of a ture."
Speaker hj tke Lcgislatire Cooadl.

596 Constitutional Documents of Canada. [1840-1867

Legislature which shall comprise a legislative body of which one-half are
elected by inhabitants of the colony;
'*Co\omB\ The term "Colonial Law" shall include laws made for any colony,

^' either by such Legislature as aforesaid or by Her Majesty in Council;

i^*^^°^t^rt ^^ ^^* ^^ Parliament, or any provision thereof, shall, in construing

when'to ^* *^^^ ^^*» ^® **^^ *^ extend to any colony when it is made applicable to
extend to such colony by the express words or necessary intendment of any Act of
Colony.^ Parliament ;

"Governor." '^^^ ^^'"^ "Governor" shall mean the officer lawfully administering the

Government of any colony;
"Letters The term "Letters Patent" shall mean letters patent under the great

Patent. ^^^i q£ ^^ United Kingdom of Great Britain and Ireland.

Colonial^Law 2. Any colonial law, which is or shall be repugnant to the provisions

when void for of any Act of Parliament extending to the colony to which such law may
rcpasurasy. rgjate, 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 inoperative,
when not^roid ^' ^^ colonial law shall be or be deemed to have been, void or
for re- inoperative on the ground of repugnancy to the law of England, unless

pugnancy. the same shall be repugnant to the provisions of some such Act of Parlia-

ment, order, or regulation, as aforesaid.
»?t^idfor^ ^' ^^ colonial law, passed with the concurrence of or assented to by

inconsUtcncy ^he Governor of any colony, or to be hereafter so passed or assented to,
with instmc- shall be, or be deemed to have been, void or inoperative by reason only of
tions. any instructions 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 instruc-
tions may be referred to in such letters patent, or last-mentioned instru-
ment.
Colonial Leg- 5. Every colonial Legislature shall have, and be deemed at all times

esublidh'et? to have had, full power within its jurisdiction to establish courts of judi-
Courts o^ " cature, and to abolish and reconstitute the same, and to alter the constitu-
L*^' tion thereof, and to make provision for the administration of justice

therein ; and every representative Legislature shall, in respect to the colony
under its jurisdiction, have, and be deemed at all times to have had, full
power to make laws respecting the constitution, powers, and procedure
Repreaenutive of such Legislature; provided that such laws shall have been passed in
^*Hdt*'*'* such manner and form as may from time to time be required, by any Act
Constitution, o^ Parliament, letters patent, Order in Coimcil, or colonial law for the

time being in force in the colony.
Certified 6. TTtie certificate of the clerk or other proper officer of a legislative

t*^^e?fdence ^^^^ ^ ^^^ colony to the effect that the document to which it is attached
that they are is a true copy of any colonial law assented to by the Governor of such
properly colony, or of any bill reserved for the signification of Her Majesty's

passed. pleasure by the said Governor, shall be prima facie evidence that the docu-

ment 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

to beevidence ^"^^ ^*^^ ^^^ ^^^^ ^"^^ *^^ properly passed and presented to the Governor ;

of assent and sind any proclamation, purporting to be published by authority of the

disallowance. Governor, in any newspaper in the colony 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
be prima facie evidence of such disallowance or assent.

And whereas doubts are entertained respecting the validity of certain

Certain Acts Acts enacted, or reputed to be enacted, by the Legislature of South Aus-

^£ c***?J**"'"* tralia : be it further enacted as follows :

Aus^nlia 7. All laws or reputed laws enacted or purporting to have been

to be valid. enacted by the said Legislature, or by persons or bodies of persons for

1840-1867] Constitutional Documents of Canada. 597

the time being acting as such Legislature, which have received the assent
of Her Majesty in Council, or which have received the assent of the
Governor 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 whatever; provided that nothing herein con-
tained 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.

CLXXVIII

DEBATES IN THE CANADIAN PARLIAMENT ON CONFEDERA-
TION, 1865

[Trans.: Parliamentary Debates on the Subject of the Confederation of
the British North American Provinces (Quebec, 1865).]

Monday, February 6, 1865.

Attorney General Macdonald moved, "That an humble Address be
presented to Her Majesty, praying that She may be graciously pleased to
cause a measure to be submitted to the Imperial Parliament, for the pur-
pose of uniting the Colonies of Canada, Nova Scotia, New Brunswick,
Newfoundland, and Prince Edward Island, in one Government, with pro-
visions based on certain ResolutionsS which were adopted at a Conference
of Delegates from the said Colonies, held at the city of Quebec, on the 10th
October, 1864." He said : — Mr. Speaker, in fulfilment of the promise made
by the Government to Parliament at its last session, I have moved this
resolution. I have had the honor of being charged, on behalf of the
Government, to submit a scheme for the Confederation of all the British
North American Provinces — a scheme which Jias been received, I am glad
to say, with general, if not universal, approbation in Canada. The scheme,
as propounded through the press, has received almost no opposition. While
there may be occasionally, here and there, expressions of dissent from
some of the details, yet the scheme as a whole has met with almost uni-
versal approval, and the Government has the greatest satisfaction in pre-
senting it to this House. This subject, which now absorbs the attention
of the .people of Canada, and of the whole of British North America, is
not a new one. For years it has more or less attracted the attention of
every statesman and politician in these provinces, and has been looked
upon by many far-seeing politicians as being eventually the means of de-
ciding and settling very many of the vexed questions which have retarded
the prosperity of the colonies as a whole, and particularly the prosperity
of Canada. The subject was pressed upon the public attention by a great
many writers and politicians ; but I believe the attention of the Legislature
was first formally called to it by my honorable friend the Minister of
Finance^ Some years ago, in an elaborate speech, my hon. friend, while
an independent member of Parliament, before being connected with any
Government, pressed his views on the Legislature at great length and with
his usual force. But the subject was not taken up by any party as a branch
of their policy, until the formation of the Cartier-Macdonald administration
in 1858, when the Confederation of the colonies was announced as one of
the measures which they pledged themselves to attempt, if possible, to bring
to a satisfactory conclusion. In .pursuance of that promise, the letter or
despatch, which has been so much and so freely commented upon in the
press and in this House, was addressed by three of the members of that
Administration to the Colonial Office. The subject, however, though looked
upon with favor by the country, and though there were no distinct ex-
pressions of opposition to it from any party, did not begin to assume its

^ Printed in Pope, Confederation Documents, pp. 38 ff. (Toronto, 1895).
'Hon. A. T. Gait.

598 ConstitutiofuU Documents of Canad<k [1840-1867

present proportions until last session. Then, men of all parties and all
shades of politics became alarmed at the aspect of affairs. They found
that such was the opposition between the two sections of the province,
such was the danger of impending anarchy, in consequence of the irrescon-
cilable differences of opinion, widi respect to representation by population,
between Upper and Lower Canada, that unless some solution of the diffi-
culty was arrived at, we would suffer under a succession of weak govern-
ments,— ^weak in numerical support, weak in force, and weak in power of
doing good. All were alarmed at this state of affairs. We had election
after election, — ^we had ministry after ministry, — ^with the same result.
Parties were so equall^r balanced, that the vote of one member might decide
the fate of the Administration, and the course of legislation for a year or
a series of years. This condition of things was well calculated to arouse
the earnest consideration of every lover of his country, and I am happy to
say it had that effect. None were more impressed by this momentous state
of affairs, and the grave apprehensions that existed of a state of anarchy
destroying our credit, destroying our prosperity, destroying our progress,
than were the members of this present HJouse; and the leading statesmen
on both sides seemed to have come to the common conclusion, that some
step must be taken to relieve the country from the dead-lock and impending
anarchy that hung over us. With that view my colleague, the President
of the Councils made a motion founded on the despatch addressed to the
Colonial Minister, to which I have referred, and a committee was struck,
composed of gentlemen of both sides of the House, of all shades of political
opinion, without any reference to whether they were supporters of the
Administration of the day or belonged to the Opposition, for the purpose
of taking into calm and full deliberation the evils which threatened the
future of Canada. That motion of my honorable friend resulted most
happily. The committee, by a wise provision, — and in order that each
member of the committee might have an opportunity of expressing his
opinions without being in any way compromised before the public, or with
his party, in regard either to his political friendr or to his political foes,—
agreed that the discussion should be freely entered upon without reference
to the political antecedents of any of them, and that they should sit with
closed doors, so that they might be able to approach the subject frankly
and in a spirit of compromise. The committee included most of the lead-
ing members of the House, — I had the honor myself to be one of the
number, — and the result was that there was found an ardent desire — ^a
creditable desire, I must say,— displayed by all the members of the com-
mittee to approach the subject honestly, and to attempt to work out some
solution which might relieve Canada from the evUs under which she
labored. The report of that committee was laid before the House, and
then came the political action of the leading men of the two parties in this
House, which ended in the formation of the present Government The
principle upon which that Government was formed has been announced,
and is known to all. It was formed for the very purpose of carrying out
the object which has now received to a certain degree its completion, by
the resolutions I have had the honor to place in your hands. As has been
stated, it was not without a great deal of difficulty and reluctance that that
Government was formed. The gentlemen who compose this Government
had for many years been engaged in political hostilities to such an extent
that it affected even their social relations. But the crisis was great, the
danger was imminent, and the gentlemen who now form the present
Administration found it to be their duty to lay aside all personal feelings,
to sacrifice in some degree their position, and even to run the risk of
having their motives impugned, for the sake of arriving at some conclusion
that would be satisfactory to the country in general. The present resolu-
tions were the result. And, as I said before, I am proud to believe that
the country has sanctioned, as I trust that the representatives of the people
in this House will sanction, the scheme which is now submitted for the
future government of British North America. Everything seemed to favor
1 Hon. Georg* Brown.

1840-1867] Constitutional Documents of Canada, 599

the project, and everything seemed to shew that the present was the time,
if ever, when this great union between all Her Majesty's subjects dwelling
in British North America, should be carried out. When the Government
was formed, it was felt that the difficulties in the way of effecting a union
between all the British North American Colonies were great — so great as
almost, in the opinion of many, to make it hopeless. And with that view
it was the policy of the Government, if they could not succeed in procuring
a union between all the British North American Colonies, to attempt to
free the country from the dead-lock in which we were placed in Upper
and Lower Canada, in consequence of the difference of opinion between
the two sections, by having a severance to a certain extent of the present
union between the two provinces of Upper and Lower Canada, and the
substitution of a Federal Union between them. Most of us, however, I may
say, all of us, were agreed — and I believe every thinking man will agree—
as to the expediency of effecting a union between all the provinces, and
the superiority of such a design, if it were only practicable, over the
smaller scheme of having a Federal union between Upper and Lower
Canada alone. By a happy concurrence of events, the time came when that
proposition could be made with a hope of success. B^ a fortunate coin-
cidence the desire for union existed in the Lower Provmces, and a feeling
of the necessity of strengthening themselves by collecting together the
scattered colonies on the sea-board, had induced them to form a convention
of their own for the purpose of effecting a union of the Maritime Provinces
of Nova Scotia, New Brunswick, and Prince Edward Island, the legis-
latures of those colonies having formally authorized their respective gov-
ernments to send a delegation to Prince Edward Island for the purpose ot
attempting to form a union of some kind. Whether the union should be
federal or legislative was not then indicated, but a union of some kind
was sought for the purpose of making of themselves one people instead of
three. We, ascertaining that they were about to take such a step, and
knowing that if we allowed the occasion to pass, if they did indeed break
up all their present political organizations and form a new one, it could
not be expected that they would again readily destroy the new organiza-
tion which they had formed, — the union of the three provinces on the sea-
board,— and form another with Canada. Knowing Uiis, we availed our-
selves of the opportunity, and asked if they would receive a deputation
from Canada, who would go to meet them at Charlottetown, for the pur-
pose of laying before them the advantages of a larger and more extensive
union, by the junction of all the provinces in one great government under
our common Sovereign. They at once kindly consented to receive and
hear us. They did receive us cordially and generously, and asked us to lay
our views before them. We did so at some length, and so satisfactory to
them were the reasons we gave; so clearly, in their opinion, did we shew
the advantages of the greater union over die lesser, that they at once set
aside their own project, and joined heart and hand with us in entering
into the larger scheme, and trying to form as far as they and we could,
a great nation and a strong government. Encouraged by this arrange-
ment, which, however, was altogether unofficial and unauthorized, we re-
turned to Quebec, and then the Government of Canada invited the several
governments of the sister colonies to send a deputation here from each
of them for the purpose of considering the question, with something like
authority from their respective governments. The result was, that when
we met here on the 10th of October, on the first day on which we assembled,
after the full and free discussions which had taken place at Charlottetown,
the first resolution now before this House was passed unanimously, being
received with acclamation as, in the opinion of every one who heard it, a
proposition which ought to receive, and would receive, the sanction of each
government and each people. The resolution is, "That the best interests
and present and future prosperity of British North America will be pro-
moted by a Federal Union under the Crown of Great Britain, provided
such union can be effected on principles just to the several provinces."
It seemed to all the statesmen assembled — and there are great statesmen

600 Constitutional Documents of Canada, [1840-1867

in the Lower Provinces, men who would do honor to any govemoicnt and
to any legislature of any free country enjoying representative institutions—
it was clear to them all that the best interests and present and future
prosperity of British North America would be promoted by a Federal Union
under the Crown of Great Britain. And it seems to me, as to them, and
I think it will so appear to the people of this country, that, if we wish to
be a great people; if we wish to form — ^using the expression which was
sneered at the other evening — a great nationality, commanding the respect
of the world, able to hold our own against all opponents, and to defend
those institutions we prize: if we wish to have one system of government,
and to establish a commercial union, with unrestricted free trade, between
people of the five provinces, belonging, as they do, to the same nation,
obeying the same Sovereign, owning the same allegiance, and being, for
the most part of the same blood and lineage: if we wish to be able to
afford to each other the means of mutual defence and support against
aggression and attack — ^this can only be obtained by a union of some kind
between the scattered and weak boundaries composing the British North
American Provinces. The very mention of the scheme is fitted to bring
with it its own approbation. Supposing that in the Sjpring of the year 1865,
half a million of people were coming from the United Kingdom to make
Canada their home, although they brought only their strong arms and
willing hearts ; though they brought neither skill nor experience nor wealdi,
would we not receive them with open arms, and hail their presence in
Canada as an important addition to our strength? But when, by the
proposed union, we not only get nearly a million of people to join ns — ^when
they contribute not only their numbers, their physical strength, and their
desire to benefit their position, but when we know that they consist of old-
established communities, having a large amount of realized wealth, — com-
posed of people possessed of skill, education and experience in the ways
of the New World — people who are as much Canadians, I may say, as we
are — ^people who are imbued with the same feelings of loyalty to the Queen,
and the same desire for the continuance of |he connection with the Mother
Country as we are, and at the same time, have a like feeling of ardent
attachment for this, our common country, for which they and we would
alike fight and shed our blood, if necessary. When all this is considered,
argument is needless to prove the advantage of such a union. There were
only three modes. — if I may return for a moment to the difficulties with
which Canada was surrounded,--only three modes that were at all sug-
gested, by which the dead-lock in our affairs, the anarchy we dreaded, and
the evils which retarded our prosperity, could be met or averted. One was
the dissolution of the union between Upper and Lower Canada, leaving
them as they were before the union of 1841. I believe that that proposition,
by itself had no supporters. It was felt by every one that, although it
was a course that would do away with the sectional difficulties which
existed, — ^though it would remove the pressure on the part of the people
of Upper Canada for the representation based upon population, — and the
jealousy of the people of Lower Canada lest their institutions should be
attacked and prejudiced by that principle in our representation; yet it was
felt, by every thinking man in the province that it would be a retrograde
step, which would throw back the country to nearly the same position as it
occupied before the union, — ^that it would lower the credit enjoyed 1^
United Canada, — that it would be the breaking up of the connection which
had existed for nearly a quarter of a century, and, under which, although 'P
had not been completely successful, and had not allayed altogether the
local jealousies that had their root in circumstances which arose before
the union, our province, as a whole, had nevertheless prospered and in-
creased. It was felt that a dissolution of the union would have destroyed
all the credit that we had gained by being a united province, and would
have left us two weak and ineffective governments, instead of one power-
ful and united people. The next mode suggested, was the granting of
representation by population. Now, we all know the manner in which that
question was and is regarded by Lower Canada; that while in Upper

1840-1867] Constitutional Documents of Canada. 601

Canada the desire and cry for it was daily augmenting, the resistance to
it in Lower Canada was proportionably increasing in strength. Still, if
some such means of relieving us from the sectional jealousies which existed
between the two Canadas, if some such solution of the difficulties as Con-
federation had not been found, the representation by population must
eventually have been carried ; no matter though it might have been felt in
Lower Canada, as being a breach of the Treaty of Union, no matter how
much it might have been felt by the Lower Canadians that it would sacri-
fice their local interests, it is certain that in the progress of events repre-
sentation by population would have been carried ; and, had it been carried
— I speak here by own individual sentiments — I do not think it would have
been for the interest of Upper Canada. For though Upper Canada would
have felt that it had received what it claimed as a right, and had succeeded
in establishing its right, yet it would have left the Lower Province with a
sullen feeling of injury and injustice. The Lower Canadians would not
have worked cheerfully under such a change of system, but would have
ceased to be what they are now — a nationality, with representatives in
Parliament, governed by general principles, and dividing according to their
political opinions — and would have been in great danger of becoming a
faction, forgetful of national obligations, and only actuated by a desire to
defend their own sectional interests, their own laws, and their own institu-
tions. The third and only means of solution for our difficulties was the
junction of the provinces either in a Federal or a Legislative Union. Now,
as regards the comparative advantages of a Legislative and a Federal
Union, I have never hesitated to state my own opinions. I have again and
again stated in the House, that, if practicable, I thought a Legislative
Union would be preferable. I have always contended that if we could
agree to have one government and one parliament, legislating for the
whole of these peoples, it would be the best, the cheapest, the most vigor-
ous, and the strongest system of government we could adopt. But, on
looking at the subject in the Conference, and discussing the matter as we
did, most unreservedly, and with a desire to arrive at a satisfactory conclu-
sion, we found that such a system was impracticable. In the first place, it
would not meet the assent of the people of Lower Canada, because they
felt that in their peculiar position—being in a minority, with a different
language, nationality and religion from the majority, — in case of a junction
with the other provinces, their institutions and their laws might be assailed,
and their ancestral associations, on which ^ey prided themselves, attacked
and prejudiced; it was found that any proposition which involved the ab-
sorption of the individuality of Lower Canada — if I may use the expression
— ^would not be received with favor by her people. We found too, that
though their people speak the same language and enjoy the same system
of law as the people of Upper Canada, a system founded on the common
law of England, there was as great a disinclination on the part of the vari-
ous Maritime Provinces to lose their individuality, as separate political
organization, as we observed in the case of Lower Canada herself. There-
fore, we were forced to the conclusion that we must either abandon the
idea of Union altogether, or devise a system of union in which the separate
provincial organizations would be in some degree preserved. So that those
who were, like myself, in favor of a Legislative Union, were obliged to
modify their views and accept the project of a Federal Union as the only
scheme practicable, even for the Maritime Provinces. Because, although
the law of those provinces is founded on the common law of England, yet
every one of them has a large amount of law of its own — colonial law
framed by itself, and affecting every relation of life, such as the laws of
property, municipal and assessment laws; laws relating to the liberty of
the subject, and to all the great interests contemplated in legislation; we
found, in short, that the statutory law of the different provinces was so
varied and diversified that it was almost impossible to weld them into a
Legislative Union at once. Why, sir, if you only consider the innumerable
subjects of legislation peculiar to new countries, and that every one oi
those five colonies had particular laws of its own, to which its people have

602 ConsHtuHofud Documents of Canada, [1840*1867

beea accustomed and are attached, you will see the difficulty of effecting
and working a Legislative Union, and bringing about an assimilation ot
the local as well as general laws of the whole of the provinces. We in
Upper Canada understand from the nature and operation of our peculiar
municipal law, of which we know the value, the difficulty of (faming a
general system of legislation on local matters which would meet the wishes
and fulfil the requirements of the several provinces. Even the laws con-
sidered the least important, respecting private rights in timber, roads,
fencing, and innumerable other matters, smsdl in themselves, but in the
aggregate of great interest to the agricultural class, who form the great
body of the people, are regarded as of great value by the portion of the
community affected by them. And when we consider that every one of the
colonies has a body of law of this kind, and that it will take years before
those laws can be assimilated, it was felt that at first, at all events, any
united legislation would be almost impossible. I am happy to state — and
indeed it appears on the face of the resolutions themselves — ^that as regards
the Lower Provinces, a great desire was evinced for the final assimilation
of our laws. One of the resolutions provides that an attempt shall be
made to assimilate the laws of the Maritime Provinces and those of Upper
Canada, for the purpose of eventually establishing one body of statutory
law, founded on the common law of England, the parent of the laws of
all those provinces. One great objection made to a Federal Union was
the expense of an increased number of legislatures. I will not enter at
any length into that subject, because my honorable friends, the Finance
Minister and the President of the Council, who are infinitely more com-
petent than myself to deal with matters of this kind — matters of account —
will, I think, be able to show that the expenses under a Federal Union will
not be greater than those under the existing system of separate govern-
ments and legislatures. Here, where we have a joint legislature for Upper
and Lower Canada, which deals not only with subjects of a general interest
common to all Canada, but with all matters of private right and of sec-
tional interest, and with that class of measures known as "private bills," we
find that one of the greatest sources of expense to the country is the cost
of legislation. We find, from the admixture of subjects of a general, with
those of a private character in legislation, that they mutually interfere with
each other; whereas, if the attention of the Legislature was confined to
measures of one kind or the other alone, the session of Parliament would
not be so protracted and therefore not so expensive as at present In the
proposed Constitution all matters of general interest are to be dealt with
by the General Legislature; while the local Imslatures will deal with mat-
ters of local interest, which do not affect the Confederation as a whole, but
are of the greatest importance to their particular sections. By such a
division of labor the sittings of the General Legislature woulfl not be so
protracted as even those of Canada alone. And so with the local legis-
latures, their attention being confined to subjects pertaining to their own
sections, their sessions would be shorter and less expensive. Then, when
we consider the enormous saving that will be effected in the administration
of affairs by one General Government — ^when we reflect that each of the
five colonies have a government of its own with a complete establishment
of public departments and all the machinery required for the transaction
of the business of the country — ^that each have a separate executive, judi-
cial and militia system — ^that each province has a separate ministry, includ-
ing a Minister of Militia, with a complete Adjutant General's D^artment
— that each have a Finance Minister with a full Customs and Excise staff-
that each Colony has as large and complete an administrative organization,
with as many Executive officers as the General Government will have — ^we
can well understand the enormous saving that will result from a union of
all the colonies, from their having but one head and one central system.
We in Canada, already know something of the advantages and disadvan-
atges of a Federal Union. Although we have nominally a Legislative
Union in Canada — although we sit in one Parliament, supposed constitu-
tionally to represent the people without regard to sections or localities, yet

1840-1867] Constitutional Documents of Canada. 603

we know, as a matter of fact, that since the union in 1841, we have had a
Federal Union; that in matters affecting Upper Canada solely, members
from that section claimed and generally exercised the right of exclusive
legislation, while members from Lower Canada legislated in matters affect-
ing only their own section. We have had a Federal Union in fact, though
a Legislative Union in name; and in the hot contests of late years, if on
any occasion a measure affecting any one section were interfered with by
the members from the other — if, for instance, a measure locally affecting
Upper Canada were carried or defeated against the wishes of its majority,
b^ one from Lower Canada, — ^my honorable friend the President of the
Council, and his friends denounced with all their energy and ability such
legislation as an infringement of the rights of the Upper Province. Just
in the same way, if any act concerning Lower Canada were pressed into
law against the wishes of the majority of her representatives, by those
from Upper Canada, the Lower Canadians would rise as one man and
protest against such a violation of their peculiar rights. The relations
between England and Scotland are very similar to that which obtains be-
tween the Oinadas. The union between them, in matters of legislation, is
of a federal character, because the Act of Union between the two countries
provides that the Scottish law cannot be altered, except for the manifest
advantage of the people of Scotland. This stipulation has been held to be
so obligatory on the Legislature of Great Britain that no measure affecting
the law of Scotland is passed unless it receives the sanction of a majority
of the Scottish members in Parliament. No matter how important it may
be for the interests of the empire as a whole to alter the laws of Scotland
— ^no matter how much it may interfere with the symmetry of the general
law of the United Kingdom, that law is not altered, except with the consent
of the Scottish people, as expressed by their representatives in Parliament.
Thus, we have in Great Britain, to a limited extent, an example of the
working and effects of a Federal Union, as we might expect to witness them
in our own Confederation. The whole scheme of Confederation, as pro-
pounded by the Conference, as agreed to and sanctioned by the Canadian
Government, and as now presented for the consideration of the people, and
the Legislature, bears upon its face the marks of compromise. Of neces-
sity there must have been a great deal of mutual concession. When we
think of the representatives oi five colonies, all supposed to have different
interests, meeting together, charged with the duty of protecting those inter-
ests and of pressing the views of their own localities and sections, it must
be admitted that had we not met in a spirit of conciliation, and with an
anxious desire to promote this union ; if we had not been impressed with the
idea contained in the words of the resolution — 'That the best interests and
present and future prosperity of British North America would be promoted
by a Federal Union under the Crown of Great Britain," — all our efforts
might have proved to be of no avail. If we had not felt that, after coming
to this conclusion, we were bound to set aside our private opinions on
matters of detail, if we had not felt ourselves bound to look at what was
practicable, not obstinately rejecting the opinions of others nor adhering
to our own ; if we had not met, I say, in a spirit of conciliation, and with
an anxious, overruling desire to form one people under one government,
we never would have succeeded. With these views, we press the question
on this House and the country. I say to this House, if you do not believe
that the union of the colonies is for the advantage of the country, that the
joining of these five peoples into one nation, under one sovereign, is for
the benefit of all, then reject the scheme. Reject it if you do not believe
it to be for the present advantage and future prosperity of yourselves and
your children. But if, after a calm and full consideration of this scheme,
it is believed, as a whole, to be for the advantage of this province — ^if the
House and country believe this union to be one which will ensure for us
British laws, British connection, and British freedom — ^and increase and
develop the social, political and material prosperity of the country, then
I implore this House and the country to lay aside all prejudices, and accept
the scheme which we offer. I ask diis House to meet the question in the

604 ConsHtutiofial Documents of Canada, [1840-1867

same spirit in which the deflates met it. I ask each member of this
House to lay aside his own opinions as to particular details, and to accept
the scheme as a whole if he think it beneficial as a whole. As I stated
in the preliminary discussion, we must consider this scheme in the light of
a treaty. By a happy coincidence of circumstances, just when an Adminis-
tration had been formed in Canada for the purpose of attempting a solution
of the difficulties under which we laboured, at the same time the Lower
Provinces, actuated by a similar feeling, appointed a Conference with a
view to a union among Uiemselves, without being cognizant of the position
the government was tsdcing in Canada. If it had not been for this fortimate
coincidence of events, never, perhaps, for a long series of years would we
have been able to bring this scheme to a practical conclusion. But we did
succeed. We made the arrangement, agreed upon the scheme, and the
deputations from the several governments represented at the Conference
went back pledged to lay it before their governments, and to ask the l^is-
latures and people of their respective provinces to assent to it I trust the
scheme will be assented to as a whole. I am sure this House will not seek
to alter it in its unimportant details ; and, if altered in any important pro-
visions, the result must be that the whole will be set aside, and we must
begin ae novo. If any important changes are made, every one of the colon-
ies will feel itself absolved from the implied obligation to deal with it
as a Treaty, each province will feel itself at liberty to amend it ad libitum
so as to suit its own views and interests ; in. fact, the whole of our labours
will have been for nought, and we will have to renew our negotiations with
all the colonies for the purpose of establishing some new scheme. I hope
the House will not adopt any such a course as will postpone, perhaps for
ever, or at all events for a long period, all chances of union. All the
statesmen and public men who have written or spoken on the subject admit
the advantages of a union, if it were practicable: and now when it is
proved to be practicable, if we do not embrace this opportunity the present
favorable time will pass away, and we may never have it again. Because,
just so surely as this scheme is defeated, will be reviv^ the original pro<
position for a union of the Maritime Provinces, irrespective of Canada;
they will not remain as they are now, powerless, scattered, helpless com-
munities ; they will form themselves into a power, which, though not so
strong as if united with Canada, will, nevertheless, be a powerful and
cosiderable community, and it will 'be then too late for us to attempt to
strengthen ourselves by this scheme, which, in the words of the resolution
"is for the best interests, and present and future prosperity of British
North America." If we are not blind to our present position, we must see
the hazardous situation in which all the great interests of Canada stand in
respect to the United States. I am no alarmist I do not believe in the
prospect of immediate war. I believe that the common sense of the two
nations will prevent a war; still we cannot trust to probabilities. The
Government and Legislature would be wanting in their duty to the people
if they ran any risk. We know that the United States at this moment are
engaged in a war of enormous dimensions — ^that the occasion of a war
with Great Britain has again and again arisen, and may at any time in the
future again arise. We cannot foresee what may be the result ; we cannot
say but that the two nations may drift into a war as other nations have
done before. It would then be too late when war had commenced to think
of measures for strengthening ourselves, or to begin negociations for a
union with the sister provinces. At this moment, in consequence of the
ill-feeling which has arisen between England and the United States — a
feeling of which Canada was not the cause — in consequence of the irritation
which now exists, owing to the unhappy state of affairs on this continent,
the Reciprocity Treaty, it seems probable, is about to be brought to an
end— our trade is hampered by the passport system, and at any moment
we may be deprived of permission to carry our goods through United
States channels — the bonded goods system may be done away with, and
the winter trade through the United States put an end to. Our merchants
may be obliged to return to the old system of bringing in during the

1840-1867] Constitutional Documents of Canada, 605

summer months the supplies for the whole year. Ourselves already threat-
ened, our trade interrupted, our intercourse, political and commercial,
destroyed, if we do not take warning now when we have the opportunity,
and while one avenue is threatened to be closed, open another by taking
advantage of the present arrangement and the desire of the Lower Pro-
vinces to draw closer the alliance between us, we may suffer commercial
and political disadvantages it may take long for us to overcome. The
Conference having come to the conclusion that a legislative union, pure
and simple, was impracticable, our next attempt was to form a government
upon federal principles, which would give to the General Government the
strength of a legislative and administrative union, while at the same time
it preserved that liberty of action for the different sections which is allowed
by a Federal Union. And I am strong in the belief — that we have hit upon
the happy medium in those resolutions, and that we have formed a scheme
of government which unites the advantages of both, giving us the strength
of a legislative union and the sectional freedom of a federal union, with
protection to local interests. In doing so we had the advantage of the
experience of the United States. It is the fashion now to enlarge on the
defects of the Constitution of the United States, but I am not one of those
who look upon it as a failure. I think and believe that it is one of the
most skillful works which human intelligence ever created; is one of the
most perfect organizations that ever governed a free people. To say that
it has some defects is but to say that it is not the work of Omniscience,
but of human intellects. We are happily situated in having had the oppor-
tunity of watching its operation, seeing its working from its infancy till
now. It was in the main formed on the model of the Constitution of
Great Britain, adapted to the circumstances of a new country, and was
perhaps the only practicable system that could have been adopted under
the circumstances existing at the time of its formation. We can now take
advantage of the experience of the last seventy-eight years, during which
that Constitution has existed, and I am strongly of the belief that we have,
in a great measure, avoided in this system which we propose for the
adoption of the people of Canada, the defects which time and events have
shown to exist in the American Constitution. In the first place, by a
resolution which meets with the universal approval of the people of this
country, we have provided that for all time to come, so far as we can legis-
late for the future, we shall have as the head of the executive power, the
Sovereign of Great Britain. No one can look into futurity and say what
will be the destiny of this country. Changes come over nations and peoples
in the course of ages. But, so far as we can legislate, we provide that, for
all time to come, the Sovereign of Great Britain shall be the Sovereign of
British North America. By adhering to the monarchical principle, we
avoid one defect inherent in the Constitution of the United States. By
the election of the President by a majority for a short period, he never is
the sovereign and chief of the nation. He is n6ver looked up to by the
whole people as the head and front of the nation. He is at best but the
successful leader of a party. This defect is all the greater on account of
the practice of re-election. During his first term of ofHce, he is employed
in taking steps to secure his own re-election, and for his party a continu-
ance of power. We avoid this by adhering to the monarchical principle —
the Sovereign whom you respect and love. I believe that it is of the utmost
importance to have that principle recognized, so that we shall have a
Sovereign who is placed above the region of party — to whom all parties
look up — ^who is not elevated by the action of one party nor depressed by
the action of another, who is Uie common head and sovereign of all. In
the Constitution we propose to continue the system of Responsible Govern-
ment, which has existed in this province since 1841, and which has long
obtained in the Mother Country. This is a feature of our Constitution as
we have it now, and as we shall have it in the Federation, in which, I
think, we avoid one of the great defects in the Constitution of the United
States. There the President, during his term of office, is in a great measure
a despot, a one-man power, with the command of the naval and military

606 Constitutional Documents of Canada. [1840-1867

forces — with an immense amount of patronage as head of the Executive,
and with the veto power as a branch of the legislature, perfectly nncoo-
trolled by responsible advisers, his cabinet being departmental officers
merely, whom he is not obliged by the Constitution to consult with, unless
he chooses to do so. With us the Sovereign, or in this country the Repre-
sentative of the Sovereign, can act only on the advice of his ministers,
those ininisters beins responsible to the people through Parliament Prior
to the formation of the American Union, as we all know, the different
states which entered into it were separate colonies. They had no connec-
tion with each other further than that of having a common sovereign,
just as with us at present. Their constitutions and their laws were dif-
ferent The^ might and did legislate against each other, and when they
revolted agamst die Mother Country they acted as separate sovereignties,
and carrid on the war by a kind of treaty of alliance against the common
enemy. Ever since the union was formed the difficulty of what is caUed
"State Rights" has existed, and this had much to do in bringing on the
f. present unhappy war in the United States. They commenced, in fact, at
4 the wrong end. They declared by their Constitution that each state was a
sovereignty in itself, and that all the powers 'incident to a sovereignty
belonged to each state, except those powers which, by the Constitution,
were conferred upon the General Government and Congress. Here we
have adopted a different system. We have strengthened the General Gov-
emment. We have given the General Legislature all the great subjects of
legislation. We have conferred on them, not only specifically and in detail,
all the powers which are incident to sovereignty, but we have expressly
declared that all subjects of general interest not distinctly and exclusively
conferred upon the local governments and local legislatures, shall be con-
ferred upon the General Government and L^slature. We have thus
avoided that great source of weakness which has been the cause of the
disruption of the United States. We have avoided all conflict of jurisdic-
tion and authority, and if this Constitution is carried out, as it will be in
full detail in the Imperial Act to be passed if the colonies adopt the scheme,
we will have in fact, as I said before, all the advantages of a legislative
union under one administration, with, at the same time the guarantees for
local institutions and for local laws, which are insisted upon by so many
in the provinces now, I hope, to be united. I think it is well that, in fram-
ing our Constitution — although my honorable friend the member for
Hochelaga* sneered at it the other day, in the discussion on the Address in
reply to the speech from the Throne — our first act should have been to
recognize the sovereignty of Her Majesty. I believe that, while England has
no desire to lose her colonies, but wishes to retain them, while I am satis-
fied that the public mind of England would deeply regret the loss of these
provinces — ^yet, if the people of British North America after full delibera-
tion had stated that they considered it was for their interest, for the advan-
tage of the future of British North America to sever the tie, soch is die
generosity of the people of England, that, whatever their desire to keq>
these colonies, they would not seek to compel us to remain unwilling sub-
jects of the British Crown. If therefore, at the Conference, we had ar-
rived at the conclusion, that it was for the interest of these provinces that
a severance should take place, I am sure that Her Majesty and the Imperial
Parliament would have sanctioned that severance. We accordingly fdt
that there was a propriety in giving a distinct declaration of opinion on
that point, and that, in framing the Constitution, its first sentence should
declare, that "The Executive authority or government shall 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 Ac
Sovereigrn duty authorised." That resolution met with the unanimous
assent of the Conference. The desire to remain connected with Great
Britain and to retain our allegiance to Her Majesty was unanimous. Not
a single suggestion was made, that it could, by any possibility, be for the

noA. A. A.

1840-1867] Constitutional Documents of Canada. 607

interest of the colonies, or of any section or portion of them, that there
should be a severance of our connection. Although we knew it to be pos-
sible that Canada, from her position, might be exposed to all the horrors
of war, by reason of causes of hostility arising between Great Britain and
the United States — causes over which we had no control, and which we had
no hand in bringing about — ^yet there was a unanimous feeling of willing-
ness to run all the hazards of war, if war must come, rather than lose the
connection between the Mother Country and these colonies. We provide
that "the Executive authority shall be administered by the Sovereign per-
sonally, or by the Representative of the Sovereign duly authorized. It is
too much to expect that the Queen should vouchsafe us her personal gov-
ernance or presence, except to pay us, as the heir apparent of the Throne,
our future Sovereign has already paid us, the graceful compliment of a
visit The Executive authority must therefore be administered by Her
Majesty's Representative. We place no restriction on Her Majesty's pre-
rogative in the selection of her representative. As it is now, so it will be if
this Constitution is adopted. The Sovereign has unrestricted freedom of
choice. Whether in making her selection she may send us one of her own
family, a Royal Prince, as a Viceroy to rule over us, or one of the great
statesmen of England to represent her, we know not. We leave that to
Her Majesty in all confidence. But we may be permitted to hope, that
when the union takes place, and we become the great country which British
North America is certain to be, it will be an object worthy the ambition
of the statesmen of England to be charged with presiding over our des-
tinies. Let me now invite the attention of the House to the Provisions in
the Constitution respecting the l^islative power. The sixth resolution
says, "There shall be a general legislature or parliament for the federated
provinces, composed of a Legislative Council and a House of Commons."
This resolution has been cavilled at in the English press as if it excluded
the Sovereign as a portion of the legislature. In one sense, that stricture
was just — because in strict constitutional language, the Legislature of Eng-
land consists of King, Lords and Commons. But, on the other hand, in
ordinary parlance we speak of "the King and his Parliament," or "the King
summoning his Parliament," the three estates — ^Lords spiritual, temporal
Lords, and the House of Commons, and I observe that such a writer as
Hallam occasionally uses the word Parliament in that restricted sense.
At best it is merely a verbal criticism. The legislature of British North
America will be composed of King, Lords, and Commons. The Legislative
Council will stand in the same relation to the Lower House, as the House
of Lords to the House of Commons in England, having the same power of
initiating all matters of legislation, except the granting of money. As
regards the Lower House, it may not appear to matter much, whether it
is called the House of Commons or House of Assembly. It will bear
whatever name the Parliament of England may choose to give it, but "The
House of Commons" is the name we should prefer, as shewing that it
represents the Commons of Canada, in the same way that the English
House of Commons represents the Commons of England, with the same
privil^es, the same parliamentary usage, and the same parliamentary
authonty. In settling the constitution of the Lower House, that which
peculiarly represents the people, it was agreed that the principle of repre-
sentation based on population should be adopted, and the mode of applying
that principle is fully developed in these resolutions. When I speak of
representation by population, the House will of course understand, that
universal suffrage is not in any way sanctioned, or admitted by these reso-
lutions, as the basis on which the constitution of the popular branch should
rest. In order to protect local interests, and to prevent sectional jealousies,
it was found requisite that the three great divisions into which British
North America is separated should be represented in the Upper House on
the principle of equality. There are three great sections, havings different
interests, in this proposed Confederation. We have Western Canada, an
agricultural country far away from the sea, and having the largest popu-
lation who have agricultural interests principally to guard. We have Lower

608 Constitutional Documents of Canada. [1840-1867

Canada, with other and separate interests, and especially with institutions
and laws which she jealously guards against absorption by any larger,
more numerous, or stronger power. And we have the Maritime Provmc^,
having also different sectional interests of their own, having, from their
position, classes and interests which we do not know in Western Canada.
Accordingly, in the Upper House, — the controlling and regulating, but not
the initiating, branch (for we know that here as in England, to the Lower
House will practically belong the initiation of matters of great public inter-
est), in the House which has the sober second thought in legislation — it is
provided that each of diose great sections shall be represented equ^ly by
24 members. The only exception to that condition of equality is in the
case of Newfoundland, which has an interest of its own, lying, as it does,
at the mouth of the ^reat river St Lawrence, and more connected, perhaps,
with Canada than with the Lower Provinces. It has, comparatively speadc-
ing, no common interest with the other Maritime Provinces, but has sec-
tional interests and sectional claims of its own to be protected. It, there-
fore has been dealt with separately, and is to have a separate representation
in the Upper House, thus varying from the equality established between
the other sections. As may be well conceived, ^reat difference of opinion
at first existed as to the constitution of the Legislative Council.

In Canada the elective principle prevailed; in the Lower Provinces,
with the exception of Prince Edward Island, the nominative principle was
the rule. We found a general disinclination on the part of the Lower
Provinces to adopt the elective principle; indeed, I do not think there was
a dissenting voice in the Conference against the adoption of the nominative
principle, except from Prince Edward Island. The delegates from New
Brunswick, Nova Scotia and Newfoundland, as one man, were in favor of
nomination by the Crown. And nomination by the Crown is of course the
system which is most in accordance with the British Constitution. We re-
solved then, that the constitution of the Upper House should be in accord-
ance with the British system as nearly as circumstances would allow. An
hereditary Upper House is impracticable in this young country. Here we
have none of the elements for the formation of a landlord aristocracy — ^no
men of large territorial positions — ^no class separated from the mass of the
people. An hereditary body is altogether unsuited to our state of society,
and would soon dwindle into nothing. The only mode of adapting the
English system to the Upper House, is by conferring the power of appoint-
ment on the Crown (as the English peers are appointed), but that the ap-
pointment should be for life. The arguments for an elective Council are
numerous and strong ; and I ought to say so, as one of the Administration
responsible for introducing the elective principle into Canada. I hold that
this principle has not been a failure in Canada; but there were causes —
which we did not take into consideration at the time — ^why it did not so
fully succeed in Canada as we had expected. One great cause was the
enormous extent of the constituencies and the immense labor which conse*
quently devolved on those who sought the suffrages of the people for elec-
tion to the Council. For the same reason the expense---4he legitimate
expense was so enormous that men of standing in the country, eminently
fitted for such a position, were prevented from coming forward. At first
I admit, men of the first standing did come forward, but we have seen that
in every succeeding election in both Canadas there has been an increasing
disinclination, on the part of men of standing and political experience and
weight in the country, to become candidates ; while, on the other hand, all
the young men, the active politicians, those who have resolved to embrace
the life of a statesman, have sought entrance to the House of Assembly.
The nominative system in this country, was to a great extent successful,
before the introduction of responsible government Then the Canadas were
to a great extent Crown colonies, and the upper branch of the legislature
consisted of gentlemen chosen from among the chief judicial and ecclesias-
tical dignitaries, the heads of departments, and other men of the first
position in this country. Those bodies commanded great respect from the
character, standing and weight of the individuals composing diem, but they

1840-1867] Constitutional Documents of Canada. 609

had little sympathy with the people or their representatives, and collisions
with the Lower House frequently occurred, especially in Lower Canada.
When responsible government was introduced, it became necessary for the
Governor of the day to have a body of advisers who had the confidence of
the House of Assembly which could make or unmake ministers as it chose.
The Lower House in effect pointed out who should be nominated to the
Upper House; for the ministry, being dependent altogether on the Lower
branch of the legislature for support, selected members for the Upper
House from among their political friends at the dictation of the House of
Assembly. The Council was becoming less and less a substantial check
on the legislation of the Assembly; but under the system now proposed,
such will not be the case. No ministry can in future do what they have
done in Canada before — they cannot, with the view of carrying any meas-
ure, or of strengthening the party, attempt to overrule the independent
opinion of the Upper House, by filling it with a number of its partisans and
political supporters. The provision in the Constitution, that the Legislative
Council shall consist of a limited number of members — ^that each of the
great sections shall appoint twenty-four members and no more, will pre-
vent the Upper House from being swamped from time to time by the
ministry of the day, for the purpose of carrying out their own schemes or
pleasing iheir partisans. The fact of the government being prevented from
exceeding a limited number will preserve the independence of the Upper
House, and make it, in reality, a separate and distinct chamber, having a
legitimate and controlling influence in the legislation of the country. The
objection has been taken that in consequence of the Crown being deprived
of the right of unlimited appointment, there is a chance of a dead-lock
arising between the two branches of the legislature; a chance that the
Upper House being altogether independent of the Sovereign, of the Lower
House, and of the advisers of the Crown, may act independently, and so
independently as to produce a dead-lock. I do not anticipate any such
result. In the first place we know that in England it does not arise. There
would be no use of an Upper House, if it did not exercise, when it thought
proper, the right of opposing or amending or postponing the legislation of
the Lower House. It would be of no value whatever were it a mere
chamber for registering the decrees of the Lower Hbuse. It must be an
independent House, having a free action of its own, for it is only valuable
as being a regulating body, calmly considering the legislation initiated by
the popular branch, and preventing any hasty or ill considered legislation
which may come from that body, but it will never set itself in opposition
against the deliberate and understood wishes of the people. Even the
House of Lords, which as an hereditary body, is far more independent
than one appointed for life can be, whenever it ascertains what is the calm,
deliberate will of the people of England, it yields^ and never in modem
times has there been, in fact or act, any attempt to overrule the decisions
of that House by the appointment of new peers, excepting, perhaps, once
in the reign of Queen Anne. It is true that in 1832 such an increase was
threatened in consequence of the reiterated refusal of the House of Peers
to pass the Reform Bill. I have no doubt the threat would have been
carried into effect, if necessary ; but every one, even the Ministry who ad-
vised that step, admitted that it would be a revolutionary act, a breach of
the Constitution to do so, and it was because of the necessity of preventing
the bloody revolution which hung over the land, if the Reform Bill had
been longer refused to the people of England, that they consented to the
bloodless revolution of overriding the independent opinion of the House of
Lrords on that question. Since that time it has never been attempted, and
I am satisfied it will never be attempted again. Only a year or two a^o
the House of Lords rejected the Paper Duties Bill, and they acted quite
^constitutionally, according to the letter and as many think, according to the
spirit of the Constitution in doing so. Yet when they found they had inter-
fered with a subject which the people's house claimed as belonging of right
to themselves, the very next session they abandoned their position, not
^cause the^ WAre convinced they had done wrong, but bcause they had

610 Constitutional Documents of Canada. [1840-1867

ascertained what was the deliberate voice of the representatives of the^
people on the subject. In this country, we must remember, that the gentle-
men who will be selected for the Legislative Council stand on a ver)
different footing from the peers of England. They have not like them any
ancestral associations or position derived from history. They have not
that direct influence on the people themselves, or on the popular branch of
the legislature, whidi die peers of England exercise, from their great
wealth, their vast territorial possessions, their numerous tenantry and that
prestige with which the exalted position of their class for centuries has
invested tiiem. The members of our Upper House will be like those of
the Lower, men of the people, and from the people. The man put into
the Upper House is as much a man of the people the day after, as the day
before his elevation. Springing from the people, and one of them, he
takes his seat in the Council with all the sjrmpathies and feelings of a man
of the people, and when he returns home, at the end of the session, he
mingles with them on equal terms, and is influenced by the same feelings
and associations, and events, as those which affect the mass around him.
And is it, then, to be supposed that the members of the upper branch of
the legislature will set themselves deliberately a^ work to oppose what they
know to be the settled opinions and wishes of the people of the country?
They will not do it. There is no fear of a dead-lock between the two
houses. There is an infinitely greater chance of a dead-lock between the
two branches of the legislature, should the elective principle be adopted,
than with a nominated chamber — chosen by the Crown, and having no
mission from the people. The members of the Upper Chamber would then
come from the people as well as those of the Lower House, and should any
difference ever arise between both branches, the former could say to the
members of the popular branch — '*We as much represent the feelings of
the people as you do, and even more so; we are not elected from smaji
localities and for a short period ; you as a body were elected at a particular
time, when the public mind was running in a particular channel; you
were returned to Parliament, not so much representing the general views
of the country, on general question, as upon the particular subjects which
happened to engage the minds of the people when they went to the polls.
We have as much right, or a better right, than you to be considered as
representing the deliberate will of the people on general question, and
therefore we will not give way." There is, I repeat, a greater danger of
an irreconcilable difference of opinion between the two branches of the
legislature, if the upper be elective, than if it holds its commission from
the Crown. Besides, it must be remembered that an Upper House, the
members of which are to be appointed for life, would not have the same
quality of permanence as the House of Lords; our members would die;
strangers would succeed them, whereas son succeeded father in the House
of Lords. Thus the changes in the membership and state of opinion in our
Upper House would always be more rapid than in the House of Lords.
To show how speedily changes have occurred in the Upper House, as
regards life members, I will call the attention of the HJouse to the follow-
ing facts: — At the call of the House, in February, 1856, forty-two life
members responded; two years afterwards, in 18S8, only thirty-five an-
swered to their names; in 1862 there were only twenty-five life members
left, and in 1864, but twenty-one. This shows how speedily changes take
place in the life membership. But remarkable as this change has been, ii is
not so great as that in regard to the elected members. Though the elective
principle only came into force in 1856, and although only twelve men were
elected that year, and twelve more every two years since, twenty-four
changes have already taken place by the decease of members, by the
acceptance of office, and by resignation. So it is quite dear that, should
there be on any question a difference of opinion between the Upper and
Lower Houses, the government of the day being obliged to have the con-
fidence of the majority in the popular branch — would, for the purpose of
bringing the former into accord and sympathy with the latter, fill up any
vacancies that might occur, with men of the same political feelings and

^340-1867] Constitutional Documents of Canada, 611

^^''mpathies with the Government, and consequently with those of the
'^^jority in the popular branch; and all the appointments of the Admin-
^'- iration would be made with the object of maintaining the sympathy and
1-^.rmony between the two houses. There is this additional advantage to
-- expected from the limitation. To the Upper House is to be confided
r^'^ protection of sectional interests; therefore is it that the three great
- "visions are there equally represented, for the purpose of defending such
'-^ teres ts against the combinations of majorities in the Assembly. It will,
• ^erefore, become the interest of each section to be represented by its very
t^^st men, and the members of the Administration who belong to each
:=>^^tion will see that such men are chosen, in case of a vacancy in their
^^^tion. For the same reason each state of the American Union sends its
i iTO best men to represent its interests in the Senate. It is provided in the
!:: onstitution that in the first selections for the Council, regard shall be
':i ^d to those who now hold similar positions in the different colonies. This,
ii:^ appears to me, is a wise provision. In all the provinces, except Prince
: i':dward, there are gentlemen who hold commissions for the Upper House
:f '>r life. In Canada, there are a number who hold under that commission,
>'ut the majority of them hold by a commission, not, perhaps, from a
:'4onarchical point of view so honorable, because the Queen is the fountain
vci honor, — ^but still, as holding their appointment from the people, they
[nay be considered as standing on a par with those who have Her Majesty's
i-ommission. There can be no reason suggested why those who have had
:ixperience in legislation, whether they hold their positions by the election
^ri the people or have received preferment from the Crown — there is no
: alid reason why those men should be passed over, and new men sought
.or to form the Legislative Council of the Confederation. It is, therefpre,
tTovided that the selection shall be made from those gentlemen who are
-:ow members of the upper branch of the Legislature in each of the colo-
nies, for seats in the Legistative Council of the General Legislature. The
-rrangcment in this respect is somewhat similar to that by which Repre-
sentative Peers are chosen from the Peers of Scotland and Ireland, to sit
.n the Parliament of the United Kingdom. In like manner, the members
•f the Legislative Council of the proposed Confederation will be first
..:elected from the existing Legislative Councils of the various provinces.
.. n the formation of the House of Commons, the principle of representation
*y population has been provided for in a manner equally ingenious and
'imple. The introduction of this principle presented at first the apparent
lifficulty of a constantly increasing body until, with the increasing popu-
ation, it would become inconveniently and expensively large. But by
idopting the representation of Lower Canada as a fixed standard — as the
)ivot on which the whole would turn — that province being the best suited
,:or the purpose, on account of the comparatively permanent character of
ts population, and from its having neither the largest nor least number
)f inhabitants — we have been enabled to overcome the difficulty I have
nentioned. We have introduced the system of representation by popula-
:ion without the danger of an inconvenient increase in the number of repre-
;$entatives on -the recurrence of each decennial period. The whole thing
is worked by a simple rule of three. For instance, we have in Upper
Canada, 1,400,000 of a population; in Lower Canada 1,100,000. Now, the
proposition is simply this — if Lower Canada, with its population of 1,100,000
has a right to 65 members how many members should Upper Canada have,
with its larger population of 1,400 flOO? The same rule applies to the other
provinces — ^the proportion is always observed and the principle of repre-
sentation by population carried out, while, at the same time, there will
not be decennially an inconvenient increase in the numbers of the Lowet
House. At the same time, there is a constitutional provision that hereafter
if deemed advisable, the total number of representatives may be increased
from 194, the number fixed in the first instance. In that case, if an increase
is made. Lower Canada is still to remain the pivot on which the whole
calculation will turn. If Lower Canada, instead of sixty-five, shall have
seventy members, then the calculation will be, if Lower Canada has seventy

612 Constitutional Documents of Canada. [1840-1867

members, with such a population, how many shall Upper Canada have with
a larger population? I was in favor of a larger House than one hundred
and ninety- four, but was overruled. I was perhaps singular in the opinion,
but I thought it would be well to commence with a larger representatior.
in the lower branch. The arguments against this were, that, in the first
place, it would cause additional expense ;. in the next place, that in a nev
country like this, we could not get a sufficient" number of qualified men to
be representatives. My reply was that the number is rapidly increasing as
we increase in education and weakh ; that a larger field would be open to
political ambition by having a larger body of representatives; that by
having numerous and smaller con^ituencies, more people would be inter-
ested in the working of the union, and that there would be a wider field for
selection for leaders of governments and leaders of parties. These are
my individual sentiments, — which, perhaps, I have no right to express
here — ^but I was overruled, and we fixed on the number of one hundred
and ninety-four, which no one will say is large or extensive, when it is
considered that our present number in Canada alone is one hundred and
thirty. The difference between one hundred and thirty and one hundred
and ninety- four is not great, considering the large increase that will be
made to our population when Confederation is carried into effect While
the principle of representation by population is adopted with respect to
the popular branch of the legislature, not a single member of the Confer-
ence, as I stated before, not a single one of the representatives of the
government or of the opposition of any one of the Lower Provinces was
in favor of universal suffrage. Every one felt that in this respect the|
principle of the British Constitution should be carried out, and that classes
and property should be represented as well as numbers. Insuperable diffi-
culties would have presented themselves if we had attempted to settle now
the qualification for the elective franchise. We have different laws in each
of the colonies fixing the qualification of electors for their own local
legislatures; and we therefore adopted a similar clause to that which is
contained in the Canada Union Act of 1841, viz., that all the laws which
affected the qualification of members and of voters, which affected the ap-
pointment and conduct of returning officers and the proceedings at elec-
tions, as well as the trial of controverted elections in the separate pro-
vinces, should obtain in the first election to the Confederate Parliament,
so that every man who has now a vote in his own province should continue
to have a vote in choosing a representative to the first Federal Parliament
And it was left to the Parliament of the Confederation, as one of their
first duties, to consider and to settle by an act of their own- the qualifica-
tion for the elective franchise, which would apply to the whole Confedera-
tion. In considering the question of the duration of Parliament, we came
to the conclusion to recommend a period of five years. I was in favor of
a longer period. I thought that the duration of the local legislatures
should not be shortened so as to be less than four years, as at present,
and that the General Parliament should have as long a duration as that of
the United Kingdom. I was willing to have gone to the extent of seven
years ; but a term of five years was preferred, and we had the example of
the New Zealand carefully considered, not only locally, but by the Imperial
Parliament, and which gave the provinces of those islands a general par-
liament with a duration of five years. But it was a matter of little im-
portance whether five or seven years was the term, the power of dissolution
by the Crown having been reserved. I find, on looking at the duration of
parliaments since the accession of George III. to the Throne, that exclud-
mg the present parliament, there have been seventeen parliaments, the
average period of whose existence has been about three years and a half.
That average is less than the average duration of the parliaments in Canada
since the union, so that it was not a matter of much importance whether
we fixed upon five or seven years as the period of duration of our General
Parliament. A good deal of misapprehension has arisen from the acci-
dental omission of some words from the 24th jresolution. It was thougfit
that by it the local legislatures were to have the power of arranging here-

L840-1867] Constitutional Documents of Canada, 613

if ter, and from time to time of readjusting the different constituencies and
iettling the size and boundaries of the various electoral districts. The
nea.ning of the resolution is simply this, that for the first General Parlia-
nent, the arrangement of constituencies shall be made by the existing local
eg^islatures; that in Canada, for instance, the present Canadian Parliament
»hall arrange what are to be the constituencies of Upper Canada, and to
Tialce such changes as may be necessary in arranging for the seventeen
additional members given to it by the Constitution; and that it may also,
If it sees fit, aher the boundaries of the existing constituencies of Lower
Canada. In short, this Parliament shall settle what shall be the different
constituencies electing members to the first Federal Parliament And so
the other provinces, the legislatures of which will fix the limits of their
several con^ituencies in the session in which they adopt the new Constitu-
tion. Afterwards the local legislatures may alter their own electoral limits
as they please, for their own local elections. But it would evidently be
unp roper to leave to the Local Legislature the power to alter the constitu-
encies sending members to the General Legislature after the General Legis-
lature shall have been called into existence. Were this the case, a menjber
of the General Legislature might at any time find himself ousted from his
seat by an alteration of his constituency by the Local Legislature in his
section. No, after the General Parliament meets, in order that it may
have full control of its own legislatiop, and be assured of its position, it
must have the full power of arranging and re-arranging the electoral limits
of its constituencies as it pleases, such being one of the powers essentially
necessary to such a Legislature. I ^all not detain the House by entering
into a consideration at any length of the different powers conferred upon
the General Parliament as contradistinguished from those reserved to the
local legislatures; but any honorable member on examining the list of
different subjects which are to be assigned to the General and Local Legis-
latures respectively, will see that all the great questions which affect the
general interests of the Confederacy as a whole, are confided to the Federal
Parliament, while the local interests and local laws of each section are
preserved intact, and entrusted to the care of the local bodies. As a
matter of course, the General Parliament must have the power of dealing
with the public debt and property of the Confederation. Of course, too,
it must have the regulation of trade and commerce, of customs and excise.
The Federal Parliament must have the sovereign power of raising money
from such sources and by such means as the representatives of the people
will allow. It will be seen that the local legislatures have the control of all
local works; and it is a matter of great importance, and one of the chief
advantages of the Federal Union and of local legislatures, that each pro-
vince will have the power and means of developing its own resources and
aiding its own progress after its own fashion and in its own way. There-
fore all the local improvements, all local enterprizas or undertakings of any
kind, have been left to the care and management of the local legislatures
of each province. It is provided that all "lines of siteam 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/' shall
belong to the General Government, and be under the control of the General
Legislature. In like manner "lines of steamships between the Federated
Provinces and other countries, telegraph communication and the incorpora-
tion of telegraph companies, and all such works as shall, although lying
within any province, be specially declared by the Acts authorizing them to
be for the general advantage," shall belong to the General Government.
For instance the Welland Canal, though lying wholly within one section,
and the St. Lawrence Canals in two only, may be properly considered
national works, and for the general benefit of the whole Federation. Again,
the census, the ascertaining of our numbers and the extent of our resources,
must, as a matter of general interest, belong to the General Government.
So also with the defences of the country. One of the great advantages
of Confederation is, that we shall have a united, a concerted, and uniform
system of defence. We are at this moment with a different ^ilitia system

614 Constitutional Documents of Cattada. [1840-1867

in each colony — in some of the colonies with an utter want of any system
of defence. We have a number of se{>arate staff establishments, witfaooi
any arrangement between the colonies as to the means, either of defence
or offence. But, under the union, we will have one system of defence
and one system of militia organization. In the event of the Lower Pro-
vinces being threatened, we can send the large militia forces of Uf^er
Canada to their rescue. Should we have to fight on our lakes against a
foreign foe, we will have the hardy seamen of the Lower Provinces coming
to our assistance and manning our vessels. We will have one system o:
defence and be one people, acting together alike in peace and in war
The criminal law too— the determination of what is a crime and what is
not and how crime shall be punished — is left to the General Government
This is a matter almost of necessity. It is of great impK>rtance that we
should have the same criminal law throughout these provinces — ^that what
is a crime in one part of British America, should be a crime in every pan
— ^that there should be the same protection of life and property as in
another. It is one of the defects in the United States system, that each
separate state has or may have a criminal code of its own, — that what ma\
be a capital offence in one state may be a venial offence, ptinishabk
slightly, in another. But under our Constitution we shall have one body
of. criminal law, based on the criminal law of England, and operating
equally throughout British America, so that a British American, belonging
to what provmce he may, or going to any other part of the Confederation,
knows what his rights are in that respect, and what his punishment will
be if an offender against the criminal laws of the land. I think this is
one of the most marked instances in which we take advantage of the
experience derived from our observations of the defects in the Constitu-
tion of the neighboring Republic The 33rd provision is of very great
importance to the future well-being of these colonies. It commits to the
General Parliament the "rendering uniform all or any of die laws relative
to property and civil rights in Upper Canada, Nova Scotia, New Bruns-
wick, Newfoundland and Prince Edward Island, and rendering uniform
the procedure of all or any of the courts in these provinces." The great
principles which govern the laws of all the provinces, with the single
exception of Lower Canada, are the same, although there may be a diver-
gence in details; and it is gratifying to find, on the part of the Lower
Provinces, a general desire to join together with Upper Canada in this
matter, and to procure, as soon as possible, an assimilation of the statutor}
laws and the procedure in the courts, of all these provinces. At present
there is a good deal of diversity. In one of the colonies, for instance,
they have no municipal system at all. In another, the municipal system
is merdy permissive, and has not been adopted to any extent. Althoogh,
therefore, a legislative union was found to be almost impracticable, it was
understocKl, so far as we could influence the future, that the first act of
the Confederate Government should be to procure an assimilation of the
statutory law of all those provinces, which has, as its root and foundation.
the common law of England. But to prevent local interests from being
over-ridden, the same section makes provision, that, while power is given
to the General Legislature to deal with this subject, no change in this
respect should have the force and authority of law in any province mitii
sanctioned by the Legislature of that province. The General Lc^slature
is to have power to establish a general Court of Appeal for the Federateii
Provinces. Although the Canadian Legislature has dways had the power
to establish a Court of Appeal, to which appeals may be made from the
courts of Upper and Lower Canada, we have never availed ourselves oi
the power. Upper Canada has its own Court of Appeal, so has Lower
Canada. And this system will continue until a General Court of Appeal
shall be established by the General Legislature. The Constitution does not
provide that such a court shall be established. There are many argument^
for and against the establishment of such a court. But it was diougfat
wise and expedient to put into the Constitution a power to the General
Legislature, that, if after full consideration they think it advisable to estab-

1840-1867] Constitutional Documents of Canada. 615

lish a General Court of Appeal from all the Superior Courts of all the
provinces, they m^ do so. I shall not go over the other powers that are
conferred on the General Parliament Most of them refer to matters of
financial and commercial interest, and I leave those subjects in other and
better hands. Besides all the powers that are specifically given in the 37th
and last item of this portion of the Constitution, confers on the General
I legislature the general mass of sovereign legislation, the power to legis-
late on "all matters of a general character, not specially and exclusively
reserved for the local governments and legislatures." This is precisely
the provision which is wanting in the Constitution of the United States.
It is here that we find the weakness of the American system — the point
ivhere the American Constitution breaks down. It is in itself a wise and
necessary provision. We thereby strengthen the Central Parliament, and
make the Confederation one people and one government, instead of five
peoples and five governments, with merely a point of authority connecting
us to a limited and insufficient extent With respect to the local govern-
ments, it is provided that each shall be governed by a chief executive
officer, who shall be nominated by the General Government As this is to
be one united province, with the local governments and legislatures sub-
ordinate to the General Government and Legislature, it is obvious that the
chief executive officer in each of the provinces must be subordinate as well.
The General Government assumes towards the local governments precisely
the same position as the Imperial Government holds with respect to each
of the colonies now: so that as the Lieutenant Governor of each of the
different provinces is now appointed directly by the Queen, and is directly
responsible, and reports directly to Her, so will the executives of the local
governments hereafter be subordinate to the Representative of the Queen,
and be responsible and report to him. Objection has been taken that there
is an infringement of the Royal prerogative in giving the pardoning power
to the local governors, who are not appointed directly by the Crown, but
only indirectly by the Chief Executive of the Confederation, who is ap-
pointed by the Crown. This provision was inserted in the Constitution on
account of the practical difficulty which must arise if tiie power is confined
to the Governor General. For example, if a question arose about the dis-
charge of a prisoner convicted of a minor offence, say in Newfoundland,
who might be in imminent danger of losing his life if he remained in con-
finement the exercise of the pardoning power might come too late if it
were necessary to wait for the action of the Governor General. It must
be remembered that the pardoning power not only extends to capital cases,
but to every case of conviction and sentence, no matter how trifling---eyen
to the case of a fine in the nature of a sentence on a criminal conviction.
It extends to innumerable cases, where, if the responsibility for its exer-
cise were thrown on the General Executive, it could not be so satisfactorily
discharged. Of course there must be, in each province, a legal adviser
of the Executive, occupying the position of our Attorney General, as there
is in every state of the American Union. This officer will be an officer of
the Local Government; but, if the pardoning power is reserved for the
Chief Executive, there must, in every case where the exercise of the par-
doning power is sought be a direct communication and report from the
local law officer to the Governor General. The practical inconvenience of
this was felt to be so great, that it was thought well to propose the arrange-
ment we did, without any desire to infringe upon the prerogatives of the
Crown, for our whole action shews that the Conference, in every step they
took, were actuated by a desire to guard jealously these prerogatives. It
is a subject, however, of Imperial interest, and if Uie Imperial Government
and Imperial Parliament are not convinced by the arguments we will be
able to press upon them for the continuation of that clause then, of course,
as the over-ruling power, they may set it aside. There are numerous sub-
jects which belong, of right, both to the Local and the General Parlia-
ments. In all these cases it is provided, in order to prevent a conflict of
authority, that where there is concurrent jurisdiction in the General and
Local Parliaments, the same rule should apply as now applies in cases

616 Constitutional Documents of Canada. (1840-1867

where there is concurrent jurisdiction in the Imperial and in the Provincial
Parliament, and that when the legislation of the one is adverse to or con-
tradictory of the legislation of the other, in all such cases the action of
the General Parliament must overrule, ex -necessitate, the action of the
Local Legislature. We have introduced also all those provisions which
are necessary in order to the full working otrt of the British Constitution
in these provinces. We provide that there shall be no money votes unless
those votes are introduced in the popular branch of the Legislature on the
authority of the responsible advisers of the Crown — those with whom the
responsibility rests of equalizing revenue and expenditure — that tbere can
be no expenditure or authorization of expenditure by Address or in any
other way unless initiated by the Crown on the advice of its responsible
advisers. As regards the financial features of the scheme, the arrange-
ments made as to the present liabilities of the several provinces, and the
future liabilities of the Confederation, on these and kindred matters, I have
no doubt that my honorable friends, the Finance Minister and the President
of the Council, will speak at full length, and that they will be able to shew
you diat this branch of the subject has received the fullest consideration.
I feel I would be intruding myself unnecessarily on the Hionse if, widi my
inferior knowledge of those subjects I were to detain you by venturing
to speak of them, when I know that they will be so ably and fully gone
mto by my two honorable friends. The last resolution of any importance
IS one which, although not affecting the substance of the Constitution, is
of interest to us all. It is that "Her Majesty the Queen be solicited to
determine the rank and name of the federated provinces." I do not know
whether there will be any expression of opinion in this House on this sub-
ject— ^whether we are to be a vice-royalty, or whether we are still to retain
our name and rank as a province. But I have no doubt Her Majesty will
give the matter Her gracious consideration, that She will give us a name
satisfactory to us all, and that the rank She will confer upon us will be a
rank worthy of our position, of our resources, and of our future. Let roe
again, before I sit down, impress upon this House the necessity of meeting
this question in a spirit of compromise, with a disposition to judge the
matter as a whole, to consider whether really it is for the benefit and
advantage of the country to form a Confederation of all the provinces;
and if honorable gentlemen, whatever may have been their preconceived
ideas as to the merits of the details of this measure, whatever may still
be their opinions as to these details, if they really believe that the scheme
is one by which the prosperity of the country will be increased, and its
future progress secured, I ask them to yield their own views, and to deal
with the scheme according to its merits as one great whole. One argument,
but not a strong one, has been used against this Confederation, that it is
an advance towards independence. Some are apprehensive that the very
fact of our forming this union will hasten the time when we shall be
severed from the mother country. I have no apprehension of that kind.
I believe it will have the contrary effect I believe tiutt as we grow
stronger, that, as it is felt in England we have become a people, able from
our union, our strength, our population, and the development of our re-
sources, to take our position among the nations of the world, she will be
less willing to part with us than she would be now, when we are broken
up into a number of insignificant colonies, subject to attack piece-meal
without any concerted action or common organization of defence. I am
strongly of opinion that year by year, as we grow in population and
strength, England will more see the advantages of maintaining the alliance
between British North America and herself. Does any one imagine that,
when our population instead of three and a -half, will be seven millions,
as it will be ere many years pass, we would be one whit more willing than
now to sever the connection with England? Would not those seven mil-
lions be just as anxious to maintain their allegiance to the Queen and ^ir
connection with the Mother Country, as we are now? Will the addition to
our numbers of the people of the Lower Provinces, in any way lessen our
desire to continue our connection with the Mother Country? I believe the

1840-1867] Constitutional Documents of Canada. 617

people of Canada East and West to foe truly loyal. But, if they can by
possibility be exceeded in loyalty, it is by the inhabitants of the Maritime
Provinces. Loyalty with them is an overruling passion. In all parts of
the Lower Provinces there is a rivalry between the opposing political
parties as to which shall most strongly express and most effectively carry
out the principle of loyalty to Her Majesty, and the British Crown. When
this union takes place, we will be at the outset no inconsiderable people.
We find ourselves with a population approaching four millions of souls.
Such a population in Europe would make a second, or at least, a third rate
power. And with a rapidly increasing population — for I am satisfied that
under this union our population will increase in a still greater ratio than
ever before — ^with increased credit — with a higher position in the eyes of
Europe — with the increased security we can offer to immigrants, who would
naturally prefer to seek a new home in what i^ known to them as a great
country, than in any one little colony or another — with all this I am satis-
fied that, great as has been our increase in the last twenty-five years since
the union between Upper and Lower Canada, our future progress, during
the next quarter of a century, will be vastly greater. And when, by means
of diis rapid increase, we become a nation of eight or nine millions of in-
habitants, our alliance will be worthy of being sought by the great nations
of the earth. I am proud to believe that our desire for a permanent alliance
will be reciprocated in England. I know that there is a party in England —
but it is inconsiderable in numbers, though strong in intellect and power —
which speaks of the desirability of getting rid of the colonies ; but I believe
such is not the feeling of the statesmen and the people of England. I
believe it will never be the deliberately expressed determination of the
Government of Great Britain. The colonies are now in a transition state.
Gradually a different colonial system is being developed — and it will be-
come, year by year, less a case of dependence on our part, and of over-
ruling protection on the part of the Mother Country, and more a case of
a healthy and cordial alliance. Instead of looking upon us as a merely
dependent colony, England will have in us a friendly nation — a subordinate
but still a powerful people — ^to stand by her in North America in peace or
in war. The people of Australia will be such another subordinate nation.
And England will have this advantage, if her colonies progress under the
new colonial system, as I believe they will, that, though at war with all the
rest of the world, she will be able to look to the subordinate nations in
alliance with her, and owning allegiance to the same Sovereign, who will
assist in enabling her a^ain to meet theVhole world in arms, as she has
done before. And if, m the great Napoleonic war, with every port in
Europe closed against her commerce, she was yet able to hold her own, how
much more will that be the case when she has a colonial empire rapidly
increasing in power, in wealth, in influence, and in position. It is true that
we stand in danger, as we have stood in danger again and again in Canada,
of being plunged into war and suffering all its dreadful consequences, as
the result of causes over which we have no control, by reason of their
connection. This, however, did not intimidate us. At the very mention of
the prospect of a war some time ago, how were the feelings of the people
aroused from one extremity of British America to the other, and prepara-
tions made for meeting its worst consequences. Although the people of
this country are fully aware of the horrors of war — should a war arise,
unfortunately, between the United States and England and we all pray it
never may — they are still ready to encounter all perils of that kind, for the
sake of the connection with England. There is not one adverse voice, not
one adverse opinion on that pomt. We all feel the advantages we derive
from our connection with England. So lon^ as that alliance is maintained,
we enjoy, under her protection, the privil<e^es of constitutional liberty
according to the British system. We will enjoy here that which is the great
test of constitutional freedom — ^we will have the rights of the minority
respected. In all countries the rights of the majority take care of them-
selves, but it is only in countries like England, enjoying constitutional
liberty, and safe from the tyranny of a single despot or of an unbridled

618 Constitutional Documents of Canada. [1840-1867

democracy, that the rights of minorities are regarded. So long, too, as
we form a portion of the British Empire, we shall have the example of her
free institutions, of the high standard of the character of her statesmen
and public men, of the purity of her l^islation, and the upright administra-
tion of her laws. In this younger country one great advantage of our con-
nection with Great Britain will be, that, under her auspices, inspired by her
example, a portion of her empire, our public men will be actuated by prin-
ciples similar to those which actuate the statesmen at home. These
although not material, physical benefits of which you can make an arith-
metical calculation, are of such overwhelming advantage to our future
interests and standing as a nation, that to obtain them is well worthy of
any sacrifices we may be called upon to make, and the people of this coun-
try are ready to make them. We should feel, also, sincerely grateful to
bcnificent Providence that we have had the opporttmity voudisafed us of
calmly considering this great constitutional diange, this peaceful revolu-
tion— that we have not been hurried into it, like &e United States, by the
exigencies of war — that we have not had a violent revolutionary period
forced on us, as in other nations, by hostile action from without, or by
domestic dissensions within. Here we are in peace and prosperity, under
the fostering government of Great Britain — sl dependent people, with a
government having only a limited and delegated audiority, and yet allowed,
without restriction, and without jealousy on the part of die Mother Coun-
try, to legislate for ourselves, and peacefully and deliberately to consider
and determine the future of Canada and of British North America. It is
our happiness to know the expression of the will of our Gracious Sove-
reign, through Her Ministers, that we have her full sanction for our
deliberations, that Her only solicitude is that we shall adopt a system
which shall be really for our advantage, and that She promises to sanction
whatever conclusion after full deliberation we may arrive at as to the best
mode of securing the well-being, — ^the present and future prosperity of
British America, — It is our privilege and happiness to be in such a position,
and we cannot be too grateful for the blessings thus conferred upon us.
I must apologize for having detained you so long — for having gone perhaps
too much into tedious details with reference to the questions bearing on the
Constitution now submitted to this House. In conclusion, I would again
implore the House not to let this opportunity to pass. It is an opportunity
that may never recur. At the risk of repeating myself, I would say, it was
only by a happy concurrence of circumstances, that we were enabled to
bring this great question to its present position. If we do not take advan-
tage of the time, if we show ourselves unequal to the occasion, it may never
return, and we shall hereafter bitterly and unavailingly regret having
failed to embrace the happy opportunity now offered of founding a great
nation under the fostering care of Great Britain, and our Sovereign Lady,
Queen Victoria.

Tuesday, February 7, 1865.
Atty. Gen. C artier rose to contii^ue the debate on Confederation. He
said that he approached this subject with a certain amount of diffidence,
knowing it was not the first time he had had the honor of speaking upon it
in the Lower Provinces and elsewhere. He felt that this was a momentous
occasion, as for anything that he said on this grave question, he was
responsible to his constituents and the country. Respecting this grave
question, it had been said that the Tachi-Macdonald government had taken
upon themselves the solution of a problem which was not at the time of
its formation before the country, and had not even been mooted. Those
saying so were ignorant of the parliamentary history of the past few years.
He would briefly refer to the history of this great question, as far as it
had been brought before the Parliament and the country. When the
Cartier-Macdonald Government was constructed, after the downfall of the
Brown-Dorion Administration, a programme of the policy of the former
was laid before Parliament. Among the subjects contained in this pro-
gramme of 7th August, 1858, was one referred to in the following terms:
"The late Government felt themselves bound to carry out the law of the

1840*1867] Constitutional Documents of Canada. 619

land respecting the seat of Government, but, in the face of the recent vote
on that subject, the Administration did not consider themselves warranted
in incurring any expenditure for the public buildings, until Parliament has
had an opportunity of considering the whole question in all its bearings;
and the expediency of a Federal Union of the British North American
Provinces will be anxiously considered, and communication with the Home
Government and the Lower Provinces entered into forthwith on the sub-
ject; and the result of this communication will be submitted to Parlia-
ment at its next session. The Government will, during the recess, examine
into the organization and working of the public departments, and carry out
such administrative reforms as will be conducive to economy and effi-
ciency." Here was this scheme of a union of the provinces mentioned in
the programme of the C artier -Macdonald Government, in 1858. He merely
quoted this passage to show that neither Parliament nor the country was
now taken by surprise with regard to this scheme. We had had general
and special elections since 1858, and to pretend that this subject, which
had been so often canvassed, was new to the country, was to assert an
untruth. At the close of that session. Sir Edmund Head, in his Speech
proroguing Parliament, made use of the following language: — "I propose, in
the course of the recess, to communicate with Her Majesty's Government,
and with the Governments of the sister colonies, on another matter of very
great importance. I am desirous of inviting them to discuss with us the
principles on which a bond of a federal character, uniting the Provinces
of British North America, may perhaps hereafter be practicable." In
accordance with that announcement of policy, a deputation was sent to
England, composed of his then colleagues, Hons. Messrs. Gait and Ross
and himself. We pressed the matter before the Imperial Government,
whom we asked to authorize a meeting of delegates from the British
North American Governments, to consider this subject and report upon
it, said report to be communicated to the Colonial Secretary. Of course
we wanted, at that time, to act with the sanction and approval of the Im-
perial Government. We pressed the matter as strongly as we could before
it Of all the provinces that responded to the call of the Imperial Govdtn-
ment, Newfoundland, he thought, was the only one which professed her
readiuess to appoint delegates when the opportune moment arrived. Al-
though the other provinces were not opposed to Confederation, still, as the
question had not been brought conspicuously before their people, they did
not like then to join in the measure and in the proceedings which the
Canadian delegates had urged upon the Imperial Government in 1858. At
this time the Canadian delegates had a duty to perform towards the illus-
trious Administrator of the Government, Sir E, Head, to fulfil the pro-
mise he had made, on proroguing Parliament, by pressing the measure
upon the attention of the Imperial Administration. The Canadian Govern-
ment also kept its promise to report to the House the result of the mission
to England, at the next session of Parliament. The hon. gentleman here
read the despatch dated October, 1858, which was transmitted to the Im-
perial Government, setting forth the sectional difficulties which had arisen
between Upper and Lower Canada, principally on account of the former's
demand for increased representation in Parliament, on the ground of its
much larger population. Every one who knew anjrthing of his past public
course was aware^ that he was opposed to the principle of representation
by population while Upper and Lower Canada were under one Govern-
ment. He did not regret his opposition. If such a measure had been
passed, what would have been the consequence? There would have been
constant political warfare between Upper and Lower Canada. True it was
that the members from Upper Canada, being in the majority, it might have
been imagined that they would have carried everjrthing before them ; but
as far as justice to Lower Canada was concerned, such might not have
been the case. The consequence of representation by population would
have been that one territory would have governed another, and this fact
would have presented itself session after session in the House, and day
after day in the public prints. The moment this principle had been con-

620 Constitutional Documents of Canada. [1840-1867

ceded as the governing^ element, it would have initiated between the two
provinces a warfare which would have been unremitting. He wished that
Upper Canada should understand him in this matter. He was accused of
being opposed to Upper Canada's rights, because during fifteen or twenty
years he had to oppose his honorable friend the President of the Council.
His honorable colleague took the ground that representation should ^e
arranged according to population in each section of the province. He
(Hon, Mr, C artier) had resisted that position, believing that the moment
such a principle was applied, his honorable friend, who, no doubt, wanted
to maintain the peaceful government of the country, would have been dis-
appointed in his wish. It would have given rise to one of the bitterest
struggles between the two provinces that ever took place between two
nations. He did not mean to say that the majority from Upper Canada
would have tyrannized over Lower Canada ; but the idea that Upper Can-
ada, as a territory, had the preponderence in the Government by a large
number of representatives, would have been sufficient to generate that sec-
tional strife to which he had alluded. In 1S58 he first saw that represen-
tation by population, though unsuited for application as a governing prin-
ciple as between the two provinces, would not involve the same objection
if other partners were drawn in by a federation. In a struggle between
two— one a weak, and the other a strong party — ^the weaker could not but
be overcome; but if three parties were concerned, the stronger would not
have the same advantage; as when it was seen by the third that there was
too much strength on one side, the third would club with the weaker com-
batant to resist the big fighter. He did not oppose the principle of repre-
sentation by population from an unwillingness to do justice to Upper
Canada. He took this ground, however, that when justice was done to
Upper Canada, it was his duty to see that no injustice was done to Lower
Canada. He did not entertain the slightest apprehension that Lower Can-
ada's rights were in the least jeopardized by the provision that in the
General Legislature the French Canadians of Lower Canada would have a
smaller number of representatives than all the other orifdns combined. It
would be seen by the resolutions that in the questions which would be sub-
mitted to the General Parliament there could be no danger to the rights
and privileges of either French Canadians, Scotchmen, Englishmen or
Irishmen. Questions of commerce, of international communication, and
all matters of general interest, would be discussed and determined in the
General Legislature, but in the exercise of the functions of the General
Government, no one could apprehend that anything could be enacted which
would harm or do injustice to persons of any nationality. He did not
intend to go into the details of the question of Confederation, but merely
to bring before the House the most conspicuous arguments in order to
induce members to accept the resolutions submitted by the Government.
Confederation was, as it were ,at this moment almost forced upon us. We
could not shut our eyes to what was going on beyond the lines, where a
great struggle was going on between two Confederacies, at one time form-
ing but one Confederacy. We saw that a government, established not more
than 80 years ago, had not faisen able to keep together the family of states
which had broke up four or five years since. We could not deny that the
struggle now in progress must necessarily influence our political existence.
We did not know what would be the result of that great war — ^whether it
would end in the establishment of two Confederacies or in one as before.
However, we had to do with five colonies, inhabited by men of the same
sympathies and interests, and in order to become a great nation they re-
quired only to be brought together under one General Government. The
matter resolved itself into this, either we must obtain British North Ameri-
can Confederation or be absorbed in an American Confederation. Some
entertained the opinion that it was unnecessary to have British North
American Confederation to prevent absorption into the vortex of American
Confederation. Such parties were mistaken. We knew the policy of Eng-
land towards us — ^that she was determined to help and support ns in any

1840-1867] Constitutional Documents of Canada. 621

struggle with our neighbors. The British Provinces, separated as at pre-
sent, could not defend themselves alone, and the question resolved itself
into this : shall the whole strength of the empire be concentrated into Prince
Edward Island, or Canada, as the case may be, in case of a war with the
United States — or shall the provinces be left to fight single-handed, dis-
united? We were not sufficiently united. We had our duties, with regard
to England^o perform. In order to secure the exercise of her power in
our defence we must help her ourselves. We could not do this satisfac-
torily or efficiently unless we had a Confederation. When all united, the
enemy would know that, if he attacked any part of those provinces — Prince
Edward Island or Canada — ^he would have to encounter the combined
strengfth of the empire. Canada, separate, would be, although compara-
tively strong in population and wealth, in a dangerous position should a
war ensue. When we had organized our good defensive force, and united
for mutual protection, England would send freely here both men and
treasure for our defence. He had stated before audiences in the Lower
Provinces that, as far as territory, population and wealth were concerned,
Canada was stronger than any of the other provinces, but at the same
time was wanting in one element necessary to national greatness — the
maritime one ; and that, owing to the large trade and commerce of Canada,
extensive communication with Great Britain at all seasons was absolutely
necessary. Twenty years ago our commerce for the year could be man-
aged by communication with Great Britain ^n the summer months only.
At present, however, this system was insufficient, and for winter com-
munication with the seaboard we were left to the caprice of our American
neighbors .through whose territory we must pass. He had also alluded to
the bonding system, which if the Americans were to withdraw, Canada
would be left in winter without any winter harbors. Canada, having two
or three elements of national greatness — territory and population — wanted
the maritime element; and as he had said, — the Lower Provinces had this
element and a sea-board, but not a back country or large population, which
Canada possessed, — and for the mutual benefit and prosperity of all the
provinces, all these elements ought to be united together. Those who pre-
tended that the British North American Provinces would be in as safe a
position, remaining separate, while they belonged to the British Crown, as
under Confederation, were under great misapprehension. Now was the
time for us to form a great nation of the several provinces. Now was the
time to look the matter in the face and adopt the only safe and prudent
course open to us in the shape of Confederation. He maintained it was
necessary for our own commercial interests, prosperity and efficient de-
fence. That was what we had now to discuss, and not the manner in
which Confederation was to be brought about, which would be discusstd
when the details of the scheme came up for consideration. At present the
question was: Was Confederation of the British North American Pro.-
vinces necessary in order to increase our strength and power and secure
to us the continuance of the benefits of British connection? He had no
doubt that the measure was necessary for those objects. It would be
observed that the English speaking opponents of the scheme, in Lower
Canada, pretended a fear of this element being absorbed by the French
Canadian; while the opponents, composed of the latter origin— of men
who might be called the old Papineau Tail — ^whose sole idea was annexa-
tion to the United States — said they were afraid of the extinction of
French Canadian nationality in the great Confederation. The annexation
party in Montreal, including the followers of Mr. John Dougall, the proprie-
tor of the Witness, opposed the scheme on the ground of supposed danger
to the British of Lower Canada. The annexation party could not, however,
be supposed to be sincere in their opposition to the scheme-— except in so
far as they desired to carry Canada into the American Union. The absorp-
tion of this province into the United States had long been contemplated,
as would be seen from the 7th article in the original draft of the American
Constitution, which he would read. It was as follows: "Art. 7. Canada,
according to this Confederation and joining in the measures of the United

622 Constitutional Documents of Canada. . [1840-1867

States, shall be admitted into^ and entitled to all the advantages of this
union ; and shall be equally with any other of the United States, solemnly
bound to a strict observance of, and obedience to, these articles; as shall
be also any other colony which shall be admitted into this Confederacy.
The eleven votes in Congress shall be increased in proportion as the Con-
federacy is extended. But, except Canada, no other colony shall be ad-
mitted into the Confederacy without the assent of eleven or more votes as
the case may require, by the Confederation being extended." By that
article, no new state could go into the union except by the vote of the
number of states required to admit a new partner. But, as regarded Can-
ada, no such assent was required; on knocking at the door of the union,
she would, as a matter of course, be admitted. The honorable gentleman
went on to say that the papers lately contained a report of a meeting at
the Institut Canadien of Montreal, where it was resolved that it was for
the interests of Lower Canada — ^in the interests of the French Canadians,
were the province to become a part of the American Union.

Hon. Mr. Dorion said that was not the case. The honorable gentle-
men had misquoted what had passed there

Hon. Mr C artier said he was right If resolutions were not passed,
sentiments were expressed to that effect. Then the organ o^ the Institute
— L'Ordre, he thought — had set forth that the interests of Lower Omada
would be better secured by annexation to the United States than entering
into a Confederation with the British American Provinces. It was no
wonder then, that the French Canadian annexationists betrayed their pur-
pose in opposition to British North American Confederation, and that their
English-speaking colleagues pretended a fear of the rights of thdr dass
being jeopardized under Confederation. We knew their object in this —
that they were aware that as soon as this project was adopted, there would
be no avail in any cry. of separation to form a part of the American Union.
There had been a good deal of fault-finding and complaint as to the pro-
ceedings of the delegates having been conducted with closed doors. Such
a course was an absolute necessity. Every one could understand that if
all the difficulties arising among the representatives of the five colonies,
during the Conference, had gone every morning to the public, it would
have been impossible for the delegates to continue to meet, or compromise
any of the difficulties that mig^ht be expected to spring up. Besides, the
proceedings of the American Congress of 1782 was held with closed doors,
and their proceedings were not published while matters were progressing.
With r^ard to this, he would quote from a letter of Col. Mason, a mem-
ber of the Convention : — "All communications of the proceedings are for-
bidden during the sitting of this Convention ; this, I think, was a neces-
sary precaution to prevent misrepresentations or mistakes; there being a
material difference between the appearance of a subject in its first crude
and indigested shape and after it shall have been properly matured and
arranged." On the same principle the Conference at Quebec very pro-
perly sat with closed doors. We wished, however, that the British Cana-
dian public should know the result of our labors when concluded, and fhat
result the Parliament and people of Canada had before their consideration,
and it was for them to discuss its merits. We, on this side of the House —
the members of the Government and their supporters — ^had come to the
conclusion that Federation was desirable and necessary ; and we were ready
to hear the honorable gentlemen on the other side who necessarily, from
their standing, were supposed to have devoted their attention to it and
appreciated their position, stating what in their opinion would be sufficient
in order to maintain ourselves as a British colony on this side of the At-
lantic, and to increase in wealth and power. He was aware that some
members of the House, and a number of people in Upper Canada, in Lower
Canada and in the Lower Provinces, were of opinion that a Legislative
Union ought to have taken place instead of a Federal Union. He would
say, however, at the outset, that it was impossible to have one Government
to deal with all the private and local interests of the several sections of
the several provinces forming the combined whole. The next question to

1840-1867] Constituttonal Documents of Canada, 623

be considered, therefore, by those who had set to work to discover a solu-
tion of the difficulties under which we had labored, was — ^what was the
best and most practicable mode of bringing the provinces together, so that
particular rights and interests should be properly guarded and protected?
No other scheme presented itself but the Federati(Hi system, and that was
the project which now recommended itself to the Parliament of Canada.
Some parties — ^through the press and by other modes — ^pretended that it
was impossible to carry out Federation, on account of the differences of
races and religions. Those who took this view of the question were in
error. It was just the reverse. It was precisely on account of the variety
of races, local interests, etc., that Ae Federation system ought to be re-
sorted to, and would be found to work well. We were in the habit of
seeing in some public journals, and hearing from some public men, that
it was a great misfortune indeed there should be a difference of races in
this colony — that there should be the distinction of French Canadian from
British Canadian. Now, he {Hon. Mr. Cartier) desired on this point to
vindicate the rights, the merits, and usefulness, so to speak, of those
belonging to the French Canadian race. In order to bring these merits
and this usefulness more prominently before his hearers, it would be only
necessary to allude to the efforts made by them to sustain British power
oil this continent, and to point out their adherence to British supremacy
in trying times. We were all conversant with the history of the circum-
stances which had brought about the difficulties between England and her
former American colonies in 1775. Lower Canada,— or rather he should
say, the Province of Quebec, for the colony was not then known by the
name of Canada, but was called the Province of Quebec,— contained the
most dense population of any British colony in North America at that
time. The accession of Lower Canada was of course an object of envy
to the other American colonies, and strenuous efforts were made by those
who had resolved to overthrow British power on this continent to induce
Canada to ally herself to their cause. As early as 1775, the French Cana-
dians were solemnly addressed in a proclamation by General Washington,
who called upon them to abandon the flag of their new masters, inasmuch
as they could not expect anything from those who differed from them in
language, in religion, in race, and in sympathies. But what was the con-
duct of the French Canadian people under these circumstances — what was
the attitude of the clergy and the seigniors? It was right in treating this
chapter of our history, to render justice to whom justice was due, and it
was truth to say that the seigniors, forming, as they did, the educated class
of our population at that early epoch, had fully understood that the object
and aim of those who appealed to them was the downfall of the monarch-
ical system in America. A few years only had elapsed at that time since
the transfer of the country and its population from the Crown of France
to the Crown of Great Britain; but even within that brief interval of time,
Ihey were enabled to appreciate the advantages of their new position, not-
withstanding the fact that they were still struggling and complaining. The
people, as well as the clergy and aristocracy, had understood that it was
better for them to remain under the English and Protestant Crown of
England, rather than to become republicans. They were proof against the
insidious offers of George Washington; and not only so, but when the
Americans came as invaders, they fought against the armed forces of
Arnold, Montgomery and others. Attempts were made to excite hos-
tility to Federation on the ground that, under the regime of a local legis-
lature, the English Protestant minority would not be fairly dealt with.
He thought the way in which the French Canadians had stood by British
connection, when there were but few British in the province, was a proof
that they would not a!ttempt to deal unjustly now by the British minority,
when their numbers were so much greater. On this point, appealing to the
evidence of history, he would quote from the work which he had already
quoted. At a time when there were, perhaps, hardly a few hundred English
Protestant residents in Lower Canada, the address in the name of Wash-
ington, to which he had already briefly referred, was circulated through-

624 Constitutional Documents of Canada. [1840-1867

out the country by Arnold's invading army. The hon. gentleman here
read a number of extracts from General Washington's proclamation,
addressed to the inhabitants of Canada. It made the most earnest appeals
to the Lower Canadians to join the other colonies. "We rejoice," said
General IVashington, "that o\ir enemies have been deceived with regard to
you; they have persuaded themselves — they have even dared to say — that
the Canadians were not capable of distinguishing between^ the blessings
of liberty and the wretchedness of slavery; that gratifying the vanity of
a little circle of nobility would blind the people of Canada. By such
artifices they hoped to bend you to their views, but they have been de-
ceived. . . . Come then, my brethem, unite with us in an indissoluable
union ; let us run together to the same goal. . . . Incited by these motives,
and encouraged by the advice of many friends of liberty among you, the
grand American Congress have sent an army into your province, under
the command of General Schuyler — ^not to plunder but to protect you — to
animate and bring forth into action those sentiments of freedom you have
disclosed, and which the tools of despotism would extinguish through the
whole creation. To co-operate with this design, and to frustrate those
cruel and perfidious schemes, which would deluge our frontiers with the
blood of women and children, I have despatched Colonel Arnold into
your country, with a part of the army under my command. I have en-
joined upon him, and I am certain that he will consider himself, and act a^
in the country of his patrons and best friends. Necessaries and accommo-
dations of every kind which you may furnish he will thankfully receive
and render the full value. I invite you, therefore, as friends and brethem,
to provide him with such supplies as your country affords; and I pledge
myself not only for your safety and security, but for an ample compensa-
tion. Let no man desert his habitation — ^let no one flee as before an enemy.
The cause of America and of liberty is the cause of every virtuous Ameri-
can citizen, whatever may be his religion or descent The united colonies
know no distinction but such as slavery, corruption and arbitrary dominion
may create. Come then, ye generous citizens, range yourselves under the
standard of general liberty — against which all the force of artifice and
tyranny will never be able to prevail." It appeared by this address that
the most tempting offers and promises had been made by the republican
general ; but they had failed, nevertheless, to accomplish the desired effect
This, however, was not the only trait of this nature in the history of the
French Canadian people. There was another despatch, or rather proclama-
tion, issued in 17/8, by Baron IfEstaing, commander of the French fleet,
which was acting in aid of the American revolutionary party. The honor-
able gentleman read some extracts from this proclamation, as follows:—
"I shall not ask the military companions of the Marquis of Uvis, those
who shared his glory, who admired his talents and genius for war, who
loved his cordiality and frankness, the principal characteristics of our
nobility, whether there be other names in other nations among whidi they
would be better pleased to place their own. Can the Canadians, who saw
the brave Montcalm fall in their defence— can they become the enemies of
his nephews? Can they fight against their former leaders, and arm them-
selves against their kinsmen? At the bare mention of their names, the
weapons would fall out of their hands. I shall not observe to the ministers
of the altars, that their evangelic efforts will require the special protection
of Providence, to prevent faith being diminished by example, by worldly
mterest, and by sovereigns whom force has imposed upon them, and whose
political indulgence will be lessened proportionably as those sovereigns
shall have less to fear. I shall not observe that it is necessary for religioD
that those who preach it should form a body in the state; and that in
Canada no other body would be more considered, or have more power to
do good than that of the priests, taking a part in the Government, since
their respectable conduct has merited the confidence of the people. ^ shall
not represent to that people, nor to all my coimtrymen in general, that a
vast monarchy, having the same religion, the same manners, the same
language, where they find kinsmen, old friends and brethren, most be an

1840-1867] Constitutional Documents of Canada. 625

inexhaustible source of commerce and wealth, more easily acquired and
better secured by their union with powerful neighbors, than with strangers
of another hemisphere, among whom everything is different, and who,
jealous and despotic sovereigns would, sooner or later, treat them as a
conquered people, and doubtless much worse than their late countrymen,
the Americans, who made them victorious. I shall not urge to a whole
people, that to join with the United States is to secure their own happiness,
since a whole people, when they acquire the right of thinking and acting
for themselves, must know their own interest. But I will declare, and I
now formally declare in the name of His Majesty, who has authorized
and commanded me to do it, that all his former subjects in North America,
who shall no more acknowledge the supremacy of Great Britain, may
depend upon his protection and support." IXEsiaing had appealed to their
ancestry and their prejudices; he had invoked the names of LSvis and
Montcalm, and endeavored to influence their clergy; but the French
Canadians understood their position too well. If they had their institu-
tions, their language and their religion intact to-day, it was precisely be-
cause of their adherence to the British Crown. Had they yielded to the
appeals of Washington and Baron jyEsiaing^ it is probable that there
would not have been now a vestige of British power on this continent
But, with the disappearance of British power, they too would have dis-
appeared as French Canadians. These historical facts taught that there
should be a mutual feeling of gratitude from the French Canadians to-
wards the British, and from the British towards the French Canadians,
for our present position, that Canada is still a British colony. He had had
occasion, a moment ago, to refer to the French Canadian cler^ in connec-
tion with lyEstaing's address, and he would say this, to their honor and
credit, that, if to-day Canada was a portion of the British Empire, it was
due to the conservatism of the French Canadian clergy. It was a pleasure
to him thus to be able to quote from these old documents proofs of the
honor, loyalty, and liberality of the French Canadian people. He (Hon.
Mr. C artier) was as devoid of prejudice as any honorable gentleman in this
House ; but when he heard or read the statements occasionally made, that
there was some danger that, under the Federation system, the French
Canadians would have too much power, and that the power thus obtained
would be used to the prejudice of the British and Protestant minority —
the history of the past, in many instances, was the best reply to such
attacks. Baron lyEsiaing issued his tempting proclamation in 1778, and
it was sent into Canada frequently afterwards, and circulated at the in-
stigation of Rochambeau and Lafayette; but our clergy and our aristo-
cracy, the leaders of our people in these days, saw that it was not their
interest to cast their lot with the democratic element — they knew the
hollowness of democracy. We found ourselves at the present day dis-
cussing the question of the Federation of the British North American
Provinces, while the great Federation of the United States of America
was broken up and divided against itself. There was, however, this im-
portant difference to be observed in considering the action of the two
peoples. They had founded Federation for the purpose of carrying out
and perpetuating democracy on this continent ; but we, who had the bene-
fit of being able to contemplate republicanism in action during a period
of eighty years, saw its defects, and felt convinced that purely democratic
institutions could not be conducive to the peace and prosperity of nations.
We were not now discussing the great problem presented to our considera-
tion, in order to propagate democratic principles. Our attempt was for
the purpose of forming a Federation with a view of perpetuating the
monarchical element. The distinction, therefore, between ourselves and
our neighbors was just this : — In our Federation the monarchical principle
would form the leading feature, while on the other side of the lines, judging
by the past history and present condition of the country, the ruling power
was the will of the mob, the rule of the populace. Every person who had
conversed with the mo^ intelligent American statesmen and writers must

have learned that they all admitted that the governmental powers had

NN

626 Constitutional Documents of Canada, [1840-1867

become too extended, owing to the introduction of universal suffrage, and
mob rule had consequently supplanted legitimate authority; and we now
saw the sad spectacle of a country torn by civil war, and brethren fighting
against brethren. The question for us to ask ourselves was this : Shall we
be content to remain separate — shall we be content to maintain a mere
provincial existence, when, by combining together, we could become a
great nation? It had never yet been the good forttme of any group of
communities to secure national greatness with such facility. In past ages,
warriors had struggled for years for the addition to their country of a
single province. We had too, for instance, in our own days, the case of
Napoleon III, who, after great expenditure of blood and treasure ic
the Italian djHiculty, had acquired Savoy and Nice, by which he had ob-
tained an addition of nearly one million inhabitants to France—only one
million souls, and if any person were for a moment to make a calculation
of the value of the provinces acquired on one side, and the great cost or.
the other, he would at once see the great disproportion between the one
and the other, and so ascertain the fact that the territory acquired did not
compensate the outlay. Here, in British Noith America, we had five
different communities inhabiting five separate colonies. We had the same
sympathies, and we all desired to live under the British Crown. We had
our commercial interests besides. It was of no use whatever that New
Brunswick, Nova Scotia and Newfoundland should have dieir several
custom houses against our trade, or that we should have custom houses
against the trade of those provinces. In ancient times, the manner m
which a nation grew up was different from that of the present day. Then
the first weak settlement increased into a village, which, by turns, became
a town and a city, and the nucleus of a nation. It was not so in modem
times. Nations were now formed by the agglomeration of communities
having kindred interests and sympathies. Such was our case at the present
moment. Objection had been taken to the scheme now under considera-
tion, because of the words "new nationality." Now, when we were united
together, if union were attained, we would form a political nationality with
which neither the national origin, nor the religion of any individual, would
interfere. It was lamented by some that we had this diversity of races,
and hopes were expressed that this distinctive feature would cease. The
idea of unity of races was Utopian — it was impossible. Distinctions of
this kind would always exist. Dissimilarity, in fact, appeared to be the
order of the physical world and of the moral world, as well as in the
political world. But with regard to the objection based on this fact, to
the effect that a great nation could not be formed because Lower Canada
was in great part French and Catholic, and Upper Canada was British and
Protestant, and the Lower Provinces were mixed, it was futile, and worth-
less in the extreme. Look, for instance, at the United Kingdom, inhabited
as it was by three great races. Had the diversity of race impeded the
glory, the progress, the wealth of England? Had they not rather each
contributed their share to the greatness of the Empire? Of the glories of
the senate, the field, and the ocean, of the successes of trade and commerce,
how much was contributed by the combined talents, energy and courage
of the three races together? In our own Federation we should have
Catholic and Protestant, English, French, Irish and Scotch, and each by
his efforts and his success would increase the prosperity and glory of the
new Confederacy. He viewed the diversity of races in British North
America in this way: we were of different races, not for the purpose of
warring against each other, but in order to compete and emulate for the
general welfare. We could not do away with the distinctions of race.
We could not legislate for the disappearance of the French Canadians from
American soil, but British and French Canadians alike could appreciate
and understand tiieir position, relative to each other. They were placed
like great families beside each other, and their contact produced a healthy
spirit of emulation. It was a benefit rather than otherwise that we had a
diversity of races. Of course, the difficulty, it would be said, would be to
deal fairly by the minority. In Upper Canada the Catholics would find

1840-1867] Constitutional Documents of Canada- 627

themselves in a minority; in Lower Canada the Protestants would be in a
minority, while the Lower Provitfces were divided. Under such circum-
stances, would any one pretend that either the local or general govern-
ments would sanction any injustice. What would be the consequence, even
supposing any such thing were attempted by any one of the local govern-
ments? It would be censured everywhere. Whether it came from Upper
Canada or from Lower Canada, any attempt to deprive the minority of
their rights would be at once diwarted. Under the Federation system,
granting to the control of the General Government these large questions
of g^eneral interest in which the di£ferences of race or religion had no place,
it could not be pretended that the rights of either race or religion could be
invaded at all. We were to have a General Parliament to deal with the
matters of defence, tariff, excise, public works, and these matters absorbed
all individual interest. Now, he would ask those self->styled nationalists
who accused him of bartering fifty-eight counties in Lower Canada to
John Bull, and his honorable colleague beside him (Hon. Mr. Brown)
— ^he would ask them, under what supposition could they think it possible
for any injustice to be done to the French Canadians by the General Gov-
ernment? He came now to the subject of Local Governments. We could
easily understand how a feeling against the Federation project was raised
in the minds of a few of the British residents of Lower Canada by fears
of such difficulties as those which occurred in the days of Mr. Papineau,
relative to the passing of laws relating to commercial matters. These
difficulties had been of a very inconvenient nature, Mr. Papineau not
being a commercial man, and not understanding the importance of these
measures. He considered Mr. Papineau was right in the struggle he
maintained against the oligarchy at that time in power; but he had never
approved x>f the course he took with reference to commercial matters, and
in opposition in measures for the improvement of the country. But this
precedent could not be urged as an objection to Federation, inasmuch as
it would be for the General Government to deal with our commercial
matters. There could be no reason for well-grounded fear that the minor-
ity could be made to suffer by means of any laws affecting the rights of
property. If any such enactments were passed, they would fall upon the
whole community. But even supposing such a thing did occur, there was
a remedy provided under the proposed Constitution. The magnitude of
the scheme now submitted was, perhaps, the reason why those who had
not made themselves conversant with the question felt some apprehension
in contemplating it; but, when we came to discuss it clause by clause, he
would be ready to state that no interest would be harmed in any way if
Federation took place. It was true, that opposition was being o£fered in
Montreal, by Mr. John Dougall, of the IVitnes^, And, while referring to
the opponents of Federation, he could not help adverting to the strange
manner in which extreme met and worked in unison to oppose Federation.
For instance, we had the party who formerly composed what might be
styled Mr. Papineau* s Tail — the extreme democratic party — joined with
Mr. DouqalVs Tail.

Mr. Perraulf — ^And members of the clergy oppose it
Hon. Mr. Cartier said the honorable gentleman was mistaken. The
clergy were for it. But the honorable gentleman would have an oppor-
tunity of speaking afterwards. This scheme, he repeated, met with the
approval of all moderate men. The extreme men, the socialists, democrats
and annexationists were opposed to it. The French Canadian opponents
of the project were, it appeared, afraid that their religious rights would
suffer under the new arrangement Fancy the cchhrstta I nsiitut Canadien,
of Montreal, under the lead of citizen Blanchet, taking religion under
their protection ! Mr. Dougall loudly proclaimed that the British Protes-
tant minorrty would be entirely placed at the mercy of the French Cana-
dians. He (Hon. Mr. Cartier) thought the arguments of the young
French gentlemen belonging to the national democratic party who cried
out that their religion and nationality would be destroyed, ought in all
> Joseph F. Perrauh, member for RtcheUev.

628 Constitutional Documents of Canada. [1840-1867

reason to be sufficient to satisfy the scruples and calm the fears of Mr.
DougalL The True Witness, which was also one of the enemies of the
scheme, said that if it were adopted the French Canadians were doomed;
while his brother in violence, the Witness, said that the Protestants were
doomed. At a meeting recently held in Montreal on the subject, he (hon.
Mr. Cartier) observed that Mr. Cherrier had enrolled himself among
the enemies of the project Well, this fine, quiet, old gentleman announced
that he had come out of his political retirement for the purpose of opposing
Federation. All he (Hon. Mr. Cartier) could say was that he never
knew Mr. Cherrier was a strong politician. However, it appeared that
he had come out once more on the political stage for the purpose of oppo^
ing this villainous scheme, which was intended to destroy the nationality
and religion of the French Canadians — all brought about by that con-
founded C artier 1^ Allusion had been made to the opinion of the clergy
Well, he would say that the opinion of the clergy was for Confederation.
Those who were high in authority, as well as those who occupied more
humble positions, were in favor of Federation, not only because they sav
in it so much security for all they held dear, but because it was just to
their Protestant fellow-subjects as well, because they were opposed to
political bickering and strife. This opposition to a state of political dis-
sention and trouble was the general feeling of the clergy, and because they
saw in Confederation a solution of those difficulties which had existed
for some time, due regard being had to just rights, they were favorable
to the project. The fact, however, was that when we saw such extrein<
opponents as Mr. Clerk, of the True Witness, Mr. Dougall, of the Witness,
and the young gentlemen of the Institut Canadien combined to resist
Confederation, because each party argued it would produce the most
widely different results — we might look upon this fact, he repeated, as
one of the strongest arguments in favor of Confederation. We had, on
the other hand, all the moderate men, all that was respectable arid tntellh
gent, including the clergy, favorable to Federation. He did not, of course,
mean to say that there were not respectable opponents to the project—
what he did mean, however, was that it met general approval from the
classes referred to. He was opposed, he mi^ht as well state most dis-
tinctly, to the democratic system which obtained in the United States.
In this country of British North America we should have a distinct form
of government, the characteristic of which would be to possess the mon-
archical element When we had Confederation secured, there was not
the least doubt but that our Government would be more respectable — that
it would have more prestige, and command more respect from our neigh-
bours. The great want under the American form — the point which they
all admitted formed the great defect — ^was the absence of some respectable
executive element. How was the head of the United States Government
chosen? Candidates came forward, and of course each one was abused
and villiiied as corrupt, ignorant, incapable and unworthy by the opposite
party. One of them attained the presidential chair; but even while in
that position he was not respected by those who had opposed his election,
and who tried to make him appear the most corrupt and contemptible
being in creation. Such a system could not produce an executive head
who would command respect. Under the British system, ministers might
be abused and assailed but that abuse never reached the Sovereign
Whether we were made a kingdom or a vice-royalty — whatever name or
grade was assigned to us — we would undoubtedly have additional prestige
He would now conclude his remarks by asking honorable gentlemen to
consider well this scheme. It was his hope, his cherished hope, that it
would be adopted by the House. The time was opportune, as his honor-
able colleague (Atty. Gen. Macdonald) had so ably stated last evening
the opportunity might never offer itself again in such a facile and pro-
pitious manner. We knew we had, in all our proceedings, the approbatic^
of the Imperial Government. So if these resolutions were adopted tr-
Canada, as he had no doubt they would, and by the other Colonial Legis-
latures, the Imperial Government would be called upon to pass a measarc

.840-1867] Constitutional Documents of Canada. 629

vhich would have for its effect to give a strong central or general govem-
nent and local governments which would at once secure and p^ard the
>ersons, the properties and the civil and religious rights belonging to the
►opulation of each section. Tuesday, February 7. 1865.

Hon. Mr, Galt^ — . ... It is a matter for regret on the part of all
>f us that the trade between these colonies — subject all to the same Sove-
reign, connected with the same empire — has been so small. Intercolonial
trade has been, indeed of the most insignificant character; we have looked
far more to our commercial relations with the neighbouring — though a
foreign country, — than to the interchange of our own products, which
would have retained the benefits of our trade within ourselves; hostile
tariffs have interfered with the free interchange of the products of the
labor of all the colonies, and one of the greatest and most immediate
benefits to be derived from their union, will spring from the breaking
down of these barriers and the opening up of the markets of all the pro-
vinces to the different industries of each. In this manner we may hope
to supply Newfoundland and the great fishing districts of the Gulf, with
the agricultural productions of Western Canada; we may hope to obtain
from Nova Scotia our supply of coal; and the manufacturing industry
of Lower Canada may hope to find more extensive outlets in supplying
many of those articles which are now purchased in foreign markets. For
instance Newfoundland produces scarcely anything by agriculture, manu-
factures hardly an article of clothing, and a considerable trade may thus
be expected to arise ; while, instead of having payments made, as they are
now, through Lombard street, they will be made through our own bankers
in Montreal and elsewhere. If we require to find an example of the bene-
fits of free commercial intercourse, we need not look beyond the effects
that have followed from the working of the Reciprocity Treaty with the
United States. In one short year from the time when that treaty came
into operation, our trade in the natural productions of the two countries
swelled from less than $2,000,000 to upwards of $20,000,000 per annum,
and now, when we are threatened with an interruption of that trade-
when we have reason to fear that the action of the United States will
prove hostile to the continuance of free commercial relations with this
country — when we know that the consideration of this question is not
grounded on just views of the material advantages resulting to each coun-
try— but that the irritation connected with political events exercises a
predominant influence over the minds of American statesmen, it is the duty
of the House to provide, if possible, other outlets for our productions.
I f we have reason to fear that one door is about to be closed to our trade,
it is the duty of the House to endeavor to open another ; to provide against
a coming evil of the kind feared by timely expansion in another direction ;
to seek by free trade with our own fellow-colonists for a continued and
uninterrupted commerce which will not be liable to be disturbed at the
capricious will of any foreign country. On this ground, therefore, we
may well come to the conclusion that the union between these colonies is
demanded alike on account of their extensive resources, and because of
the peculiar position in which they stand relatively to each other, to Great
Britain, and to the United States. All these are questions which fall within
the province of the General Government, as proposed in the resolutions
before the House, and whatever may be the doubts and fears of any one
with respect to the details of the organization by which it is proposed to
work the new system of Confederation, no one can doubt that the great
interests of trade and commerce will be best promoted and developed by
being entrusted to one central power, which will wield them in the common

interest Wednesday, February 8, 1865.

Hon. George Brown* rose and said: Mr. Speaker, it is with no
ordinary gratification I rise to address the House on this occasion. I can-
not help feeling that the struggle of half a life-time for constitutional

^Member for Sherbrooke (Town) and Minister of Finance.

* Member for Oxford (South Riding) and President of the Council.

630 Constitutional Documents of Canada, [1840-1867

reform — the agitations in the coiintiy» and the fierce contests in this cham-
ber— ^the strife and the discord and the abuse of many years, — are all com-
pensated b^ the great scheme of reform which is now in your hands. The
Attorney Ueneraa for Upper Canada*, as well as the Attorney General for
Lower Canada*, in addressing the House last ni^ht, were anxious to have
it understood that this scheme for uniting British America under one
government, is something different from "representation 1^ populatioa,'''-
is something different from "joint authority," — but is in fact the very
scheme of the Government of which they were members in 1858. Now, sir.
It is all very well that my honoraible friends should receive credit for the
large share they have contributed towards maturing the measure before
the House; but I could not help reflecting while they spoke, that if this
was their very scheme in 1858, they succeeded wonderfully in bottling it
up from all the world except tibemselves — and I could not help regretting
that we had to wait till 1864 until this mysterious plant of 1858 was forced
to fruition. For myself, sir, I care not who gets the credit of this scheme,
— I believe it contains the best features of all the suggestions tiiat have
been made in the last ten years for the settlement of our troubles; and
the whole feeling in my mind now is one of joy and thankfulness that
there were found men of position and influence in Canada who, at a
moment of serious crisis, had nerve and patriotism enough to cast aside
political partisanship, to banish personal considerations, and tmite for the
accomplishment of a measure so fraught with advantage to their common
country. It was a bold step in the then existing state of public feeling for
many members of the House to vote for the Constitutional Committee
moved for by me last session — it was a very bold step for many of the
members of that committee to speak and vote candidly upon it — it was a
still bolder thing for many to place their names to the report that emanated
from that committee, — but it was an infinitely bolder step for the gentle-
men who now occupy these treasury benches, to brave the misconceptions
and suspicions that would certainly attach to the act, and enter the same
Government And it is not to be denied that such a Coalition demanded
no ordinary justification. But who does not feel that every one of us has
to-day ample justification and reward for all we did in the document now
under discussion? But seven short months have passed away since the
Coalition Government was formed, yet already are we submitting a scheme
well-weighed and matured, for the erection of a future empire, — a scheme
which has been received at home and abroad with almost universal ap-
proval. . . .

Since the Coalition was formed, and its policy of Federal union an-
nounced, there have been no fewer than twenty-five parliamentary elec-
tions— fourteen for members of the Upper House, and eleven for members
of the Lower House. At the fourteen Upper House contests, but three
candidates dared to show themselves before the people in opposition to the
Government scheme; and of these, two were rejected, and one-— only one—
succeeded in finding a seat At the eleven contests for the Lower House.
but one candidate on either side of politics ventured to oppose the scheme.
and I hope that even he will yet cast his vote in favor of Confederation.
Of these twenty-five electoral contests, fourteen were in Upper Canada, but
not at one of them did a candidate appear in opposition to our scheme. And
let it be observed how large a portion of the country these twenty-five elec-
toral districts embraced. It is true that the eleven Lower House elections
only included that number of counties, but the fourteen Upper House
elections embraced no fewer than forty counties. Of the IJO constituencies,
therefore, into which Canada is divided for representation in this chamber,
not fewer than fifty have been called on since our scheme was announced
to pronounce at the polls their verdict upon it, and at the whole of them
but four candidates on both sides of politics ventured to give it ;Opposition.
Was I not right then in asserting that the electors of Canada had, in the
most marked manner, pronounced in favor of the scheme? And will

'h.

A. Macdonald.
Etienne Carticr.

1840-1867] Constitutional Documents of Canada. 631

tionorable gentlemen deny that the people and press of Great Britain have
received it with acclamations of approval? — ^that the Government of Eng-
land have cordially endorsed and accepted it? — aye, that even the press and
the public men of the United States have spoken of it with a degree of
respect they never before accorded to any colonial movement? Sir, I
venture to assert that no scheme of equal magnitude, ever placed before
the world, was received with higher eulogiums, with more universal appro-
bation, than the measure we have now the honor of submitting for the
acceptance of the Canadian Parliament. And no higher eulogy could, I
think, be pronounced than that I heard a few weeks ago from the lips of
one of the foremost of British statesmen, that the system of government we
proposed seemed to him a happy compound of the best features of the
British and American Constitutions. And well, Mr. Speaker, might our
present attitude in Canada arrest the earnest attention of other coun-
tries. Here is a people composed of two distinct races, speaking different
languages, with religious and social and municijpal and educational institu-
tions totally different ; with sectional hostilities of such a character as to
render government for many years well-nigh impossible; with a Constitu-
tion so unjust in the view of one section as to justify any resort to enforce
a remedy. And yet, sir, here we sit, patiently and temperately discussing
how these great evils and hostilities may justly and amicably be swept away
forever. We are endeavoring to adjust harmoniously greater difficulties
than have plunged other countries into all the horrors of civil war. W^
are striving to do peacefully and satisfactorily what Holland and Belgium,
after years of strife, were unable to accomplish. We are seeking by calm
discussion to settle questions that Austria and Hungary, that Denmark and
Germany, that Russia and Poland, could only crush by the iron heel of
armed force. We are seeking to do without foreign intervention that
which deluged in blood the sunny plains of Italy. We are striving to settle
forever issues hardly less momentous than those that have rent the neigh-
boring republic and are now exposing it to all the horrors of civil war.
Have we not then, Mr. Speaker, great cause of thankfulness that we
have found a better way for the solution of our troubles, than that which
has entailed on other countries such deplorable results? And should not
every one of us endeavor to rise to the magnitude of ^e occasion, and
earnestly seek to deal with this question to the end in the same candid
and conciliatory spirit in which, so far it has been discussed. The scene
presented by this chamber at this moment, I venture to affirm, has few
parallels in history. One hundred years have passed away since these pro-
vinces became by conquest part of the British Empire. I speak in no
boastful spirit — I desire not for a moment to excite a painful thought —
what was then the fortune of war of the brave French nation, might have
been ours on that wdl-fought field. I recall those olden times merely to
mark the fact that here sit to-day the descendants of the victors and the
vanquished in the fight of 1759, with all the differences of language, religion,
civil law, and social habit, nearly as distinctly marked as they were a
century ago. Here we sit to-day seeking amicably to find a remedy for
constitutional ev^ls and injustice complained of — ^by the vanquished? No,
sir— but complained of by the conqueror! Here sit the representatives of
the British population claiming justice— only justice; and here sit the
representatives of the French population, discussing in the French tongue
whether we shall have it. One hundred years have passed away since the
conquest of Quebec, but here sit the children of the victor and the van-
quished, all avowing hearty attachment to the British Crown — all earnestly
deliberating how we shall best extend the blessings of British institutions
— ^how a great people may be established on this continent in close and
hearty connection with Great Britain. Where, sir, in the page of history,
shall we find a parallel to this ? Will it not stand as an imperishable monu-
ment to the generosity of British rule? And it is not in Canada alone that
this scene is being witnessed. Four other colonies are at this moment
occupied as we are— declaring their hearty love for the parent State, and
deliberating with us how tiiey may best discharge the great duty entrusted

632 Constitutional Documents of Canada, [1840-1867

to their hands, and give their aid in developing the teeming resources of
these vast possessions. And well, Mr. Speaker, may the work we have
unitedly proposed rouse the ambition and energy of every true man in
British America. Look, sir, at the map of the continent of America, and
mark that island (Newfoundland) commanding the mouth of the noble
river that almost cuts our continent in twain. Well, sir, that island is
equal in extent to the kingdom of Portugal. Cross the straits to the main-
land, and you touch the hospitable shore of Nova Scotia, a country as large
as the kmgdom of Greece. Then mark the sister province of New Bruns-
wick—equal in extent to Denmark and Switzerland combined. Pass up
the river St. Lawrence to Lower Canada — ^a country as large as France.
Pass on to Upper Canada, — twenty thousand square miles larger than
Great Britain and Ireland put togedier. Cross over the continent to the
shores of the Pacific, and you are in British Columbia, the land of golden
promise, — equal in extent to the Austrian Empire. I speak not now of the
vast Indian Territories that lie between — greater in extent than the whole
soil of Russia — and that will ere long, I trust, be opened up to civilization
under the auspices of the British American Confederation. Well, sir, the
bold scheme in your hands is nothing less than to gather all these countries
into one — to organize them all under one government, with the protection of
the British Hag, and in heartiest sympathy and affection with our fellow-
subjects in the land that gave us birth. Our scheme is to establish a gov-
ernment that will seek to turn the tide of European emigration into this
northern half of the American continent — ^that will strive to develop its
great natural resources — and that will endeavour to maintain liberty, and
justice, and Christianity throughout the land. . . . What possible induce-
ment could we have to urge this scheme, except our earnest and heartfelt
conviction that it will inure to the solid and lasting advantage of our coun-
try? There is one consideration, Mr. Speaker, that cannot be banished
from this discussion, and that ought, I think, to be remembered in every
word we utter; it is that the constitutional system of Canada cannot remain
as it is now. Something must be done. We cannot stand stilL We cannot
go back to chronic sectional hostility and discord — ^to a state of perpetual
Ministerial crises. The events of the last eight months cannot be obliter-
ated ; the solemn admissions of men of all parties can never be erased. The
claims of Upper Canada for justice must be met, and met now. I say,
then, that every one who raises his voice in hostility to this measure is
bound to keep before him, when he speaks, all the perilous consequences
of its rejection, — I say that no man who has a true regard for the well-
being of Canada, can give a vote against this scheme, unless he is prepared
to offer, in amendment, some better remedy for the evils and injustice that
have so long threatened the peace of our country. And not only must the
scheme proposed in amendment be a better scheme — it must be something
that can be carried. I see an honorable friend now before me, for whose
opinions I have the very highest respect, who says to me: "Mr. Brown,
you should not have settled this part of the plan as you have done; here
is the way you should have framed it." "Well, my dear sir," is my reply,
"I perfectly agree with you, but it could not be done. Whether we ask for
parliamentary reform for Canada alone or in union with the Maritime
Provinces, the French Canadians must have their views consulted as well
as us. This scheme can be carried, and no scheme can be that has not the
support of both sections of the province."

Hon, Mr, Cartier — Hibar, hear I there is the question !

Hon, Mr. Brown — ^Yes, that is the question and the whole question.
No constitution ever framed was without defect ; no act of human wisdom
was ever free from imperfection; no amount of talent and wisdom and
integrity combined in preparing such a scheme could have placed it beyond
the reach of criticism. And the framers of this scheme had immense
special difficulties to overcome. We had the prejudices of race and language
and religion to deal with ; and we had to encounter all die rivalries of trade
and commerce, and all the jealousies of diversified local interests. To
assert, then, that our scheme is without fault, would be folly. It was

1840-1867] Constitutional Documents of Canada. 633

necessarily the work of concession; not one of the thirty-three framers
but had, on some points, to yield his opinions ; and, for myself, I freely
admit that I struggled earnestly, for days together, to have portions of the
scheme amended. But, Mr. Speaker, admitting all this — admitting all the
difficulties that beset us — admitting frankly that defects in the measure
exist — I say that, taking the scheme as a whole, it has my cordial, enthu-
siastic support, without hesitation or reservation. I believe it will accom-
plish all, and more than all, that we, who have so long fought the battle of
parliamentary reform, ever hoped to see accomplished. I believe that, while
granting security for local interests, it will give free scope for carrying
out the will of the whole people in general matters — ^that it will draw
closer the bonds that unite us to Great Britain — and that it will lay the
foundations deep and strong of a powerful and prosperous people. And
if the House will allow me to trespass to a somewhat unusual degree on
its indulgence, I am satisfied that I can clearly establish that such are the
results fairly to be anticipated from the measure. Mr. Speakert there
are two views in which this scheme may be regarded, namely, the existing
evils it will remedy, and the new advantages it will secure for us as a
people. Let us begin by examining its remedial provisions. First, then, it
applies a complete and satisfactory remedy to the injustice of the existing
system of parliamentary representation. The people of Upper Canada
have bitterly complained that though they number four hundred thousand
souls more than the population of Lower Canada, and though they have
contributed three or four pounds to the general revenue for every pound
contributed by the sister province, yet the Lower Canadians send to Parlia-
ment as many representatives as they do. Now, sir, the measure in your
hands brings this injustice to an end ; — it sweeps away the line of demarca-
tion between the two sections on all matters common to the whole pro-
vince; it gives representation according to numbers wherever found in the
House of Assembly; and it provides a simple and convenient system for
re-adjusting the representation after each decennial census. To this pro-
posed constitution of the Lower Chamber, I have heard only two objections.
It has been alleged that until after the census of 1871, the number of
members is to remain as at present; but this is a mistake. Upper Canada
is to receive from the start eighty-two representatives, and Lower Canada
sixty-five; and whatever increase the census of 1871 may establish will be
then adjusted. It has also been objected that though the resolutions provide
that the existing: Parliament of Canada shall establish the electoral divi-
sions for the nrst organization of the Federal Parliament, they do not
determine in whose hands the duty of distributing any additional members
is to be vested. No doubt on this head need exist ; the Federal Parliament
will of course have' full power to regulate all arrangements for the election
of its own members. But I am told by Upper Canadians — the constitution of
the Lower House is all well enough, it is in the Upper House arrangements
that the scheme is objectionable. And first, it is said that Upper Canada
should have had in the Legislative Council a greater number of members
than Lower Canada.

Mr. T, C. Wallhridge — Hear, hear!

Hon, Mr, Brown — The honorable member for North Hastings is of
that opinion; but that honorable gentleman is in favor of a legislative
union, and had we been forming a legislative union, there might have been
some force in the demand. But the very essence of our compact is that
the union shall be federal and not legislative. Our Lower Canada friends
have agreed to give us representation by population in the Lower House,
on the express condition that they shall have equality in the Upper House.
On no other condition could we have advanced a step; and, for my part,
I am quite willing they should have it. In maintaining the existing sec-
tional boundaries and handing over the control of local matters to local
bodies, we recognize, to a certain extent, a diversity of interests ; and it was
quite natural that the protection for those interests, by equality in the
Upper Chamber, should be demanded by the less numerous provinces.
Honorable gentlemen may say that it will erect a barrier in the Upper

634 ConstitutiofwU Documents of Canada. [1840-1867

House against the just influence that Upper Canada will exercise, by her
numbers, in the Lower House over the general legislation of the country.
That may be true, to a certain extent, but honorable gentlemen will bear
m mind that that barrier, be it more or less, will not affect money bills.
Hitherto we have been paying a vast proportion of the taxes, with little or
no control over the expenditure. But, under this plan, by our just influence
in the Lower Chamber, we shall hold the purse strings. If, from this con-
cession of equality in the Upper Chamber, we are restrained from forcing
through measures which our friends of Lower Canada may consider in-
jurious to their interest, we shall, at any rate, have power, which we never
had before, to prevent them from forcing through whatever we may deem
unjust to us. I think the compromise a fair one, and am persuaded that it
will work easily and satisfactorily. But it has been said that the mem-
bers of the Upper House ought not to be appointed by the Crown, but
should continue to be elected by the people at large. On that question my
views have been often expressed. I have always been opposed to a second
elective chamber, and I am so still, from the conviction that two elective
houses are inconsistent with the right working of the British parliamentary
system. I voted, almost alone, against the change when the Council was
made elective, but I have lived to see a vast maJ9rity of those who did the
deed wish it had not been done. It is quite true, and I am glad to
acknowledge it, that many evils anticipated from the change, when the
measure was adopted, have not been realized. I readily admit that men of
the highest character and position have been brought into the Council by
the elective system, but it is equally true that the system of appointment
brought into it men of the highest character and position. Whether ap-
pointed by the Crown or elected by the people, since the introduction of
pailiamentary government, the men who have composed the Upper House
of this Legislature have been men who would have done honor to any
legislature in the world. But what we most feared was, that the Legis-
lative Councillors would be elected under party responsibilities; that a
partisan spirit would soon show itself in the chamber; and that the right
would soon be asserted to an equal control with this House over money
bills. That fear has not been realised to any dangerous extent. But is it
not possible that such a claim might ere long be asserted? Do we not
hear, even now, mutterings of a coming demand for it? Nor can we forget
that the elected members came into that chamber gradually ; that the .large
number of old appointed members exercised much influence in maintaining
the old forms of the House, the old style of debate, and the old barriers
against encroachment on the privileges of the commons. But the appointed
members of the Council are gradually passing away, and when the elective
element becomes supreme, who will venture to affirm that the Council
would not claim that power over money bills which this House claims as
of right belonging to -itself ? Could they not justly say that they represent
the people as well as we do, and that the control of the purse strings ought,
therefore, to belong to them as much as to us. It is said they have not
the power. But what is to prevent them from enforcing it? Suppose we
had a conservative majority here, and a reform majority above — or a
conservative majority above and a reform majority here — all elected under
party obligations, — what is to prevent a dead-lock between the cham-
bers ? It may be called unconstitutional — ^but what is to prevent the Coun-
cillors (especially if they feel that in the dispute of the hour they have
the country at their back) from practically exercising all the powers that
belong to us? They might amend our money bills, diey might throw out
all our bills if they liked, and bring to a stop the whole machinery of gov-
ernment. And what could we do to prevent them? But, even supposing
this were not the case, and that the elective Upper House continued to be
guided by that discretion which has heretofore actuated its proceedings, —
still, I think, we must all feel that the election of members for such enor-
mous districts as form the constituencies of the Upper House has become
a great practical inconvenience. I say this from personal experience, having
long taken an active interest in the electoral contests in Upper Canada.

1840-1867] Constitutional Documents of Canada, 635

We have found greater difficulty in inducing candidates to offer for seats
in the Upper Hjouse, than in getting ten times the number for the Lower
House. The constituencies are so vast, that it is difficult to find gentlemen
who have the will to incur the labor of such a contest, who are sufficiently
known and popular enough throughout districts so wide, and who have
money enough to pay the enormous bills, not inchrred in any corrupt way,
—do not fancy that I mean that for a moment— but the bills that are sent
m after the contest is over, and which the candidates are compelled to pay
ii they ever hope to present themselves for re-election. But honorable
gentlemen say — "This is all very well, but you are taking an important
power out of the hands of the people, which they now possess." Now
this is a mistake. We do not propose to do anything of itit soft What
we propose is, that the Upper House shall be appointed from the best men
of the cotmtry by those holding the confidence of the representatives of the
people in this Chamber. It is proposed that the Government of the day,
which only lives by the approval of this Chamber, shall make the appoint-
ments, and be responsible to the people for the selections they shall make.
Not a single appointment could be made, with regard to which the Govern-
ment would not be open to censure, and which the representatives of the
people, in this House, would not have an opportunity of condemning. For
myself, I have maintained the appointed principle, as in opposition to the
elective, ever since I came into public life, and have never hesitated, when
before the people, to state my opinions in the broadest manner ; and yet not
in a single instance have I ever found a constituency in Upper Canada, or
a public meeting declaring it disapproval of appointment by the Crown and
its desire for election by the people at large.

But, Mr. Speaker, the second feature of this scheme as a remedial
measure is, that it removes, to a large extent, the injustice of which
Upper Canada has complained in financial matters. We in Upper Canada
have complained that though we paid into the public treasury more than
three-fourths of the whole revenue, we had less control over the system of
taxation and the expenditure of the public moneys than the people of
Lower Canada. Well, sir, the scheme in your hand remedies that. The
absurd line of separation between the provinces is swept away for general
matters; we are to have seventeen additional members in the house that
holds the purse; and the tax-payers of the country, wherever they reside,
will have their just share of influence over revenue and expenditure. We
have also complained that immense sums of public money have been sys-
tematically taken from the public chest for local purposes of Lower Canada,
in which the people of Upper Canada had no interest whatever, though
compelled to contribute three-fourths of the cash. Well; sir, this scheme
remedies that. All local matters are to be banished from the General
Legislature; local governments are to have control over local affairs, and
if our friends in Lower Canada choose to be extravagant, they will have to
bear the burden of it themselves. No longer shall we have to complain
that one section pays the cash while the other spends it; hereafter, they
who pay will spend, and they who spend more than they ought will have
to bear the brunt. It was a great thing to accomplish this, if we had
accomplished nothing more, — for if we look back on our doings of the last
fifteen years, I think it will be acknowledged that the greatest jobs per-
petrated were of a local character — that our fiercest contests were about
local matters that stirred up sectional jealousies and indignation to its
deepest depth. We have further complained that if. a sum was properly
demanded for some legitimate local purpose in one section, an equivalent
sum had to be appropriated to the other as an offset, — thereby entailing
prodigal expenditure, and unnecessarily increasing the public debt. Well,
sir, this scheme puts an end to that. Each province is to determine for
itself its own wants, and to find the money to meet them from its own
resources. But, sir, I am told that though true it is that local matters
are to be separated and the burden of local expenditure placed upon local
shoulders, we have made an exception from that principle in providing

636 Constitutional Do/:uments of Canada. [1840-1867

that a subsidy of eighty cents per head shall be taken from the federal
chest and granted to the local governments for local purposes. Undoubt-
edly this is the fact — and I do not hesitate to admit that it would have
been better if this had been otherwise. I trust I commit no breach of
discretion in stating that in Conference I was one of the strongest advo-
cates for defraying the whole of the local expenditures of the local govern-
ments by means of direct taxation, and that there were liberal men in all
sections of the provinces who would gladly have had it so arranged.
But, Mr. Speaker, there was one difficult in the way — a difficulty which
has often before been encountered in this world — and that difficulty was
simply this, it could not be done. We could neither have carried it in
Conference nor yet in any one of the existing provincial legislatures. Our
friends in Lower Canada, I am afraid, have a constitutional disinclination
to direct taxation, and it was obvious that if the Confederation scheme
had had attached to it a provision for the imposition of such a system
of taxation, my honorable friends opposite would have had a much better
chance of success in blowing the bellows of agitation than they now have.
The objection, moreover, was not confined to Lower Canada — all the Lower
Provinces stood in exactly the same position. They have not a municipal
system such as we have, discharging many of the functions of government;
but their General Government performs all the duties which in Upper
Canada devolve upon our municipal councils, as well as upon Parliament.
If then the Lower Provinces had been asked to maintain their customs
duties for federal purposes, and to impose on themselves by the same act
direct taxation for all their local purposes, the chances of carrying the
scheme of union would have been greatly lessened. But I apprehend that
if we did not succeed in putting this matter on the footing that would have
been the best, at least we did Uie next best thing. Two courses were open
to us — either to surrender to the local governments some source of indirect
revenue, some tax which the General Government proposed to retain, — or
collect the money by the federal machinery, and distribute it to the local
governments for local purposes.... But, Mr. Speaker, there is another
great evil in our existing system that this scheme remedies; it secures to
the people of each province full control over the administration of their
own internal affairs. We in Upper Canada have conH>lained that the minor-
ity of our representatives, the party defeated at the polls of Upper Canada,
have been, year after year, kept in office by Lower Canada votes, and that
all the local patronage ot our section has been dispensed by those who
did not possess the confidence of the people. Well, sir, this scheme
remedies that. The local patronage will be under local control, and the
wishes of the majority in each section will be carried out in all local mat-
ters. We have complained that the land system was not according to the
views of our western people; that free lands for actual settlers was the
right policy for us — that the price of a piece of land squeezed out of an
immigrant was no consideration in comparison with the settlement among
us of a hardy and industrious family ; and that the colonization road system
was far from satisfactory. Well, sir, this scheme remedies that. Each
province is to have control of its own crown lands, crown timber and
crown minerals, — and will be free to take such steps for developing them
as each deems best We have complained that local works of various kinds,
— roads, bridges and landing piers, court houses, gaols and other struc-
tures--have been erected in an inequitable and improvident manner. Well,
sir, this scheme remedies that; all local works are to be constructed by
the localities and defrayed from local funds. And so on through the whole
extensive details of internal local administration will this reform extend.
The people of Upper Canada will have the entire control of Uieir local
matters, and will no longer have to betake themselves to Quebec for leave
to open a road, to select a county town, or appoint a coroner. But I am
told that to this general principle of placing ail local matters under local
control, an exception has been made in regard to the common schools. The
clause complained of is as follows : —

6. Education; saving the rights and privileges which the Protestant

1840-1867] Constitutional Documents of Canada. 637

or Catholic minority in both Canadas may possess as to their Denomina-
tional Schools at the time when the Union goes into operation.

Now, I need hardly remind the House that I have always opposed and
continue to oppose the system of sectarian education, as far as the public
chest is concerned. I have never had any hesitation on that point I have
never been able to see why all the people of the province, to whatever sect
they may belong, should not send their children to the same common
schools to receive the ordinary branches of instruction. I regard the parent
and the pastor as the best religious instructors — and so long as the religious
faith of the children is uninterfered with, and ample opportunity afforded
to the clergy to give religious instruction to the children of their flocks,
I cannot conceive any sound objection to mixed schools. But while in the
Conference and elsewhere I have always maintained this view, and always
given my vote against sectarian public schools, I am bound to admit, as I
have always admitted, that the sectarian system, carried to the limited
extent it has yet been in Upper Canada, and confined as it chiefly is to
cities and towns, has not been a very great practical injury. The real
cause of alarm was that the admission of the sectarian principle was there,
and that at any moment it might be extended to such a degree as to split
up our school system altogether. There are but a hundred separate schools
in Upper Canada, out of some four thousand, and all Roman Catholic.
But if the Roman Catholics are entitled to separate schools and to go on
extending their operations, so are the members of the Church of England,
the Presbyterians, the Methodists, and all other sects. No candid Roman
Catholic will deny this for a moment; and there lay the great danger to
our educational fabric, that the separate system might gradually extend
itself until the whole country was studded with nurseries of sectarianism,
most hurtful to the best interests of the province, and entailing an enor-
mous expense to sustain the hosts of teachers that so prodigal a system of
public instruction must inevitably entail. Now it is known to every honor-
able member of this House that an Act was passed in 1863, as a final settle-
ment of this sectarian controversy. I was not in Quebec at the time, but
if I had been here I would have voted against that bill, because it extended
the facilities for establishing separate schools. It had, however, this good
feature, that it was accepted by the Roman Catholic authorities, and car-
ried through Parliament as a final compromise of the question in Upper
Canada. When, therefore, it was proposed that a provision should be
inserted in the Confederation scheme to bind that compact of 1863 and
declare it a final settlement, so that we should not be compelled, as we have
been since 1849, to stand constantly to our arms, awaiting fresh attacks
upon our common school system, the proposition seemed to me one that
was not rashly to be rejected. I admit that, from my point of view, this
is a blot on the scheme before the House, it is, confessedly, one of the
concessions from our side that had to be made to secure this great measure
of reform. But assuredly, I, for one, have not the slightest hesitation in
accepting it as a necessary condition of the scheme of union, and doubly
acceptable must it be in the eyes of honorable gentlemen opposite, who
were the authors of the bill of 1863. But it was ur^ed that though this
arrangement might perhaps be fair as regards Upper Canada, it was not so
as regards Lower Canada, for there were matters of which the British
population have long complained, and some amendments to the existing
School Act were required to secure them equal justice. Well, when this
point was raised, gentlemen of all parties in Lower Canada at once ex-
pressed themselves prepared to treat it in a frank and conciliatory manner,
with a view to removing any injustice that might be shown to exist; and
on this understanding the educational clause was adopted by the Con-
ference.

Viewed then, Mr. Speaker, from a merely Canadian standpoint —
viewed solely as a remedial measure — I fearlessly assert that the scheme
in your hands is a just and satisfactory remedy for the evils and injustice
that have so long distracted the province — and so strongly do I feel this.

638 ConstituHoncU Documents of Canada. [1840-1867

that were every word of objection urged against our union witfa^ the
Maritime Provinces just and true to the very letter, I would not hesitate
to adopt the union as the price of a measure of constitutional reform in
Canada, so just and so complete as now proposed. But, Mr. Speaker,
so far from the objections ui^ed a^inst union with the Maritime Provinces
being sound, so far from union with them being a drawback to this meas-
ure, I regard it as the crowning advantage of the whole scheme. Sir, I
make no pretension to having been in past years an advocate of the imme-
diate union of the British American Colonies. I always felt and always
said that no statesman could doubt that such was the best and almost the
certain future destiny of these colonies ; but I doubted greatly whether the
right time for the movement had yet arrived. I knew little of the Maritime
Provinces or the feelings of their people ; the negotiations for a union were
likely to be difficult and long protracted, and I was unwilling to accept the
hope of a measure so remote and so uncertain in lieu of the practical
remedy for practical evils in Canada which we were earnestly seeking to
obtain, and which our own Legislature had the power immediately to
grant. But of late, sir, all this has been changed. The circumstances are
entirely altered. A revolution has occurred in Great Britain on the subject
of colonial relations to the parent state — the Government of the United
States has become a great warlike power — our commercial relations with
the republic are seriously threatened — and every man in British America
has now placed before him for solution the practical question, what shall
be done in view of the changed relations on which we are about to enter?
Shall we continue to struggle along as isolated communities, or shall we
unite cordially together to extend our commerce, to develope the resources
of our country and to defend our soil? But more than this — ^many of us
have learned, since we last met here, far more of the Maritime Provinces
than we ever did before. We have visited the Maritime Provinces — we
have seen the country — we have met the peop]e and marked their intelli-
gence and their industry and their frugality — ^we have investigated their
public affairs and found them satisfactory — we have discussed terms of
union with their statesmen and found that no ipsuperable obstacle to union
exists, and no necessity for long delay. We come to the consideration of
the question to-day in a totally different position from what we ever did
before — and if the House will grant me its indulgence, I think I can present
unanswerable arguments to show that this union of all British America
should be heartily and promptly accepted by all the provinces. Mr.
Speaker, I am in favor of a union of the British American Colonies, first,
because it will raise us from the attitude of a number of inconsiderable
colonies into a great and powerful people.

When recently in England, I was charged to negotiate with the Im-
perial Government for the opening up of the North-West territories. In
a few days the papers will be laid before the House, and it will then be
seen whether or not this Government is in earnest in that matter. Sir, the
gentlemen who formed the Conference at Quebec did not enter upon their
work with the miserable idea of getting the advantage of each other, but
with a due sense of the greatness of the work they had on hand, with an
earnest desire to do justice to all, and keeping always in min'd that what
would benefit one section in such a union must necessarily benefit the
whole. It has always appeared to me that the opening up of the North-
West ought to be one of the most cherished projects of my honorable
friends from Lower Canada. During the discussion on the question for
some years back I had occasion to dip deep in North-West lore — into tiiose
singularly interesting narratives of life and travels in the North- West in
the olden time, and into the history of the struggles for commercial domain-
ancy in the great fur-bearing regions — and it has always struck me thai
the French-Canadian people have cause to look back with pride to the bold
and successful part they played in the adventures of those days. Nothing
perhaps has tended more to create their present national character than
the vigorous habits, the power of endurance, the aptitude for out-door life,

1840-1867] Constitutional Documents of Canada- 639

acquired in their prosecution of the North- West fur trade. Well may they
look forward with anxiety to the realization of this part of our scheme,
in confident hope that the great north-western traffic shall be once more
opened up to the hardy French Canadian traders and voyageurs. Last
year furs to the value of i280,000 stg.. ($1,400,000) were carried from that
territory by the Hudson's Bay Company — smuggled off through the ice
boimd regions of James' Bay, that the pretence of the barrenness of the
country and the difficulty of conveying merchandise by the natural route
of the St. Lawrence may be kept up a little longer. Sir, the carrying
of merchandise into that country, and bringing down the bales of pelts
ought to be ours, and must ere long be ours, as in the days of yore, and
when the fertile plains of that great Saskatchewan territory are opened
up for settlement and cultivation, I am confident that it will not only add
irnmensely to our annual agricultural products, but bring us sources of
mineral and other wealth on which at present we do not reckon. While
speaking on this question of immigration, I would remind the House, and
it is impossible to urge it too strongly, that these provinces are now pre-
sented to the world in a very disadvantageous aspect, as different com-
munities. When a party in Europe thinks of emigrating here, he has to
ascertain separately all about New Brunswick, and Prince Edward Island,
and Nova Scotia, and Upper and Lower Canada; and if by chance he
meets a party from some one of these provinces, he has to listen to a
picture of the merits of that one section in high contrast to the demerits
of all the rest, and the result is the poor man's ideas about us become a
mass of confusion. On the other hand, if he seeks to know the induce-
ments for emigration to New South Wales, or New Zealand, he gets it in
one picture — in an official form — and the offer is made to pay his passage
to these lands of hope. A large amount of emigration, and of money which
the emigrant takes with him, are thus carried off to a much more distant
land than this, and one that does not offer equal inducements to the settler.
But how different will all this be when these provinces stand united, and
present to emigrants a combination of so many branches of profitable in-
dustry? ... In one single day the Tache-Macdonald Administration, by
taking up the constitutional question boldly, turned their minority of two
into a majority of seventy. Could anything prove more unanswerably than
this the deep hold this question has on the public mind, and the assured
confidence of the members of this House that their constituents understand
its whole merits, when, in one day, such a startling political revolution was
brought about? Was it, think you, a doubtful consideration that could
have induced the Upper Canada Opposition, almost as one man, to cast
down their party intrenchments and make common cause with their oppon-
ents? Could there have been the slightest doubt as to the sentiments of
our people and the imperative necessity of immediate action, when such
men as now sit on the treasury benches, were forced, by their supporters,
to unite for the settlement of this question? And could there be a more
conclusive proof of the ripeness of public opinion than the unanimous and
cordial manner in which our so uniting has been sustained by the press
of all parties, and by the electors at the polls? Never, I venture to assert,
was any great measure so thoroughly understood, and so cordially endorsed
by the people of Canada, as this measure now under consideration. The
British Government approves of it — the Legislative Council approves of it
— this House almost unanimously approves of it — the press of all parties
approves of it — and though the scheme has already been directly submitted
to fifty out of the ofte hundred constituencies into which Canada is divided,
only four candidates ventured to appear at the hustings in opposition to it
— all of them in Lower Canada — and but two of them were elected. And
yet, sir, we are to be told that we are stealing a march upon the country' ;
that it is not understood by the people; and that we must dissolve the
House upon it, at a vast cost to the exchequer, and at the risk of allowing
political partisanship to dash the fruit from our hands at the very moment
we are about to grasp it ! Sir, I have no fears whatever of an appeal to the
people. I cannot pretend to speak as to the popular feeling in Lower

640 Constitutional Documents of Canada. [1840-1867

Canada, but I think I thoroughly understand the popular mind of the
western province, and I hesitate not to say that there are not five gentlemen
in this chamber (if so many) who could go before their constituents in
Upper Canada in opposition to this scheme, with the slightest chance of
being returned. It is because I thoroughly comprehend the feelings of the
people upon it, that I urge the adoption of this measure at the earliest pos-
sible moment The most gross injustice is to be rectified by it; the tax-
payer is to be clothed with his r^htful influence by it; new commercial
relations are to be opened up by it; a new impulse to the industrial pur-
suits of the country will be given by it — and I for one would feel myself
false to the cause I have so long sustained, and false to the best interests
of my constituents, if I permitted one hour unnecessarily to pass without
bringing it to a final issue. It was only by the concurrence of most pro-
pitious circumstances that the wonderful progress this movement has made
could have been accomplished. Most peculiar were the circumstances that
enabled such a coalition to be formed as that now existing for the settle-
ment of this question — and who shall say at what hour it may not be rent
asunder? And yet, who will venture to aSirm that if party spirit in all its
fierceness were once more to be let loose amongst us, there would be the
slightest hope that this great question could be approached with that can-
dor and harmony necessary to its satisfactory solution? Then, sir, at the
very moment we resolved to deal with this question of constitutional
change, the Maritime Provinces were about to assemble in joint conference
to consider whether they ought not to form a union among themselves —
and the way was thus most propitiously opened up for the consideration
of a union of all British America. The civil war too, in the neightx>ring
republic; the possibility of war between Great Britain and the United
States; the threatened repeal of the Reciprocity Treaty; the threatened
abolition of the American bonding system for goods in transitu to and from
these provinces ; the unsettled position of the Hudson's Bay Company ; and
the changed feeling of England as to the relations of great colonies to
the parent state; — all combme at this moment to arrest earnest attention
to the gravity of the situation, and unite us all in one vigorous effort to
meet the emergency like men. The interests to be affected by this scheme
of union are very large and varied — but the pressure of circumstances
upon all the colonies is so serious at this moment, that if we cannot now
banish partisanship and sectionalism and petty objections, and lopk at the
matter on its broad intrinsic merits, what hope is there of our ever beii^
able to do so? An appeal to the people of Canada on this measure simply
means postponement of the question for a year — ^and who can tell how
changed ere then may be the circumstances surrounding us? Sir, the man
who strives for the postponement of this measure on any ground, is doing
what he can to kill it almost as effectually as if he voted against it. Let
there be no mistake as to the manner in which the Government presents
this measure to the House. We do not present it as free from fault, but
we do present it as a measure so advantageous to the people of Canada,
that all the blemishes, real or imaginary, averred against it, sink into utter
insignificance in present of its merits. We present it, not in the precise
shape we in Canada would desire it, but as in the best shape the five
colonies to be united could agree upon it. We present it in the form in
which the five governments have severally adopted it — in the form the
Imperial Government has endorsed it — and in the form in which we believe
all the legislatures of the provinces will accept it. We ask the House to
pass it in the exact form in which we have presented it, for we know not
how alterations may affect its safety in other places, and the process of
alteration once commenced in four different legislatures — ^who can tell where
that would end? Every member of this House is free as air to criticise it
if he so wills, and amend it if he is able — but we warn him of the danger
of amendment, and throw on him all the responsibility of the consequences
We feel confident of carrying this scheme as it stands— but we cannot
tell what we can do if it be amended. Let not honorable gentlemen ap-
proach this measure as a sharp critic deals with an abstract questi(Hi.

1840-1867] Constitutiofuil Documents of Canada, 641

striving to point out blemishes and display his ingenuity; but let us ap-
proach it as men having but one consideration before us — the establishment
of the future peace and prosperity of our country. Let us look at it in the
light of a few months back — in the light of the evils and injustice to which
it applies a remedy — in the light of the years of discord and strife we
have spent in seeking for that remedy — ^in the light with which the people
of Canada would regard this measure were it to be lost, and all the evils
of past years to be brought back upon us again. Let honorable gentlemen
look at the question in this view — and what one of them will take the
responsibility of casting his vote against the measure? Sir, the future
destiny of diese great provinces may be affected by the decision we are
about to give to an extent which at this moment we may be unable to
estimate — but assuredly the welfare for many years of four millions of
people hangs on our decision. Shall we then rise equal to the occasion? —
shall we approach this discussion without partisanship, and free from
every personal feeling but the earnest resolution to discharge conscientious-
ly the duty which an over-ruling providence has placed upon us? Sir, it
may be that some among us will live to see the day when, as the result of
this measure, a great and powerful people may have grown up in these
lands — ^when the boundless forests all around us shall have given way to
smiling fields and thriving towns — and when one united Government, under
the British flag, shall extend from shore to shore: — but who would desire
to see that day if he could not recall with satisfaction the part he took in
this discussion? Mr. Speaker I have done. I leave the subject to the con-
scientious judgment of the House, in the confident expectation and belief
that the decision it will render will be worthy of the Parliament of Canada.

Thursday, February 16, 1865.
Hon. Mr, Dorion^, in resuming the adjourned debate on Confedera-
tion, said — I should have desired to make my remarks to the House in
French, but considering the large number of honorable members who are
not familiar with that language, I think it my duty to speak at the present
time in English. In rising on this occasion to address the House on the
important question submitted to us, I must say I so do with an unusual
degree of embarrassment, not only on account of the importance of the
subject of our deliberations, but also because I have to differ from many of
those with whom I have been in the habit of acting ever since I first en-
tered into political life. Yet, Mr. Speaker, when I consider the questions
raised by the resolutions submitted by the Government, I find that whether
they be purely political ones, such as the proposal to restrict the influence
and control of the people over the Legislature of the country by substi-
tuting a Chamber nominated by the Crown for an Elective Legislative
Council, or whether they are purely commercial in their character, such
as that re^rding the Intercolonial Railway, or the larger question of
Confederation itself, I still hold the same views that I held, in common
with others who have now changed their opinions, when the subjects were
first mooted. And as I have not heard, since the first opening of this
debate, any reason for substituting a nominated for an elective Upper
Chamber that was not fully argued out in 1856, when, by an overwhelming
majority of this House, it was decided that the elective principle should
prevail — as I have not heard any reason why we should pledge our credit
and resources to the construction of the Intercolonial Railway, even pre-
vious to any estimate of its cost being made, that was not urged in 1862
when the question was before the country — ^nor any reason for intercolonial
union that was not raised in 1858, when the present Hon. Finance Minister
pressed the question on the attention of the Imperial authorities — I do not
see on what ground these several subjects which were then so unpopular,
and those views which were then almost universally repudiated, should now
be more favorably considered by the people of this country — I fail to per-
ceive why those once unpalatable measures, now coupled with additions to

' A. A. Dorion, Member for Hochelaga.

OO

642 Constitutional Documents of Canada. [1840-1867

the burdens of the people, should have grown into the public favor. I
cannot understand why I or any members of this House should change our
views merely because certain other members have, when we do not con-
scientiously think such change would be for the benefit of the country.
I say, sir, that I am quite entitled to maintain the same views now that I
have always entertained. This scheme, sir, is submitted to us on two
grounds ; first, the necessity for meeting the constitutional difficulties which
have arisen between Upper and Lower Canada owing to the growing de-
mands on the part of Upper Canada for representation by population ; and,
secondly, the necessity for providing more efficient means for the defence
of the country than now exist. These are the only two grounds we have
heard stated for the propositions now submitted to us; and, sir, I shall
apply myself to explain my views on these two subjects, and also upon the
scheme generally. When on the first question, I trust I shall be permitted
to go a little into the history of the agitation of representation by popula-
tion, for I owe it to myself, to my constituents and the country. My name
has been used in various ways.. It has sometimes been said that I was
entirely favorable to representation by population — ^at other times that I was
entirely favorable to the Confederation of the provinces and I will now
endeavor, once more, to state as clearly as possible what my real views
have been and still are. The first time representation by population was
mooted in this House, on behalf of Upper Canada, was, I believe, in the
Session of 1852, when the Conservative party took it up, and the Hon.
Sir Allan Macndb moved resolutions in favor of the principle. We then
found the conservatives arrayed in support of this constitutional change.
It had been mooted before on behalf of Lower Canada, but the Upper
Canadians had all opposed it. I think two votes were taken in 1852, and
on one of these occasions the Hon. Attorney General West (Hon. J. A.
Macdonald) voted for it; it came up incidentally. In 1854, the Macnab-
Aforin coalition took place, and we heard no more of representation by
population from that quarter — that is, as mooted by the Conservative
party, who from that moment uniformly opposed it on every occasion.
It was, however, taken up by the present Hbn. President of the Council,
the member for South Oxford, and with the energy and vigor he brings
to bear on every question he takes in hand, he caus^ such an agitation in
its behalf as almost threatened a revolution. As the agitation in the country
increased, so did the vote for it in this House increase, and on several
occasions I expressed my views upon the subject. I never shirked the
question — I never hesitated to say that something ought to be done to meet
the just claims of Upper Canada, and that representation based on popula-
tion was in the abstract a just and correct principle. I held, at the same
time, there were reasons why Lower Canada could not grant it ; I entreated
Lower Canadian representatives to show themselves disposed to meet the
^views of Upper Canada by making, at any rate, a counter proposition;
and in 1856, when Parliament was sitting in Toronto, I, for the first time,
suggested that one means of getting over the difficulty would be to substi-
tute for the present Legislative union a Confederation of the two Omadas,
by means of which all local questions could be consigned to the deliberation
of local legislatures, with a central government having control of commer-
cial and other questions of common or general interest I stated, tihat,
considering the different religious faith, the different language, the different
laws that prevailed in the two sections of the country, this was the best
way to meet the difficulty; to leave to a general government questions of
trade, currency, banking, public works of a general character, etc, and to
commit to the decision of local legislatures all matters of a local bearing.
At the same time I stated that, if these views should not prevail, I would
certainly go for representation by population, and such checks and guaran-
tees as would secure the interests of each section of the country, and
preserve to Lower Canada its cherished institutions. This speedi, sir.

1840-1867] Constitutional Documents of Canada, 643

purposes, just as it suited the occasion or the puipose of those who quoted
it. The first time the matter was put to a practical test was in 1858. On
the resignation of the Macdonald-C artier Administration, the Brown-
Dorion Government was formed, and one of the agreements made be-
tween its members was that the constitutional question should be taken
up and settled, either by a Confederation of die two provinces or by
representation according to population, with such checks and guarantees
as would secure the religious faith, the laws, the language, and the peculiar
institutions of each section of the country from encroachments on the
part of the other. The subject came up again in the latter part of 1850*
when the Toronto Convention took place. I should, however, first say
that, when the Brown-Dorion Administration was formed, the Hon. the
President of the Council urged very strongly that representation by popu-
lation should be taken up as the method by which to settle the constitu-
tional question; while, on the contrary, I saw the difficulty of so taking
it up, even with such checks and guarantees as were spoken of, and made
the counter-proposition that a Confederation of the two provinces should
be formed. Of course as our Administration was so shortlived, the subject
was not discussed in all its bearings; but if we could have come to an
agreement on one or the other mode, that one would have been submitted
as the solution for the evils complained of — it being however distinctly
understood that I would not attempt to carry any such measure through
without obtaining for it a majority from Lower Canada. I would never
have tried to make any change in the Constitution without ascertaining
that the people in my own section of the province were in favor of such a
change. To return to the Toronto Convention. I was invited to attend it,
but tiiough I was unable to do so, certain communications took place, and a
meeting of the liberal members of the House from Lower Canada was
held, and a document issued, signed by the present Minister of Agriculture
(Hon. Mr. McGe^), Hon. Mr. Dessaulles, Hon. Mr. Drummond, and
myself. The document was given to the public for the purpose of setting
forth the views which we held as to the settlement of the difficulty. Pre-
tended extracts have been given from that document, as from my speech,
to attempt to prove all sorts of things as being my views, but I can show
most clearly that the proposition made in it was just that which had been
made in 1858, viz., the Confederation of the two provinces, with some joint
authority for both. Both at that time and at the time of the formation of
the Brown-Dorion Administration, various suggestions were made as to
the carrying out of the plan of confederating the two Canadas. Some
thought that two entirely distinct legislatures should be formed ; one local
for Lower Canada, another local for Upper Canada, with a general legis-
lature acting for both. Others suggested the idea that the same legislature
might fulfil all purposes; that the same body might meet and deliberate
on question of common interest, and that the members for each section
might then separate and discuss all matters of a sectional character. Others,
again, said the same result might be obtained by having but one legislature,
and insisting that no laws affecting either section of the province should be
carried, unless with the support of a majority from the section affected by
them. These three plans were suggested — the first to have two entirely
distinct legislative bodies, one for general purposes, others for local ones ;
the second, to have one legislature, of which the parts should have the
ri^ht to act separately for local objects, after general business had been
disposed of ; the third, to have but one body, but to resolve that no legis-
lative act of a local nature should pass without the consent of a majority
of the representatives from that locality. The document to which I have
just referred, issued in October, 1859, contained this language on the
subject : —

Your Committee are impressed with the conviction that whether we
consider the present needs or the probable future condition of the country,
the true, the statesman-like solution is to be sought in the substitution of
a purely federative for the present legislative union; the former, it is

> An error for "1859."

> Hon. T. D'Arey McGee, Member for Hontreil West.

644 ConsHtuHonal Documents of Canada, [1840-1867

believed, would enable us to escape all the evUs, and to retain aU the advan-
tages, appertaining to the existing union.

The proposition to federalise the Canadian union is not netv. On the
Contrary, it has been frequently mooted in Parliament and the press during
the last few years. It was no doubt suggested by the example of the neigh-
bouring States where the admirable adaptation of the federal system to
the government of an extensive territory, inhabited by people of divers
origins, creeds, laws and customs, has been amply demonstrated; but shape
and consistency were first imparted to it in 1856, when it was formally
submitted to Parliament by the Lower Canada Opposition, as offering, in
their judgment, the true corrective of the abuses generated under the
present system.

The document further went on to say : —

The powers delegated to the General or Federal Government ought to
be those only which are essential for the ends of the Confederation and
consequentlv we ought to reserve for the stUfdivisions as ample poxvers as
possible. Customs, finance, laws regulating the currency, patent rights.
Crown lands and those public works which are of common interest for af^
parts of the province, ought to be the principal, if not the only subject sub-
mitted to the control of the Federal Government, while all that belongs
to matters of a purely local character, such as education, the administra-
tion of justice, the militia, the laws relating to property, police, etc., ought
to be referred to the local governments, whose powers ought generally f •>
extend to all subjects which would not be given to the General Govern
ment. The system thus proposed would in no way diminish the importance
of the CQlony nor impair its credit —

Hon. Atty. Gen. Macdonald — ^From what document is my hon. friciiti
reading?

Hon. Mr. Dorion — I am translating from the document published
by the Lower Canada liberals in 1859. It continues: —

The proposed system would in no way diminish the importance of the
colony, or impair the credit, while it presents the advantage of being sus-
ceptible, without any^ disturbance of the federal economy, of such terri-
torial extention as circumstances may hereafter render desirable.

Well, Sir, I have not a word of all this to take back. I still hold to
the same views, the same opinions. I still think that a Federal union of
Canada might hereafter extend so as to embrace other territories either
west or east; that such a system is well adapted to admit of territorial
expansion without any disturbance of the federal economy, but I cannot
understand how this plain sentence should be considered by the Hon.
President of the Council, or by other hon. members who have spoken in
the other House, as any indication that I have ever been in favor of Con-
federation with the other British Provinces. There is nothing I have ever
said or written that can be construed to mean that I was ever in favor of
such a proposition. On the contrary, whenever the question came up I
set my face against it. I asserted that such a confederation could only
bring trouble and embarrassment, that there was no social, no commercial
connection between the provinces proposed to be united — ^nothing to justify
their union at the present juncture Of course I do not say that I shall be
opposed to their Confederation for all time to come. Population may ex-
tend over the wilderness that now lies between the Maritime Provinces and
ourselves, and commercial intercourse may increase sufficiently to render
Confederation desirable. My speeches have been paraded of late in all
the ministerial papers — misconstrued, mistranslated, falsified in every way
— for the purpose of making the public believe that in former times I held
di£Ferent views from those I now do. A French paper has said that T
called with all my heart for Confederation of the provinces — (^ti^ fappe-
lais de tons mes voeux la confederation des provinces). But 1 say here,
as I said in 1856, and as I said in 1861 also, that I am opposed to this
Confederation now. In the Mirror of Parliament which contains a rqiort.

1840-1867] Constitutional Documents of Canada. 645

though a very bad one, of my speech in 1861, I find that I said on that
occasion : —

The time may come when it will be necessary to have a Confederation
of all the provinces; .... but the present time is not for such a scheme.
This is the speech which has been held to signify that I was anxious for
Confederation, that I should like nothing better. Why? I distinctly said
that though the time might come when it would become necessary, it was
not desirable under existing circumstances. In 1862, I was not in Parlia-
ment, the Cartier-Macdonald Administration was dismissed, and my hon.
friend, the member for Cornwall (Hon. John S. Macdonald), was called
upon to form a new one. He applied to Mr. Sicotte to form the Lower
Canada section while he himself undertook the formation of the Upper
Canada portion. The question of representation by population then neces-
sarily came up for settlement — this time at the hands of the Liberal party
who had voted for it year after year — and when I came down to Quebec,
summoned by telegraph, I found the arrangements made^ the policy of the
new government was settled, representation by population was excluded.
The Liberal party from Upper Canada, sir, to my surprise, had decided
that it was not to be taken up— that they were ^oing into office just as the
Conservative party had done before on a similar occasion in 1854; they
decided that they would sustain an Administration which made it a closed
question, and whose members all pledged themselves to vote against it.

Mr, Rankin^ — No, no.

Hon, Mr. Dorion — If not, I was misinformed. I certainly understood
that the Administration was formed on the understanding that every mem-
ber of it should vote against the question of representation by popula-
tion whenever it came up, and that the Upper Canada party would support
the Administration so formed. At any rate the Upper Canada Liberal
party supported, for eleven months, a government pledged to exclude
representation by population from the category of open questions, and
agreed to lay that question aside.

Mr, Mckengie (Lambton) — ^No, no.

Hon, Mr, Dorion — I hear an honorable gentleman say it was not so,
that he did not agree to lay aside representation by population then, but
if he did not then has he not done so since? He declared at a public
meeting the other day that representation by population was no cure for
the evils afflicting Upper Canada. The members from Upper Canada
who had joined the Macdonald-Sicotte Grovemment had certainly aban-
doned representation by population, by entering into an Administration
which bound every one of them to vote against it. The Hon. Provincial
Secretary had stated publicly in Ottawa, in January, 1864, that it had been
abandoned by the Liberal party at the Toronto Convention in 1859; and
although he had at tiie time been soundly abused for this by the Globe
and by those of his party who look to the Globe as their political gospel,
he had now the satisfaction of seeing the hon. member for Lambton, and
some others who formerly held very strong views on this question, ac-
knowledge, as they had done at a public meeting hdd at Toronto about
three weeks ago, that they also considered representation by population
as applied to Canada no remedy for the Upper Province, and that it was
not a measure the liberals ought to insist upon, and that it had been aban-
doned. Yes, the question was in effect abandoned when in November, 1859,
six hundred delegates from all parts of Upper Canada attended the Reform
Convention at Toronto and agreed to advocate a Confederation of the two
Canadas, by giving to each province a local legislature, with some joint
authority, to carry on the general business common to both. The hon.
member on my left was present on the occasion —

Hon, Mr, Holton* — ^Yes I was.

Hon, Mr, Dorion — ^And the hon. member has told me that he never
saw a more respectable, a more educated, or more intelligent assemblage
brought together in such numbers to discuss public questions. But that

^Arthur Ra&ldn, Member for Essex.

' Hon. Lnther H. Holton, Member for Chateaiigiuiy.

646 Constitutional Documents of Canada. [1840-1867

scheme did not attract much attention out of the Convention. It took no
hold on the popular mind. Shortly before that, in 1858, the present Hon,
Finance Minister, who then sat on the cross-benches, made a speech of
two or three hours' duration, in which, with all that force and ability for
which he is distinguished, he expounded and advocated the Q>n federation
of the whole of the British North American Provinces. He was then
assisted in its advocacy by the present Hon. Minister of Agriculture; and,
subsequently, on becoming a member of the Cartier-Macdonald Admin-
istration, he went to England and drew the attention of the Imperial
authorities to the scheme of Confederation of all those provinces. The
Hon. Finance Minister received an answer not very encouraging; and that
which he received from this country was still less encouraging. There was
not even an answer to his speech, able though it certainly was —

Hon. Mr, Holton — ^He never ventured to propose any resolution to
Parliament

Hon, Mr. Dorian — ^Though the Administration was formed with the
understanding of effecting the Confederation of all the provinces, and it
was the main plank of their platform, they never dared to submit the
question to Parliament at all. Subsequently, in 1861, the hon. member for
South Oxford brought forward a motion based on the resolution at the
Toronto Convention. I spoke and voted for it. It was in perfect accord
with a notice I had given in 1856, and which was read here by the Hon
President of the Council a few nights ago, and with my often-repeated
declarations that I was willing to adopt some measure calculated to remove
existing difficulties without doing injustice to either section; but while 1
was willing to do justice to Upper Canada, I always declared that I would
not do so by sacrificing the interests of Lower Canada, or placing her in
the position of having to beg for justice at the hands of the sister province.
I always stated that the difference existing in the religious faith of the
people of the two sections, in -their language, in their laws, in their pre-
judices even — for there are prejudices which were respectable and ought
to be respected — would prevent any member from Lower Canada, repre-
senting a French constituency, from voting for representation hy popula-
tion, pure and simple, and there!>y placing the people of Lower Canada in
the position of having to trust for the protection of their rights to the
people of Upper Canada, who would thereby have the majority in the
Legislature. There is at this moment a movement on the part of the
British Protestants in Lower Canada to haVe some protection and guaran-
tee for their educational establishments in this province put into the
scheme of Confederation, should it be adopted ; and far from finding fault
with them, I respect them the more for their energy in seeking protection
for their separate interests. I know that majorities are naturally aggres-
sive and how the possession of power engenders despotism, and I can
understand how a majority, animated this moment by the best feelings.
might in six or nine months be willing to abuse its power and trample on
the rights of the minority, while acting in good faith, and on what it con-
sidered to be its right. We know also the ill feelings that might be engen-
dered by such a course. I think it but just that the Protestant minority
should be protected in its rights in everything that was dear to it as a
distinct nationality, and should not lie at the discretion of the majority in
this respect, and for this reason I am ready to extend to my Protestant
fellow -ciizens in Lower Canada of British origin, the fullest justice in all
things, and I wish to see their interests as a minority guaranteed and pro-
tected in every scheme which may be adopted. With these views on the
question of representation, I pronounced in favor of a Confederation of the
two Provinces of Upper and Lower Canada, as the best means of protect-
mg the varied interests of the two sections. But the Confederation 1
advocated was a real confederation, giving the largest powers to the local
governments, and merely a delegated authority to the General Government
— in that respect differing in toto from the one now proposed which gives
all the powers to the Central Government, and reserves for the local gov-
ernments the smallest possible amount of freedom of action. There is

1840-1867] Cofistitutionai Documents of Canada. 647

nothing besides in what I have ever written or said that can be interpreted
as favoring a Confederation of all the provinces. This I always opposed.
There is no breach of confidence in my saying that in the conversations I
had with the Hon. President of the Council, previous to his accepting office,
since he has referred to them himself in a speech which he made when
reelected at South Oxford, I positively declined to support any proposition
for the Confederation of all the provinces. Very true, sir, I did not refuse
to vote for it in committee. I did not vote at all — I was not present when
the vote was taken, but I did not conceal my opposition to it. In that
speech the Hon. President of the Council also said : —

Before the negotiations were gone through with, I warned the Hon.
Messrs. Holton and Dorion to take action, but they refused me. I felt all
the pain of a refusal, but they left me no resource. When the question
was asked me by the (rovemment, I said I wanted six members — four from
Upper and two from Lower Canada. When asked how many supporters
I could bring from Lower Canada, I replied that since Hon. Mr. Dorion
did not act, I could bring no supporters.

So, sir, I have the best evidence possible to repudiate the accusation
that I was in favor of Confederation of all the provinces in the fact that,
before there was any question at all as to who should go into the Grovern-
ment, I stated — and that in the hearing of several honorable members now
present — that I would have nothing to do with it because I did not conceive
it would be for the interest of the country to have such a Confederation,
at all events at the present time. Now, sir, I think I have shown that I
neither favored representation by population pure and simple, nor a Con-
f ederatioQ. of the provinces ; and when honorable gentlemen state that the
necessity of settling the question of representation is the origin of this
Federation scheme, they labor under a grave misapprehension. There is
nothing further from the fact. The representation question was almost
altogether abandoned — was played out ; there was no agitation about it, and
certainly less than there had been for the last ten years. The honorable
member for South Oxford, after adopting the views of the Toronto Con-
vention, still persisted in advocating representation by population, but so
changed was the feeling that he could hardly get a debate on the motion
he made last session for a committee to consider the constitutional diffi-
culties. There was then another cause for this Confederation scheme of
which representation by population was made the pretext. It is not so well
known, but far more powerful. In the year 1861, Mr. Wat kin was sent
from England by the Grand Trunk Railway Company. He came with the
distinct view of making a large claim on the country for aid, but in the
then temper of the people, he soon found that he could not expect to obtain
that. Thinking that if he only could put some new scheme afloat which
would give a decent pretext to a well disposed Government, he would
quietly get the assistance required, he immediately started for the Lower
Provinces, and came back after inducing people there to resuscitate the
question of the Intercolonial Railway. Parties were readily found to advo-
cate it, if Canada would only pay the piper. A meeting of delegates took
place, resolutions were adopted, and an application was made to the Im-
perial Government for a large contribution to its costs, in the shape of an
indemnity for carrying the troops over the road. Mr. Watkin and Hon.
Mr. Vankoughnet, who was then a member of the Government, went
to England about this scheme, but the Imperial authorities were unwilling
to grant the required assistance, and rejected their propositions. Mr.
Watkin, although baffled in his expectations, did not give up his project.
He returned again to Canada, and by dint of perseverence, induced my
honorable friend on my right (Hon. J. S. Macdonald) and oth^r hon-
orable members of his Cabinet to enter into his views. As to the advan-
tages of the Intercolonial Railway, I have not the slightest idea that my
hon. friend had any suspicion whatsoever of the motives which animated
these Grand Trunk officials, and that their object was to have another
haul at the public purse for the Grand Trunk — ^but this was the origin of
the revival of the scheme for constructing the Intercolonial Railway.

648 Constitutional Documents of Canada. [1840-1867

Hon, /. 5*. Macdonald — We found the project then left to us as a
legacy by the Cartier-Macdonald Administration.

Hon. Mr, Dorion — So it was. The Macdonald-SicoHe Government
found the matter so far advanced that an arrangement had been made
for a meeting of delegates of the several provinces to consider again this
railway scheme, the other project having failed. At this meeting of dele-
gates, which took place in September, iSSZ, a new scheme for building the
Intercolonial was adopted, by which Canada was to pay five-twdfths and
the Lower Provinces seven-twelfths. So unpopular was this arrangement
that when its terms were made known, if a vote of the people had been
taken upon it, not ten out of every hundred, from Sandwich to Gaspe,
would have declared in its favor, although Csuiada was only to pay five-
twelfths of its cost. This project having failed, some other scheme had
to be concocted for bringing aid and relief to the unfortunate Grand
Trunk — and the Confederation of all the British North American Pro-
vinces naturally suggested itself to the Grand Trunk officials as the surest
means of bringing with it the construction of the Intercolonial Railway.
Such was the origin of this Confederation scheme. The Grand Trunk
people are at the bottom of it; and I find that at, the last meeting of the
Grand Trunk Railway Company, Mr. Watkin did in advance congratulate
the shareholders and bondholders on the bright prospects opening before
them, by the enhanced value which will be given to their shares and bonds,
by the adoption of the Confederation scheme and the construction of the
Intercolonial as part of the scheme. I repeat, sir, that representation by
population had very little to do with bringing about this measure. The
Tachi^Macdonald Government were defeated because the House con-
demned them for taking without authority $100,000 out of the public
chest for the Grand Trunk Railway, at a time when there had not been a
party vote on representation by population for one or two sessions. Those
who had been the loudest in their advocacy of it, had let it drop. I was
tracked through Lower Canada as being willing to sell Lower Canada,
grant representation by population, and destroy Lower Canadian institu-
tions. I thank God, sir, I never insulted Upper Canada, like some of those
who reviled me. I never compared the people of Upper Canada to so many
codfish. I showed on the contrary that I was always willing to meet the
just claims of Upper Canada. Well, without any demand whatever for
the agitation of this question, the moment the Government was defeated
and tiiere was a necessity for resigning or going before the people, these
gentlemen opposite prepared to embrace their greatest opponents and said
to themselves, "We will make everything smooth, we will forget past
difficulties, provided we can but keep our seats."

Hon. Atty, Gen, Macdonald — (Ironically) — ^Hear, hear.

Hon. Mr. Dorion — I hear a voice, sir, which is well known in this
House, the voice of the Attorney General West, saying "hear, hear." But
what was the course of that hon. gentleman last year, when the hon. mem-
ber for South Oxford had a committee appointed to whom was referred
the despatch written by his three colleagues, the Minister of Finance, the
Attorney General East and th^ Hon. Mn Ross, who is now no longer a
minister. He voted against the appointment of the committee, and, after
it was named, as a member of it, he voted against the principle of Con-
federation.

Hon, Atty, Gen. Macdonald — ^Hear, hear.

Hon. Mr. Dorion— Tht last vote taken in that committee was about
the middle of June, the very day of the crisis, and the hon. gentleman voted
against the principle of Confederation of all the provinces, in accordance
with the opinions he again and again expressed in this House, as being
opposed to all Confederation whatever. When I state that these gentlemen
only found out that Confederation was a panacea for all evils, a remedbr
for all ills, when their seats as ministers were in danger. I come to tiiis
conclusion quite legitimately, from facts which are well known to tiiis
House. But, sir, it would probably be of very little moment whether
I was formerly in favor of Confederation or against it, or whether the

1840-1867] Constitutional Documents of Canada. 649

Hon. Attorney General West was in favor of Confederation or opposed
to it, if the scheme proposed to us were an equitable one, or one cal-
culated to meet the wishes of the people of this countiy; but, as I said a
minute ago, the scheme was not called for by any considerable proportion
of the population. It is not laid before the House as one which was de-
manded by any number of the people; it is not brought down in response
to any call from the people; it is a device of men who are in di£Bculties,
for the purpose of getting out of them. The members of the Tachi-
Macdonald Government could not appeal to the country after their defeat
upon the question, whether they were justified in taking $100,000 out
of the public chest, in addition to the millions they had previously taken,
without the consent of Parliament; so, having either to give up their
scats or evade that particular issue, diey abandoned all their previous
opinions, and joined the hon. member for South Oxford in carrying out
this Confederation scheme. I come now to another point, viz., is the
scheme presented to us the same one that was promised to us by the
Administration when it was formed, This, sir, might be but of slight
importance if the manner in which this proposed Constitution was framed
had not a most unfortunate bearing on the scheme itself ; but it is a grave
matter, since the scheme is so objectionable, especially as we are gravely
told that it cannot be amended in the least, but that it is brought down as
a compact made between the Government of this country and delegates
from the governments of Nova Scotia, New Brunswick, Newfoundland,
and Prince Edward Island — as a treaty which cannot be altered or amended
in any particular. The plain meaning of this is, sir, that the Lower Pro-
vinces have made out a Constitution for us and we are to adopt it. This
fact will appear the more clearly when it is considered, as was pointed out
much to my surprise, by the hon. member for Hastings (Mr. T. C. W all-
bridge) ^ that in the Conference the vote was taken by provinces, putting
Upper and Lower Canada, with nearly 2,500,000 people, on no higher
level than Prince Edward Island, with its 80,000— on the same level with
New Brunswick with its 250,000---on the same level as Nova Scotia, with

its aao,ooo.

Hon. Atty, Gen, Macdonald — ^That is entirely a mistake.

Hon. Mr. Dorian — It was admitted by the Honorable the President
of the Council the other evening.

Hon. Atty, Gen. Macdonald^l^o, no.

Hon. Mr. Dorian — It was the champion of representation by popula-
tion who made the statement. He it was that went to Prince Edward
Island and asked it to frame a Constitution for this country. In order to
shew, Mr. Speaker, that 1 am not mistaken in what I state, that this
scheme is not the one which it was announced in the formation of this
Administration was to be brought down — in order to prove, indeed, that
it was then determined not to bring down such a measure, — I will cite a
declaration made by members of the Government as to the negotiations
which took place at its formation. I will read from the Quebec Morning
Chronicle of June 23rd :

The Hon. Atty. Gen, Macdonald, in explaining the negotiations, read
the following memorandum,

Memorandu m — Confidential.

The Government are prepared to state that immediately after the
prorogation, they wUl address themselves, in the most earnest manner to
the negotiation for a Confederation of all the British North American
Provinces.

That failing a successful issue to such negotiations, they are prepared
to pledge themselves to legislation during the next Session of Parliament
for the purpose of remedying the existing difficulties by introducing the
Federal principle for Canada alone, coupled with such provisions as will
permit the Maritime Provinces and the North Western Territory to be
hereafter incorporated into the Canadian system.

That for the purpose of^ carrying on the negotiations and settling the
details of the promised legislatioup a Royal Commission shall be issued,

650 Constitutionai Documents of Canada. [1840-1867

composed of three members of the Government and three members of the
Opposition, of whom- Mr. Brown shall be one, and the Government pledge
themselves to give all the influence of the Administration to secure to the
said Commission the means of advancing the great object in view.

This was the first memorandum communicated to the member for
South Oxford but that hon. member did not accept of it This memoran-
dum proposed the scheme which is now brought to the House, and I repeat,
that scheme was not accepted by the honorable member for South Oxford,
but an understanding was come to, which is to be found in the next
memorandum, which was communicated to the House in these terms : —

The Government are prepared to pledge themselves to bring in a
measure next session for the purpose of removing existing difficulties^ by
introducing the Federal principle tnto Canada, coupled with such provisions
as will permit the Maritime Provinces and the North-West Territory to be
incorporated into the same system of government.

And the Government will seek, by sending representatives to the Lower
Provinces and to England, to secure the assent of those interests which
are beyond the control of our own legislation to such a measure as will
enable all British North America to be united under a General Legislature
based upon the Federal system.

There is a vast difference, Mr. Speaker, between these two proposi-
tions. The first was that the Government would pledge themselves to sedc
a G>nfederation of the British American Provinces, and if they failed in
that to Federate the two Canadas, and this was rejected; the second, which
was accepted by the President of the Council, pledged the Government to
bring in a measure for the Confederation of the two Canadas, with pro-
visions for the admission of the other provinces when they thought proper
to enter.

Hon. Atty. Gen. Macdonald — ^When they were ready.

Hon. Aity, Gen. Cartier — Everything is accomplished.

Hon. Mr. Dorian — But, sir, I may be asked, granting all this, granting
that the scheme brought down is not the scheme promised to us, what
difference our bringing in the provinces at once can make? This I will
endeavor to explain. When they went into the Conference, honorable
gentlemen opposite submitted to have the votes taken by provinces. Well.
they have now brought us in, as was natural under the circumstances, the
most conservative measure ever laid before a Parliament. The members
of the Upper House are no longer to be elected, but nominated, and nomin-
ated by whom? By a Tory or Conservative Government for Canada, by
a Conservative Government in Nova Scotia, by a Conservative Govern-
ment in Prince Edward Island, by a Conservative Government in New-
foundland, the only Liberal Government concerned in the nomination being
that which is controlled by the Liberal party in New Brunswick, whose
fate depends on the result of the elections that are now going on in that
province. Such a scheme would never have been adopted if submitted to
the liberal people of Upper Canada. When the Government went into
that Conference they were bound by the majority, especially since they
voted by provinces, and the 1,400,000 of Upper Canada with the 1,100,000
of Lower Canada — together 2,500,000 people — were over-ridden by 900,000
people of the Maritime Provinces. Were we not expressly told that it
was the Lower Provinces who would not hear of our having an elective
Legislative Council? If, instead of going into Conference with the people
of the Lower Provinces, our Government had done what they pledged
themselves to do, that is, to prepare a Constitution themselves, they would
never have dared to bring in such a proposition as this which is now im-
posed upon us by the Lower Colonies — ^to have a Legislative Council, with
a fixed number of members, nominated by four Tory governments. Why,
taking the average time each councillor will be in the Council to be fifteen
to twenty years, it will take a century before its complexion can be changed.
For all time to come, so far as this generation and the next are concerned,
you will find the Legislative Council controlled by the influence of the
present Government. And is it to be believed that, as promised in the

1840-1867] Constitutional Documents of Canada, 651

iocument we are cgnsidering, such a Government as we have "will take
rare of the Opposition, or consider their right to be represented in the
Council?" Sir, I thank the delegates for their kind solicitude for the
opposition, but I do not believe they will do anything of the kind. Have
ve not heard the Honorable Attorney Generssl West, a few nights ago,
itate, turning to his followers, "If I were to advise the nomination, I should
idvise the selection of the best men I could find — and of course of my own
>arty?"

« « « 4( 4( «

How long will the system work without producing a collision between
:he two branches of the Legislature? Suppose the Lower House turns oul
:o be chiefly Liberal, how long will it submit to the Upper House, named
3y Conservative administrations which have taken advantage of their
remporary numerical strength to bring about such a change as is now pro-
iosed? Remember, sir, that, after all, the power, the influence of the
)opular branch of the Legislature is paramount. We have seen constitu-
tions like that of England adopted in many countries, and where there
existed a nobility, such as in France in 1830, the second chamber was
selected from this nobility. In Belgium, where the Constitution is almost
i fac'simile of that of England, but where there are no aristocracy, they
adopted the elective principle for the Upper House, and no where in the
world is there a fixed number for it, unless it is also elective. It must foe
fresh in the memory of a great many members of this House how long
the House of Lords resisted the popular demand for reform, and great
iifficulttes were threatened. At last in 18J2, the agitation had become so
^reat that the Government determined to nominate a sufficient number of
peers to secure the passage of the Reform Bill. The members of the
House had to choose between allowing the measure to become law, or see
their influence destroyed by the addition of an indefinite number of mem-
bers. They preferred the first alternative, and thereby quieted an excite-
ment, which if not checked in time, might have created a revolution in
England. The influence of the Crown was then exerted in accordance with
the views of the people; but here we are to have no such power existing
to check the action of our Upper Chamber, and no change can be made in
its composition except as death might slowly remove its members. I ven-
ture to prophesy, sir, that before a very short time has elapsed a dead-
lock may arise, and such an excitement be created as has never yet been
seen in this country. Now, if this Constitution had been framed by the
members of our Giovemment, we could change some of its provisions —
this prevision would most certainly be altered — there is not a man in the
Liberal ranks who dare vote for such a proposition as this, that could go
before his constituents and say, "I have taken away the influence and con-
trol of the people over the Upper Chamber, and I have created an entirely
independent body, to be chosen by the present governments of the several
provinces.*' But no, the Constitution is in the nature of a compact, a treaty,
and cannot be changed. But, sir, the composition of the Legislative Council
becomes of more importance when we consider that the governors of the
local legislatures are to be appointed by the General Government, as well
as the Legislative Council; their appointment is to be for five years, and
they are not to be removed without cause. I will venture upon another
prediction and say we shall find there will be no such thing as responsible
government attached to the local legislatures.

Mr, Dunkin^ — ^There cannot be.

Hon, Mr, Dorion — ^There will be two, three, or four ministers chosen
by the lieutenant-governors and who will conduct the administration of
the country, as was formerly done in the times of Sir Francis Bond
Head, Sir John Colbom, or Sir James Craig. You will have govern-
ments, the chief executives of which will be appointed and hold office at
the will of the Governor. If that is not to be the case, why do not honor-
able gentlemen lay their scheme before us? Is this House, sir, going to
vote a Constitution with the Upper House as proposed, without knowing

' Christopher Dunkin, Member for Brome.

652 Constitutional Documents of Canada. [1840-1867

what sort of local l^islatures we are to have to govern us? Suppose,
after we have adopted the main scheme, the Government come dovm with a
plan for settling the local legislatures upon which great di£Ferences ot
opinion will arise, may it not happen then that the majority from Lower
Canada will unite with a minority from Upper Canada and impose upon
that section a local Constitution distasteful to a large majority of the
people of Upper Canada. The whole scheme, sir, is absurd from begin-
ning to end. It is but natural that gentlemen with the views of h5norable
gentlemen opposite want to keep as much power as possible in the hands
of the Government — that is the doctrine of the Conservative party every-
where— that is the line which distinguishes the tories from the whigs — the
tories always side with the Crown, and the liberals always wuit to give
more power and influence to the people. The instincts of honorable gentle-
men opposite, whether you take the Hon. Attorney General East or the
Hon. Attorney General West, lead them to this — they think the hands of
the Crown should be strengthened and the influence of the people, if pos-
sible, diminishedr— and this Constitution is a specimen of their handiwork,
with a Govemor-Greneral appointed by the Crown; with local governors
alsOi appointed by the Crown; with legislative councils, in the General
Legislature, and in all the provinces, nominated by the Crown; we shall
have the most illiberal Constitution ever heard of in any country where
constitutional government prevails. The Speaker of the Legislative Council
is also to be appointed by the Crown, this is another step backwards, and
a little piece of patronage for the Government We have heard in a speech
lately delivered in Prince Edward Island or New Brunswick, I foiget
which, of the allurements offered to the delegates while here in the shape
of prospective appointments as judges of the Court of Appeal, Speaker
of the Legislative Council, and local governors — as one of the reasons
assigned for the great unanimity which prevailed in the Conference.

Hon, Mr, Holion — ^They will divide all these nice things amongst them.

Hon. Mr. Dorian — I do not accuse honorable gentlemen of holding out
these inducements, I only mention the fact from a speech I have read on
the subject.

Hon. Mr. HpUon — It was a speech of one of the delegates.

Hon. Mr. Dorion — I now come to another point It is said that this
Confederation is necessary for the purpose of providing a better mode of
defence for this country There may be people who think that by adding
two and two together you make five. I am not of that opinion. I cannot
see how by adding the 700,000 or 800,000 people, the inhabitants of the
Lower Provinces, to the 2,500,000 inhabitants of Canada, you can multiply
them so as to make a much larger force to defend the country than you
have at present Of course the connection with the British Empire is the
link of communication by which the whole force of the Empire can be
brought together for defence. But die position of this country under the
proposed scheme is very evident. You add to the frontier four or five
hundred more miles than you now have, and an extent of country im-
measurably greater in proportion than the additional population you have
gained; and if there is an advantage at all for the defence of the country.
it will be on the part of the Lower Provinces and not for us. And as we
find that we are about to enter into a very large expenditure for this pur-
pose of defence — ^this having been formally announced in a speech delivered
by the President of the Council at Toronto— and as Canada is to contri-
bute to that expenditure to the extent of ten-twelfths of the whole, the
other provinces paying only two-twelfths, it follows that Canada will pay
ten-twelfths also of Uie cost of defence, which, to defend the largely ex-
tended country we will have to defend, will be much laiger than if we
remained alone. I find in the speech delivered by the President •f the
Council on that occasion, the statement : —

/ cannot conclude without referring to some other things which have
received the grave attention of the Conference. And the first pomt to
which I desire to call attention is the fact that the delegates have unani-
tnously resolved that the united provinces shall he placed at the earliest

1840-1867] ConstituHonal Documents of Canada. 653

moment in a thorough state of defence. The attacks which have been made
upon us have created the impression that these provinces are in a weak and
feeble state; if, then, we would do away with this false impression and
pierce ourselves on a firm and secure footing in the eyes of the world, our
course must be to put our country in such a position of defence that we
n%ay fearlessly look our enemies in the face. It is a pleasure to me to
state, and I am sure it must be a pleasure to all present to be informed,
that the Conference at Quebec did not separate before entering into a
pledge to put the military and naval defences of the unitd Provinces in a
most complete and satisfactory condition.

Hon. Mr. Holton — Where is that resolution?

Hon, Mr. Dorion — It appears then that our course is to put "the mili-
tary and naval defences" into "a most complete and satisfactory condition."
Now I find that, according to these resolutions, the General Government is
to have control of "the military and naval defences/' but, of course, the
cost of them is not stated. This I contend, then, that if the military and
naval defences of all the provinces are to be provided for by the General
Government, and if you have to increase the militia for this purpose, the
Lower Provinces will pay only their proportion of two-twelfths, and Can-
ada, while obtaining no greater defensive force than at present, will have
to pay five times as much as we are now paying. Why, sir, take a line
dividing New Brunswick from Maine and you find it separates on the
one side 250,000, thinly scattered over a vast territory, from 750,000 on the
other, compact and powerful. These 250,000 Canada will have to defend,
and it will have to pledge its resources for the purpose of providing means
of defence along that extended line. And, if rumor be true, the Inter-
colonial Railway, this so-called great defensive work, is not to pass along
Major Robinson's line. The statement has been made — I have seen it in
newspapers usually well informed — ^that a new route has been found that
will satisfy everybody or nobody at all; and while I am on this point I
must say that it is most singular that we are called upon to vote these
resolutions, and to pledge ourselves to pay ten-twelfths of the cost of that
railway, without knowing whether there will be ten miles or one hundred
miles of it in Lower Canada, or whether it will cost $10,000,000 or
$20,000,000.

Hon. Mr. Hjoltofir— It will be nearer $40,000,000.

Hon. Mr. Dorion — In 1862, when the question of the construction of
this road was before the country, what was the cry raised by honorable
gentlemen opposite? Why ,that the Macdonald-Sicotte Government had
pledged itself to build a railway at whatever cost it might come to; and
those who were loudest in these denunciations, were the very gentlemen
who have now undertaken to build the road without knowing or even
enquiring what the cost of it will be. This, if I remember right, was the
purport of a speech made by the Hon. Attorney General West at Otterville.
I was satisfied, sir, at that time, to press my objections to the scheme and
retire from the Government; but my colleagues were denounced without
stint for having undertaken to build the railway and pay seven-twelfths of
its cost, and now the House is asked by the very men who denounced them
to pay ten-twelfths of it, without even knowing whether the work is prac-
ticable or not. We have heard for some time past that the engineer, Mr.
Fleming, is prepared to make his report. Why is it not forthcoming?—
why has it been kept back? The representatives of the people in this
House will show an utter disregard of their duty if they do not insist upon
having that report, and full explanations respecting the undertaking, as wel!
as the scheme for the constitution of the local governments, before they
vote upon the resolutions before the House. It is folly to suppose that this
Intercolonial Railway will in the least degree be conducive to the defence
of the country. We have expended a large sum of mony — ^and none voted
it more cordially and heartily than myself — for the purpose of opening a
military highway from Gasp^ to Rimouski ; and that road, in case of hos-
tilities with our neighbours, would be found of far greater service for the
transport of troops, cannon and all kinds of munitions of war, than any

654 Constitutional Documents of Canada. [1840-1867

railway following the same or a more southern route possibly can be. That
road cannot be effectually destroyed; but a rslilway lying in some places
not more than fifteen or twenty miles from the frontier, will be of no use
whatever, because of the readiness with which it may be attacked and
seized. An enemy could destroy miles of it before it would be possible to
resist him, and in time of difficulty it would be a mere trap for the troops
passing along it, unless we had almost an army to keep it open. Upon this
question of defence, we have heard so much during die past two or three
years that I think it is time now we should have some plain explanations
about it. We heard the other day from the honorable member for West
Montreal — and I am always glad to quote him, he is usually so correct —
that in less than a vear the American army, the army of the Northern
States, was increased from 9,000 to 800,000 men ready for service, and that
in less than four years they were able to put to sea a fleet which, in point
of numbers — I do not say in armament or value — ^was equal to the entire
naval force of England. Well, the honorable gentleman might have gone
further and shown that within a period of four years the Northern States
have called into the field 2,300,000 men — as many armed men as we have
men ,women and children in the two Canadas — and that we hear every day
of more being raised and equipped. It is stated that, in view of these facts,
it is incumbent upon us to place ourselves in a state of defence. Sir, I say
it here candidly and honestly, that we are bound to do everything we can
to protect the country — ^but we are not bound to ruin ourselves in antici-
pation of a supposed invasion which we could not repel, even with the
assistance of England. The battles of Canada cannot be fought on the
frontier, but on the high seas and at the great cities on the Atlantic coast ;
and it will be nothing but folly for us to cripple ourselves by spendinR
fifteen or twenty milhons a ^ear to raise an army of 50,000 men for the
purpose of resisting an invasion of the country. The best thing that Can-
ada can do is to keep quiet, and to give no cause for war. Let the public
opinion of this country compel the press to cease the attacks it is every day
making upon the Government and people of the United States; and then
if war does come between England and the States— even if from no fault
of ours — we will cast our lot with England and help her to fight the
battle; but in the meantime it is no use whatever to raise or keep up any-
thing like a standing army.

Hon. Atty. Gen. Macdonald — Will my honorable friend let me ask him
how we can assist England in a war on the high seas unless we have a
naval force?

Hon, Mr. Dorion — ^The honorable member for Peterborough stated
the other day, and correctly I believe, that the place for our militia was be-
hind the fortifications of our fortified places, where they would count for
something to be of some use. No doubt of this. Why, sir, it is absurd to
speak of defending this country with such a force as we could maintain
when we have the recent example before our eyes of a country in Europe
possessing as large a defensive force, literally wiped off the map by an
invading army of some 75,000 or 80,000 men. The kingdom of Denmark
consists now of only two small islands — less by far, in extent, than one of
our large counties; and this dismemberment has been forced upon it, al-
thought it had a standing army of 50,000 men, and the feeling of the whole
population was in favor of the war. I do not use this argument for the
purpose of showing that somelhing ought not to be done respecting oar
militia. I am willing that we should make sacrifices, if necessary for the
purpose of organizing it thoroughly; but I am decidedly opposed to a
standing army, and do not believe we could raise an army now that would
be able to withstand the force that could be sent against it. We have sent
to the frontier 2,000 men, whose services for a year will cost us a million
and a half ; and at the same rate of expenditure 50,000 men would cost us
over thirty millions of money. Now, if the whole defence of the country
is to rest upon us, I ask again what would such a force amount to? Now.
sir, when I look into the provisions of this scheme, I find another mdst
objectionable one. It is that which gives the General Government control

1840-1867] Constitutional Documents of Canada, 655

over all the acts of the local le^slatures. What difficulties may not arise
under this system. Now, knowmg that the General Government will be
party in its character, may it not for party purposes reject laws passed by
the local legislatures and demanded by a majority of the people of that
locality. This power conferred upon the General Government has been
compared to the veto jpower that exists in England in respect to our legis-
lation ; but we know that the statesmen of England are not actuated by the
local feelings and prejudices, and do not partake of the local jealousies, that
prevail in the colonies. The local governments have therefore confidence
in them, and res^t for their decisions; and generally, when a law adopted
by a colonial legislature is sent to them, if it does not clash with the policy
of the Empire at large, it is not disallowed, and more especially of late
has it been the policy of the Imperial Government to do whatever the
colonies desire in this respect, when their wishes are constitutionally ex-
pressed. The axiom on which they seem to act is that the less they hear
of the colonies the better. But how different will be the result in this case,
when the General Government exercises the veto power over the acts of
local legislatures. Do you not see that it is quite possible for a majority
in a local government to be opposed to the General Government; and in
such a case the minoritv would call upon the. General Government to dis-
allow the laws enacted by the majority? The men who shall compose the
(General Government will be dependent for their support upon their political
friends in the local legislatures, and it may so happen that, in order to
secure this support, or in order to serve their own purposes or that of their
supporters, they will veto laws which the majority of a local legislature
Hnd necessary and good. We know how high party feeling runs some-
times upon local matters even of trivial importance, and we may find par-
ties so hotly opposed- to each other in the local legislatures, that the whole
power of the minority may be brought to bear upon their friends who
have a majority in the General Legislature, for the purpose of preventing
the passage of some law objectionable to them but desired by the majority
of their own section. What will be the result of such a state of things but
bitterness of feeling, strong political acrimony and dangerous agitation?

But, sir, respecting the defences of the country, I should have said at
an earlier stage of my remarks that this scheme proposes a union not only
with Nova Scotia, New Brunswick, Prince Edward Island, and Newfound-
land, but also with British Columbia and Vancouver's Island. Although
I have not been able to get the information from the Government — for they
do not seem to be very ready to give information — ^yet I understand tfiat
there are despatches to hand, stating that resolutions have been adopted in
the Legislature of British Columbia asking for admission into the Con-
federation at once. I must confess, Mr. Speaker, that it looks like a bur-
lesque to speak as a means of defence of a scheme of Confederation to
unite the whole country extending from Newfoundland to Vancouver's
Island, thousands of miles intervening without any communication, except
through the United States or around Cape Horn.

Hon, Atty. Gen. Cartier — There is an Interoceanic Railway to be built.

Hon. Mr, Dorion — ^Yes, I suppose that is another necessity of Con-
federation, to which we may soon look forward Some western extension
of this Grand Trunk scheme for the benefit of Messrs. Watldn & Co., of
the new Hudson's Bay Company. So far as Lower Canada is concerned,
I need hardly stop to point out the objections to the scheme. It is evident,
from what has transpired, that it is intended eventually to form a legisla-
tive union of all the provinces. The local governments, in addition to the
General Government, will be found so burdensome, that a majority of the
people will appeal to the Imperial Government for the formation of a legis-
lative union. I may well ask if there is any member from Lower Canada,
of French extraction, who is ready to vote for a legislative union. What
do I find in connection with the agitation of this scheme? The honorable

656 Constitutional Documents of Canada, [1840-1867

member for Sherbrooke stated at the dimier to the delegates given at
Toronto, after endorsing everything that had been said by the Honorable
President of the Council: —

IVe may hofe that, at no far distant day, we may become willing to
enter into a Legxslatvve Union instead of a federpl union, as now proposed.
We would have all have desired a legislative union, and to see the power
concentrated in the Central Government as it exists in England, spreading
the aegis of its protection over all the institutions of the land, but we found
it was impossible to do that at first. We found that there were difficul-
ties in the way which could not be overcome.

Honorable members from Lower Canada are made aware that the
delegates all desired a legislative union, but it could not be accomplished
at once. This Confederation is the first necessary step towards it. The
British Government is ready to grant a Federal union at once, and when
that is accomplished the French element will be completely overwhelmed
b^ the majority of British representatives. What then would prevent the
Federal Government from passing a set of resolutions in a similar way to
those we are called upon to pass, without submitting them to the people,
calling upon the Imperial Government to set aside the Federal form of
government and give a legislative union instead of it? Perhaps the people
of Upper Canada think a legislative union a most desirable thing. I can
tell those gentlemen that the people of Lower Canada are attached to their
institutions in a manner that defies any attempt to change them in that
way. They will not change their religious institutions ,their laws and their
language, for any consideration whatever. A million of inhabitants may
seem a small affair to the mind of a philosopher who sits down to write
out a constitution. He may think it would be better that there should be
but one religion, one language and one system of laws, and he goes to work
to frame institutions that will bring all to that desirable state; but I can
tell honorable gentlemen that the hisory of every country goes to show
that not even b^ the power of the sword can such changes be accomplished.
We have the history of the Greek race, having at one time a population of
six millions, dwindling down to seven hundred thousand, and we find them
even then, after several centuries of oppression, rising up and asserting
their rights. We have the same circumstance in the history of Belgium,
which was united to Holland with a view to secure the assimilation of the
two countries, but fifteen years of trial had hardly elapsed when the whole
of the Belgium people and Government rose en masse to protest against
that union, and to assert their separate nationality. Sir, it is not only from
the historv of the past we may derive the lesson, but we have the circum-
stances of the present generation to guide us. I am astonished to see the
honorable member for Montreal West helping a scheme designed to end
in a legislative union, the object of which can only be to assimilate the
whole people to the dominant population. In that honorable gentleman's
own country the system has produced nothing but a dissatisfied and re-
bellious people. Is it desirable that in this country then we should pass a
measure calculated to give dissatisfaction to a million of people? Yoo
may ascertain what the cost of keeping down a million of dissatisfied
people is by the scenes that have been and are now transpiring on the other
side of the line, where a fifth of the people of the United States has arisen
and has caused more misery and misfortune to be heaped upon that country
than could have been wrought in centuries of peaceful compromising legis-
lation. Sir, if a legislative union of the British American Provinces is
attempted, there will be such an agitation in this portion of the province
as was never witnessed before — ^you will see the whole people of Lower
Canada clinging together to resist by all legal and constitutional means,
such an attempt at wresting from them those institutions that they now
enjoy. They would go as a body to the Legislature, voting as one man, and
caring for nothing else but for the protection of their beloved institutions
and law, and making government all but impossible. The ninety Irish
members in the British House of Commons, composed as it is of nearTv
seven hundred members, by voting together have caused their influence to

1840-1867] Constitutional Documents of Canada. 657

be felt, as in tlie grants to the Maynooth College and some other ques-
tions. It wonld be the same way with the people of Lower Canada, and a
more deplorable state of things would be the inevitable result. The ma-
jority would be forced by the minority to do things they would not, under
the circumstances, think of doing. This is a state so undesirable that,
although I am strongly opposed to the proposed Federal union, I am still
more strongly opposed to a legislative union. Those who desire a legisla-
tive union may see from this what discordant elements they would have to
deal with in undertaking the task, and what misery they would bring upon
the country by such a step. I know there is an apprehension among the
British population in Lower Canada that, with even the small power that
the Local Government will possess, their rights will not be respected. How,
then, can it be expected that the French population can anticipate any more
favorable result from the General Government, when it is to possess such
enormous powers over the destinies of their section of the country? Ex-
perience sihows that majorities atre always aggressive, and it cannot well be
otherwise in this instance. It therefore need not be wondered at that the
people of Lower Canada, of British origin, are ready to make use of every
means to prevent their being placed at the mercy of a preponderating popu-
lation of a different origin. I agree with them in thinking that they ought
to take nothing on trust in this matter of entering upon a new state of poli-
tical existence, and neither ought we of French origin to do so, in rela-
tion to the General Government, however happy our relations to each other
may foe at present. . . .

Tuesday, February 21, 1865.
Hon. Solicitor General Langevin^ — . . . . The honorable member for
Hochelaga told us the other day that the plan of a Confederation was
adopted and moved by the present Administration for the mere purpose
of stifling the cry of representation by population. Well, and if it really
were so, where does the honorable member find the harm in it? Is it not
most important that we should stop that cry for representation based on
population, in our present condition ? Representation by population would
have left us Lower Canadians in an inferior position relatively to that of
Upper Canada — would have conferred on the latter the privilege of legis-
lating for us, not only in general, but in local matters. The honorable
member for Hochelaga ought to have been the last to reproach the present
Government with having, foy this measure of Confederation, stopped the
cry for representation based on population. In 1854, the honorable mem-
ber admitted, as >he himself aclmowledges, that representation based on
population was just in principle, and the consequence of that admission
was fatal. The consequence was that the honarable member was compelled
to keep in the same track until the formation of the Brown-Dorion admin-
istration in 1858 — an Administration which had no very long existence.

******

.... The question of representation based on population must be met;
that question must be settled. To say that we will grant it is to wish to
place us in a position of inferiority, and I, for my part, will never consent to
place m^ section of the province in that position. Then there is another
alternative that is ^rcmosedr— annexation to the United States. I do not
believe there is a single member in the House or out of the House who
would consent to the annexation of Canada to the United States. But it
is a question which must be examined when discussing that of Confedera-
tion, because it is one of the alternatives offered to us, and out of which we
have to make a selection.

******

Wlhat would be the fate of the French-Canadians in the case of an-
nexation to the United States? Let us pr(^t by ^e example of the French
race in the United States, and enquire what has been the fate of the French
in Louisiana? What has become of them? What has become of their

^ Hon. H. L. Langevin, Member for Dorchester.

PP

658 Constitutional Documents of Canada, [1840-1867

language, their customs, their manners and their institutions? After the
war, hardly a trace will remain to show that the French race has passed
that way. So far as religion is concerned, we might not find ourselves so
badly off; but we live in peace at the present day and are perfectly com-
fortable; Catholics and Protestants have the same rights and reli^ous
liberty, and they live as peacefully together as if there was but one rehgioa
in the land. . . .

Monday, February 27, 1865.
Mr, Dunkin — .... I am bound to repeat at the outset, that no one
can do justice to a question like this, and start with the idea of at all
ignoring details. Here is a measure proposed for our acceptance, embodied
in seventy-two resolutions, and which resolutions affirm a great many more
than seventy-two propositions, connected with almost every principle known
to have reference to the theory and practice of popular government. I say
it is a scheme which is as complex and as vast as one can well imagine, and
declamation about first principles can be of no real use in its discnsaon —
can avail only to mislead in reference to it. We have to deal with no mere
abstract question of a nationality, or of union or disunion, or of a Federal
as opposed to a Lej;islative union. It is idle to talk vaguely about ^e
maintenance of British connection, or to go into magnificent speculations
about the probable results of independence, or blindly to urge this scheme
as a sure preventative of annexation to the United States. These cheap
and easy generalities are thoroughly unreliable. The only question is, how
is this plan, in its entirety, going to work? And this question is one which
is not easy to answer ; it is one requiring much patience, and a close exam-
ination of details. It is the question which, if the House will lend me its
attention, I will endeavor to discuss to the extent of my ability. I may fur-
ther take leave to say at starting, that I do not approach this question from
any new point of view whatever. Always I have been, and now I am, a
unionist in the strictest and largest sense of the term. I desire to per-
petuate the union between Upper and Lower Canada. I desire to see de-
veloped, the largest union that can possibly be developed (I care not by
what name you call it) between all the colonies, provinces, and depend-
encies of the British Crown. I desire to maintain that intimate union which
ought to subsist, but which unfortunately does not subsist as it ought,
between the Imperial Government and all those dependencies. I am a
unionist, who especially does not desire to see the provinces of Upper and
Lower Canada disunited. To my mind, this scheme does not at all present
itself as one of union; and if honorable gentlemen opposite will admit the
truth, they will acknowledge that, practioilly, it amounts to a disunion be-
tween Upper and Lower Canada. I confess that I am irreconcilably op-
posed to that portion of the scheme. I repeat I do not care to see Upper
and Lower Canada more dissevered than they are ; on the contrary, I wish
to see them brought into closer union ; and far from regarding this scheme
as cementing more closely the connection of these provinces with the British
Empire, I look upon it as tending rather towards a not distant disunion of
these provinces from the British Empire.

* * « 4( « *

If I could be astonished at anything in politics, Mr. Speaker, I should
be astonished at the attempt which has been made by some honorable gen-
tlemen on the Treasury benches to represent the state of the public feeling
on this subject as not having that mere sudden, sensational, unreliable char-
acter which I have ascribed to it. Long forgotten expressions of indi-
vidual opinion ; clauses said to have formed part of bills not to be found,
and not known to have been even drawn; motions threatened but never
made, the small party fencings of past times, from before the days of the
Canada Trade Act downwards, have been pressed into service to meet the
exigencies of a hard case. Well, I shall not follow out that line of argu-
ment ; it is not worth while. We all know that, from the time of the union
of Canada, at all events until very lately indeed, nothing like serious discus-

1840-1867] Constitutional Documents of Canada. 659

sion of the propriety or impropriety of a Federal union, or of any union
at all, of the aggregate of these Briti^ American Provinces, has ever so
Uttlc occupied the public mind.

« « « 4( * 4(

It can hardly be denied, Mr. Speaker, that there is a good deal of
practical objection to the plan of shifting representation districts, which Is
what this system adopts, and what the system of the United States adopted.
Cvery ten years the representation from each province in the House^ of
Commons is to be changed or readjusted by a rule which, for all practical
purposes, is essentially the same as that of the United States. Of course
we have not the little addition of the allowance for the three-fifths of the
slave population which they have ; but decennially we are to take the popu-
lation of the several provinces, and by a rule in all essentials common to
the two systems, we are to declare how many representation districts are
to be allowed to each province. Now, the result of that system must be
that we can have no lasting constituencies for the future House of Com-
mons. These representation districts cannot be kept to correspond with our
municipal, business or registration districts, or with our districts for repre-
sentation in our provincial legislatures. We are to have a set of spedal,
shifting districts for the mere purpose of electing our Federal House of
Commons. I must say that this principle is not, from a British point of
view, a sound one. What we ought to do is, to try to establish in this coun-
try of ours a set of representation districts as permanent and as closely
coinciding with our territorial divisions existing tor other purposes, as cir-
cumstances will allow us to have them ; sub-dividing or otherwise altering
them, or erecting new ones, only as occasion may be found to require.

Hon, Atty. Gen. C artier — ^We will do that for the local parliaments.

Mr, Dunkin — Perhaps so, and perhaps *not. That distinction, however,
is just what I complain of We are to change our districts for purposes of
representation in the local parliaments, if we like, but not unless we like.
These subdivisions of our provinces may thus, in the main, be permanent.
But for representation in ttie Federal Parliament we are, at each of these
decennial periods, to have a general readjustment of the whole country, so
as to divide each province anew into its due number of aliquot parts. This
is an innovation on our usages, greatly for the worse. It goes to destroy
that character of reality, convenience and stability which — if our system, as
a whole, is to have such character — had need be maintained to the utmost
extent practicable, in respect of our constituencies and of our minor ter-
ritorial delimitations generally. This changing every ten years brings to-
gether electors who have not been in the habit of acting with each other.
In England they do nothing of this sort; they do not change their limits
lightlv. The several bodies of men who send representatives to the Im-
perial House of Commons have the habit of so coming together, as bodies
not likely to be broken up. We ought to keep this as an element of our
Constitution, but it is carefully eliminated from it.

For all legislative purposes, we must look to have all our territorial
divisions open to frequent, one might say perpetual, reconstruction; and
this subject perpetually to the disturbing influences of the party warfare
of the hour. The exigencies of that warfare, we may be sure, will tell;
and whatever the party in the ascendent, whether in the country at large
or locally, will find means in this part of our machinery for advancing its
ends— means not quite of the sort to commend themselves to one's ap-
proval

* « « « « «

In the United States, as is admitted, the Senate does a certain part of
what we undertake here to do by means of a Cabinet. The Federal check
so exercised by the Senate renders unnecessary, for any Federal purposes,
the existence of a Cabinet. Indeed they do not want a Cabinet for any
purpose at all. It is not of their system. But here, with our chief magis-
trate not elected, we must have one. And yet, how are we to make it work.

660 Constitutional Documents of Canada. [1840-1867

engrafted on a^stem which, in its essentials, is after all more American
than British? This is what I have now come to. I have to ask honorable
gentlemen opposite how they are going to organize their Cabinet, for these
provinces, according to this so-called Federal scheme? I think I may defy
them to show that the Cabinet can be formed on any other principle than
that of a representation of the several provinces in that Cabinet. It is ad-
mitted that the provinces are .not really represented to any Federal intent
in the Legislative Council. The Cabinet here must discharge all that kind
of function, which in the United States is performed, in the Federal sense,
by the Senate. And precisely as in the United States, wherever a Federal
check is needed, the Senate has to do Federal duty as an integral part of
the Executive Government So here, when that check cannot be so got,
we must seek such substitute for it as we may, in a Federal composition of
the Executive Council ; that is to say, by malong it distinctly representative
of the provinces. Well, I must say that this sort of thing is utterly variant
from, and inconsistent with British practice and British principle ; with the
constitutional system which makes the whole Cabinet responsible for every

act of government. The British Cabinet is no Cabinet of sections but a unit

******

But now, if this Executive Council is to have in it, as I am sure it
must have, in order to work at all, a representation of the different pro-
vinces, all or nearly all of them, let us look for a moment at what will have
to be its number. There are two ways of calculating this — two sets of data
on which to go. Either we must go upon what I may call the wants
of the component parts, or we may start from the wants of the coun-
try as a whole. Suppose, then, we start from the wants of the dif-
ferent provinces. I take it that no section of the Confederation can well
have less than one representative in the Cabinet. Prince Edward Island
will want one; Newfoundland, one. A difficulty presents itself with regard
to Lower Canada. On just the same principle upon which Lower Canada
wants, for Federal ends, to have a proper representation in the Executive
Council, on that same principle the minority populations in Lower Canada
will each want, and reasonably want, the same thing. We have three popu-
lations in Lower Canada — ^the French-Canadians, the Irish Catholics, and
the British Protestants. In other words there are the Catholics and the
non-Catholics, and the English-speaking and the non-English-si»esddng,
and these two cross-lines of division cut our people into the three divisions
I have just indicated. Well, if in a government of this Federal kind the
different populations of Lower Canada are to feel that justice is done
them, none of them are to be there ignored. The consequences of ignoring
them might not be very comfortable. Heretofore, according to g^eral
usage, the normal amount of representation for Lower Canada in the
Executive Council has been six seats out of twelve. Of those, four may
be said legitimately to belong to the French-Canadians, one to the Irish
Catholics, and one to the British Protestant class. Every one is satisfied
that that is about the fairest thing that can be done. There have been times
when these proportions have varied. There have been exceptional times
when the British Protestant population has had to put up with a Solicitor-
General out of the Cabinet, and has done so with no very loud complaint
There has never been a time, I think, when there was not an Irish Catholic
in the Cabinet. There have been times when the number of French-
Canadians has been less than four, and there was then much complaint
Six members — four, one and one — are just about what you must give to
please each section of Lower Canada. Well, sir, if there are to be six for
Lower Canada, there must be six or seven for Upper Canada, and yon
cannot very well leave less than three each for Nova Scotia and New
Brunswick, and, as I have said, one each for Newfoundland and Prince
Edward Island; and thus you have B,n Executive Council of twenty or
twenty-one members, besides 9II we might have to add for other provinces ;
and this, I rather think, is a little too many. The thing could not be done ;
for so large a Cabinet could never work. Suppose then, on the other hand,
that we start with the idea of limiting the number of our Executive Council

1840-1867] Constitutional Documents of Canada. 661

to meet what I may call the exigencies of the country as a whole. Eleven,
twelve or thirteen — ^the latter, as an honourable member observes, is an
unlucky number — will be as many as we can possibly allow. Of this num-
ber one, as before, will be wanted for Newfoundland and one for Prince
Edward Island. If one is wanted for each of the little provinces. New
Brunswick and Nova Scotia will be sorely discontented unless they get, at
least, two apiece; and neither Lower Canada nor Upper Canada will be
contented with the three left for each of them. And for Lower Gainada, in
particular, how will anyone divide this intractable figure between her
French, Irish and Britidi? Shall we give them one apiece, and ask the
French-Canadian element to be content with one voice in a cabinet of a
dozen?— or, give that element two, without satisfying it — so leaving out
either the Irish or the British, to its intense disgust?— or give the prepon-
derating element the whole, to the intense disgust of both the others? It
will be none too easy a task, sir, I think, to form an Executive Council
with its three members for Lower Canada, and satisfy the somewhat press-
ing exigencies of her creeds and races.

Let me first take one feature of the scheme, or, I might say, one absence
of a feature from the scheme — the non-provision of anything like provin
cial constitutions. We are not told about them ; they are kept back com-
pletely in the dark; it is part of the scheme that we are not to know what
it means them to be. It is part of the scheme, too, from all appearance,
that they may not be at all alike. For anything I can see, Nova Scotia
will have a right under this scheme to devise a system of responsible gov-
ernment, with a cabinet atfd two branches of the legislature. New Bruns-
wick, if it pleases, may have only one legislative body, with or without
responsible government. So may the Prince Edward Island people have
anything they like; and the people of Newfoundland may do what the>
like, and so may we in Canada. Lower Canada may even have a con-
stitution of one land, and Upper Canada one of a totally different land.
There may be no two of our six or more local constitutions framed on
the same model. It seems to be meant that these constitutions shall be as
varied as the people of the different provinces may see fit to make them ;
nay, there are even left to the people of the different provinces the same
large powers for amending them afterwards. To be sure there is the grand
power of disallowance by the Federal Government, which we are told, in
one and the same breath, is to be possessed by it, but never exercised.

Hon. Atty. Gen. Cartier — ^The presumption is, it will be exercised in
case of unjust or unwise legislation.

Mr, Dunkin — The hon. gentleman's presumption reminds me of one,
perhaps as conclusive, but which Dickens tells us failed to satisfy his Mr.
Bumble. That henpecked beadle is said to have said, on hearing of the
legal presumption that a man's wife acts under his control: "If the law
presumes anything of the sort, the law's a fool — a natural fool !" If this
permission of disallowance rests on a presumption that the legislation of
our provinces is going to be unjust or unwise, it may be needed; but under
that idea, one might have done better either not to allow, or else to restrict
within narrower limits, such legislation. If the promised non-exercise of
the power to disallow rests on a presumption that all will be done justly
and wisely in the provincial legislatures, the legislative power is well given ;
but then there is no need, on the other hand, for the permission to dis-
allow. I repeat, this system, or no-system, aims at nothing like uniformity
between the general and local constitutions, or between the local constitu-
tions themselves ; and in this respect, it is essentially at variance with the
much wiser system adopted in the United States. It further allows of no
real autonomy; in fact, the only trace of uniformity it can be said to have
about it, consists in its disallowance of all autonomy to the provinces.
Now, let me take up those few features that undoubtedly are given to us,
as characterizing our provincial system. Wide as we have seen the latitude
is which the provinces may take in framing their constitutions^Uiere are a-
f ew matters as to whidi the system lays down an iron rule. There is the

662 Constitutional Documents of Canada, [1840-1867

appointment of a lieutenant-governer which is to be vested in the General
Government It is not said in so many words that he is to be a colonist,
but I think it may be taken for granted that he will be. It is not very
likely that we shall get any right honorable gentleman or eminent states-
men, from home to come out here for an appointment of that kind; and
I take for granted, therefore, that the General Government will always
nominate Mr. Somebody or other, of local distinction, to this office of
lieutenant-governor.

* 4( « « « «

Suppose any of our politicians, whether of this province or of any
other in the Confederacy, say Canada, Newfoundland or Nova Scotia, to be
assuming this role of lieutenant-governor in any of our provinces. He has
this disadvantage to begin with; he has to that moment been passing
through that ordeal of abuse under which every prominent public man in
this country must have suffered before attaining any distinction whatever.
.... No matter over what colony appointed, or from what colony coming,
a lieutenant-governor will have hard cards to play, and wiU have very mod
to put up with from the people over whom he is set, on this mere score of
his past political exploits, and he will not find it easy either, to get along
without exciting a good deal of ill feeling, as he goes. He has been known
as a politician, and will be held to be favorable or unfavorable to this or
that party in the province he governs.

• « « * * « *

But how do we stand here, Mr. Speaker, as to the attributes of our own
provincial legislatures and governments, on the one hand, and those of the
Federal power on the other? Do we follow American example ,and give
so much to the union and the rest to the provinces; or so much to them,
and the rest to it? Either rule would be plain; but this plan follows
neither. It simply gives us a sort of special list for each; making much
common to both, and as to much more, not showing what belongs to

either. I cannot go now into detail on this head. I can give no more

than some few specimens; and I take first the three subjects of the fisheries
agriculture, and immigration. These three subjects are equally assi^ed
to the General Legislature on the one hand, and the Provincial Legisla-
ture on the other. It is provided by the 45tli resolution, that in all sach
cases, wherever any statutes of the general and local parliaments clash,
those of the General Parliament shall override those of the local. So that
in these matters of the fisheries, agriculture and immigration, either the
local legislatures must not legislate at all, or if they do the General Legis-
lature may at any time undo anything they may have done. One can ea^ly
foresee any amount of clashing of authority in such cases. Fishery regu-
lations of all sorts— bounties perhaps; the thousand questions affecting
agriculture. Or to take just one that suggests itself as to immi^ation;
one province wishes, perhaps, to encourage immigration of a certain kind,
say, for instance, from the continent of Europe. It is a legitimate wish;
but the Federal Legislature may, perhaps, in the varying shifts of public
opinion, adopt a different policy, and reverse all that the province may
have done. To what end give powers to the local parliaments which may
thus be taken away at any moment by the Federal Legislature? But, Mr.
Speaker, there are a hundred other cases as to which I could satisfy the
House, had I time for doing so, that more or less of this confusion arises.
Take the subject of marriage and divorce for one — a subject on which
there is a great deal of local prejudice and feeling, and into which even
reli^ous convictions largely enter. That matter is given to the General
Le^slature. But on the other hand the larger - matter, civil rights— of
which this of marriage and divorce, from one point of veiw, forms a mere
part— is given to the local legislatures. I turn to another matter, hap-
hazard— Sie subjects of railway legislation, of railway incorporation, and
of railway amalgamation. What Legislature has power in these matters
under this scheme? I am not sure that there are not here as nice a lot of
pretty little questions as one would desire to see in a summer's day.

1840-1867] Constitutional Documents of Canada. 663

We find it stated that "The seat of Government of the Federated

Provinces shall be Ottawa, subject to the royal prerogative." It is distinctly
laid down as a part of our system that the royal prerogative, the right to
change the seat of the Federal Government at will, is to be maintained.
But I venture to say that the maintaining of that right is simply incon-
sistent with the practical working out of a federal system. And this is a
matter involving a good deal of anomaly, aS honorable gentlemen will see
when they begin to think of it. The Governor General or Viceroy, the all
but king of this Confederacy, with his all but Imperial Government, and
all but ImperiaJ Le^slature, constituted no matter how, resident within
the territorial jurisdiction of a subordinate province! The police of the
Federal capital^ not Federal but provincial ! That thing won't do.

* 4( « « « 4(

We have a large class whose national feelings turn towards London,
whose very heart is there; another large class whose sympathies centre
here at Quebec, or in a sentimental way may have some reference to Paris ;
another large class whose memories are of the Emerald Isle; and yet
another whose comparisons are rather with Washington ; but have we any
class of people who are attached, or whose feelings are going to be directed
with any earnestness, to the city of Ottawa, the centre of the new nation-
ality that is to be created? In the times to come, when men shall begin to
feel stronglv on those questions that appeal to national preferences, pre-
judices and passions, all talk of your new nationality will sound but
strangely. Some other older nationality will then be found to hold the
first place in most people's hearts.

* « 4( « « «

Tuesday, February 28, 1865.

« « « * « «

In all the provinces the provincial governments will, in a quiet way,
want money, and the provincial legislators and people will want it yet more ;
grants for roads and bridges, for schools, for charities, for salaries, for
contingencies of the legislative body — for all manner of ends they will be
wanting money, and where is it to come from? Whether the constitution
of the Provincial Executive savours at all of responsible government or
not, be sure it will not be anxious to bring itself more under the control of
the legislature, or to make itself more odious than it can help, and the
easiest way for it to get money will be from the General Government. I
am not sure, either, but that most members of the provincial legislatures
will like it that way the best. It will not be at all unpopular, the getting
of money so. Quite the contrary. Gentlemen will go to their constituents
with an easy conscience, telling them: "True, we had not much to do in
the Provincial Legislature, and you need not ask very closely what else we
did; but I tell you what, we got the Federal Government to increase the
subvention to our province by five cents a head, and see what this gives
you — $500 to that road — $1,000 to that charity — so much here, so much
there. That we have done ; and have we not done well ?" I am afraid in
many constituencies the answer would be: "Yes, you have done well; go
and do it again." I am afraid the provincial constituencies, legislatures
and executives will all show a most calf-like appetite for the milking of
this one most magnificent government cow.

^ « « 4( * « «

And even this is not all. Not only will you have these comparatively
direct demands — more or less ingeniously, but always irresistibty — made,
but you will have demands made in a more indirect form which it will be
yet easier to carry, from their consequences not being so clearly seen, afad
which will therefore be still worse in their effects. I speak of that tremen-
dous catalogue of outlaws which may be gone into without the appearance
of a grant to any particular province — ^the costly favours which may be
done in respect of interprovindal ferries, steamship lines between or from
the provinces, railways between or through the provinces, telegraph lines

664 Constitutiofial Documents of Canada, [1840^1867

agriculture, immigration, quarantine, fisheries, and so forth. There will be

claims of every description under all these heads; and besides them there

will be the long roll of internal improvements of all kinds whether for the

benefit of one or of more than one of the provinces. For any local work

in which it can be at all pretended that it is of general interest, pressure

may be brought to bear upon the General Government and Legislature, and

whenever one province succeeds in getting any such grant, every other

province must be dealt with in the same way. Compensation must be made

all round, and no human intellect can estimate the degree of extravagance

that before long must become simply inevitable. Sir, with our Upper and

Lower Canada we have had pretty good proof of this. We know that

whenever anvthing has had to be done for one section of this province, it

has constantly been found necessary to do something of the same or of

some other kmd for the other. If either needed anything very badly, then

the ingenui^ of the Minister of Finance had to be exercised to discover

something else of like value to give the other. In one word, unless I am

more mistaken than I think I can be, these local governments will be pretty

good daughters of the horse-leech, and their cry will be found to be pretty

often and pretty successfully — "Give, give, give!"

* m * * * *

We are going to be called upon to spend money for yet another kindred
purpose, and a large amount too — ^and this, as a part of this scheme. Our
star of empire is to wing its way westward; and we are to confederate
everything in its track, from Newfoundland to Vancouver's Island, this
last included. But, between us and it, there lies the Hudson Bay territory.
So, of course, we must acquire that for confederation purposes; and the
plan is, that before we get it we shall have to pay for the elephant —
though, after we get him, we may find him costly and hard to keep.

***** 4(

Disguise it how you may, the idea that tmderlies this plan is this, and
nothing else — that we are to create here a something — ^kingdom, viceroyalty
or principality — something that will soon stand in the same position to-
wards the British Crown that Scotland and Ireland stood in before they
were lej;islatively united with England; a something having no other tie
to the Empire than the one tie of fealty to the British Crown — a tie which
in the cases, first, of Scotland, and then of Ireland, was found, when the
pinch came, to be no tie at all; which did not restrain either Scotland or
Ireland from courses so inconsistent with that of England as to have made
it necessary that their relations should be radically changed, and a legisla-
tive union formed in place of a merely nominal union. Suppose you do
create here a kingdom or a principality, bound to the Empire by this sha-
dow of a tie, the day of trial cannot be far distant, when this common
fealty will be found of as little use in our case as it was in theirs ; when,
in consequence, the question will force itself on the Empire and on us,
between entire separation on the one hand, and a legislative union on the
other. But a legislative union of British America with the United King-
dom must be, in the opinion of, one may say, everybody at home and here,
a sheer utter impossibility ; and when the question shall come to be whether
we are so to be merged in the United Kingdom or are to separate entirely
from it, the answer can only be — "At whatever cost, we separate." Sir, I
believe in my conscience that this step now proposed is one directly and
inevitably tending to that other step; and for that reason— even if I be-
lieved, as I do not, that it bids fair to answer ever so well in the other
respects— because I am an Englishman and hold to the connection with

England, I must be against this scheme.

******

The real danger is not of war with the United States. It is from
what I may call their pacific hostility — from trouble to be wrought by them
within this country — trouble to arise out of refusal of reciprocity — ^repeal
of the bonding system — custom-house anno3rances — passport annoyances;
from their fomenting difficulties here, and taking advantage of out local
jealousies; from the multiplied worries they may cause us by a judicious

1840-1867] Constitutional Documents of Canada, 665

alternation of bullying and coaxing, the thousand incidents which may
easily be made to happen if things are not going on quite well in this
country, and the people and government of the States are minded to make
us feel the consequences of our not getting on quite so well as we might.
Whether the union of the States is restored or not, this kind of thing can
go on. The danger is, that either the whole United States, or those por-
tions of the United States which are near us, and which are really stronger
than we are, and enterprising enough and ambitious enough, and not very
fond of us, and not at all fond of the Mother Country, not at all unwilling
to strike a blow at her and to make us subservient to their own interests
and ambition — ^the danger is, I say, that the United States, or those por-
tions of the United States near us, may avail themselves of every oppor-
tunity to perplex us, to embroil us in trouble, to make us come within the
disturbing influences of their strong local attraction. Now, to pretend to
tell me Siat the United States or the Northern States, whichever you
please, are going to be frightened, from a policy of that kind, by our taking
upon ourselves great airs, and forming ourselves into a grand Confedera-
tion, is to tell me that their people are, like the Chinese, a people to be
frightened by loud noises and ugly grimaces. I do not believe they are.

« « 4( 4( * «

CLXXIX

THE BRITISH NORTH AMERICA ACT, 1867
(30 & 31. Victoria, c. 3)

jIn Act for the Union of Canada, Nova Scotia^ and New Brunswick, and
the Government thereof; and for purposes connected therewith,

(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 (^reat 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 Pro-
vinces and promote the interests of the British Empire:

And whereas on the establishment of the Union by authority of
Parliament, it is expedient not only that the Constitution of the Legis-
lative Authority in the Dominion be provided for, but also that the nature
of the Executive (jovemment therein 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. Pbeliminaky.

1. This Act may be cited as The British North America Act, 1867. Short tide.

2. The provisions of this Act referring to Her Majesty the Queen provisions „.
extend also to the heirs and successors of Her Majesty, Kings and Queens ferrinc to

of the United Kingdom of Great Britain and Ireland. the Queen.

II. Union.

•3. It shall be lawful for the Queen, by and with the advice of Her Declaration
Majesty's Most Honourable Privy Council, to declare by Proclamation of Union,
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

^ '*A single line imported in the system, that mif hty and complex and somewhat
indefinite agvregate called the British Constitution.''^ Hon. Edward Blake, in Tkt
Ontario Land/ Case,

666

Constitutional Documents of Canada, [1840-1867

Construction
of subsequent
provisions of
Act.

Four
Provinces.

Provinces
of Ontmrio
and Quebec ;

Nova Scotia
and New
Brunswick.

Decenial
census.

Executive
power in
tbe Queen.

Provisions re>
f erring to Got
ernor-General.

Constitution
of PrivT
Council for
Canada.

All powers
under Acts to
be exercised
bv Governor-
General with
advice of
Privy Council
or alone.

Proviaioaa
leierrinc to
Governor*
General in
CounciL

New Brunswick shall form and be one Dominion under the name ot
Canada; and on and after that day those three Provinces shall form and
be one Dominion under that name accordingly.'

4. The subsequent provisions of this Act shall, unless it is otherwise
expressed or implied commence and have effect on and after the Union,
that is to say on ana after the day appointed for the Union taking e£Fect
in tne Queen's Proclamation ; and in the same provisions, unless it is other-
wise 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 Ontario,
Quebec, Nova Scotia and New Bnmswick.

6. The parts of the Province of Canada (as it exists at the passing
of this Act) which formerly constituted respectively the Provinces of
Upper Canada and Lower Canada, shall be deemed to be severed, and shall
form two separate Provinces. The part which formerly constituted the
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.

7. The Provinces of Nova Scotia and New Brunswick shall have the
same limits as at the passing of this Act

8. In the general census of the population of Canada, which is hereby
required to be taken in the year One thousand eight hundred and sevoity-
one, and in every tenth year thereafter, the respective populations of the
four Provinces shall be distinguished.

in. Executive Power.

9. The Executive Government and authority of and over Canada is
hereby declared to continue and be vested in the Queen.

10. The Provisions of this Act referring to the Governor-General
-extend and apply to the Governor-General for the time being of Canada,
or other the Chief Executive Officer or Administrator for the time being
carrying on the Government of Canada, on behalf and in the name of the
Queen, by whatever title he is designated.

11. There shall be a Council to aid and advise in the Government of
Canada, to be styled the Queen's Privy Council for Canada; and the per-
sons who are to be Members 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.

12. All Powers, Authorities, and Functions which under any Act of
the Parliament of Great Britain, or of the Parliament of the United King-
dom of Great Britain and Ireland, or of the Legislature of Upper Canada,
Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union
vested in or exercisable by the respective Governors or Lieutenant-Gov-
ernors 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 continue
in existence and capable of being exercised after the Union in relation to
the Government of Canada, be vested in and exercisable by the Governor-
General with the advice, or with the advice and consent of, or in conjunc-
tion with the Queen's Frivy Council for Canada or any Members thereof,
or by the Governor-General individually, as the case requires, subject never
theless (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.

13. The provisions of this Act referring to the Govemor-General-in
Council shall be construed as referring to the Governor-General acting by
and with the advice of the Queen's Privy Council for Canada.'

1 The Federal Constitution came into force 1 July, 1867.

* For the powera of the Governor-General, aee Nos. CLXXXm,

1840-1867] ConstiiuHofuU Documents of Canada. 667

14. It shall be lawful for the Queen, if Her Majesty thinks fit, to Power to Her
authorize the Governor-General from time to time to appoint any Person J^'Jil^JJJ^^
or any persons jointly or severally to be his deputy or deputies within anyGoveraor-
part or parts of Canada, and in that capacity to exercise, during theGeaermlto
pleasure of the Governor-General such of the powers, authorities, ^ndJS^^^
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 expressed 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.

15. The Command-in-Chief of the Land and Naval Militia, and of all Command of
Naval and Military Forces of and in Canada, is hereby declared to continue*""^ forces,
and be vested in the Queen.

16. Until the Queen otherwise directs the Seat of Government oiSemtof
Canada shall be Ottawa. Government.

IV. Legislative Power.

17. There shall be one Parliament for Canada, consisting of thcof parSunent
Queen, an Upper House, styled the Senate, and the House of Commons, of Canada.

18. The privileges, immunities, and powers to be held, enjoyed, andpriTilegea,
exercised by the Senate and by the House of Commons and by the Mem- etc.. of
bcrs 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.*

19. The Parliament of Canada shall be called together not later than ^ p^^^flJI^ent
six months after the Union.'

20. There shall be a session of the Parliament of Canada once at Yeu-ly sesaion
least in every year, so that twelve months shall not intervene between thcjf J^'jJJJ*"*
last sitting of the Parliament in one Session and its first sitting in the

next Session.

The Senate.

21. The Senate shall, subject to the provisions of this Act, consist of Number of
seventy-two Members*, who shall be styled Senators. senatora.

22. In relation to the constitution of the Senate, Canada shall he'^^vn*^^-
deemed to consist of three divisions : — rSes in

(1) Ontario; Senate.

(2) Quebec;

(3) The Maritime Provinces; Nova Scotia and New Brunswick;
which three 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 Pro-
vinces by Twenty-four Senators, Twelve thereof representing Nova
Scotia, and Twelve thereof representing New Brunswick.

In the case of Quebec, each of the twenty-four Senators repre-
senting that Province shall be appointed for one of the twenty-four
Electoral Divisions of Lower Canada specified in Schedule A to Chap-
ter I of the Consolidated Statutes of Canada.

23. The qualifications of a Senator shall be as follows: — Qnalificationa

(1) He shall be of the full age of thirty years; of Senator..

(2) He shall be either a natural-bom subject of the Queen, or a sub-
ject 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 Canada, Canada, Nova Scotia, or New Brunswick
before the Union, or of the Parliament of Canada after the Union :
<3) 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 soccage,

* For an amending Act to this aection, tee No. CLXXXII and note.

* The firat Dominion Parliament met 7 NoTember, 1967,
" See No. CLXXXVIII.

668

CoHStUutionat Documents of Canada. [1840-1867

Shhiib^m of
Senator.

Summon! of
first bodj
of Senator*.

Addition of
Senators In
certain

Reduction of
Senate to nor-
mal number.

Number of
Senators.

Tenure of
place.

Resignation
of place in
Senate.

Diaqnallfica^

tionof

Senators.

or seised or possessed for his own use and benefit of lands or tene-
ments 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, mortgsiges, and incumbrances due, or
payable out of or charged on or affecting the same:

(4) His real and personal property shall be together worth four
thousand dollars over and above his debts and liabilities:

(5) He shall be resident in the Province for which he is appointed:

(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 the Queen*s
name, by Instrument under the Great Seal of Canada, summon qualified
persons to the Senate; and, subject to the provisions of this Act, every
person so summoned shall become and be a member of the Senate and a
Senator.

25. Such persons shall be first summoned to the Senate as the Queen
by Warrant under Her Majesty's Royal Sign Manual thinks fit to approve,
and their names shall be inserted in the Queen's Proclamation of Union.

26. If at any time, on the recommendation of the Governor-General.
the Queen thinks fit to direct that three or 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 Governor-
General shall not summon any person to the Senate, except on a further
like direction by the Queen on the like recommendation, until 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 exceed seventy-
eight

29. A Senator shall, subject to the provisions of this Act, hold his
place in the Senate for life.

30. A Senator may by wHting under his hand, addressed to the Gov-
ernor-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 of the following
cases : —

(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 adherence 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;

(3) If he is adjudged bankrupt or insolvent, or applies for the benefit
of any law relating 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 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 tinder that
Government requiring his presence there.

^ This section is due to a suggestion made by tlie British Government tkat a loop-
hole oui^t to be provided in case of deadlock between the Senate and the House of
Commons. In 18/3 the Goremor-General fulfilled the requirements of the section, and
the Colonial Office replied by a refusal, stating that the Crown would not act except
"when it had been made apparent that a difFerence had arisen between the two Hoowt
of so serious and permanent a character that the Government could not be carried on
without the Crown's intervention, and when it could be shown that the limited creatioa
of Senators allowed by the Act would apply an adequate remedy." Camaditm SestioMd
Papgrs, 1877, No. 68.)

1840-1867] Constitutional Documents of Canada. 669

32. When a vacancy happens in the Senate by resignation, death, orSj^moiwon
otherwise, the Governor-General shall by summons to a fit and qualified sSiSf
person fill the vacancy.

33. If any question arises respecting the qualification of a Senator ^^ ^^**^
or a vacancy in the Senate, the same shall be heard and determined by the^*^®"**
Senate.

34. The Governor-General may from time to time, by Instrument -Apgwitmeiit
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.

35. Until the Parliament of Canada otherwise provides, the presence Quorum of
of at least fifteen Senators, including the Speaker, shall be necessary to^^*^^*
constitute a meeting of the Senate for the exercise of its powers. v *j *

36. Questions arising in the Senate shall be decided by a majority o^S^f "*
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.

37. The House of Commons shall, subject to the provisions of this^|^^2^®"
Act, consist of one hundred and eighty-one Members, of whom eighty-two of Commons,
shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova

Scotia, and fifteen for New Brunswick.*

38. The Governor-General shall from time to time, m the Queen's Jf|J^™f
name, by Instrument under the Great Seal of Canada, summon and call Commons,
together the House of Commons.

39. A Senator shall not be capable of being elected or of sitting or^JKJ^S^^^
voting as a Member of the House of Commons. of Commons.

40. Until the Parliament of Canada otherwise provides, Ontario,
Quebec, Nova Scotia, and New Brunswick shall, for the purposes of thcgjjj^"^!
Election of Members to serve in the House of Commons, be divided in to the Four
Electoral Districts as follows: — Provinces.

1. Ontario.

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
in that Schedule being entitled to return one Member.

2. Quebec.

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
at the Union, so that each such Electoral Division shall be for the purposes
of this Act an Electoral District entitled to return one Member.

3. Nova Scotia.

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. New Brunswick.

Each of the fourteen Counties into which New Brunswick is divided,
including the City and County of St. John, shall be an Electoral District.
The City of St. John shall also be a separate Electoral District. Each
of those fifteen Electoral Districts shall be entitled to return one Member.

41. Until the Parliament of Canada otherwise provides all laws inC^ntinusnce
force in the several Provinces of the Union, relative to the following ^^^'^i^^SS^fAWB
ters or any of them, namely: — the qualifications and disqualifications ofuntUParlia-
persons to be elected or to sit or vote as Members of the House ofment of Can-
Assembly or Legislative Assembly in the several Provinces, the Voters ^^pri^dST'*^

< Sec below. Section 51.

670

Constitutional Documents of Canada. [1840-1867

Write for first
election.

Actocutial
vacancies.

As to election
of Speaker.

As to filling
ap ▼acancT
in office of
Speaker.

Speaker to
preside.

Provision in
case of absence
of Speaker.

Quorum of
House of
Conunons.

Voting in
House of
Commons.

Its duration.

Decennial
readjustment
of represent
tation.

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 Elec-
tions and proceedings incident thereto, the vacating of seats of Members,
and the execution of new Writs in cases of seats vacated otherwise than
by dissolution, — ^shall respectively 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 addi-
tion to persons qualified by the law of the Province of Qinada to vote,
every male British Subject, aged Twenty-one years or upwards, being a
householder, shall have a vote.

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 addressed 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 Members to serve in the respective House of
Assembly or Legislative Assembly of the Provinces 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 Lcs^islative Assembly.

AS. 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 before provision is made by the Parlia-
ment in this behalf, the provisions of the last foregoing Section of this Act
shall extend and apply to the issuing and returnmg of a Writ in respect
of such vacant District.

44. The House of Commons on its first assembling after a General
Election shall proceed with all practicable speed to elect one of its members
to be Speaker.

45. In case of a vacancy happening in the office of Speaker by death,
resignation, or otherwise, the House of Commons shall with all practicable
speed proceed to elect another of its members to be Speaker.

46. The Speaker shall preside at all meetings of the House of Com-
mons.

47. Until the Parliament of Canada otherwise provides, in case of
the absence for any reason of the Speaker from the Chair of the House ot
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 House of Com-
mons shall be necessary to constitute a meeting of the House for the
exercise of its powers, and for that purpose the Speaker shall be redconed
as a Member.

49. Questions arising in the House of Commons shall be decided by
a majority of voices other than that of the 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 years from the
day of the return of the Writs for choosing 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 thousand eight
hundred and seventy-one, and of each subsequent decennial census, the
representation of the four Provinces shall be readjusted 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*:
< See Sir John Macdonald's reasons for this section (p. 611).

1840-1867] CotistituHonal Documents of Canada. . 671

(2) There shall be assigned to each of the other Provinces such a
number of Members as will bear the same proportion to the number
of its population (ascertained at such census) as the number sixty-
five bears to the number of the population of Quebec (so ascertained) ;

(3) In the computation of the number of Members for a Province,
a fractional part not exceeding 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 die whole number :

(4) On any such readjustment the number of Members for a Pro-
vince shall not be reduced unless the proportion which the number of
the population of the Province bore to the number of the aggregate
population of Canada at the then last preceding^ readjustment of the
number of Members for the Province is ascertamed at the then latest
census, to be diminished by one-twentieth part or upwards:

(5) Such readjustment shall not take effect until the termination of
the then existmg Parliament.

52. The number of Members of the House of Commons may be from^*"^***** of
time to time increased by the Parliament of Canada, provided the propor-||^^of
tionate representation of the Provinces prescribed by this Act is not thereby Commons,
disturbed.

Money Votes; Royal Assent.

53. Bills for appropriating any part of the Public Revenue, or for^ivroprifttion
imposing any Tax or Impost, shall originate in the House of Commons.

54. It shall not be lawful for the House of Commons to adopt or Recommendm-
pass any Vote, Resolution, Address, or Bill for the appropriation of any^oj^'f Money
part of the Public Revenue, or of any Tax or Impost, to any purpose, that ^®***-

has not been first recommended to that House by Message of the Governor-
General in the Session in which such Vote, Resolution, Address, or Bill is
proposed.

55. Where a Bill passed by the Houses of Parliament is presented to Royal assent
the (jovemor-General for the Queen's a-ssent, 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\

56. Where the (jovernor-General assents to a Bill in the Queen's puMfcJijwaiice
name, he shall by the first convenient opportunity send an authentic copy ^^^i of"
of the Act to one of Her Majesty's Principal Secretaries of State, and if Act assented
the Queen in Council within two years after receipt thereof by the Secre-tobyGover-
tary 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 pleasure shall Signilication
not have any force unless and until within two years from the day onJiejUS^on
which it was presented to the Cjovemor-(}eneral for the Queen's Assent, Bill rescrred.
the Cjovemor-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 Cxnmdl.

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.
Excutive Power,

58. For each Province there shall he an Officer, styled the Lieutenant- -^fjwtment
Governor, appointed by the Governor-General in Council by Instrument SL"!??2*"*'
under the Great Seal of Canada. Go^ernon.

< See No. CLXXXIII, note.

672

ConstituHonal Documents of Canada. [1840-1867

Tenure of
office of
Lietttenaat*
Goremor.

Salaries of

Lieutenant*

Governora.

Oaths, etc., of

Lieutenant-

Govemor.

Application
ofproviaiona
referring to
Lieutenant*
Governor.

Appointment
of ExectttiTe
Officers for
Ontario and
Quebec.

Government
of Nova Scotia
and New
Brunswick.

Powers to be
exercised by
Lieutenant*
Governor of
Ontario or
Quebec with
advice or
alone.

As to Lieuten-
ant-Governor
in Council.

As to absence,
etc., of
Lieutenant*
Governor.

Seats of Pro-
vincial Gov*
ernments.

59. A Lieutenant-Goveraor shall hold office daring the pleasure of
the Governor-General^; but any Lieutenant-Governor appointed after the
commencement of the first Session of the Parliament of Canada shall not
be removable 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 fixed and
provided by the Parliament of Canada.

61. Every Lieutenant-Governor shall, before assuming the duties of
his office make and subscribe before the Governor^General or some person
authorized by him, Oaths of Allegiance and Office similar to those taken
by the Governor-General.

62. The provisions of this Act referring to the Lieutenant-Governor
extend and apply to the Lieutenant-Governor 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.

63. The Executive Council of Ontario and of Quebec shall be com-
posed of such persons as the Lieutenant-Governor from time to time
thinks fit, and in the first instance of the following Officers, namely: the
Attorney-General, the Secretary and Registrar of the Province, the Treas-
urer of the Province, the Commissioner of Crown Lands, and the Com-
missioner of Agriculture and Public Works, with, in Quebec, the Speaker
of the L^islative Council and the Solicitor-General.

64. The Constitution of the Executive Authority in each of the Pro*
vinces of Nova Scotia and New Brunswick shall, subject to the provisions
of this Act, continue as it exists at the Union, until altered under the
authority of this Act.

65. 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 exercisable 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 Coun-
cils 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 respectively, be vested in and shall or may be exercised by the
Lieutenant-Governor of Ontario and Quebec respectively, with the advice,
or with the advice and consent of, or in conjunction with the respective
Executive Councils or any Members thereof, or by the Lieutenant-Gov-
ernor individually, as the case requires, subject nevertheless (except with
respect to such as exist under Acts of tiie Parliament of Great Britain, or
of the Parliament of the United Kingdom of Great Britain and Ireland),
to be abolished or altered by the respective Legislatures of Ontario and
Quebec.

66. The provisions of this Act referring to the Lieutenant-Governor
in Council shall be construed as referring to the Lieutenant-Governor of
the Province acting by and with the advice of the Executive Council
thereof.

67. The Governor-General in Council may from time to time appoint
an Administrator to execute the office and functions of Lieutenant-<jov-
emor during his absence, illness, or other inability.

68. Unless and until the Executive Government of any Province
otherwise directs with respect to that Province, the seats of Government
of the Provinces shall be as follows, namely,— of Ontario, the City of

* For cases of dismissal of Lieutenant-Governors, see Todd, Pariitmemimry
Government in BrUisk ColonUs; Willison, Sir WUfrid Louritr •nd the Libert Pmrty,

1840-1867] Constitutional Documents of Canada. 673

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. Ontario.

69. There shall be a Legislature for Ontario, consisting of the Lieu- LegitUture
tenant-Governor and of one House, styled the Legislative Assembly off^*"^*"*®*
Ontario.

70. The Legislative Assembly of Ontario shall be composed of Eighty- Electortol
two Members, to be elected to represent the Eighty-two Electoral Districts ™»**^«*^-
set forth in the First Schedule to this Act

2. Quebec.

71. There shall be a Legislature for Quebec, consisting of the Lieu- pgjaUtujre
tenant-Governor and of two Houses, styled the Legislative Council of '®''"***'***^
Quebec and the Legislative Assembly of Quebec.

72. The Legislative Council of Quebec shall be composed of Twenty- Constitution
four Members, to be appointed by the Lieutenant-Governor in the Queen's gjjjj^"*'^*
name by Instrument under the Great Seal of Quebec, one being appointed

to represent 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 Qud)ec otherwise provides under the provisions

of this Act Oiiallfic #•

73. The qualifications of the Legislative Councillors of Quebec shall *^[^^|l^"^
be the same as those of the Senators for Quebec. CounciUon.

74. The place of a Legislative Councillor of Quebec shall become ](QslgQ^i£oQ^
vacant in the cases, mutatis mutandis, in which the place of Senator be- etc.
conies vacant

75. When a vacancy happens in the Legislative Council of Quebec ^•*»'*<^i««-
by resignation, death, or otherwise, the Lieutenant-Governor, in the Queen's
name, by Instrument under the Great Seal of Quebec, shall appoint a fit

and qualified persqn to fill the vacancy.

76. If any question arises respecting the qualification of a Legislative QtiettionB as
Councillor of Quebec, or a vacancy in the Legislative Council of Quebec, ^^■^•"^•••»
the same shall be heard and determined by the Legislative Council.

77. The Lieutenant-Governor may, from time to time, by Instrument Speaker of
under the Great Seal of Quebec, appoint a Member of the Legislative ^^J*!
Council of Quebec, to be Speaker thereof, and may remove him and ap-
point another in his stead.

78. Until the Legislature of Quebec otherwise provides, the presence P«o™mo'
of at least ten Members of the Legislative Council, mduding the Speaker, ^^^^^^^
shall be necessary to constitute a meeting for the exercise of its powers.

79. Questions arising in the Legislative Council of Quebec shall beVj*}njiiin
decided by a majority of voices, and the Speaker shall in all cases have acSJSciK
vote, and when the voices are equal, the decision shall be deemed to-be in

the negative.

80. The Legislative Assembly of Quebec shall be composed of Sixty- Con^utlon
five Members, to be elected to represent the Sixty-five Electoral Divisions J^J^^Sy
or Districts of Lower Canada in this Act referred to, subject to alteration of Quebec,
thereof by the Legislature of Quebec : Provided that it shall not be lawful

to present to the Lieutenant-Governor of Quebec for assent 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 concur-
rence^ of the majority of the Members representing all those Electoral
Divisions or Districts, and the assent shall not be given to such Bill unless
an address has been presented by the Legislative Assembly to the Lieuten-
ant-Governor, stating that it has been so passed.

3. Ontario and Quebec.

81. The Legislatures of Ontario and Quebec respectively shall beJJ^^JK.
called together not later than six months after the Union. tttret.

QQ

674

Constitutional Documents of Canada. [184Q-1867

SvaiflioBiiic
of LfgiiiattVe
AflMmblict.

cloctioii of
holders of

OflMC.

on

Contintiaficc
of existing
election laws.

82. The Lietttenant-Govemor of Ontario and of Qnebec shall, from
time to time, in the Queen's name, by Instrament nnder the Great Seal of
the Province, summon and call together the Legislative Assembly of the
Province.

83. Until the Legislature of Ontario or of Quebec otherwise provides,
a person accepting or holding in Ontario or in Quebec any oflice, commis-
sion, or employment, permanent or temporary at the nomination of the
Lieutenant-Governor, to which an annual salary, 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 such; 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 fol-
lowing 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.

84. Until the Legislatures of Ontario and Quebec respectively other-
wise provide, all laws which at the Union are in force in those Provinces
respectively, relative to the following matters or any of them, namely,—
the qualifications and disqualifications of persons to be elected or to sit or
vote as Members of the Assembly of Canada, the qualifications or disquali-
fications of voters, the oaths to be taken by voters, the Returning Officers,
their powers and duties, the proceedings at Elections, the periods during
which such Elections may be continued, and the trial of controverted
Elections and the proceedings incident thereto, the vacating of the seats
of Members, and the issuing and execution of new Writs in case of seats
vacated otherwise than by dissolution, shall respectively apply to Elections
of Members to serve in the respective Legislative Assend>lies 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 addition 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.

85. Every Legislative Assembly of Ontario and every Legislative
Assembly of Quebec shall continue for four years 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.

86. There shall be a Session of the 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 next Session.

87. The 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, — Ae provisions relating to the Elec-
tion of a Speaker originallv and on vacancies, the duties of the Speaker, the
absence of the Speaker, the quorum, and the mode of voting, as if diose
provisions were here re-enacted and made applicable in terms to each such
Legislative Assembly.

4. Nova Scotia and New Brunswick.

Constkjtions 88. The Constitution of the Legislature of each of the Provinces of

turesof Nora Nova Scotia and New Brunswick shall, subject to the provisions of this
Scotia and Act, continue as it exists at the Union until altered under the Authoritr
wkSL^"*"** of this Act; and the House of Assembly of New Brunswick existing at

the passing of this Act shall, unless sooned dissolved, continue for the

period for which it was elected.

Duration of

Legislative

Assembliea

Yearly
Session of
Legislature.

Speaker,
quorum, etc.

1840-1867] ConsHtuHonal Docutnents of Canada. 675

5. Ontario, Quebec and Nova Scotia.

89. Each of the Lieutenant-Governors of Ontario, Quebec, and Nova First Elec-
Scotia, shall cause Writs to be issued for the first Election of Members of ^■^>'**
Uie L<^slative 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 Election 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 District.

6. The Four Provinces.

90. The following provisions of this Act respecting the Parliament APPUcatioa to
of Canada, namely, — ^the provisions relating to appropriation and tax Bills, ^|j!J{^]^o^3
the recommendation of money votes, the assent to Bills, the disallowance respecting
of Acts*, and the signification of pleasure on Bills reserved, — shall extend 2?"*^^***"*
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 Pro-
vinces and the Legislatures thereof, with the substitution of the Lieutenant-
Governor of the Province for the Governor-General, of the Governor-
General for Queen and for a Secretary of State, of one year for two years
and of the Province for Canada.

VL Distribution of Legislative Powers.

Powers of the Parliament*

91. It shall be lawful for the Queen, by and with the advice and con- Le«^»Jiv«
sent of the Senate and House of Commons, to make laws for the P^ce,p^^^^^{
order and good government of Canada in relation to all matters not coming Canada,
within the classes of subjects by this Act assigned exclusively to the Legis-
latures 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 (notwithstanding anythitij^ in this Act) the exclusive Legislative Au-
thority of the Parliament of Qinada extends to all matters coming within
the classes of subjects next hereinafter enumerated, that is to say: —

1. The Public Debt and Property:

2. The reflation of Trade and Commerce:

3. The raising of money by any mode or system of Taxation :

4. The borrowing of money on the Public Credit:

5. Postal Service:

6. 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, Lip;hthouses, and Sable Island:

10. Navigation and Shipping:

11. Quarantine and the establishment and maintenance of Marine Hos-

pitals:

12. Sea Coast and Inland Fisheries: ^

13. Ferries between a Province and any British or Foreign Country,

or between two Provinces:

14. Currency and Coinage :

15. 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:

^ For the disallowance and reserration of Provincial Acts, see Canadian Sessional
Papers, 1870. No. 35, Ibid, 1886. Consult also, Hodgins and Gisborne, The Corres-
pondtnca .... tipon th€ subject of Dominion and Provincial Legislation, 1867- 1903,
19041906.

>For an exhaustive summarj of the interpretation hy the Courts of Sections 91
and 92, see E. R. Cameron, The Canadian Constitufion (Winnipeg, 1915), and Lefroy
and Kennedy, Treatise on Canadian Consiiiutional Law (1918).

676

Cotistitutional Documents of Canada. [1840-1867

Subjects of
exclusive
Provincial
Legislation.

\

20. Legal Tender:

21. Bankruptcy and Insolvency:

22. Patents of Invention and Discovery :

23. Copyrights :

24. Indians and Lands reserved for the Indians:

25. Naturalization and Aliens:

26. Marria^ and Divorce:

27. The Criminal Law, except the Constitution of the Courts of Crim-

inal Jurisdiction, but including the Procedure in Criminal Mat-
ters:

28. The establishment, maintenance and management of Penitentiaries:

29. Such Classes of Subjects as are expressly excepted in the enumera-

tion of the Qasses of Subjects by this Act assigned exclusively
to the Legislatures of the rrovinces:
And any matter coming within any of the Qasses of Subjects enum-
erated in this section shall not be deemed to come within the Class of
matters of a local or private nature comprised in the Enumeration of the
Classes of Subjects by this Act assigned exclusively to the Legislatures of
the Provinces.

Exclusive Powers of Provincial Legislatures.

92. In each Province the Legislature may exclusively make laws in
relation to matters coming within the Qasses of Subjects next hereinafter
enumerated ; that is to say : —

1. The amendment from time to time, notwithstanding anything 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:

3. The borrowing of money on Uie sole credit of the Province:

4. The establishment and tenure of Provincial Offices, and the appoint-

ment and payment of Provinciid officers:

5. 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 Hospitals,

Asylums, Charities, and Eleemosynary Institutions in and for
the Provinces, other than Marine Hospitals:

8. Municipal Institutions in the Province:

9. Shop, Saloon, Tavern, Auctioneer, and other Licenses, in order

to the raising of a Revenue for Provincial, Local, or Municipal
Purposes :
10. Local works and undertakings, other than such as are of the fol-
lowing classes:

a. Lines of Steam or other Ships, Railways, Canals, Telegraphs,
and other works and undertakings connecting the Province
with any other or others of the Provinces, or extending be-
yond the limits of the Province :

b. Lines of Steam Ships 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 more of the Provinces:

n. The Incorporation of Companies with Provincial Objects:

12. The Solemnization of Marriage in the Province :

13. Property and civil rights in the Province:

14. The Administration of Justice in the Province, including the con-

stitution, maintenance ,and organization of Provindal Courts,
both of Civil and of Criminal Jurisdiction, and including proce-
dure in civil matters in those Courts :

1840-1867] Constitutional Documents of Canada, 677

15. The imposition of punishment by fine, penalty, or imprisonment

for enforcing any Law of the Province made in relation to any
matter coming within any of the classes of subjects enumerated
in this Section :

16. Generally all matters of a merely local or private nature in the

Province.

Education.

93. In and for each Province the Legislature may exclusively make LegtoUtion
laws in relation to Education, subject and according to the following pro-^^^j-^
visions :

(1) Nothing in any such law shall prejudicially affect any right or
privilege with respect to Denominational Schools which any class of per-
sons have by law in the Province at the Union :^

(2) Ail the powers, privileges, and duties at the Union by law con-
ferred and imposed in Upper Csmada 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 Schools of the Queen's Protestant
and Roman Catholic Subjects in Quebec ;

(3) Where in any Province a system of separate or Dissentient
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 of 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;

(4) In case any such Provincial law as from time to time seems to
the Governor-General in Council requisite 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 Parliament 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 Laws in Ontario, Nova Scotia, and New Brunswick,

94. Notwithstanding anything in this Act, the Parliament of CanadaLegisUtion
may make provision for the uniformity of all or any of the laws relative f^rmit^ of
to property and civil rights in Ontario, Nova Scotia, and New Brunswick, Uws in tbree
and of the procedure of all or any of the Courts in those three Provinces, Provinces,
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 com-
prised in any such Act shall, notwithstanding anything in this Act, be un-
restricted ; but any Act of the Parliament of Canada making provision for
such uniformity shall not have effect in any Province unless and until it is
adopted and enacted as law by the Legislature thereof.

Agriculture and Immigration.

95. In each Province the Legislature may make laws in relation to Concurrent
Agriculture in the Province, and to Immigration into the Province; and itf^^^Stion
is hereby declared that the Parliament of Canada may from time to time ret|>ecting
make laws in relation to Agriculture in all or any of the Provinces, and to Agriculture,
Immigration into all or any of the Provinces ; and any law of the Legisla- **^*

ture of a Province, relative to Agriculture 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. JUDICATUHE.

96. The Governor-General shall appoint the Judges of the Superior. ^}2d«S?*"*
District, and County Courts in each Province, except those of the Courts

of Probate in Nova Scotia and New Brunswick

' For the school question, see Willison, op. cit.. Vol. II. For leading cases, see
Maker ▼. Town of Portland; City of Winnipeg r. Barrett; Brophy ▼. Att. Gen. of
Manitoba, reported in Wheeler, Confederation Law of Canada, pp. 339 ff., 371 ff.,
376 ff.. For the Manitoba proTiaions, aee No. CLXXX, i 22.

678

Constitutional Documents of Canada. [1840-1867

Selection of
Judges m
Ontario, etc. ;

In Quebec.

Tenure of
office of
Judges of
Superior
Courts.
Salaries, etc.,
of JudgM.

General Court
of Appeal, etc.

Creation of
Consolidated
Revenue
Fund.

Expenses of
Collection, etc.

Interest of
Provincial
public debts.

Salary of
Governor-
General.

Appropriation
from time
to time.

Transfer of
Stocks, etc.

Transfer of

propcrt;

Schedul

property m
' lie.

Property in
Lands,
Mines, etc.

Assets con-
ted with

97. Until the laws relative to property and civil rights in Ontario,
Nova Scotia and New Brunswick, and the procedure of 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 from the
Bar of that Province.

99. The Judges of the Superior Courts shall hold office during good
behaviour, but shall be removable by the Governor-General on address of
the Senate and House of Commons.

100. The salaries, allowances, and pensions of the Judges 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 Judges thereof are for the time being paid by salary, shall be
fixed and provided by the Parliament of Canada.

101. The Parliament of Canada may, notwithstanding anything in this
Act, from time to time, provide for the constitution, maintenance, and
organization of a General Court of Appeal for Canada, and for the estab-
lishment of any additional Courts for the better Administration of the
Laws of Canada.

VIII. Revenues ; Debts ; Assets ; Taxation.

102. All Duties and Revenues over which the respective Legislattires
of Canada, Nova Scotia, and New Brunswick before and at the Union,
had and have power of appropriation, except such portions thereof as are
by this Act reserved to the respective Legislatures 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 diarges
in this Act provided.

103. The Consolidated Revenue Fund of Canada shall be permanently
charged with the costs, charges and expenses 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 Brunswick at the Union shall form the
second charge on the Consolidated Revenue Fund of Canada.

105. Unless altered by the Parliament of Canada, the salary of the
Governor-General shall be Ten Thousand Pounds sterling money of the
United King^dom of Great Britain and Ireland, payable out of tfie Con-
solidated Revenue Fund of Canada, and the same shall form the third
charge thereon.

106. Subject to the several payments by this Act charged on the Con-
solidated Revenue Fund of Canada, the same shall be appropriated by the
Parliament of Canada for the public service.

107. All Stocks, Cash, Bankers' Balances, and Securities for money
belonging to each Province at the time of the Union, except as in this
Act mentioned, shall be the property of Canada, and shall be taken in re-
duction of the amount of the respective debts of the Provinces at the Union.

108. The Public Works and Property of each Province enumerated
in the Third Schedule to this Act shall be the Property of Canada.

109. All Lands, Mines, Minerals, and Royalties belonging to the sev-
eral Provinces of Canada, Nova Scotia, and New 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, Nova
Scotia, and New Brunswick in which the same are sittiate or arise, subject
to any trusts existing in respect thereof, and to any interest other than that
of the Province in the same.

110. All Assets connected with such portions of the Public Debt of

\

1840-1867] Constitutional Documents of Canada. 679

each Province as are assumed by that Province shall belong to that Pro- ^ovinciai
vince.

111. Canada shall be liable for the Debts and Liabilities of each P^o-C^^to
vince existing at the Union. to Stem.

112. Ontario and Quebec conjointly shall be liable to Canada for the
amount (if any) by which the debt of the Province of Canada exceeds at S^^Hj^'and
the Union Sixty-two million five hundred thousand dollars, and shall begg^),^,
charged with interest at the rate of five per centum per annum thereon.

113. The assets enumerated in the Fourth Schedule to this Act, be- Assets of
longing at the Union to the Province of Canada, shall be the property o^qJ^SS^
Ontario and Quebec conjointly.

114. Nova Scotia shall be liable to Canada for the amount (if any) j^^^<>^

by which its public debt exceeds at the Union Eight million dollars, and "^^^ Scotia,
shall be charged with interest at the rate of five per centum per annum
thereon.

lis. New Brunswick shall be liable to Canada for the amount (if Debt of New
any) by which its public debt exceeds at the Union Seven million dollars, S'^"*^**^*-
and shall be charged with interest at the rate of five per centum per annum
thereon.

116. In case the public debts of Nota Scotia and New Brunswick do?*y™«"jo^
not at the Union amount to Eight million and Seven million dollars respec- NovsTscoda
tively, they shall respectively receive, by half-yearly payments in advance and New
from the Government of Canada, interest at five per centum per annum on Brunswick,
the difference between the actual amounts of their respective debts and

such stipulated amounts.

117. The several Provinces shall retain all their respective Public J^g^*^*^**'
property not otherwise disposed of in this Act, subject to the right of proj^r^y.
Canada to assume any lands or public property required for Fortifications

or for the defence of the country.

118. The following sums* shall be paid yearly by Canada to the sev-pJJJf®^*®^
eral Provinces for the support of their Governments and Legislatures : —

Dollars

Ontario Eighty thousand

Quebec Seventy thousand

Nova Scotia Sixty thousand

New Brunswick Fifty thousand

Two hundred and Sixty 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 shall 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 (jovernment 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

119. New Brunswick shall receive, by half-yearly payments in advance p ^
from Canada, for the period of ten years from the Union, an additional t^New
allowance of Sixty- three thousand dollars per annum ; but as long as the Brunswick,
public debt of that Province remains under Seven million dollars, a de-
duction equal to the interest at five per centum per annum on such defi-
ciency shall be made from that allowance of Sixty-three thousand dollars.

120. All Payments to be made under this Act, or in discharge of lia-Formof
bilities created under any Act of the Provinces oif Canada, Nova Scotia, P<^7m«nts.
and New Brunswick respectively, and assumed by Canada, shall, until the

^For an early dispute over this section with Nova Scotia, see Pope, Life of Sir
John Macdonold, Vol. II, pp. 32 ff. ; 301 fF. See also No. CLXXXVII for the present
arrangements.

grants

680

Constitutional Documents of Canada. [1840-1867

Custonn and
Excise Laws.

Lumber dues
in New
Brunswick.

Exemption of
public Lands.

Provincial
Consolidated
Revenue
Fund.

Parliament of Canada otherwise directs, be made in such form and manner

adia ^* °*^ from time to time be ordered by the Governor-General in CoundL

msa^icturers. ^^^' ^^^ articles of the growth, produce, or manufacture of any one

etc. 'of the Provinces shall, from and after the Union, be admitted free into

each of the other Provinces.

122. The Customs and Excise Laws of each Province shall, subject to
the provisions of this Act, continue in force until altered by the Parliament
of Canada,
^^mnorf ^^' ^^^^^ Customs Duties arc, at the Union, leviable on any goods,

tion as betim wares, or merchandises in any two Provinces, those goods, wares, and
two Provinces, merchandises may from and after the Union, be imported from one of
those Provinces into the other of them, on proof of payment of the Cus-
toms Duty leviable thereon in the Province of exportation, and on pay-
ment of such further amount (if any) of Customs Duty as is leviable
thereon in the Province of importation.

124. Nothing in this Act shall a£Fect the right of New Brunswick to levy
the lumber dues* provided in Chapter Fifteen of Title Three of the Re-
vised Statutes of New Brunswick, or in any Act amending that Act before
or after the Union, and not increasing the amount of such dues; bat the
lumber of any of the Provinces other than New Brunswick shall not be
subject to such dues.

125. No Lands or Property belonging to Canada or any Province
shall be liable to taxation.

126. Such portions of the Duties and Revenues over which the respec-
tive Legislatures of Canada, Nova Scotia, and New Brunswick had before
the Union power of appropriation, 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 con-
ferred 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. Miscellaneous Provisions.
General,

127. 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 Pro-
vince of Canada or to the Lieutenant-Governor of Nova Scotia or New
Brunswick (as the case may be) accept the same, he 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 Bruns-
wick, accepts a place in the Senate, shall thereby vacate his Seat in snch
Legislative Council.

128. Every Member of the Senate or House of Commons of Canada
shall, before taking his Seat therein, take and subscribe before the Gover-
nor-General or some person authorized 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 authorized 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
Gvil and Criminal Jurisdiction, and all legal Commissions, Powers, and
Authorities, and all Officers, Judicial, Administrative, and Ministerial,
existing therein at the Union, shall continue, in Ontario, Quebec, Nova

^Tliese dues were abolished by the Treaty of Washington, Section XXXI, 1871.
An Act was passed by the Dominion Parliament (36 Victoria, c. 41), providing con-
pensation for New Brunswick from the Dominion.

As to Legisla>
tive Council-
lors of Pro-
vince becom-
ing Senators.

Oath of Al-
legiance, etc.

Continuance
of existing
Laws, Courts,
Officers, etc.

1840-1867] ConstUtuional Documents of ^Canada. 681

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 Parlia-
ment 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.

150. Until the ParUament of Canada otherwise provides, all OflScers y^^^^ ^4
of the several Provinces having duties to discharge in relation to matters oficen to
other than those coming within the classes of subjects by this Act assigned Canada,
exclusively to the Legislatures of the Provinces shall be Officers of Can-
ada, 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.

13L Until the Parliament of Canada otherwise provides, the Governor- j^_q2,^^^,ii
General in Council may from time to time appoint such Officers as theofnew
Governor-General in Council deems necessary or proper for the effectual 0*S««"-
execution of this Act.

132. The Parliament and Government of Canada shall have all powers xreaty obli-
necessary or proper for performing the obUgations of Canada or of anygatioiiB.
Province thereof, as part of the Briti^ Empire, towards Foreign Coun-
tries .arising under Treaties between the Empire and such Foreign Coun-
tries.

133. Either the English or the French language may be used by any^y°J[^^'"
person in the debates of the Houses of the Parliament of Canada and of French
the Houses of the Legislature of Quebec; and both those languages shall l«asuafea.
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.

The Acts of the Parliament of Canada and of the Legislature of Que-
bec shall be printed and published in both those languages.

Ontario and Quebec.

134. Until the Legislature of Ontario or of Quebec otherwise pro- ^pgjj^^j
vides, the Lieutenant-Governors of Ontario and Quebec may each appoint, officera for
under the Great Seal of the Province, the following Officers, to hold office Ontario and
during pleasure, that is to say, — ^the Attorney-General, the Secretary andOw^****-
Registrar of the Province, the Treasurer of the Province, the Commis-
sioner of Crown Lands, and the Commissioner of Agriculture and Public

Works, and in the case of Quebec the Solicitor-General; and may, by
order of the Lieutenant-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 the^ shall belong, and of the Officers and
Qerks thereof; and may also appomt 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 pre-
side or to which they shall belong, aud of the Officers and Qerks thereof.

135. Until the Legislature of Ontario or Quebec otherwise provides, Powera,

all rights, powers, duties, functions, responsibihties, or authorities at the ^^£^^^^{^2*^^
passing of this Act vested in or imposed on the Attorney-General, Solicitor- oiBcera.
General, Secretary and Registrar of the Province of Canada, Minister of
Finance, Commissioner of Crown Lands, Commissioner of Public Works,
and Minister of Agriculture and Receiver-General, by any Law, Statute,
or Ordinance of iJpper 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 Commissioner of Agriculture and Fublic Works shall
perform the duties and functions of the office of Minister of Agriculture
at the passing of this Act imposed by the law of the Province of Canada
as wen as those of the Commissioner of Public Works.

682

Constitutional Documents of Canada. [1840-1867

Great Seak.

Constmctton
of temporary
Acta.

As to errors
in names.

As to issue
of Proclama-
tions before
Union to com-
mence after
Union.

As to issue
of Proclama-
tions after
Union.

Penitentiary.

Arbitration
respecting
DeSts, etc.

Division of
records.

Constitution
of Townships
in Qiiebeo.

Duty of
GoTemment
and Parlia-
ment of Can-
ada to make
railway herda
described.

136. Until altered by the Lieutenant-Governor in Council, the Great
Seals of Ontario and Quebec respectively shall be the same, or of the
same design, as those used in the Provinces of Upper Canada and Lower
Canada respectively before their Union as the Province of Canada.

137. The words 'and from thence to the end of the then next ensuing
Session of the Lenslature,' or words to the same effect used in any tem-
porary Act of the Province of Canada not expired before the Union, shall
be construed to extend and apply to the next Session of the 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 On-
tario and Quebec respectively, if the subject-matter of the Act is within
the powers of the same as defined by this Act.

138. From and after the Union the use of the words 'Upper Canada'
instead of 'Ontario,' or Tower Canada' instead of 'Quebec,' in any Deed,
Writ, Process, Pleading, Doctmient, Matter, or Thing shall not invalidate
the same.

139. Any Proclamation under the Great Seal of the Province of Can-
ada, issued before the Union, to take effect at a time which is subsequent
to the Union, whether relating to that Province, or to Upper Canada, or to
Lower Canada, and the several matters and things therein proclaimed,
shall be and continue of like force and effect as if the Union had not been
made.

140. Any Proclamation which is authorized by any Act of the Legi>
lature of the Province of Canada to be issued under the Great Seal of the
Province of Canada, whether relating to that Province, or to Upper Can-
ada, or to Lower Canada, and which is not issued before the Union, may
be issued by the Lieutenant-Governor of Ontario or of Quebec, as its
subject-matter requires, under the Great Seal thereof; and from and after
the issue of such Proclamation 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, until the Par-
liament of Canada otherwise provides, be and continue the Penitentiary of
Ontario and of Quebec.

142. The division and adjustment of the Debts, Credits, Liabilities,
Properties, and Assets of Upper Canada and Lower Canada shall be re-
ferred to the arbitrament of three arbitrators, one chosen by the Govern-
ment of Ontario, one by the Government of Quebec ,and one by the Gov-
ernment of Canada; and the selection of the arbitrators shall not be made
until the Parliament of Canada and the Legislatures of Ontario and Que-
bec have met; and the arbitrator chosen by the Government of Canada
shall not be a resident either in Ontario or in Quebec.

143. The Governor-General in Council may from time to time order
that such and so many of the records, books and documents of the Pro-
vince of Canada as he thinks fit shall be appropriated and delivered either
to Ontario or to Quebec, and the same shall thenceforth be the property
of that Province ; and any copy thereof or extract therefrom, dulv certified
by the Officer having charge of the original thereof, shall be admitted as
evidence.

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 which Townships are not then already constituted,
and fix the metes and bounds thereof.

X. Intercolonial Railway.

145. Inasmuch as the Provinces of Canada, Nova Scotia, and New
Brunswick have joined in a declaration that the construction of the Inter-
colonial Railway is essential to the consolidation of the Union of British
North America, and to the assent thereto of Nova Scotia and New Bruns-
wick, and have consequently agreed that provision should be made for its

1 See Sir Sandford Fleming, The Intercolonial Railway.

1840-1867] Constitutional Documents of Canada, 683

immediate construction by the Government 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 aft^ the Union, of a Railway connecting the River St. Lawrence
with the City of Halifax in Nova Scotia, and for the construction thereof
without intermission, and the completion thereof with all practicable speed.

XL Admission of Other Colonies.

146. It shall be lawful for the Queen, by and with the advice of Her Power to
Majesty's Most Honourable Privy Council, on Addresses from the Houses J™JJj*JJJ*
of the Parliament of Canada, and from the Houses of the respective Legis- etc.. into uie
latures of the Colonies or Provinces of Newfoundland, Prince Edward Union.
Island, and British Columbia, to admit those Colonies or rrovinces, or any

of them, into the Union, and on Address from the Houses of the Parlia-
ment of Canada to admit Rupert's Land and the North-Westem 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 Prince Edward At to the
Island or either of them, each shall be entitled to a representation, in the^JI^JUg^^
Senate of Canada, of Four Members, and (notwithstanding anything inigndmnd
this Act) in case of the admission of Newfoundland the normal number Prince Ed-
of Senators shall be Seventy-six and their maximum number shall 1>€ J^^senite"
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 Newfound-
land is admitted or not, the representation of Nova Scotia and New Bruns-
wick in the Senate shall, as vacancies occur, be reduced from Twelve to
Ten Members respectively, 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.

Note, — ^The schedules of the B.N.A. Act are omitted as unnecessary
for the purposes of this volume.

* Prince Edward Itland. Britiab Columbia, Rupert's Land and North Western
Territory were admitted by Orders-in>Council dated respectively 26 June, 1873, 16 May.
1871, 23 June, 1870. Compare Nos. CLXXXI and CLXXXV:

SIXTH PERIOD
1867-1915

SIXTH PERIOD
1867-1915

The workings of the British North America Act, 1867, He
largely outside the sphere of Constitutional history, and belong to
that of Constitutional law. The Act was almost of necessity a
skeleton. The great aim was to provide a working plan for Con-
federation. The interpretation of the Act has belonged almost
r.ntireiy to the Canadian courts and to the Judicial Committee of
the Privy Council, and there has grown up round it a body of legal
decisions which form a formidable and complicated study. Cart-
wright's CcLses carry the decisions down to 1896. Cameron's Con-
stitution of Canada down to 1915. A shorter summary up to 1918
is found in Lef roy and Kennedy, Short Treatise on Canadian Con-
stitutional Law. Judicial constructions of certain sections of the
Act are outlined in Jenkyns, British Ride and Jurisdiction beyond
the Seas, App. III. (Oxford, 19Q2). To these books the student
must refer.

In this section I have only fotmd it necessary to insert the
Manitoba Act, the Alberta Act, some Imperial Acts of Parliament
dealing with the Constitution of Canada, and some documents
connected with the office of Governor-General of the Dominion.

1867-1915] Constitutional Documents of Canada, 689

CLXXX

THE MANITOBA ACT

(33 Victoriae, c. 3.)*

An Act to amend and continue the Act 32 and 33 Victoriae, chapter 3; ^

and to establish and provide for the Government of Manitoba.

[Assented to May 12th, 1870.]

Whereas it is probable that Her Majesty, The Queen, may, pursuant p^^^niy^
to the British North America Act, 1867, be pleased to admit Rupert's Land
and the North-Westem Territory* into the Union or Dominion of Canada,
before the next Session of the Parliament of Canada:

And whereas it is expedient to prepare for the transfer of the said
Territories to the Government of Canada at the time appointed by the
Queen for such admission:

And whereas it is expedient also to provide for the organization of
part of the said Territories as a province, and for the establishment of a
Government therefor, and to make provision for the Civil Government of
the remaining part of the said Territories, not included within the limits
of the Province :

Therefore Her Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows: ProTinceto

1. On, from and after the day upon which the Queen, by and w't^SS/jfSrtir
the advice and consent of Her Majesty's Most Honorable Privy Council, tenitorr when
under the authority of the 146th Section of the British North America united to
Act, 1867, shall by Order in Council in that behalf, admit Rupert's LandC«ii«la.
and the North-Westem Territories into the Union or Dominion of Canada,
there shall be formed out of the same a province, which shall be one ofjts name and
the Provinces of the Dominion of Canada, and which shall be called the boundaries.
Province of Manitoba, and be bounded as follows: that is to say, com-
mencing at the point where the meridian of ninety-six degrees west long-
itude from Greenwich intersects the parallel of forty-nine degrees north
latitude,-j-thence due west along the said parallel of forty-nine degrees
north latitude (which forms a portion of the boundary line between the
United States of America and the said North-Westem Territory) to the
meridian of ninety-nine degrees of west longitude, — ^thence due north along
the said meridian of ninety-nine degrees west longitude to the intersection
of the same with the parallel of fifty degrees and thirty minutes north
latitude, — thence due east along the said parallel of fifty degrees and thirty
minutes north latitude to its intersection with the before-mentioned meri-
dian of ninety-six degrees west longitude, — thence due south alon^ the said
meridian of ninety-six degrees west longitude to the place of begmning. Certain pro-

2. On, from and after the said day on which the order of the Queen jiaiona of
in Council shall take eflFect as aforesaid, the provisions of the British North fg^y^-^jj*}
America Act, 1867, shall, except those parts thereof which arc in terms t©""' -^^^
made, or, by reasonable intendment may be held to be specially applicable
to or only to aflFect one or more, but not the whole of the Provinces now
composing the Dominion, and except so far as the same may be varied
by this Act, be applicable to the Province of Manitoba, in the same way,
and to the like extent as they apply to the several Provinces of Canada, and
as if the Province of Manitoba had been one of the provinces originally
united by the said Act.

"This Act was confirmed by the British North America Act, 1871 (No. CLXXXI).
See for some notice of the circumstances under which each of the new provinces was
admitted into the Dominion: Attorney-General of Prince Edward Island r, Attorney-
General of Dominion, [1905] A. C. at pp. 45-7.

* See note on Section 146, B.N.A. Act, 1867 (No. CLXXIX). «R

690

Constitutional Documents of Canada. [1867-1915

Represent**
tion in the
Senate.

Representa-
tion in tbe
Home of

Commons.

Qualification
of voters and
members.

Lieutenant-
GoTemor.

Executive
Council.

Seat of
Government.

Legislature.

LefislatiTe
Council.

Members and
their appoint*
ment, etc.

Speaker.

Quorum.

Voting.

Equality
ot votes.

Legislative
Assembly.

Quorum.

Electoral
Divisions.

3. The said Province shall be represented in the Senate of Canada by
two Members, until it shall have, according to decennial census, a popula-
tion of fifty thousand souls, and from thenceforth it shall be represented
therein by three Members, until it shall have, according to decennial census,
a population of seventy-five thousand souls, and from thenceforth it shall
be represented therein by four Members.

4. The said Province shall be represented, in the first instance, in the
House of Commons in Canada, by four Members and for that purpose
shall be divided by proclamation of the Governor General, into four Elec-
toral Districts each of which shall be represented by one Member : Provided
that on the completion of the censtis in the year 1881, and of each decennial
census afterwards the representation of the said Province shall be read-
justed according to the provisions of the fifty-first section of the British
North America Act, 1867.

5. Until the Parliament of Canada otherwise provides, the qualifica-
tions of voters at Elections of Members of the House of Commons shall
be the same as for the Legislative Assembly hereinafter mentioned: And
no person shall be qualified to be elected, or to sit and vote as a Member
for any Electoral District, unless he is a duly qualified voter within the
said Province.

6. For the saitl Province there shall be an Officer styled the Lieutenant
Governor, appointed by the Governor General in Council by instrument
under the Great Seal of Canada.

7. The Executive Council of the Province shall 'be composed of such
persons, and under such designations, as the Lieutenant Governor shall,
from time to time think fit: and, in the first instance, of not more than
five persons.

8. Unless and until the Executive Government of the Province other-
wise directs, the seat of Government of the same shall be at Fort Garry,
or within one mile thereof.

9. There shall be a Legislature for the Province, consisting of the
Lieutenant Governor, and of two Houses, styled respectively, the Legis-
lative Council of Manitoba, and^ the Legislative Assembly of Manitoba.

10. The Legislative Council shall, in the first instance, be composed,
of seven Members, and after the expiration of four years from the time
of the first appointment of such seven Members, may be increased to not
more than twelve Members. Every Member of the Legislative Council
shall be appointed by the Lieutenant-Governor in the Queen's name, by
Instrument under the Great Seal of Manitoba, and shall hold office for the
term of his life, unless and until the Legislature of Manitoba otherwise
provides under the British North America Act, 1867.

11. The Lieutenant-Governor may, from time to time, by Instrument
under the Great Seal, appoint a member of the Legislative Council to be
Speaker thereof, and may remove him and appoint another in his stead.

12. Until the Legislature of the Province otherwise provides, the
presence of a majority of the whole number of the Legislative Council,
mcluding the Speaker shall be necessary to constitute a meeting for the
exercise of its powers.

13. Questions arising in the Legislative Council shall be decided by
a majority of voices, and the Speaker shall in all cases have a vote and
when the voices are equal the decisions shall be deemed to be in the
negative.

14. The Legislative Assembly shall be composed of twenty-four mem-
bers to be elected to represent the Electoral Divisions into which the said
Province may be divided by the Lieutenant-Governor as hereinafter men-
tioned.

15. The presence of a majority of the Members of the Legislative
Assembly shall be necessary to constitute a meeting of the House for the
exercise of its powers; and for that purpose the Speaker shall be recog-
nized as a Member.

16. The Lieutenant-Governor shall (within six months of the date
of the Order of Her Majesty in Council admitting Rupert's Land and the

18674915] Constitutional Documents of Canada. 691

North-Western Territory into the Union), by Proclamation under the
Great Seal, divide the said Province into twenty-four Electoral Divisions,
due regard being had to existing Local Divisions and population.

17. Every male person shall be entitled to vote for a Member, to serve Qualification
in the Legislative Assembly for any Electoral Division, who is qualified as " ▼<>*«»■«•
following, that is if he is: —

1. Of the full age of twenty-one years, and not subject to any legal
incapacity :

2. A subject of Her Majesty by birth or naturalization:

3. And a bona fide householder within the Electoral Division, at the
date of the Writ of Election for the same, and has been a bona fide house-
holder for one year next before the said date ; or,

4. If, being, of the full age of twenty-one years and not subject toSpccial,--for
any legal incapacity and a subject of Her Majesty by birth or naturaliza-J^y.

tion, he was, at the time within twelve months prior to the passing of this
Act, and (though in the interim temporarily absent) is at the time of such
election a bona fide householder, and was resident within the Electoral
Division at the date of the Writ of Election for the same :

But this fourth sub-section shall apply only to the first election to beP^'o^"®
held under this Act for Members to serve in the Legislative Assembly
aforesaid.

18. For the first election of Members to serve in the Legislative *j'"gj**^jj«f
Assembly, and until the Legislature of the Province otherwise provides, thction, &c.,— -
Lieutenant-Governor shall cause writs to be issued, by such person in such bow regulated,
form and addressed to such Returning Officers as he thinks fit ; and for the

first election, and until the Legislature of the province otherwise provides,
the Lieutenant-Governor shall, by proclamation, prescribe and declare the
oaths to be taken by voters, the powers and duties of Returning and Deputy
Returning Officers, the proceedings to be observed at such election, and the
period during which such election may be continued, and such other pro-
visions in respect to such first election as he may think fit.

19. Every Legislative Assembly shall continue for four years f rom £|«'***o? of
the date of the return of the writs for returning the same (subject never- JfJ^y^*
theless to being sooner dissolved by the Lieutenant-Governor), and no
longer; and the first Session thereof shall be called at such time as the
Lieutenant-Governor shall appoint.

20. There shall be a Session of the Legislature once at least in every Sessions at
year, so that twelve months shall not intervene between the last sitting ofj^®*!^®***^
the Legislature in one Session and its first sitting in the next Session. ^ ^'

21. The following provisions of the British North America Act, 1867, Certain pro-
respecting the House of Commons of Canada, shall extend and apply t^^B^N^A^Act
the L^islative Assembly, that is to say: — Provisions relating to the election 1357 'to apply,
of a Speaker, originally, and on vacancies, — ^the duties of the Speaker —

the absence of the Speaker and the mode of voting, as if those provisions
were here re-enacted and made applicable in terms to the Legislative
Assembly.

22. In and for the Province, the said Legislature may exclusively J^J^JJJ®"
make laws in relation to Education' subject and according to the following schools sub-
provisions : — jcct to certain

(1) Nothing in any such Law shall prejudicially affect any right or^*'®^"®"**
privil^e with respect to Denominational Schools which any class of per-
sons have by Law or practice in the Province at the Union :

(2) An appeal shall lie to the Governor-General in Council from any
Act or decision of the Legislature of the Province or 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 :

(3) In case any such Provincial Law, as from time to time seems to^^JSr**
the Governor-General in Council requisite for the due execution of the Parliament,
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 on that behalf then, and in

1 See B.N.A. Act, 1867 (No, CLXXIX), section 93 and note.

692

ConsHtutiofud Documents of Canada. [1867-1915

Engliflli a&d
French laa-
flrnageto
be used.

Interest
allowed to the
Province on
a certain
amount of the
debt of
Canada.

Subsidy to the
Province for
support of
Government,
and in propor-
tion to Its
population.

Canada as-
•nms certain
expenses.

General
provirion.

Customs
duties.

Customs laws.

Inland Reve-
nue laws
and duties.

Ungranted
lands vested
in the Crown
for Dominion
purposes.

every such case, and as far only as the circumstances of each case require,
the Parliament 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.

23. Either the English or the French language may be used by any
person in the debates of the Houses of the Legislature, 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 ostab-
lished under the British North America Act, 186/, or in or from all or any
of the Courts of the Province. The Acts of the Legislature shall be
printed and published in both those languages.

24. Inasmuch as the Province is not in debt, the said Province shall
be entitled to be paid and to receive from the Government of Canada by
half-yearly payments in advance, interest at the rate of five per centum
per annum on the sum of four hundred and seventy-two thousand and
ninety dollars.

25. The sum of thirty thousand dollars shall be paid yearly by Canada
to the Province, for the support of its Government and L^islature, and an
annual grant in aid of the said Province shall be made, equal to eighty
cents per head of the population estimated at seventeen thousand souls;
and such grant of eighty cents per head shall be augmented in proportion
to the increase of population, as may be shewn by the census that shall be
taken thereof in the year one thousand one hundred smd eighty-one, and by
each subsequent decennial census, until its population amounts to four
hundred thousand souls, at which amount such grant shall remain there-
after, and such sum shall be in full settlement of all future demands on
Canada, and shall be paid half-yearly, in advance, to the said Province.

26. Canada will assume and defray the charges for the following
services : —

1. Salary of the Lieutenant-Governor.

2. Salaries and allowances of the Judges of the Superior and District
or County Courts.

3. Charges in respect of the Department of the Customs.

4. Postal Department.

5. Protection of Fisheries.

6. Militia.

7. Geographical Survey.

8. The Penitentiary.

9. And such further charges as may be incident to and connected
with the services which, by the British North America Act» 1867, appertain
to the General Government, and as are or may be allowed to the other
Provinces.

27. The Customs duties now by law chargeable in Rupert's Land,
shall be continued without increase for the period of three years from and
after the passing of this Act, and the proceeds of such duties shall form
part of the Consolidated Revenue Fund of Canada.

28. Such provisions of the Customs Laws of Canada (other than such
as prescribe the rate of duties payable) as may be from time to time de-
clared by the Governor-Grcneral in Council to apply to the Province ol
Manitoba shall be applicable thereto, and in force therein accordingly.

29. Such provisions of the Laws of Canada respecting the Inland
Revenue, including those fixing the amount of duties, as may be from time
to time declared by the Governor-General in Council applicable to the said
province shall apply thereto, and be in force therein accordingly.

30. All ungranted or waste lands in the Province shall be, from and
after the date of the said transfer, vested in the Crown, and administered
by the Government of Canada for the purposes of the Dominion, subject
to, and except, and so far as the same may be affected by the conditions
and stipulations contained in the agreement for the surrender of Rupert's
Land by the Hudson's Bay Company to Her Majesty.

1867-1915] Constitutional Documents of Canada, 693

31. And whereas, it is expedient, towards the extinguishment of theProv^ont
Indian Title to the lands in the Province, to appropriate a portion of suchJjJiJP ^^^"^
ungranted lands to the extent of one million four hundred thousand acres
thereof, for the benefit of the families of the half-breed residents, it is

hereby enacted that under regulations to be from time to time made by
the Governor General in Council, the Lieutenant-Governor shall select Gnmt for
such lots or tracts in such parts of the Province as he may deem expedient, k*lf breed*,
to the extent aforesaid, and divide the same among the children of the
half-breed heads of families residing in the province at the time of the
said transfer to Canada, and the same shall be granted to the said children
respectively in such mode and on such conditions as to settlement and
otherwise, as the Governor General in Council shall from time to time
determine.

32. For the quieting of titles, and assuring to the settlers in the Quieting titles.
Province the peaceable possession of the lands now held by them, it is

enacted as follows: —

1. All grants of land in freehold made by the Hudson's Bay Company gruits by H.
up to the eighth day of March in the year 1869, shall, if required by the"* ^**'"'*"y-
owner, be confirmed by grant from the Crown.

2. All grants of estates less than freehold in land made by the'^^^*™^-
Hudson's Bay Company, up to the 8th day of March aforesaid, shall if
required by the owner, be converted into an estate in freehold by grant

from the Crown.

3. All titles by occupancy with the sanction and under the license an<^ JJcuiJj^*"'
authority of the Hudson's Bay Company up to the eighth day of March ^^^P^'^is-
aforesaid, of land in that part of the Province in which the Indian Title lion.

has been extinguished, shall, if required by the owner, be converted into
an estate in freehold by grant from the Crown.

4. All persons in peaceable possession of tracts of land at the time By peaceable
of the transfer to Canada, in those parts of the Province in which theP********°"*
Indian title has not been extinguished, shall have the right of pre-emption

of the same, on such terms and conditions as may be determined by the
Governor in Council.

5. The Lieutenant-Governor is hereby authorized under regulations Li««tcn»nt-
to be made from time to time by the Governor General in Council to roakeJj^^^M^pro-
all such provisions for ascertaining and adjusting, on fair and equitable Tiaionannder
terms, the rights of Common, and rights of cutting Hay held and enj oyed Order m

by the Settlers in the Province, and for the commutation of the same by^®""*^"*
grants of land from the Crown.

33. The Governor General in Council shall from time to time settle ^▼*™o«' «"
and appoint the mode and form of Grants of Land from the Crown and Jj^JSm, form,
any Order in Council for that purpose when published in the Canadaftc., of grants'
Gazette shall have the same force and effect as if it were a portion of

this Act.

34. Nothing in this Act shall in any way prejudice or affect the rights ^«J*'®'
or properties of the Hudson's Bay Company as contained in the conditions pany not"
under which that Company surrendered Rupert's Land to her Majesty. affected.

35. And with respect to such portion of Rupert's Land and the North- j.
Western Territory as is not included in the Province of Manitoba, it iscoAraor^to
hereby enacted that the Lieutenant-Governor of the said Province shall be govern N.-W.
appointed, by Commission under the Great Seal of Canada to be the Lieu- J?'*'^?'^^ '®'"
tenant-Governor of the same under the name of the North-West Terri- *" *'
tories and subject to the provisions of the Act in the next section men-
tioned.

36. Except as hereinbefore is enacted and provided, the Act of the^^^^*^^
Parliament of Canada passed in the now last session thereof, and entitled extended and
"An Act for the Temporary Government of Rupert's Land and the North- continued.
Western Territory when united with Canada" is hereby re-enacted, ex-
tended and continued in force until the first day of January, 1871, and

until the end of the Session of Parliament then next succeeding.

694

Constitutional Documents of Canada. [1867-1915

Short title.

Parliament of
Canada may
eataUisli new
Provinces and
provide for
the constitu-
tion, etc.,
thereof.

Alteration of
limiu of
Provinces.

Parliament of
Canada may
legislate for
any territorr
not included
in a Province.

Confirmation
of Acts of
Parliament
of Canada.

32-33 v., c. 3.

OO V .y C. W.

Limitation of
powers of
Parliament of
Canada to
legislate for
an established
Province.

CLXXXI

THE BRITISH NORTH AMERICA ACT. 1871

(34 & 35, Victoria, c. 28.)

An Act nspecting the Establishment of Provinces in the Dominion of

Canada,

29th June. 1871.

Whereas 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 representation of such Provinces in the said Parliament,
and it is expedient to remove such doubts, and to vest such powers in the
said Parliament:

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 North
America Act, 1871.

2. The Parliament of Canada may from time to time establish new
Provinces in any territories forming for the time being part of the Domin-
ion of Canada, but not included in any Province thereof, and may, at the
time of such establishment, make provision for the constitution and ad-
ministration of any such Province, and for the passing of laws for the
peace, order and good government of such Province, and for its represen-
tation in the said Parliament.

3. The Parliament of Canada may from time to time, with the consent
of the Legislature of any Province of the said Dominion, increase, diminish,
or otherwise alter the limits of such Province, upon such terms ana con-
ditions as may be agreed to by the said Legislature, and may, with the like
consent, make provision respecting the effect and operation of any such
increase or diminution or alteration of territory in relation to any Province
affected thereby.

4. The Parliament of Canada may from time to time make provision
for the administration, peace, order and good government of any territory
not for the time being included in any 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 united with Canada"; and
"An Act' to amend and continue the Act thirty-two and thirty- three
Victoria, chapter three, and to establish and provide for the gov*
emment 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 respectively received the assent, in
the Queen's name, of the Governor-General of the said Dominion of
Canada.

6. Except as provided by the third section of this 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 Manitoba 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 qualification of electors and members of the L^s-
lative Assembly, and to make laws respecting elections in the said Province.

1 See Lord Rimberley's speech in Hansard, (III. Series.), Vol. 206, p. 1171, for tke
reasons which led to the introduction of this bill.
* No. CLXXX.

1867-1915] Constitutional Documents of Canada. 695

CLXXXII

PARLIAMENT OF CANADA ACT. 1875'

(38 & 39 Victoria, c. 38.)

An Act to remove eeriam doubts with respect to the powers of the Parlia-
ment of Canada, under Section 18 of the British North America Act,
1867.

19th July, 1875.

Whereas by section 18 of The British North America Act, 1867 it is
provided as follows: — ^"The privileges, immunities, and powers to be held,
enjoved, 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 The British North America Act, 1867. is hereby re- Substitution
pealed, without prejudice to anything done under that section, and the f ol- jf »«^ f«^*«<g"
lowing section shall be substituted for the section so repealed: — of'aoTand^i

The privileges, immunities, and powers to be held, enjoyed and exer-V.,c.3.
cised bv the Senate and bv 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 any Act of the Parliament of
Canada defining such privileges, immunities and powers shall not confer
any privileges, immunities, or powers exceeding those at the passing of
such Act held, enjoved, 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 Act of the Parliament of Canada passed in the thirty-first Confirmation
year of the reign of her present Majesty, chapter twenty- four, intituled jf Aft of
An Act to provide for oaths to witnesses being administered in certain qIq^I^
cases for the purposes of either House of Parliament, shall be deemed to

be valid, and to have been valid as from the date at which the royal assent
was given thereto by the Governor General of the Dominion of Qmada.

3. This Act may be cited as The Parliament of Canada Act, 1875. Short title.

' Dnrinc the Pacific Railwaj scandal, the Canadian Parliamentary Committee could
not take eridence on oath, as this right did not belong to the British House of Com-
mons, except in connexion with Private Bills, until 1871. This Act gives the Dominion
Parliament power to bring its practice into line with the contemporary practice in the
British Parluunent.

696 Constitutional Documents of Canada. [1867-1915

CLXXXIII

LETTERS-PATENT CONSTITUTING THE OFFICE OF GOV-
ERNOR-GENERAL OF THE DOMINION OF CANADA, 1878*

[Trans.: Canadian Sessional Papers, 1879, No. XIV.]

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:

Whei;eas We did, by certain Letters-Patent under the Great Seal of
Our United Kingdom of Great Britain and Ireland, bearing date at West-
minster the Twenty-second day of May, 1872, in the Thirty-fifth Year o'
Our Reig;n, constitute and appoint Our Right Trusty and Right Well-
beloved Cousin and Councillor, Frederick Temple, Earl of Dufferin, Kni^t
of Our Most Illustrious Order of Saint Patrick, Knight Conunander ot
Our Most Honorable Order of the Bath (now Knight Grand Cross of Out
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 Govemor^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
presents 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 knowledge,
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 Gover-
nor-General (hereinafter called Our said Governor-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 Govemor-C^neral shall
be from time to time appointed by Commission under our Sign-Manual
and Signet. And we do hereby authorize and command 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 him, according to
the several powers and authorities granted oi appointed him by virtue ot
"The British North America Act, 1867," and of these present Letters-
Patent, and of such CommissicMi 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 Sec-

^ Various changes have taken place in the position of the GoTemor-Gencral. From
the year 1867 to 1878, his Instructions forbade him to give his assent to any hill (a)
for divorce, (b) for granting land or money or gratuity to himself, ^c) for maddnf
paper or any other currency legal tender, (d) for imposing differentisl auties, (e) con-
trary to Treaty obligations, (f) interfering with the discipline or control of the naval
or militarv forces of the Crown in Canada, <g) interfering wiUi the Royal Preroga-
tive, or the rights and property of British subjects outside of Canada, or with the
trade and shipping of the United Kingdom and its dependencies, (h) containing pro-
visions to which the Royal assent has already been refused or whidi have b<»en dis-
allowed. Acting on these Instructions, twenty-one Bills were reserved. In 1877, after
the Hon. Edward Blake, Minister ot Justice^ had visited England, the practice of
enumerating the titles to be reserved was discontinued, a suspending clause being
inserted in Acts which would otherwise reouire the Governor-uenerars reserration.
(Canadian Sessional Papers, 1877, No. XIII.) In addition, during Lord Dufierin's
tenure of office difficulties arose over the prerogative of pardon, and Lord Dafferin
exercised it without the advice of his Ministers. During his visit to England. Mr. Blake
arranged for a change^ which is embodied in the Instructions printed below (No.
CLXXXIV). In 1878 the office of Governor-General of the Dominion of Canada was
instituted on a permanent basis by Letters Patent. (See Todd, Parliamentary Govern
ment tn the Colonies,)

1867-1915] Constitutional Documents of Canada. 697

retaries of State, and to such Laws as are or shall hereafter be in force in
Our said Dominion.

IL 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 Officers
and Ministers of Our Said Dominion, as may be lawfully constituted oi
appointed by Us.

IV. And We do further authorize and empower Our said Governor-
General, so far as we lawfully may, upon sufficient cause to him appearing,
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 be granted, by Us
in Our name or under Our authority.

V. And We do further authorize and empower Our said Governor-
General to exercise all powers lawfully belonging to us in respect of the
summoning, proroguing, or dissolving the Parliament of Our said Do-
minion.

VI. And whereas by "The British North America Act, 1867," 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 person or persons, jointly or severally, to be his Deputy or
Deputies within any part or parts of Our said Dominion, and in that capa-
city to exercise, during the pleasure of Our Said Governor-General, such
of the powers, authorities, and functions of Our said Governor-General
as he may deem it necessary or expedient to assign to such Deputy \>t
I>eputies, subject to any limitations or directions from time to time ex-
pressed or given by Us : Now We do hereby authorize and empower Our
said Governor-General, subject to such limitations and directions as afore-
said, to appoint any person or persons, jointly or severally, to be his Deputy
or Deputies within any part or parts of Our said Dominion of Canada, and
in that capacity to exercise, during his pleasure, such of his powers, func-
tions, and authorities, as he may deem it necessary 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 authori-
ties herein granted to him shall, until Our further 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 com-
mand of Our regular troops in Our said Dominion: Provided 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 ap-
pointed to be taken by the Governor-General of Our said Dominion, and
in the manner provided by the Instructions accompanying these Our Let-
ters-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 Dominion.

IX. And We do hereby reserve to Ourselves, Our heirs and succes-

698 Constitutional Documents of Canada, [1867-1915

sors, full power and authority from time to time to revoke, alter or amend
these Our Letters-Patent, as to Us or them shall seem 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
Governor-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 Reign.

By Warrant under the Queen's Sign-Manual.

C. ROMILLY.

CLXXXIV

INSTRUCTIONS TO THE GOVERNOR-GENERAL OF THE

DOMINION OF CANADA, 1878

[Trans. : Canadian Sessional Papers, 1879, No. XIV.]

Dated 5th October, 1878.
Victoria R.

Instructions to Our Governor-General in and over Our Dominion of
Canada, or, in his absence, to Our Lieutenant-Governor or the Officer
for the time being administering the Government of Our said Do-
minion. Given at Our Court at Balmoral, this Fifth day of October,
1878, in the Forty-second year of Our Reign.

Whereas by certain Letters-Patent bearing even date herewith, Wc
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 Dominion), and We
have thereby authorized and commanded Our said (jovemor-(jeneral to do
and execute in due manner all things that shall belong to his said command,
and to the trust We have reposed in him, according to the several powers
and authorities 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 (jovemor-
General for the time being shall, with all due solemnity, cause Our Com-
mission, under Our Sign-Manual and Signet, appointing Our said C^v-
ernor-Cxeneral for the time being, to be read and published in the presence
of the Chief Justice for the time being, or other Judge of the Supreme
Court of Our said Dominion, and of Uie members of the Privy Council
in Our said Dominion:

And We do further declare Our pleasure to be ^at Our said Giovemor-
General, and eveiy other officer appointed to administer the Government
of Our said Dominion, shall take die Oath of Allegiance in the form pro-
vided 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 Promisory Oaths ;" and likewise that he or they shall take the usuad Oadi
for the due execution of the Office of Our Governor-^jieneral in and over
Our said Dominion, and for the due and impartial administration of jus-
tice ; 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 otherwise in-
capacitated, 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 (jovemor-C^eneral
from time to time, by himself or by any other person to be authorized bj

1867-1915] Constitutional Documents of Canada. 699

him in that behalf, to administer to all and to every persons or person as
he shall think fit, who shall hold any office 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 mar-
gins, and be accompanied, in such oases as may seem to him necessary,
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 Parlia-
ment 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, eidier free
or subject to lawful conditions, or any respite of the execution of the
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 Gov-
ernor-General shall not in any case, except where the offence has been of
a political nature, make it a condition of any pardon or remission of
sentence that the offender shall be banished from or shall absent himself
from Our said Dominion. And We do hereto direct and 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 interest 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.

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 Dominion
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.

CLXXXV

THE BRITISH NORTH AMERICA ACT, 1886
(49 & 50 Victoria, c. 35.)

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

700

Constitutional Documents of Canada. [1867-1915

ProTuion by
Pftrliament
of Canada for
repretentatioii
of territoriea.

Effect of
Acta of
Parliament
of Canada.

34 ft 35 v..

C.28.

30 ft 31 V. c. 3

Short title
and con-
struction.

30 ft 31 V. c. 3
34 ft 35 V.
c. 28.

Canada, or either of them, of any territory which for the time being: fonns
part of the Dominion of Canada, but is not included in any PrOTtnce :

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 present Parliament assembled, and by the authority of
the same, as follows: —

1. The Parliament of Canada may from time to time make provision
for the representation in the Senate and House of Commons of Canada,
or in either of them, of any territories which for the time being form part
of the Dominion of Canada, but are not included in any Province thereof.

2. Any Act passed by the Parliament of Canada before the passing
of this Act for the purpose mentioned in this Act, shall, if not disallowed
by the Queen, be, and shall be deemed to have been, valid and eflPectnal
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 Parliament of Canada,
whether before or after the passing of this Act, for the purpose mentioned
in this Act, or in The British North America Act, IS7V, has effect, notwith-
standing anything in The British North America Act, 1867, and the num-
ber of Senators or the number of Members of the House of Commons
specified in the last-mentioned Act is increased by the number of Senators
or of Members, as the case may be, provided by any such Act of the
Parliament of Canada for the representation of any provinces or terri-
tories of Canada.

3. This Act may be cited as The British North America Act, 1886.
This Act, and The British North America Act, 1867, and The British

North America Act^ 1871, shall be construed together, and may be cited
together as The British North America Acts, 1867 to 1886.

Preamble.

Skort title.

Prorinceof
Alberta
formed; ita
boit&dariea.

CLXXXVI

THE ALBERTA ACT

(4-5 Edward VH., c. 3.)

An Act to establish and provide for the Government of the Province of
Alberta.

[Assented to July 20th, 1905.]

Whereas in and by the British North America Act, 1871*, being chapter
28 of the Acts of the Parliament of the United Kingdom passed in the
session thereof held in the 34th and 35th years of the reign of her late
Majesty Queen Victoria, it is enacted that the Parliament of Canada may
from time to time establish new provinces in any territories forming for
the time being part of the Dominion of Canada, but not included in any
province thereof, and may ,at the time of such establishment, make pro-
vision 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 Parliament of Canada ;

And whereas it is expedient to establish as a province the territory
hereinafter described, and to make provision for the government thereof,
and the representation thereof, in the Parliament of Canada: Therefore,
His Majesty, by and with the advice and consent of the Senate and House
of Commons of Canada, enacts as follows: —

1. This Act may be cited as the Alberta Act

2. The territory comprised within the following boundaries, that is to
say, commencing at the intersection of the international boundary dividing
Canada from the United States of America by the fourth meridian in the
system of Dominion lands surveys; thence westerly along the said inter-

« No. CLXXXI.
*No. CLXXXI.

1867-1915] ConsHiuHonal Documents of Canada, 701

national boundary to the eastery boundary of the Province of British
Columbia; thence northerly along the said eastern boundary of the Pro-
vince of British Columbia to die north east comer of the said province;
thence easterly along the parallel of the sixtieth degree of north latitude
to the fourth meridian in the system of Dominion lands surveys, as the
same may be hereafter defined in accordance with the said system; thence
southerly alonff the said fourth meridian to the point of commencement,
is heret^ established as a province <of the Dominion of Canada, to be
called and known as the Province of Alberta.

3. The provisions of the British North America Acts, 1867 to 1886',B. N. A^t»
shall apply to the Province of Alberta in the same way and to the lilcc*^^|¥^
extent as diey apply to the province* heretofore comprised in the Dominion,

as if the said Province of Alberta had been one of the provinces originally
united, except in so far as varied by this Act, and except such provisions
as are in terms made, or by reasonable intendment may be held to be,
specially applicable to or only to affect one or more and not the whole of
the said provinces.

4. TTie said province shall be represented in the Senate of Canada by •^'^••^l^*
four members; provided that such representation may, after the completion §^J2^,

of the next decennial census, be from time to time increased to six by the
Parliament of Canada.

5. The said province and the Province of Saskatchewan shall, wntiljwjj^^*
the termination of the Parliament of Canada, existing at the time of theHoo^eof
first readjustment hereinafter provided for, continue to be represented in Omuboiis.
the House of Commons as provided by chapter 60 of the Statutes of 1903,

each of the electoral districts defined in that part of the schedule to the
said Act which relates to the North- West Territories, whether such district
is wholly in one of the said provinces, or partly in one or partly in the
other of them, being represented by one member.

6. Upon the completion of the next quinquennial census for the said Re-adJustment
province, the representation thereof shall forthwith be readjusted by ^^JJ^^J^J^j^
Parliament of Canada, in such manner that there shall be assigned to thejensiis.

said province such a number of members as will bear the same proportion
to the number of its population ascertained at such quinquennial census as
the number sixty-five bears to the number of the population of Quebec as
ascertained at the then last quinquennial census; and in the computation
of numbers of members for the said province a fractional part not ex-
ceeding one-half of the whole number requisite for entitling the province
to a member shall be disregarded, and a fractional part exceeding one-half
of that number shall be deemed equivalent to the whole number, and such
readjustment shall take effect upon the termination of the parliament then
existing.

2. The representation of the said province shall thereafter be read- f jfeS?^t.
justed from time to time according to the provisions of section 51 of the^^
British North America Act, 1867.

7. Until the Parliament of Canada otherwise provides the Q^^^^^^ca' n«nbSi of
tions of voters for the election of members of the House of Commons and House of
the proceedings at and in connection with elections of such members shall, Commoiu.
mutatis mutandis, be those prescribed by law at the time this Act comes

into force with respect to such elections in the North- West Territories. EaMcutlvc

8. The Executive Council of the said province shall be composed ofcomcil.
such persons, under such designations, as the Lieutenant Governor from

time to time thinks fit.

9. Unless and until the Lieutenant Governor in Council of the saidg^^^^i
province otherwise directs by proclamation under the Great Seal, the seat

of Government of the said province shall be at Edmonton.

10. All powers, authorities, and functions which under any law were Powers of
before the coming into force of this Act vested in or exercisable by theoJJ^JJ**'
Lieutenant Governor of the North-west Territories, with the advice, or sad Cotmcil.
with the advice and consent of the Executive Council thereof, or in con-
junction with that Council or with any member or members thereof, or by

> See No. CLXXXV, Section 3.

702

ConsHtutional Documents of Canada. [1867-1915

Great Seal.

Legislature.

LegislatiT«
AtaemUj.

Election of
members of
Assembly.

Write for first
election.

Laws, Courte,
and officers
continued.

ProTiso.

ProWnce may
aboUsh Su-
preme Court
of N. W. T.

Proviso.

As to certain
corporations
in N. W. T.

the said Lieutenant Governor individually shall, so far as they are being
capable of being exercised after the coming into force of this Act in rela-
tion to the government of the said province, be vested in and shall or may
be exercised by the Lieutenant Ciovemor of the said province, with the
advice or with the advice and consent of, or in conjunction with the
Executive G>uncil of the said province, or any member or members thereof,
or by the Lieutenant Governor individually, as the case requires, subject
nevertheless to be abolished or altered by the Legislature of the said pro-
vince.

11. The Lieutenant Governor in Council shall, as soon as may be
after this Act comes into force, adopt and provide a Great Seal of the said
province, and may, from time to time, change such seah

12. There shall be a legislature for the said province consisting of
the Lieutenant Governor and one House to be styled the Legislative
Assembly of Alberta.

13. Until the said Legislature otherwise provides, the Legislative
Assembly shall be composed of twenty-five members to be elected to repre-
sent the electoral divisions defined in the schedule to this Act

14. Until the said legislative otherwise determines all the provisions
of the law with regard to the constitution of the Legislative Assem$>ly of
the North-west Territories and the election of members thereof shall apply,
mutatis mutandis, to the L^islative Assembly of the said province and the
election of members thereof respectively.

15. The writs for the elections of the members of the first Legislative
Assembly of the said province shall be issued b^ the Lieutenant Governor
and made returnable within six months after this Act comes into force.

16. All laws and all orders and regulations made thereunder, so far
as they are not inconsistent with anything contained in this Act, or as to
which this Act contains no provision intended as a substitute therefor, and
all courts of civil and criminal jurisdiction and all commissions,^ powers,
authorities, and functions, and all officers and functionaries, judicial, ad-
ministrative, and ministerial, existing immediately before the coming into
force of this Act in the territory hereby established as the province of
Alberta, shall continue in the said province as if this Act and the Sask-
atchewan Act had not been passed; sttbject, nevertheless, except with
respect to such as are enacted by or existing 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 said province, according to the
authority of the Parliament or of the said Legislature: Provided that all
powers, authorities and functions which, under any law, order or regula-
tion were, before the coming into force of this Act, vested in or exer-
cisable by any public officer or functionary of the North-west Territories
shall be vested in and exercisable in and for the said province by like publk
officers and functionaries of the said province when appointed by competent
authority.

2. The legislature of the province may, for all purposes affecting or
extending to the said province, abolish the Supreme Court of the North*
west Territories and the officers, both judicial and ministerial, thereof,
and the jurisdiction, powers and authority belonging or incident to the said
court: provided that, if, upon such abolition, the l^islature constitutes a
superior court of criminal jurisdiction, the procedure in criminal matters
then obtaining in respect of the Supreme Court of the North-west Terri-
tories shall, until otherwise provided by competent authority, continue to
apply to such superior court, and that the Governor in Council may at any
time and from time to time declare all or any part of such procedure to be
inapplicable to such superior court.

3. All societies or associations incorporated by or under the authority
of the legislature of the North-west Territories existing at the time of the
coming into force of this Act which include within their objects the regula-
tion of the practice or the right to practice any profession or trade in the
North-west Territories, such as the legal or the medical profession, den-

1867-1915] Constitutional Documents of Canada, 703

tistry, pharmaceutical chemist]^ and the like, shall continue, subject, how-
ever, to be dissolved and abolished by order of the Governor in Council,
and each of such societies shall have power to arrange for and effect the
payment of its debts and liabilities and the division, disposition or transfer
of its property.

4. Every joint-stock company lawfully incorporated by or under tbe^^ Joint
authority of any ordinance of the North-west Territories shall be subject Companies,
to the l^islative authority of the province of Alberta if —

(a) The head office or the registered office of such company is at the
time of the coming into force of this Act situate in the province of Alberta ;
and

(b) The powers and objects of this company are such as might be
conferred by the Legislature of the said province and not expressly author-
ized to be executed in any part of the North-west Territories beyond the
limits of the said province.

17. Sectron 93 of the British North America Act, 1867, shall apply Education,
to the said province, with the substitution for paragraph (1) of the said
section 93 of the following paragraph: —

"(1) Nothing in any such law shall prejudicially affect any right or
privilege with respect to separate schools which any class of persons have
at the date of the passing of this Act, under the terms of chapters 29 and
30 of the Ordinance of the North-west Territories passed in the year 1901,
or with respect to religious instruction in any public or separate school as
provided for in the said Ordinances.*'

2. In the appropriation by the Legislature or distribution by the
Government of the province of any moneys for the support of sdiools
organized and carried on in accordance with the said chapter 29 or any
Act passed in amendment thereof, or in substitution therefor, there shall
be no discrimination against schools of any class described in the said
chapter 29.

3. Where the expression "by law" is employed in paragraph 3 of the
said section 93, it shall be held to mean the law as set out in the said
chapters 29 and 30, and where the expression "at the union" is employed,
in the said paragraph 3, it shall be held to mean the date at which this Act
comes into force.

18. The following amounts shall be allowed as an annual subsidy Subjidy to
to the province of Alberta and shall be paid by the Government of Canada, '*'^** ***^**
by half-yearly instalments in advance, to the said province, that is to say : —

(a) for the support of the Government and Legislature, fifty thousand ^^ ^Z'
dollars; « » emmcnt.

(b) On an estimated population of two hundred and fifty thousand, In proportion
at eighty cents per head, two hundred thousand dollars subject to be in- *<> P<*P"^***on-
creased as hereinafter mentioned, that is to say: a census of the said
province shall be taken in every fifth year, reckoning from the general

census of one thousand nine hundred and one, and an approximate esti-
mate of the population shall be made at equal intervals of time between
each quinquennial and decennial census; and whenever the population by
any such census or estimate exceeds two hundred and fifty thousand,
which shall be the minimum on which the said allowance shall be calculated,
the amount of the said allowance shall be increased accordingly and so on
until the population has reached eight hundred thousand souls.

19. Inasmuch as the said province is not in debt, it shall be entitled '^«"*»'p*y"
to be paid and to receive from the Government of Canada by half -yearly ^^^J^^
payments in advance an annual sum of four hundred and five thousand

three hundred and seventy-five dollars, being the equivalent of interest at
the rate of five per cent, per annum on the sum of eight million one
hundred and seven thousand five hundred dollars.

20. Inasmuch as the said province will not have the public land as a^™P**?****on
source of revenue, there shall be paid by Canada to the province by half-fJ^IJJSfc**
yearly payments in advance an annual sum based upon the population of lands.

the province as from time to time ascertained by the quinquennial census
thereof, as follows : —

704

Constitutional Documents of Canada. [1867-1915

Further com*
pensation.

Property in
lands, etc.

DiTiftioii of
assets and
liabilities be-
tween Sas-
katchewan
and Alberta.

Arbitration.

Rights of
H. B. Co.

Provision as
to C.P.R. Co.

Commence-
ment of Act.

The population of the said province being assumed to be at present
two hundred and fifty thousand the sum payable until such population
reaches four hundred thousand shall be three hundred and seventy-five
thousand dollars;

Thereafter until such population reaches eight hundred thousand, the
sum payable shall be five htmdred and sixty-two thousand five hundred
dollars ;

Thereafter until such population reaches one million two hundred
thousand the sum payable shall be seven hundred and fifty thousand
dollars.

And thereafter the sum payable shall be one million one hundred and
twenty-five thousand dollars.

2. As an additional allowance in lieu of public lands, there shall be
paid by Canada to the province annually by half-yearly payments, in ad-
vance, for five years, from the time this Act comes into force, to provide
for the construction of necessary public buildings, the sum of ninety-three
thousand seven hundred and fifty dollars.

21. An Crown lands, mines and minerals, and royalties incident
thereto, and the interest of the Crown in the waters within the province
under the North-west Irrigation Act, 1896, shall continue to be vested in
the Crown and administered by the Government of Canada, subject to the
provisions of any Act of the Parliament of Canada with respect to road
allowances and roads or trails in force immediately before the coming into
force of this Act, which shall apply to the said province with the substitu-
tion therein of the said province for the Nortii-west Territories.

22. All properties and assets of the North-west Territories shall be
divided equally between the said province and the province of Saskatch-
ewan, and the two provinces shall be jointly and equally responsible for
all debts and liabilities of the North-west Territories: provided that, if
any difference arises as to the division and adjustment of such properties,
assets, debts, and liabilities, such difference shall be referred to the arbitra-
ment of three arbitrators one of whom shall be chosen by the Lieutenant
Governor in Council of each province, and the third by the Governor in
Council. The selection of such arbitrators shall not be made until the
Legislatures of the provinces have met, and the arbitrator chosen by Canada
shall not be resident of either province.

23. Nothing in this Act shall in any way prejudice or affect the rights
or properties of the Hudsonls Bay Company as contained in the conditions
under which that Company surrendered Rupert's Land to the Crown.

24. The powers hereby granted to the said province shall be exercised
subject to ^e provisions of section 16 of the contract set forth in the
schedule to chapter 1 of the statutes of 1881, being an Act respecting the
Canadian Pacific Railway Company.

25. This Act shall come into force on the first day of September, one
thousand nine hundred and five.

Schedule (not printed.)

CLXXXVII

THE BRITISH NORTH AMERICA ACT, 1907

(7 Edward VII., c. 11.)

by

An Act to make further provision with respect to the sums to be
Canada to the several Provinces of the Dominion.

[9th August, 1907.1
Whereas an address has been presented to His Majesty by the Senate
and Commons of Canada in the terms set forth in the schedule to this Act:
Be it therefore anacted 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 assembled, and by the authority of the
same, as follows:

1867-1915] Constitutional Documents of Canada. 705

1. (1) The following grants shall be made yearly by Canada to «very JjrjJ«*»*o

Province, which at the commencement of this Act is a province of the Canada to
dominion, for its local purposes and the support of its Government and proTi&ces.
Legislature :

(a) A fixed grant —

Where the population of the province is under one hundred and fifty

thousand, of one hundred thousand dollars ;
Where the population of the province is one hundred and fifty

thousand, but does not exceed two hundred thousand, of one

hundred and fif^ thousand dollars;
Where the population of the province is two hundred thousand, but

does not exceed four hundred thousand, of one hundred and

eighty thousand dollars;
Where the population of Uie province is four hundred thousand, but

does not exceed eight hundred thousand, of one hundred and

ninety thousand dollars;
Where the population of the province is eight hundred thousand,

but does not exceed one million five hundred thousand, of two

hundred and twenty thousand dollars ;
Where the population of the province exceeds one million five

hundred thousand, of two hundred and forty thousand dollars;

and
(b) Subject to the special provisions of this Act as to the provinces

of British Columbia and Prince Edward Island, a grant at the

rate of eighty cents per head of the population of the province

up to the number of two million five hundred thousand, and at

the rate of sixty cents per head of so much of the population as

exceeds that number.

(2) An additional grant of one hundred thousand dollars shall be
made yearly to the province of Briti^ Columbia for a period of ten years
from the commencement of this Act.

(3) The population of a province shall be ascertained from time to
time in the case of the provinces of Manitoba, Saskatchewan, and Alberta
respectivelv by the last quinquennial census of statutory estimate «of popu-
lation maoe under the Acts establishing those provinces or aiiy other Act
of the Parliament of Canada making provision for the purpose, and in the
case of any other province by the last decennial census for the time being.

(4) Tne grants payable under this Act shall be paid half-yearly in
advance to each province.

(5) The ^nts payable under this Act shall be substituted for the
grants or subsidies (in this Act referred to as existing grants) payable
for the like purposes at the commencement of this Act to the several pro-
vinces of the Dominion under the provisions of section one hundred and
eighteen of the British North America Act, 1867, or of any Order in Coun-
cil establishing a province, or of any Act of the Parliament of Canada con-
taining directions for the payment of any such grant or subsidy, and
those provisions shall cease to have effect

(6) The Government of Canada shall have the same power of deduct*
ing sums charged against a province on account of the interest on public
debt in the case of the grant payable under this Act to the province as they
have in the case of the existing grant.

(7) Nothing in this Act shall affect the obligation of the Government
of Canada to pay to any province anv grant which is payable to that pro-
vince, other than the existing grant for which the grant under this Act is
substituted.

(8) In the case of the provinces of British Columbia and Prince Ed-
ward Island, the amount paid on account of the grant pa3rable per head of
the population to the provinces under this Act shall not at any time be
less than the amount of the corresponding grant payable at the commence-
ment of this Act ; and if it is found on any decennial census that the popu-
lation of the province has decreased since the last decennial census, the

706 Constitutional Documents of Canada, [1867-1915

amount paid on account of the grant shall not be decreased below the
amount then payable, notwithstanding the decrease of the population.
Short title 2. This Act may be cited as the British North America Act, 1907, and

pretation. shall take effect as from the first day of July nineteen hundred and seven.

CLXXXVIII

THE BRITISH NORTH AMERICA ACT, 1915.

(5 & 6 George V, c. 45.)

(19th May, 1915.)

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, as

follows :

Alteration of 1. — (1) Notwithstanding an3rthing in the British North America Act,

of^Senater" 1^67, or in any Act amending the same, or in any Order in Council or

30 and 31* terms or conditions of union made or approved under the said Acts or in

Vict., c. 3. any Act of the Canadian Parliament —

(i) The number of senators provided for under section twenty-one of
the British North America Act, 1867, is increased from ' seventy-
two to ninety-six:

(ii) The Divisions of Canada in relation to the constitution of the
Senate provided for by section twenty-two of the said Act are
increased from three to four, the fourth division to comprise the
Western Provinces of Manitoba, British Columbia, Saskatchewan,
and Alberta, which four Divisions shall (subject to the provisions
of the said Act and of this Act) be equally represented in the
Senate, as follows: — Ontario by twenty- four senators; Quebec
by twenty- four senators ; the Maritime Provinces and Prince Ed-
ward Island by twenty- four senators, ten thereof representing
Nova Scotia, ten thereof representing New Brunswick, and four
thereof representing Prince Edward Island; the Western Pro-
vinces by twenty-four senators, six thereof representing Mani-
toba, six thereof representing British Columbia, six thereof rep-
resenting Saskatchewan, and six thereof representing Alberta:

(iii) The number of persons whom by section twenty-six of the said
Act the Governor-General of Canadfa may, upon the direction of
His Majesty the King, add to the Senate is increased from three
or six to four or eight, representing equally the four divisions of
Canada :

(iv) In case of such addition being at any time made the Governor-
General of Canada shall not summon any person to the Senate
except upon a further like direction by His Majesty the King on
the like recommendation to represent one of the four Divisions
until such Division is represented by twenty-four senators and
no more:

(v) The number of senators shall not at any time exceed one hundred
and four:

(vi) The representation in the Senate to which by section one hundred
and forty-seven of the British North America Act, 1867, New-
foundland would be entitled, in case of its admission to the Union
IS increased from four to six members, and in case of the admis-
sion of Newfoundland into the Union, notwithstanding anything:
in the said Act or in this Act, the normal number of senators
shall be one hundred and two, and their maximum number one
49 and 50 hundred and ten :

Vict., c. 35. (vii) Nothing herein contained shall affect the powers of the Canadian

Parliament under the British North America Act, 1886.

1867-1915] Constitutional Documents of Canada. 707

(2) Paragraphs (i) to (vi) inclusive of subsection (1) of this section
shall not take effect before the termination of the now existing Canadian
Parliament. ...

2. The British North America Act, 1867, is amended by adding thereto of°Houw o?
the following section immediately after section fifty-one of the said Act: — Commons.

51A. Notwithstanding anything in this Act, a province shall always be
entitled to a number of members in the House of Commons not
less than the number oi senators representing such province.

3. This Act may be cited as the British North America Act, 1915 ; and Short title,
the British North America Acts, 1867 to 1886, and this Act may be cited
together as the British North America Acts, 1867 to 1915.

YC 90801 ^

UfOVERSITY OF CALIFORNIA UBRAKY