LIBRARY [versity of California Irvine F /033. 3>97 LORD DURHAM'S REPORT ON THE AFFAIRS OF BRITISH NORTH AMERICA EDITED WITH AN INTRODUCTION BY SIR C. P. LUCAS, K.C.B., K.C.M.G. IN THREE VOLUMES VOLUME I: INTRODUCTION OXFORD AT THE CLARENDON PRESS 1912 HENRY FROWDE, M.A. PUBLISHER TO THE UNIVERSITY OF OXFORD LONDON, EDINBURGH, NEW VORK TORONTO AND MELBOURNE PEEFACE THE Sketch of Lord Durham's Mission by Charles Buller is published as far as I am aware for the first time by the kind permission of Mr. A. G. Doughty, C.M.G., Dominion Archivist at Ottawa, to whom it was given by the present Earl of Durham. My thanks are due to him ; and among many friends in England and Canada who have given me help, I must specially mention Professor Egerton, and Mr. A. B. Keith of the Colonial Office, author of Responsible Government in the Dominions. I have also to thank Mr. Henry Lambert, C.B., of the Colonial Office, Mr. C. Atchley, C.M.G., I.S.O., Librarian of the Colonial Office, and Mr. H. P. Biggar, of the Dominion Archives Department. Any views expressed in the Introduction or the Notes are my own alone. C. P. LUCAS. March 1912 ERRATUM P. 97, 1. 12. for 1838 read 1837 CONTENTS OF VOLUME I CHAPTER I PAGE LORD DURHAM ....... 1 CHAPTER II THE ACCESSION OF QUEEN VICTORIA ... 10 CHAPTER III ORIGIN AND DEVELOPMENT OF THE POLITICAL DIFFI- CULTIES IN THE CANADAS .... 24 i CHAPTER IV LORD DURHAM'S COMMISSION AND INSTRUCTIONS . 106 CHAPTER V THE REPORT : ITS SCOPE, CHARACTER, AND SUBSTANCE The Scope of the Report . . . . .114 The Character of the Report . . . .116 The Substance of the Report . . . .123 Reunion of the two Canadas .... 124 Responsible Government . . . . .137 Public Lands .152 Emigration ... 188 Means of Communication ... .198 Municipalities and Local Government . . .210 vi CONTENTS THE REPORT: ITS SCOPE, CHARACTER, AND SUBSTANCE (Continued) PAGE Administration of Justice 223 Education 232 General Union of British North America . . 247 References to the United States .... 257 Colonial Office and Colonial Administration . .266 CHAPTER VI RETROSPECT, FORECAST, AND SEQUEL .... 276 CHAPTER VH THE REPORT AND THE EMPIRE 303 APPENDIX LORD DURHAM'S REPORT AS BEARING ON THE QUESTION OP HOME RULE FOR IRELAND . . . .318 INDEX . 325 CHAPTER I LORD DURHAM JOHN GEORGE LAMBTON, first Earl of Durham, was born in 1792. He died in 1840 at the age of 48. He was bom a year after an Act had been passed by the Imperial Parliament dividing the Province of Quebec, as it then was, into the two provinces of Upper and Lower Canada, and granting to either province representative institutions without respon- sible government. In the year in which he died another Imperial Act was passed, in consequence of his own recommendations, reuniting the two provinces with a view to granting to the single colony wider powers of self-government. He was the son-in-law of Lord Grey, the Prime Minister who carried the great Reform Bill. He was the father-in-law of Lord Elgin, who, as Governor-General of Canada, made responsible government in that colony a reality. He was the grandfather of the Secretary of State for the Colonies, who gave responsible government to the Transvaal and the Orange River Colony. His life was comparatively short : he never held high administrative office in England : he was a colonial governor for only five months : and he gave to the world a state paper on colonial matters which will live to all time. He was educated at Eton, and, after two years in the Army, he was in 1813 elected to the House 1352-1 B 2 BRITISH NORTH AMERICA INTROD. of Commons on the Whig or Liberal side as member for the county of Durham. In 1828 he was made a peer. In 1830 he was included in Lord Grey's Cabinet, being given the sinecure office of Lord Privy Seal, and he was a prominent member of the Committee of Ministers who framed the Reform Bill. In 1833 he left the Government and was made an Earl. For about two years, from 1835-7, he was Ambassador to Russia. In January 1838 he accepted the appointment of Governor-General of the British North American provinces. He left England on the 24th of April 1838 ; he reached Quebec on the 27th of May. On the 29th of May he landed and was sworn into office. He left again for England on the 1st of November following. On the 30th of November he landed at Plymouth. His Report is dated the 31st of January 1839 ; and on the 28th of July 1840 he died. Lord Durham was an aristocrat in temper and habits, lordly and imperious, fond of pomp and circumstance. He was a pronounced Radical in his political creed. But he was poles asunder from the Radicals of the Manchester School, and was more allied to such men as Sir William Molesworth than to Richard Cobden. He seems to have been a man of high character, transparent honesty, great courage and promptness, and of outspoken con- victions, but masterful and arrogant, with a self-will intensified by want of health, and by having come into his kingdom in early boyhood. He was a good man to serve, but a difficult man for a colleague, a man impatient of contradiction and restraint, one who made enemies and risked losing friends. CHAP, i LORD DURHAM 3 His life has been fully told in Mr. Stuart Reid's two interesting volumes, and no reference will now be made to any of its incidents in or out of Canada. Nor will words be wasted upon the much-debated question whether or not he wrote the Report which bears his signature. No one would suppose that he drafted every line of the document himself. On the other hand, to maintain that Lord Durham, of all men in the world, allowed somebody else to dictate what he was to recommend is ridiculous. When dispatches or state papers are published bearing the signature of one minister or another, it is not to be supposed that they have in all cases been written, word by word, from beginning to end, by the man who signs them. Yet every such document is presumed to embody his instructions, to have been under his eye, and corrected by his hand, and, bearing his signature, is credited to him for good or ill. Whether Lord Durham's own pen actually wrote much or little of the Report, in form and substance it is his and his alone, able as were the members of his staff. For he seems to have had the high quality of choosing competent advisers and assistants, and the courage or indiscretion of selecting them with- out regard to public opinion. The principal mem- ber of his staff was Charles Buller, pupil and friend of Carlyle, and satirist of the Colonial Office, who was widely credited with being the real author of the Report, and whose brilliant promise was cut short by early death in 1848. Next in importance was Gibbon Wakefield, whose personal antecedents gave occasion for cavilling at his being attached to B 2 4 BRITISH NORTH AMERICA INTROD. Lord Durham's Mission, but whose living and stimulating interest in colonial questions was beyond dispute. Durham's private secretary was Edward Ellice the younger, son of ' Bear ' Ellice, who had been the whip in Lord Grey's Ministry, and to whose merits in the capacity of a Canadian seignior the Report pays the graceful and kindly tribute of an old friend. The Report was published before all the supple- mentary reports which form its appendices had been received. A list of these appendices is given in vol. iii, and the following documents have been reprinted in the hope that they will be of use and interest to students of colonial, more especially of Canadian history. From Appendix A, papers 1, 2, 5, 6, and 9, being Mr. Hanson's Report on the excessive appropriation of public land under the name of Clergy Reserves ; a special report by Charles Buller on militia claims to grants of land ; a letter from Mr. William Young on the State of Nova Scotia; a letter from the Roman Catholic Bishop Macdonell ; and an address from the Con- stitutional Association of Montreal. From Appen- dix B, Charles Buller's Report on Public Lands and Emigration with the Royal Commission under which Lord Durham appointed him to make the Report, but without the Minutes of Evidence. Appendix C, including the Reports of the Com- missioners of Inquiry into the Municipal Institu- tions of Lower Canada, but excluding both the Appendix to those reports and also the Report from the Anglican Bishop of Montreal on the state of the Church within his diocese. From Appendix D, the CHAP, i LORD DURHAM 5 Report of the Commissioner of Inquiry into the state of Education in Lower Canada, without the Returns, and an extract from the Report on the Jesuits' Estates. It has also been thought well to reprint three dispatches, dated 20th January 1838, 3rd April 1838, and 21st April 1838, which embody Lord Glenelg's instructions to Lord Durham ; Lord Durham's dispatch of 9th August 1838, in which he foreshadowed the terms of his Report ; Lord John Russell's dispatch of 14th October 1839 on the sub- ject of Responsible Government ; and lastly, to add Charles Buller's sketch of Lord Durham's Mission. The Report, clear and powerful, speaks for itself, but some notes have been appended to it, and in this Introduction it is proposed to try to answer the following questions. (1) What were the con- ditions prevailing in the United Kingdom and in the British Empire generally at the time of Lord Durham's Mission ? (2) What was the position in the two Caiiadas at the time, and what circum- stances had led up to it ? (3) What were the terms of Lord Durham's Commission, and what were his instructions ? (4) What was in summary the scope, the character, and the substance of his Report ? (5) How far, according to the lights of the present day, did he read the past correctly ? How far did he correctly forecast the future in Canada, and how far were his recommendations adopted ? (6) How far are the principles laid down in his report of universal application ? Before, however, dealing with these specific questions it is necessary to say a word of general caution. The popular view of Lord Durham and 6 BRITISH NORTH AMERICA INTROD. his mission is that an abnormal crisis having arisen in a British colony, or a group of British colonies, which crisis was due in the main to ignorance and want of intelligence on the part of the rulers both in the colony and at home, the hour came and the man who discovered once for all the true principles of colonial administration. This view needs to be corrected. The crisis in Canada was only in part abnormal, though it had attained to undue proportions. Discontent is the common accompaniment of growth. Given a young man or a young community, with increasingly large capacities, and full of life and vigour, then desire for greater freedom and a wider field of vitality, and restlessness until the desire has been satisfied, is healthy, natural, and in no sense abnormal. Given again a community, in which to the desire for a greater measure of self-government is super- added the further element of friction caused by rival races, in different stages of development, living side by side in the same country, and it is obvious that the restlessness will be intensified. The conditions in the Canadas which Lord Durham set out to remedy were, therefore, not altogether abnormal. They were to some extent the necessary outcome of the time and place. Nor did Lord Durham achieve some wholly new and wonderful discovery when he recommended the reunion of the two provinces, and the grant of self-government to Canada. The reunion of the Canadas had been talked of almost from the date when they were divided from each other ; while as far back as 1822 a reunion bill had, on the CHAP, i LORD DURHAM 7 instance of Ellice the elder, been introduced into the House of Commons by the Tory Government of the day, and, but for the opposition of a handful of Radical members led by Sir James Mackintosh, might have been passed into law. Self-government for the colonies again, in one form or another, was not first conceived by Lord Durham. His merit consisted in the fact that, though he had not been born and bred in the colonies, probably because he had not been born and bred in the colonies, but had been a leader of the Reform movement in England, he advocated self-government for the colonies in the form in which it existed in the United Kingdom. It consisted in the force and clearness with which he pointed out existing evils, and the remedies which must be applied ; the statesmanship with which, not content with generalities, he prescribed definite and immediate action ; and the courage and insight, amounting to genius, with which he gave to the world the doc- trine of responsible government, not as a prelude to the creation of separate peoples, but as the cornerstone upon which a single and undivided British Empire should be reared to abiding strength. One other comment is necessary. Lord Durham was only five months in North America, and of that time only eleven days were spent in Upper Canada, 1 the whole of the rest of the time being 1 The Report of the Select Committee of the House of Assembly of Upper Canada, made in April 1839, which severely criticized Lord Durham and his Report, stated that ' His lordship's personal observa- tion was confined to his passing up the River St. Lawrence, and crossing Lake Ontario, in a steamboat occupied exclusively by his family and suite, a four days' sojourn at the Falls of Niagara, and a twenty-four 8 BRITISH NORTH AMERICA INTROD. devoted to the Lower Province. Moreover, during these five months, he had not only to attend to all the everyday business of administration, but to deal with the most pressing and vitally important questions, carrying on his own shoulders at a time of crisis the whole load of responsibility. He was not, like other commissioners, sent to make an inquiry, while all the ordinary machinery of government was steadily working from day to day irrespective of the commissioner and without dis- turbing the course of the inquiry. Nor was lie sent out with command of railways, telegraphs, and all the swift and sure means of communication which science has since perfected or devised. The field of his inquiry was very wide, the population was very scattered, the problems were as varied as they were numerous, means of communication were most inadequate. That such results should have been achieved in so short a time, when that short time had been overfilled with harassing ques- tions of administration, is evidence to monumental industry and striking ability on the part of Lord Durham and his assistants. But, at the same time, it is clear that, under these conditions, it was humanly impossible for the Report to have em- bodied the fullest first-hand knowledge on every point of detail, or to have been written with all the judgement and reflection which a longer residence in North America might have brought. Possibly in the latter case the view of the forest hours' visit to the Lieutenant-Governor at Toronto' (Parliamentary Paper, No. 289, June 1839, Copies or Extracts of Correspondence relative to the Affairs of Canada, p. 22). CHAP, i LORD DURHAM 9 might have been obscured by the trees, and the picture of the whole might have been no more accurate and less vivid than that which is presented in the Report ; but, none the less, on the one hand it is only fair to Lord Durham to bear in mind the disadvantages under which the Report was written, and on the other it would be wrong to ignore the very strong exception taken to the statements and inferences which it contained, in and on behalf of Upper Canada. CHAPTER II THE ACCESSION OF QUEEN VICTORIA QUEEN VICTORIA came to the throne on the 20th of June 1837. Lord Durham, therefore, started on his mission towards the end of the first year of her reign. It is noteworthy how the beginning of the great Queen's reign coincided with various measures or movements which tended to recast and regenerate the British Empire. In 1833, Sir James Stephen, then legal adviser and three years later permanent head of the Colonial Office, between a Saturday morning and the middle of the day on the following Monday, drafted the Imperial Act for the Abolition of Slavery. Passed into law in that year, it provided that, from the 1st of August 1834, slavery should be abolished throughout the British dominions ; but the emanci- pated negroes were to continue to labour under a system of apprenticeship until the 1st of August 1838 in the case of non-praedial apprentices, and the 1st of August 1840 in the case of praedial apprentices, the term of apprenticeship being in some cases shortened by local legislation. The last remnants of legalized slavery were therefore being blotted out in the British Empire when the young girl of eighteen became Queen ; and when sixty-three years later she died in fullness of age and of honour, she was mourned in the lands which CHAP. IT ACCESSION OF QUEEN VICTORIA . 11 slavery had once blighted, as the giver of freedom to the negro race. Great as an act of humanity and justice to a class of British subjects, the Emancipation Act is also interesting to students of colonial history as an instance of the mother country enforcing its will on colonies, some of which had from the earliest times enjoyed no small measure of self-government. An island like Bar- bados was never a Crown Colony in the ordinary sense. It had from the first been to a large extent a self-governing community, though the self- government was limited to the white oligarchy ; and to this day it retains its elected Assembly and the power of the purse. Thus we have the noteworthy coincidence of the birth of responsible government in British North America with the most pronounced enforcement of the will of the mother country in the British West Indies, though the latter had enjoyed representative institutions in times when Canada, so far as it was colonized, was under a French despotism, with no semblance even of municipal liberties, while what was after- wards Upper Canada was in the main a wilderness. Somewhat later in time than the anti-slavery movement, but roughly coincident with the acces- sion of Queen Victoria, was another fruitful philan- thropic effort, which resulted in the gradual abolition of the system of transportation. Arch- bishop Whately and others had been active in pointing out the evils and abuses to which this system gave rise, and in 1837 a select committee was appointed by the House of Commons ' to inquire into the system of transportation, its 12 BRITISH NORTH AMERICA INTROD. efficacy as a punishment, its influence on the moral state of Society in the penal colonies, and how far it is susceptible of improvement '. It was a strong committee. Sir William Molesworth was the Chairman, and among the members were Charles Buller, Sir George Grey, Lord Howick, afterwards Lord Grey, Lord John Russell, and Sir Robert Peel. The report was made in August 1838 : it condemned the existing system : and the first of its recommendations was ' that transporta- tion to New South Wales, and to the settled districts of Van Diemen's Land, should be dis- continued as soon as practicable '. In 1840 transportation to New South Wales was suspended. This was the beginning of the end of a system which died hard, for some convicts were sent to Western Australia up to 1867, Western Australia being, it should be noted, the only colony in Australia which at that date had not received responsible government. The system died hard, for it was not, like slavery, evil in its essence ; it was evil only in the conditions under which it was enforced or which gathered round it. The Act of Parliament which abolished slavery throughout the British dominions affected mainly the colonies of Great Britain in the western hemisphere, the West Indies, which were her oldest colonies, and which were in fact, as they had been in name, plantations. The anti-trans- portation movement principally affected the British colonies in the south, the youngest colonies of Great Britain, those in Australia which had been originally founded as penal settlements. Slavery CHAP. IT ACCESSION OF QUEEN VICTORIA 13 was abolished by the will of the mother country imposed upon the slave-owning colonies ; trans- portation was eventually abolished in obedience to the will of the colonies imposed upon the mother country. In the West Indies, where slavery prevailed, and where in past times the white oligarchies were in great measure self-governing communities, there is now but the remanet of representative institutions. The area where the transportation system was most fully applied is, at the present day, the scene of colonial self- government in its fullest expression. The Cape, on the way between East and West, on the way between North and South, was touched alike by the abolition of slavery and by the move- ment against transportation. One of the dramatic incidents in the later stages of the anti-transporta- tion campaign, and one of the most emphatic pronouncements of colonial rights in advance of colonial self-government, was the refusal of the Cape colonists, in September 1849, to allow the Neptune to land her freight of ticket-of -leave men in Simons Bay. Earlier in the history of the Cape, the inadequacy of the compensation paid to the slave-owners had embittered colonial feeling against the British Government ; there followed the reversal of Sir Benjamin D'Urban's policy by Lord Glenelg ; and when Queen Victoria came to the throne, the Great Boer trek was taking place, which coloured the whole subsequent history of South Africa. Returning to Australasia, the colony of South Australia dates from 1836, the year before the 14 BRITISH NORTH AMERICA INTROD. Queen's accession. The date usually given to the founding of Melbourne is 1837. In 1837 the New Zealand Association was formed. In 1838-9 it was followed by the New Zealand Land Company. In 1839 this company forced the hands of the Government by sending out the ship Tory to New Zealand, with Gibbon Wakefield's brother on board, and the forerunners of a larger band of settlers ; and early in 1840 New Zealand became formally and finally a British possession. The settlement of South Australia, and the acquisition of New Zealand, were the outcome of the coloniza- tion movement with which Gibbon Wakefield's name is for ever associated, and the chairman of the New Zealand Company was Lord Durham. This movement was at its flood-tide when Queen Victoria came to the throne. But while thinkers and statesmen and philan- thropists were at work, more potent in their effects upon the world at large, and upon the British Empire in particular, were the inventions and discoveries of men of science. When Queen Victoria began her reign, the forces of steam were in their cradle, and the forces of electricity were being brought to birth. The first railway upon which the locomotive was used, the line from Stockton to Darlington, was opened in 1825, the line from Manchester to Liverpool in 1830. In his Report (ii. 212-13), Lord Durham wrote, ' there is but one railroad in all British America, and that, running between the St. Lawrence and Lake Champlain, is only fifteen miles long.' That line was the only railroad in the British Empire outside CHAP, ii ACCESSION OF QUEEN VICTORIA 15 the United Kingdom at the date of the Queen's accession. In his Essay on the Government of Dependencies, which was published in 1841, Sir George Cornewall-Lewis speaks of the possibility of countervailing the difficulties in administration due to distance by ' the goodness of the roads and bridges, and an advanced state of the art of navigation, affording the means of rapid locomotion both by land and sea V but he makes no specific reference in this passage to railways, steamers, or telegraphs ; and in one note only in his book does he refer in unfamiliar terms to ' the invention of steam railways ', as about to reduce ' to sober truth ' the passage in which the poet Claudian depicted the unity and the facility of intercourse which peace and good roads had given to the Roman Empire. 2 Almost the greatest merit of Lord Durham's Report is the writer's obvious apprecia- tion of what the future, aided by science, might have in store for British North America ; and had Lord Durham lived to see the 8th of November 1885, when railway connexion was completed from Montreal to Vancouver, he would have been hardly older then than one of the chief pioneers of the Canadian Pacific Railway, the present High Commissioner for Canada, is now. ' The success of the great experiment of steam navigation across the Atlantic,' says Lord Durham in his Report (ii. 316-17), ' opens a prospect of a speedy communication with Europe, which will materially affect the future state of all these provinces.' On the wall at the entrance to the 1 p. 178 (1891 ed.). ' PP- 128-9 note. lf> BRITISH NORTH AMERICA INTROD. Parliamentary Library at Ottawa there is an in- scription ' in honour of the men by whose enterprise, courage, and skill, the Royal William, the first vessel to cross the Atlantic by steam power, was wholly constructed in Canada and navigated to England in 1833 '. This ship was built at Quebec under the cliffs of Cape Diamond, and launched in April 1831. On the 18th of August 1833 she started from Pictou in Nova Scotia and steamed across the Atlantic, reaching Gravesend on the 12th of September, twenty-five days after leaving Pictou. 1 Regular steam communication, however, between England and America did not begin till 1838, the year in which Lord Durham went to Canada. The Peninsular Company, formed in 1837, received its charter as the Peninsular and Oriental Company in 1840 ; and on the 4th of July 1840 the Britannia, a steamer belonging to a citizen of Halifax in Nova Scotia, of the name of Cunard, started from Liver- pool for Halifax and Boston, being the first regular steamer of the great Cunard line. In 1837, Cooke and Wheatstone took out a patent for an electric telegraph, and in 1840 Wheatstone is said to have drawn plans for a submarine tele- graph from Dover to Calais ; but it was not until 1858 that a submarine cable was laid between the United Kingdom and America, and the connexion was not finally and successfully made until 1866. It may be summed up that when Queen Victoria's reign began, and when Lord Durham went out to 1 The brass tablet was erected in 1894, and a full account of the Royal WiUiam is given in the Report of the Secretary of State of Canada for 1894, published in 1895. CHAP, ii ACCESSION OF QUEEN VICTORIA 17 Canada, science was about to recast the meaning of space and time ; but it was as yet the dawn only, and not the full brightness of day. Lord Melbourne, who succeeded Lord Grey as the leader or nominal leader of the Whig party, was Queen Victoria's first Prime Minister, and it was during his tenure of office that Lord Durham's mission took place. The battle of Waterloo had ended an age of war. Before 1815< for England and for the world generally, war had for a long series of years been the rule and peace the excep- tion. The people had grown up not merely familiar with the conditions of life in time of war, but so accustomed to war that peace must have seemed a novelty. It had been a fight for national exis- tence. England, though spared the horror of war on her own shores, had paid a heavy price for victory, but she had survived and she had won. When peace came again, the English, by a perfectly wholesome instinct, still kept in power the men who had led them in war times and with whom the Duke of Wellington was associated, and they kept out of power the Whigs who had been or seemed to have been the less patriotic of the two parties. This went on until peace had become the rule and not the exception, and until, if ever there was going to be a transfer of power from one party to another, it was absolutely inevitable that it should take place. Then in 1830 the Whigs, who had especially espoused or professed to espouse the cause of Parliamentary Reform, came into power, and with a short break held office for rather more than ten years. 1352-1 C 18 BRITISH NORTH AMERICA INTROD. They passed the great Reform Act of 1832, the Acts for the abolition of slavery, for the reform of the Poor Law, for the reform of municipal corpora- tions, and other valuable legislation. It stands to their lasting credit that they thoroughly repaired the parliamentary machinery of England, gave some measure of representation to the great cities, and made the House of Commons an exponent of popular wishes and popular movements to an extent which had never been the case before. It stands to their credit, too, that, having improved the machinery, they used it for a short time in an undeniably beneficial manner. On the other hand, their enthusiasm for democratic measures, and the enthusiasm of the people for them, cooled some- what rapidly ; and at the beginning of Queen Victoria's reign the Whig ministers were not much more than caretakers, the leaders of the Ins as opposed to the Outs, not entrusted with any great mission or standing for any great principle. The reasons for this result are not far to seek. The inevitable outcome of passing the Reform Act and having a reformed Parliament was disunion, more or less pronounced, more or less rapid, both in the Government and in the country. The door had been unlocked, obstructions had been removed, people were moving on, and they moved at different rates of speed and in different directions. The individual ministers, or some of them, may well have become tired and half-hearted, and there was probably, as is always the case, a large section of the public disappointed because extension of the franchise did not at once bring the millennium. CHAP, n ACCESSION OF QUEEN VICTORIA 19 Moreover there was, after all, no great gulf fixed between the Whigs and the Tories. On the one hand the Whig Government was not wholly com- posed of traditional Whigs, and on the other the Tories, whom they succeeded, had had a strong leaven of Liberalism among them. Melbourne had served under Canning and the Duke of Wellington. Stanley, nominally a Whig, had served under Canning. Palmerston, Goderich, Lord Glenelg, among others, had been in the so-called Tory ranks. In those ranks, Canning had been the very anti- podes of a benighted Tory; Huskisson had gone further than any responsible minister in the direc- tion of Free Trade ; while, even when the Duke of Wellington, the very embodiment of Toryism, was Prime Minister, the Test and Corporation Acts had, on Lord John Russell's initiative, been repealed, and Catholic emancipation had been carried. Canning and Huskisson were dead, but Peel survived ; and Peel, the country knew well, was no more of a reactionary than Melbourne and his friends. Thus at the beginning of Queen Victoria's reign there was a somewhat colourless Government in power, representing a spent force, no better and 110 worse than an ordinary party Government in ordinary times of peace. War as a normal con- dition of English life had passed more or less into oblivion, and there were a large number of move- ments at work, political, social, and industrial, and a considerable number of individual men, like Lord Durham himself, not hide-bound by party ties, but independent of and prepared, if their principles called for such a course, to be antagonistic 02 20 BRITISH NORTH AMERICA FNTKOD. to the Government. In 1838 the Anti-Corn Law Association was formed, which developed in the following year into the Anti-Corn Law League. Free Trade had not been a plank in the Whig platform, and there was no love lost between the official Whigs and Richard Cobden. 1838-9 was the date of the Chartist movement, and those who sympathized with he Chartists made small account of the Whigs as represented by Lord Mel- bourne's Government. In that Government, when Lord Durham went out to Canada, the Colonial Secretary was Charles Grant, Lord Glenelg. Sir Henry Taylor, who served under him at the Colonial Office, wrote of him as ' high-minded, accomplished, and occasion- ally eloquent, but habitually and incurably sluggish and somnolent ; . . . amiable and excellent as he was, a more incompetent man could not have been found to fill an office requiring activity and a ready judgement.' l A much more favourable estimate of him was given by Taylor's friend and colleague, Sir James Stephen, who, during Lord Glenelg's tenure of office was promoted to be permanent Under-Secretary of State for the Colonies. When Lord Glenelg resigned, Stephen wrote : ' Lord Glenelg's resignation is, as you may well suppose, a sad subject with me. He is the tenth Secretary of State under whom I have served, and from the most certain knowledge, I can declare that of the whole of that long list he is the most laborious, the most conscientious, and the most enlightened minister of the public. . . . His 1 Autobiography of Sir Henry Taylor 1885, vol. i, pp. 147-8. CHAP, ii ACCESSION OF QUEEN VICTORIA 21 real and only unfitness for public life arises from the strange incompatibility of his temper and principles with the tempers and with the rules of action to which we erect shrines in Downing Street.' l There can be no doubt that Lord Glenelg was a man of very high principles. He was actuated by the purest motives of justice and philanthropy, when he ordered withdrawal from the native territory which Sir Benjamin D' Urban had annexed to the Cape Colony ; but the result of his action in that case was most disastrous, and in general by common consent he was a weak and incompetent Secretary of State for the Colonies. In 1838 Sir William Molesworth moved a vote of censure on him in the House of Commons, charging him by implication with want of diligence, forethought, judgement, activity and firmness, and early in the following year he was made to resign. Stephen, who described himself in the letter quoted above as Lord Glenelg' s ' intimate personal friend ', and who, as permanent Under-Secretary of State, was his principal adviser at the Colonial Office, was anything but a weak man. He was strong enough to be exposed to attacks from which permanent officials are usually exempt, and he was supposed to be the embodiment of all the vices of the Colonial Office when Charles Buller de- nounced it and talked about ' Mr. Mother Country '. ' I am scarcely twenty-four hours off Sir William Molesworth's impeachment,' Stephen wrote in 1838, ' in which I hear from Charles Buller, a great friend of Sir William's, that I am to have a con- 1 The First Sir James Stephen, pp. 56-7, Letter of February 12, 1839. 22 BRITISH NORTH 'AMERICA INTROTX spicuous share. I am, it seems, at your service, a rapacious, grasping, ambitious Tory. On two unequal crutches propped he came, Glenelg's on this, on that Sir G. Grey's name ; and it appears that by the aid of these crutches I have hobbled into a dominion wider than ever Nero possessed, which I exercise like another Domitian.' ] If some took Stephen to be a rapacious Tory, the eccentric Governor of Upper Canada, Sir Francis Bond Head, abused him as a rank republican. From his predominance at the Colonial Office ho was christened Mr. Over-Secretary Stephen, and he seems to have been regarded by men of the school of Molesworth and Buller as the type of a rigid and unsympathetic official. He had been brought up in the evangelical atmosphere of the Clapham sect, and with their virtues and their philanthropy may well have inherited also some narrowness, but his private letters show no want of kindly feeling or of human sympathy. ' It fell to his lot,' wrote his son, Sir FitzJames Stephen in 1860, ' to assist in two of the most remarkable transactions even of this century. The first was the abolition of slavery, the second was the establishment of responsible government in Canada. . . . The principles which he always advocated ultimately obtained complete recogni- tion, but he was constantly obliged to take part in measures which he regretted, and of which he disapproved.' 2 It must be remembered that, when the United States were severed from the British Empire, little 1 The, Fir.it Sir Jam?s Stephen, p. 53. Sir G. Grey was then the Parliamentary Under- Secretary at the Colonial Office, nnd represented it in the House of Commons. - pp. 51-2. CHAP, ii ACCESSION OF QUEEN VICTORIA 23 trace of colonial self-government was left within the Empire except in the West Indian Legislatures. The tendency of the time was, as in the case of the abolition of slavery, to override these Legislatures, not to extend their powers ; and in 1839, the very year in which Lord Durham's Report appeared, Lord Melbourne's Government brought in a Bill for temporarily suspending the constitution of Jamaica, which led to the resignation of the Ministry. Out- side the West Indies, Canada had been given repre- sentative institutions by the Act of 1791, but the Colonial Office had necessarily none of the experi- ence of dealings with self-governing communities which it has at the present day. It may be summed up therefore that, when Lord Durham went out to Canada, the Colonial Office with which he had to deal was in the main what would now be called a Crown Colony Office, presided over by an excep- tionally weak Secretary of State and an exception- ally strong permanent Under-Secretary. Such conditions would give a notable opportunity for reflections and comments on bureaucracy; and inasmuch as the evils of bureaucracy were a favourite theme with Charles Buller, perhaps his hand may specially be traced in the very able passages of the Report (ii. 101-6) which refer to this subject, and one of the side notes to which is ' Evils of committing details of government to Colonial Department '. CHAPTER III ORIGIN AND DEVELOPMENT OF THE POLITICAL DIFFICULTIES IN THE CANADAS IN 1837, the year of the Queen's Accession and the year before Lord Durham went to Canada, the discontent and unrest which had long prevailed alike in Lower and in Upper Canada, culminated in open rebellion in either province. In order to make clear how the trouble arose, it is necessary to give an outline of the previous condition of the two provinces. Between French and English colonization in North America, and between French and English colonists, there was a great gulf fixed. Race, religion, language, customs, prejudices divided them, but the division did not end here. French colonization was born of the State, it was reared by the State, it was controlled by the State. Its essence was feudalism, imported from the old world to the new, which was not, however, as in the old world, a growth but the creation of the Crown. In New France the authority of the Crown and of the Church was absolute. ' The institutions of France,' wrote Lord Durham (ii. 27-8), ' during the period of the colonization of Canada, were, perhaps, more than those of any other European nation, calculated to repress the intelligence and freedom of the great mass of the people. These institutions CHAP, in POLITICAL DIFFICULTIES 25 followed the Canadian colonist across the Atlantic. The same central, ill-organized, unimproving and repressive despotism extended over him. Not merely was he allowed no voice in the government of his province, or the choice of his rulers, but he was not even permitted to associate with his neighbours for the regulation of those municipal affairs, which the central authority neglected under the pretext of managing.' Lord Durham regarded the political and social system of Canada under French rule from an English point of view, and he emphasized that view as an advanced Liberal. It is true that there was no liberty, as Englishmen understood it, in New France, no vestige of popular representation in political or even in municipal matters ; but the system was not without its merits. It was not ill organized. In its inception it was well and skilfully organized. The object was to reproduce in the new home the conditions which the colonists had known in the old, to create a New France in America. New France was created, and it would be difficult to find a parallel in history for a handiwork so artificial, which was at the same time so strong and lasting. Two features in French Canada call for special notice. The first is that it tended to be a land of extremes, or at any rate a land of strong contrasts. Within the settled area life was lived rigidly according to rule, on fixed lines in fixed places. Outside the settled area French quickness of mind and body found unlimited scope : the voyageurs and the coureurs de bois went far and wide and knew no law. The second characteristic to be noticed is 20 BRITISH NORTH AMERICA INTROD. that Canada in old days was better framed for war than for peace. It had a natural stronghold in Quebec, to which there is no parallel in North America ; it had a race of men in the coureurs de bois specially adapted for border forays ; while the system, at once feudal and centralized, under which the ordinary community lived, was a most effective organization for war purposes. The English in America were many, the French were one ; and, as the days of New France were more often days of war than days of peace, Canada reaped the benefit of unquestioned authority, unquestioning obedience, and a whole population trained for service to the King. Canadian colonization was the product of the State, and the State was the Crown. The British colonies, which were the neighbours and rivals of Canada, were largely the product of antagonism to the State. The typical New Englanders were men or the descendants of men who had gone out to America to live their lives as they wished, and not as the King or the Home Government wished. They were cradled in freedom, political and religious, and self-government in one form or another was of the essence of their being. They did perforce a good deal of warring, in a spasmodic and slipshod fashion, but their real business was to grow and multiply, to settle in their own way and on their own lines. There were backwoodsmen and hunters among them, but there were no such extremes in the English colonies as were to be found in Canada. There were no habitants or seigniories on the one hand, and on the other no CHAP, in POLITICAL DIFFICULTIES 27 ' definite class of Indianized Europeans like the coureurs de bois. The English colonists were all citizens, more often than not grudging and selfish citizens, but in all cases keenly conscious of their rights if not of their responsibilities. The conquest of Canada and the Peace of Paris made the French Canadians, who had in the past been most loyal subjects of the French King, sub- jects of the British King, and fellow subjects with these wholly dissimilar British colonists, who had no instinct or tradition of heart-whole obedience, and a few of whom, bad specimens of their kind, found their way into Canada. A most difficult position was created for the British Government. That Government wished to treat the new subjects, the French Canadians, with the fullest considera- tion, to respect their religion and their customs. At the same time the British ministers wished to extend to the French Canadians within reason British laws and institutions, because those laws and institutions embodied, so it was assumed, better conditions of life than the Canadians had hitherto known, and because it was desired to con- vert the Canadians gradually into British citizens. Further it was desired, as far as possible, while con- ciliating the French Canadians, not to run counter to the wishes and prejudices of the neighbouring British colonies, and also as far as possible to meet the wishes of the very small but very noisy British minority in Canada, and to make Canada an attractive field for British settlement. The result was, and could only be, a measure or measures of compromise. 28 BRITISH NORTH AMERICA INTROD. Canada, as a British possession, began with military rule, and it throve under military rule. The Canadians had been accustomed to it or to something very like it. They had been trained on military lines. Their loyalty and obedience had been to persons, to the King, to the priest, to the seignior, not to a State. They had obeyed rules and customs made from above, not laws made by themselves. They had been brought up under authority and had inherited discipline. Military men, therefore, who had known discipline them- selves, and who were by reason of their calling essentially the King's men, who, moreover, had in fighting learnt to appreciate the bravery and the stubbornness of the French Canadians, sympa- thized with them more and understood them better than did civilians, and far better than well-meaning ministers at a distance or the ill-disposed British minority on the spot. When civil government was established by the Royal Proclamation of 1763, soldier governors were continued. James Murray, the first Governor, and his successor Carleton, were in full sympathy with the Canadians, and Carleton urged the importance of interfering as little as possible with Canadian laws and customs, and of employing the Canadian seigniors in the King's service, thereby giving them the personal link which they had known under the old regime. The absence of some such recognition left the Canadian noblesse half- hearted in their new allegiance. The introduction of English laws and of English legal procedure led to confusion and to general uneasiness. The CHAP, m POLITICAL DIFFICULTIES 29 habitants found the bonds of discipline relaxed, and began to unlearn obedience. The British minority clamoured for a General Assembly, on the model of the Assemblies of the adjoining provinces, the grant of which had been foreshadowed by the Proclamation of 1763, and they made the igno- rant French peasantry familiar with the claptrap phrases of colonial democracy. Under these con- ditions, after the most anxious inquiry and guided to a great extent by Carleton's advice, the Home Government passed the Quebec Act of 1774. The Quebec Act gave great offence to the old colonies, already on the eve of revolt, mainly because it included within the Province of Quebec the western lands which those colonies looked upon as their own sphere of future settlement and colonization ; nor did it satisfy the British minority, inasmuch as it made no provision for an elected Assembly. By the Canadians, on the other hand, it was regarded at the time with great satisfaction, for it safeguarded their religion and gave them their old laws in civil matters. The Act created a Legislative Council, but not on an elective basis ; and it withheld from the Council powers of taxa- tion except in the form of purely local rates. Another Imperial Act was passed at the same time, the Quebec Revenue Act, which repealed various taxes levied under the French Government, and imposed instead certain duties on spirits and molasses as well as certain licences, the proceeds of which were applied to meeting the expenses of the civil government and of the administration of j ustice. 30 BRITISH NORTH AMERICA INTROD. The passing of the Quebec Act was followed almost immediately by the War of American Independence. In this war the Canadians as a whole were neutral ; they were a lately-conquered people, they had no great reason to love their con- querors, and they were invited and urged to rise for freedom and for imaginary privileges which they did not understand. On the other hand, they had liked their soldier governors ; they, or some of them, had recognized the fair and kindly dealing embodied in the Quebec Act ; if they had no great love for the English from over the seas, they had less love for the English in their immediate neigh- bourhood ; and the sentiment for a King had not wholly died out. The better classes tended to take the King's side. Of the peasantry not a few joined the Americans ; but the large majority waited on events. The outcome of the war was that Quebec was well defended and well kept ; that Canada re- mained a province of the British Empire with far greater relative importance attached to it than when it had been overshadowed by the adjacent colonies, now no longer British possessions ; and that the Loyalist immigration from the United States led to the creation of two new British pro- vinces in North America, New Brunswick, which was the mainland of Nova Scotia, and Upper Canada, which was the hinterland of Quebec. The Loyalists brought with them intense animosity to the newly-formed Republic of the United States, intense loyalty to the British Crown, but none the less the traditions and the instincts of colonial CHAP, in POLITICAL DIFFICULTIES 31 self-government. Their coming into the old Province of Quebec produced a new set of con- ditions. The British population of Canada was now no longer an insignificant minority, but a strong and substantial number of tried and approved citizens, whose political training had been wholly different from that of the French Canadians. They were mainly settled in a part of the province which the French had not colonized ; and this fact made it possible, if it was thought desirable, to divide the province, and give to either half a separate legislature and administra- tion. This course was taken, again after the most careful attention to all the facts and features of the case ; and, by the Imperial Act of 1791, the Province of Quebec was divided into the two provinces of Upper and Lower Canada, either pro- vince being given a constitution consisting of a nominated Legislative Council and an elected Assembly, but neither province being given full control either of their revenues or of their executive officers. By thus dividing the old Province of Quebec it was hoped that friction would be avoided, and that French Canada, being side by side with a British province, and enjoying the same institu- tions, would gradually become assimilated to it without jealousy or ill-will. William Pitt's words, when introducing the bill into the House of Commons, were as follows : ' This division, it was hoped, would put an end to the competition between the old French inhabitants and the new settlers from Britain, or British colonies, which had occasioned the disputes and uncertainty 32 BRITISH NORTH AMERICA INTROD. respecting law, and other disputes of less im- portance, by which the province had been so long distracted.' x At almost any time in Canadian history between 1783 and 1867, when British North America was federated into a dominion, the arguments for having one Canada or two Canadas (exclusive of the Maritime Provinces) left little to choose between them. There were obvious advantages and obvious disadvantages in either alternative. The division into two provinces led to the following among other difficulties. As is pointed out in Lord Durham's Report, it tended to widen the gulf between French and English by marking out one part of Canada for the French and the other for the English. At the same time it did not effect the object which the framers of the 1791 Act contemplated, of preventing conflict between the two races by giving them separate spheres of influence ; for in the French province there came into being an English district, the townships as opposed to the seigniories, the settlers in which, for many years, were not represented in the Quebec Legislature and keenly resented French domination. The division of the provinces again necessarily involved divided executive authority in an area over which it was clearly desirable that there should be one supreme head. Nominally there was a Governor-General of the two Canadas, and the Governor of Upper Canada only bore the title of Lieutenant-Governor : but for all practical pur- 1 Parliamentary Rajistir 1791, vol. xxviii, p. 514, Debate of ilaivh 1 1791. CHAP, in POLITICAL DIFFICULTIES 33 poses the Governor- General soon became Governor of Lower Canada only, and the substitution of two Governors for one militated against uniformity of policy and tended to weaken the executive power in the face of growing democracy. Once more, the division of the two provinces, as the dividing line was drawn, created a purely inland colony, whose outlet to the sea was either through the sister colony or through a foreign country. The result of this was to make Upper Canada, as far as customs duties were concerned, dependent upon Lower Canada, and thereby to create a perpetual dispute between the two provinces. The Imperial Canada Trade Act of 1822 was an attempt to remove this cause of friction. v It may be summed up that from 1791 onward until Lord Durham's time there were, exclusive of what are now the Maritime Provinces of the Dominion, two Canadas, one mainly French, the other mainly English, each province enjoying representative institutions without responsible government, and the Legislatures consisting in either case of a nominated Legislative Council and an elected Assembly. There were thus obvious and abundant opportunities for friction ; between the Governors, as occurred at the outset between Lord Dorchester and Simcoe ; between the provinces, for the reason already given ; between the races and religions, wherever French and English were brought into close contact ; between the two houses of the Legislature a species of political fric- tion which is common everywhere ; between the executive power on the one hand as represented 1352-1 D 34 BRITISH NORTH AMERICA TNTROD. by the Crown and the officers of the Crown, especially the Governor, and on the other the Legislature, or rather the elected branch of the Legislature, the main ground of dispute being control of the public purse. On the whole it may fairly be said that the history of Canada from 1791 to the time of Lord Durham's mission is, with the exception of one interlude, the war of 1812, a record of friction of this last-named kind, coloured by race feeling and by the special conditions of the respective provinces. When the two Canadas received representative institutions, the French Canadians were thereby given a machinery which was familiar to English- men, but which had never previously been handled by Frenchmen in America. The French population consisted of an intensely conservative gentry and a wholly uneducated peasantry, both dominated by a Church, the essence of which was absolutism. As far as the French Canadians had any guidance in handling their new tools, it came from the British minority in Quebec and Montreal ; but not many years passed before the French began to better their instruction. With the early years of the nineteenth century Nationalist views gained ground, a French Canadian press came into existence, and, while French and English more or less combined against an administration which was out of touch with the people, and various officers of which, sent out from home, were notoriously unfit for their posts, the line of race cleavage became more and more distinct, and the struggle for popular control of the finances was CHAP, ni POLITICAL DIFFICULTIES 35 embittered by being fought with French acuteness and French impatience of compromise. Mean- while Upper Canada, though as a whole intensely loyal to the British Crown, was leavened to some extent by American immigration. It has been stated that, during the earlier years of British rule in Canada, military men proved themselves to be sympathetic Governors of the French Canadians. As time went on, and the Canadians grew towards political manhood, the soldier, unless he was an exceptional man, was less likely than had previously been the case to be in harmony with conditions which were becom- ing increasingly democratic. In 1807, after a long interregnum, Sir James Craig came out as Governor- General, a soldier of tried worth, but with a soldier's views of discipline, which were not softened by ill health. He came into collision with the elected chamber of the Legislature in Lower Canada, had resort to repeated dissolutions, and put down with a high hand the Nationalist paper Le Canadien, which persistently vilified the Government. In a long dispatch to the Secretary of State, written in May 1810, in which he reviewed existing con- ditions in Lower Canada, Craig represented French and English in the province as bitterly opposed to each other. * The line of distinction between us,' he wrote, 'is completely drawn; friendship, cor- diality are not to be found, even common inter- course scarcely exists.' But, though the sentiment of French Canadian nationality was gathering force year by year, the struggle at this time was not so much a race conflict as a squabble between D 2 36 BRITISH NORTH AMERICA INTROD. the Executive and the Legislature, one of the Governor's leading opponents, whom he relieved of the office of Solicitor-General, being James Stuart, who was the son of a United Empire Loyalist, and who in after years was appointed by Lord Durham to be Chief Justice of Canada. It was during the governorship of Sir James Craig, in the year 1810, that the Quebec House of Assem- bly, in view of the prosperity of the province, offered to take upon themselves for the time being the whole charge of the civil administration. This offer, which came to nothing at the time, was much quoted at a later date. It meant that the elected representatives realized that power is in the hands of those who pay, and that so long as the Imperial Government, either by direct subsidies, or from territorial revenues, or from taxes levied under permanent Acts, paid a large proportion of the cost of the civil government of Canada, so long would the power be in the hands of the Governor and his officers as being the servants of the Imperial Government, and not in the hands of the Assembly which represented the people of Canada. Sir James Craig left Canada in 1811. His successor, Sir George Prevost, was a man of very different stamp. Prevost set himself to conciliate the French Canadians, and in that respect did good service to the Empire during the war of 1812, though in the actual operations of the war he did not dis- tinguish himself. Quebec was little troubled by the war, and the Assembly which sat there con- tinued to a large extent its vendetta against the existing system, impeaching the Chief Justice of CHAP, in POLITICAL DIFFICULTIES 37 Lower Canada on the ridiculous charge of having conspired against the civil liberties of the people. The war, however, had beyond question a whole- some effect in softening, under the influence of common danger, the jealousies and the animosities of race. French and English stood shoulder to shoulder to repel invasion, and some sense of unity came into Canada, effective at the time in reducing friction, salutary in after years as a memory of common patriotism. The brunt of the war fell upon Upper Canada, with the result that in this province, for the time being, all constitutional wrangles were swallowed up in a fight for national existence, and that the loyalty of the Loyalists to the British connexion was intensified. It may be said in brief that the war of 1812 did not affect the continuity of history in the Lower Province, whereas in the Upper Province it made a complete break and supplied a new starting-point. The war ended, and the old difficulties revived. In Lower Canada the judges were still harried by the Legislature. In Upper Canada the loyalty of those who had fought and suffered was tried by delays in settling arrears of pay and in giving grants of land, while the development of the province was retarded by restrictions on American immigration, which at the time were neither unreasonable nor unnecessary, as well as by the amount of land which was locked up in Crown and Clergy reserves. In 1816 Sir John Sherbrooke was C?t/ appointed Governor-in-Chief of the two Canadas, and once more proved that a good soldier may be also a tactful and diplomatic administrator. 38 BRITISH NORTH AMERICA INTROD. Unfortunately his term of office was shortened by ill health, and only lasted for two years. Handling the political situation in Lower Canada with much skill, Sherbrooke brought to an end the quarrel with the judges. He detached support from Stuart, still a pronounced opponent of the Govern- ment, with the result that the latter for the time being retired into private life, and he worked in harmony with the Speaker of the Assembly, the future leader of rebellion in Lower Canada Louis Papineau. He then took stock of the finances of the provinces, which during the war had fallen into some confusion, and he warned the Secretary of State of the fact, which previously does not appear to have been fully appreciated at the Colonial Office, that the civil administration could not be carried on independently of the votes of the elected Assembly. It was on this point that the whole future conflict turned. Had the revenues which were at the disposal of the Crown been sufficient to meet the cost of the administration, the opposition of the Assembly to the Government would have had little practical effect, and there would have been no adequate lever for the grant of responsible government ; but, inasmuch as those revenues did not cover the annual charges of govern- ment, and the taxpayers of the United Kingdom could not be asked to make good the deficit, the executive power in Canada was so far at the mercy of the elected Assembly. The result of Sherbrooke's correspondence on this subject with Lord Bathurst, the Secretary of State, was that in the session of 1818 the Governor- CHAP, in POLITICAL DIFFICULTIES 39 General laid the estimates of the year before the Assembly, showing clearly what was the total estimated expenditure, what proportion of the total was covered by revenue at the disposal of the Crown, and how much the Legislature was asked to provide. He reminded the Assembly of the offer made by the elected representatives in 1810 to take upon themselves the whole cost of the civil administration, and after considerable debate the Assembly voted the sum whereby the total expendi- ture of the year exceeded the revenue at the disposal of the Crown. This result was largely due to personal respect for Sherbrooke, and the Assembly was not minded to make permanent provision for the expenses of the civil administration in the form of a Civil List, as the Home Government desired. Sherbrooke's successor, the Duke of Richmond, had therefore, in the following year, to face the same difficulty, and to face it without Sherbrooke's tact and influence. The estimates which he laid before the Assembly unfortunately showed a large increase on the expenditure side, and the Assembly took upon themselves to recast the budget, scrutinizing all the separate items, including the charges against the Crown revenues, and reducing or omitting salaries at will. In their reckless procedure they arrogated to themselves control of the finances to an extent which would not be paralleled at the present day either in the British House of Commons or in any colonial Parliament. The Bill which they sent up to the Legislative Council was promptly and rightly thrown out by that body, and a crisis 40 JW1TISH NORTH AMERICA INTROD. then began which years afterwards ended in armed rebellion, in the suspension of the constitution in Lower Canada, and in Lord Durham's mission. The revenues at the disposal of the Crown in Lower Canada were twofold. There were in the first place certain rents and dues which had been paid to the French King and which had passed to his successor in title. They were known as the casual and territorial revenues of the Crown. * They are enjoyed by the Crown,' Lord Aylmer informed the Assembly in 1831, 'by virtue of the Royal Prerogative, and are neither more nor less than the proceeds of landed property, which legally and constitutionally belongs to the Sovereign on the throne.' * In the second place, there were the proceeds of certain taxes imposed by law, mainly the customs and licence duties received under the Imperial Quebec Revenue Act of 1774. These latter receipts, more especially, the Quebec Assem- bly designed to secure under their own control ; on the other hand they were the quid pro quo, by which the Imperial Government might hope to effect its object of obtaining a more or less perma- nent Civil List. In asking for a Civil List for the life of the King, the Imperial Government were only proposing that the practice which prevailed at the time in England should be followed in Canada. Prior to the accession of King William the Fourth, the term Civil List purported to mean the provision made out of the hereditary revenues of the Crown, 1 Canada Crown Revenues : Return to an Address of the House of Commons, July 1831, p. 3. CHAP, in POLITICAL DIFFICULTIES 41 supplemented by the proceeds of certain taxes, which were placed at the disposal of the reigning sovereign to cover the ordinary civil expenses of the State (other than debt charges), including the expenses of the Court and the Royal Household. The recalcitrant Assembly in Lower Canada con- tended that the conditions of the province differed from those of England and would not allow of more than annual votes : they also contended that the Civil List as proposed for Canada was more extensive than the Civil List of the United Kingdom. Their contentions were ill founded : they were the contentions of a body of men who were mainly French in race and in cast of mind ; and who, being French, and having tasted the beginnings of political freedom, were intolerant of compromise. They wanted not merely the powers which the British House of Commons enjoyed, but more also. Oh the other hand, Lord Bathurst was insistent that the Assembly should have no authority to dispose of public money without the concurrence of the Upper Chamber, the Legislative^ Council, thereby restricting the powers of the Assembly as compared with those of the House of Commons. There was thus a great gulf fixed between the democrats and demagogues of Lower Canada on the one hand, and the conservative Imperial Government on the other, but there w r as still, at any rate, the semblance of loyalty to the Crown ; for, when King George the Third died, Louis Papineau took occasion to deliver an eloquent eulogy on the blessings which Canada owed to British rule. 42 BRITISH NORTH AMERICA INTROD. The Duke of Richmond was a Tory of the old school. He formulated for the confidential con- sideration of the Secretary of State proposals which were probably illegal, and were certainly imprac- ticable, whereby sufficient revenue should be secured to the Crown to make the Government of Lower Canada independent of the Legislature. His death under tragic circumstances, after he had only held office for one year, prevented any consti- tutional experiments such as he suggested from being tried. An able and high-minded Governor succeeded him, the Earl of Dalhousie. He took up his duties in June 1820, and did not finally leave Canada until September 1828. During the term of his government the quarrel between the Execu- tive and the Legislature became more and more embittered, and tended more and more to follow the lines of race. Unreasoning and unreasonable, the French Canadian majority in the Quebec House of Assembly stand condemned by their persistent hostility to a ruler so courteous and so public- spirited as was Lord Dalhousie. It must be borne in mind that the democratic movement in Canada was coincident with and parallel to the democratic movement in the United Kingdom. England \\ as gradually moving towards the great Reform Bill, while Papiiieau and his colleagues were refusing supplies and making speeches in Canada ; but there was no slow broadening out in French Canada ; and there was greater haste and bitter- ness in fighting for the fullness of liberty, in that the existing instalment of freedom had not been earned by long years of training and of steady growth. CHAP, in POLITICAL DIFFICULTIES 43 Lord Dalhousie's instructions were to aim at securing ' the permanent assignment of a fixed annual revenue to meet the charge of such a Civil List as the Province requires for its proper adminis- tration '- 1 This was precisely what the Quebec Assembly was determined not to concede. In their crusade against the Government the legis- lators of Lower Canada had been able to point to sinecures, to abuses in salaries and pensions, which they contended should be abolished, before the people were asked to make good an expenditure which included such items. The abuses existed and were notorious, but they were not peculiar to Canada : they were rife in England also ; and such Governors as Sherbrooke and Dalhousie objected to them as much as did Papineau and his friends. Their existence, however, gave material for agitation to the popular party, and so did the defalcation of the Receiver-General of Canada, an Imperial officer, which came to light in 1823. When Dalhousie first met the Legislature in December 1820, he set out clearly the average and recurrent cost of the civil administration of Lower Canada, and invited the Assembly to make permanent and adequate provision for it. The Assembly refused to give more than a vote for one year, and in doing so they introduced new items of expenditure and assumed control of the Crown revenues. Their Bill went up to the Legislative Council, who threw it out and coupled the rejection with strongly worded resolutions, the result of the quarrel between the two Houses being that the 1 Dispatch of Lord Bathurst, September 11, 1820. 44 BRITISH NORTH AMERICA INTROD. Governor was left without any legal authority to meet the expenditure of the year. In December 1821 the Legislature met again, and it was made clearer than before that the Assembly were only asked to make permanent provision for permanent expenditure, casual contingencies being left to be covered by annual votes. This time the direct issue was raised by a motion in the House that permanent provision should be made for the support of the civil administration of the province during the life of the King. The motion was lost by a majority of six to one ; the Assembly then embodied their grievances and views in an address to the King, refused to vote the necessary supplies for the coming year, and refused also or threatened to refuse to renew certain expiring Revenue Acts, so as entirely to cripple the Executive for want of funds. At the same time, and by the same action, they were crippling Upper Canada, which was entitled to a share of the customs duties under the Acts in question ; and already the Upper Province, unable to obtain a satisfactory adjustment of its financial relations with Lower Canada, had asked for the intervention of the Imperial Government. The result was that in June 1822 the Under-Secretary f or the Colonies, Wilmot, afterwards Wilmot Horton, introduced a Bill into the House of Commons, ' to make more effectual provision for the govern- ment of the Provinces of Lower and Upper Canada, and to regulate the trade thereof.' The Bill pro- vided for reunion of the provinces ; it was strongly supported on the Liberal side of the House by CHAP, in POLITICAL DIFFICULTIES 45 ' Bear ' Ellice, with whom it had in fact originated ; but it was opposed by Mackintosh and some other Radical members, not so much on its merits as on the ground that the peoples and legislatures of the two provinces had not been given an opportunity of expressing their views. In consequence of this opposition, as the session was drawing to a close, the Government contented themselves with legislating on the subject of the financial relations between the two provinces, leaving the wider question of reunion to stand over for another session. Thus the Canada Trade Act was passed on the 5th of August 1822, and by its terms the Quebec Legis- lature was restricted from varying the customs duties levied at the ports of Lower Canada to the detriment of the Upper Province. Under existing conditions the Act was both necessary and salutary, but it was avowedly only an instalment, and the matter as a whole was badly handled. The British Government made the mistake so common in the colonial history of Great Britain, of putting their hand to the plough and looking back. They went forward, and stopped half-way. They proposed a large constitutional change, and, having given their scheme to the public, they did not carry the change through. At the same time they went far enough to override by Imperial legislation the representative Assembly of Lower Canada and to restrain their taxing powers. In short, there was interference from home with a colonial legislature, enough to irritate, but not enough to cure more than a part of the evil which it was sought to remedy. In speaking on the Reunion Bill Ellice 46 BRITISH NORTH AMERICA INTROD. warned the House of Commons that ' the only consequence of delay would be the excitement of feelings of animosity between the English and French inhabitants in the meantime, and that the House ultimately would find it absolutely necessary to pass the Bill V and years afterwards Lord Durham wrote in his Report (ii. 47) : ' It is said that the appeals to the national pride and animosities of the French became more direct and general on the occasion of the abortive attempt to reunite Upper and Lower Canada in 1822, which the leaders of the Assembly viewed or represented as a blow aimed at the institutions of their province. The anger of the English was excited by the denunciations of themselves which, subsequently to this period, they were in the habit of hearing.' It had been intended by the Home Government to take up again the Reunion Bill, as soon as the people of Canada had had time to express their views upon it ; but the reception of the Bill in the two provinces was on the whole so unfavourable that no more was heard of it in the House of Commons. In Upper Canada opinion was divided, but such leading men as Dr. Strachan and Beverley Robinson were opposed to it. In Lower Canada the French Canadians were heart-whole in their opposition. They regarded the Bill, or professed to regard it, as an attempt to * anglify ' to denationalize French Canada. The English in the province were divided ; only in the Eastern Town- ships, unrepresented in the Quebec Legislature and chafing against French indifference to their 1 Hansard for 1822, vol. vii, p. 1709 CHAP, in POLITICAL DIFFICULTIES 47 interests, was there strong and solid backing of the Bill. The opponents of the measure at Montreal and Quebec sent Papineau and John Neilson, the latter being a Scotchman and a journalist, as their spokesmen to England : while Stuart, no longer in line with the French, took the lead of the party who favoured reunion. Papineau' s absence, and appreciation of the fact that the Canada Trade Act had been passed and that a Reunion Bill was pending, made the Quebec Legislature, which met again in January 1823, more amenable than before. The estimates, as presented to the Assembly, were divided into two schedules, one of which contained the general or permanent establishments, the cost of which was covered by the Crown revenues ; the other contained what were termed local establishments, for which the Assembly was asked to provide. The necessary supplies were voted, other useful work was done, and Lord Dalhousie closed the session with compli- ments and thanks. Soon after its close the announcement was made that the Imperial Government would not proceed with the Reunion Bill. Papineau came back to Quebec and to the Legislature ; and, when the Assembly met again towards the end of November 1823, for the last session of an expiring Parliament, the irreconcilables had it their own way. Papineau distinguished himself by personalities against the Governor ; and when the estimates were brought in, arranged in two schedules as before, he and his followers assumed control of the whole finances and of all the establishments, and reduced the 48 BRITISH NORTH AMERICA TXTROD. salaries, including the Governor's, by 25 per cent. The Bill which embodied these proceedings was at once thrown out by the Legislative Council. In this session, which lasted till the 9th of March 1824, the majority of the Quebec Legislature found occasion to flout the wishes and injure the interests of the people of Upper Canada, as well as to cripple the administration and check the progress of their own province ; and when Lord Dalhousie closed the session, he pointed out the grave mischief which had resulted from the unwarranted and unconstitutional claim of the one branch of the Legislature ' to appropriate the whole revenue of the province according to its pleasure ', and the withholding of supplies in order to enforce the claim. ' This subject,' he continued, ' 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 dormant and useless within its reach.' On the 6th of June, 1824, Lord Dalhousie sailed for England on leave of absence, and the Lieutenant- Go vernor, Sir Francis Burton, took over the administration. Burton's case was one of those which had given the Quebec Assembly substantial ground for complaint. His commission as Lieu- tenant-Go vernor was dated November 1808, but he did not go out to Canada till 1822, after his CHAP, in POLITICAL DIFFICULTIES 49 absence had called forth remonstrances from the Legislature. Notwithstanding, he seems to have attained considerable popularity among the French Canadians, possibly because the opponents of the Government hoped thereby to emphasize their antipathy to Lord Dalhousie. A general election was held in July and August ; and in the following January the new Legislature met, Papineau being again chosen as Speaker, and an opportunity being found by the Government in the course of the session to secure their former opponent, James Stuart, for the post of Attorney- General. The Lieutenant-Governor brought in the estimates in a different form from that which had been adopted by Lord Dalhousie. He abandoned the two schedules, and with them the distinction which had been drawn between the charges against per- manent funds and those for which local votes were required. The estimates which he presented treated the whole expenditure as one, and he asked the Assembly to vote a sum sufficient to cover the excess of the total expenditure over the revenue provided by law. The Assembly went through the whole estimates, including the permanent establish- ments, and, after making large reductions, voted the sum which they considered to be adequate for one year. They had now, so they thought and hoped, made good their claim to control the disposal of all revenues, permanent as well as temporary, and to give supply only from year to year. So they held, and Lord Bathurst interpreted what had taken place in much the same sense, for, in a dispatch dated the 4th of June 1825, he 1352-1 E 50 BRITISH NORTH AMERICA INTROD. severely censured Sir Francis Burton. Burton, it afterwards appeared, had acted with imperfect knowledge of previous instructions, and was consequently exculpated. The instructions to the Governor-General, said Lord Bathurst, in the dispatch referred to, had imposed upon him ' the necessity of refusing all arrangements that went in any degree to compromise the integrity of the revenue known by the name of the permanent revenue ; and it appears to me, on a careful examination of the measures 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 110 distinction was made between the expenditure chargeable upon the permanent 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. . . . Instead of the King's permanent revenue having certain fixed charges placed upon it, of which the Assembly were made cognisant, the revenue was pledged together with the colonial revenue, as the ways and means of providing for the expenses of the year. . . . The consequence of this arrangement is, that 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.' x This misunderstanding about the estimates made Lord Dalhousie's position more difficult than ever. 1 This dispatch will be found printed at pp. 93-4 of vol. iii of Christie's History of Lower Canada. CHAP, m POLITICAL DIFFICULTIES 51 He returned from England in September 1825 : the Legislature met again in January 1826, and in February he laid before them the estimates, divided into two parts, as they had been before Sir Francis Burton tried his hand at compromise. The Secretary of State's criticism of Burton was communicated to the Assembly later in the session, but the only result, as far as the Assembly were concerned, was an Appropriation Bill in the same form as that to which Lord Bathurst had taken exception, and a claim, formulated at once in Resolutions of the House and in an Address to the King, ' that to the Legislature alone appertains the right of distributing all monies levied in the colonies.' Lord Dalhousie, on the other hand, in proroguing the Legislature, intimated very cour- teously that he must continue to adopt the form of estimates ' showing to you one branch of the revenue for your information, and the other branch for your appropriation '.* In the next session, however, which opened in January 1827, Lord Dalhousie did make a change in the form in which he presented the estimates to the Assembly, for he laid before them an estimate of that portion only of the year's expenditure which would not be a charge against permanent revenues, thus removing the latter from the purview of the elected representatives. The latter retorted by practically refusing supply, and they added to the difficulties of the Government by refusing to renew the militia laws, and thereby recalling into existence two old ordinances on the subject, which the 1 Christie, vol. iii, pp. 106-7. E 2 52 BRITISH NORTH" AMERICA INTROD. Governor-General found himself bound to enforce, and in enforcing which he encountered disloyalty and intrigue. In July 1827 he dissolved the Parliament : a general election left matters much as they were : the new Legislature met in November : Papineau was again chosen as Speaker : in view of his virulent opposition to the Government and personal insults to the head of the Government, Lord Dal- housie refused to confirm the choice : and, as the majority of the Assembly upheld their champion, the Legislature was prorogued before any business had been transacted. Petitions and counter -peti- tions were now drawn up, and delegates were sent to England in the Spring of 1828. Shortly after their departure, Lord Dalhousie learnt that he had been appointed to be commander-in-chief of the forces in India, and in September 1828 he finally left Canada, having, in an impossible position and amid every form of malignant misrepresentation, held the reins of government with dignity, impar- tiality, and a single eye to the welfare of the Canadian people. In England there had been changes. In April 1827 Lord Liverpool resigned, and Lord Bathurst left the Colonial Office, having presided over it for a longer time than any Secretary of State before or since. For three and a half months in Canning's administration Lord Goderich was Colonial Secre- tary. In July 1827 he wrote a dispatch offering to hand over the revenues of the Crown to the Assembly in exchange for a Civil List of 36,000 per annum, but, as the Assembly never met for business, CHAP, in POLITICAL DIFFICULTIES 53 the dispatch could not be communicated to them, and if it had been laid before the House, the offer would have been at once refused. Huskisson suc- ceeded Goderich, again only for a few months from the middle of August 1827 till the end of May 1828, and, while he was Secretary of State, he moved in the House of Commons, on the 2nd of May 1828, that a select committee should be appointed to inquire into the state of the Civil Government of Canada, as established by the Act of 1791. When the Duke of Richmond came out to govern Canada in 1818, his son-in-law, Sir Peregrine Mait- land, came with him to take up the appointment of Lieutenant-Governor of Upper Canada. Mait- land had served with much distinction in the Peninsula, and had commanded the First Brigade of Guards at Waterloo. In later years he was Governor of the Cape. He took up his appoint- ment in Upper Canada in the midst of an agitation against the Government, which had been excited by Robert Gourlay, a well-meaning but crack- brained Scotchman, who attributed the stagnation of the province to the obstructive character of the Government, and who was taken too seriously- being tried and imprisoned by a course of proce- dure which was harsh and impolitic as well as of doubtful legality. In March 1822 Sir John Sher- brooke, now living in retirement, who had been consulted by Lord Bathurst as to the advisability of reuniting the two provinces, wrote that ' I could not avoid remarking when I was in Upper Canada, that in many instances a stronger bias prevailed in 54 BRITISH NORTH AMERICA INTROD. favour of the American than of the British form of government.' l Already, before Maitland's arrival, there had been in Upper Canada friction between the two Houses, and a protest had been made by the elected Assembly against the Executive Council being composed of men who were members of the Upper House. Maitland introduced into the Upper Province a similar classification of the finances to that which was made in Lower Canada, marking off the King's revenues from those which depended on the votes of the Assembly, and he took his advisers from a circle of able and patriotic though not democratic men, such as Beverley Robinson and Dr. Strachan, who were subse- quently grouped under the name of the ' Family Compact '. Thus there grew up year by year antagonism between a more or less despotic Government, and the general community, the most loyal part of which, the United Empire Loyalists, had yet brought into their new homes the tradi- tions of self-government, while the least loyal were leavened by American Republicanism. It is true that the feeling was not all dangerous, and the administration was not all reactionary. A law passed in 1820 for ' increasing the representation of the Commons of this province in the House of Assembly' was a wise and liberal measure of electoral reform, and the resentment of the people of Upper Canada against the French Canadian majority in the Quebec Assembly for crippling their customs revenue, which led to an appeal to the Imperial Government and to the passing of See Canadian Constitutional Development (Egerton and Grant), p. 125. CHAP, in POLITICAL DIFFICULTIES 55 the Canada Trade Act, diluted to some extent their discontent with their own administration. Yet it was under Maitland's regime that the men came to the front who were afterwards prominent in constitutional agitation or in open rebellion, among others Marshall Spring Bidwell, son of an American immigrant, Barnabas Bidwell, who was elected to the Assembly in 1825, and subsequently became Speaker, Dr. Rolph, and William Lyon Mackenzie, the last of whom started in 1824 an anti-Government paper, the Colonial Advocate, and in after years played much the same part in Upper Canada that Papineau played in the Lower Province. In 1828 Sir Peregrine Maitland was succeeded as Lieutenant-Governor of Upper Canada by Sir John Colborne, another veteran soldier of the Napoleonic wars, who had commanded the far-famed 52nd regiment at Waterloo. The Select Committee of the House of Commons which, at Huskisson's instance, had been appointed to inquire into the state of the Civil Government of Canada, reported in July 1828. By this time Huskisson had left the Duke of Wellington's administration, and his place as Secretary of State for War and the Colonies had been taken by Sir George Murray. The report, though a short one, covered much ground, and was not wanting in sympathy with the complaints which had come from Canada. On the vital question in Lower Canada, the control of the public revenues, its terms were as follows : ' Although, from the opinion given by the Law Officers of the Crown, your Committee must 56 BRITISH NORTH AMERICA INTROD. 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 provinces would be best promoted by placing the receipt and expenditure of the whole public revenue under the superintendence and control of the House of Assembly.' The Committee advised that the Governor, the members of the Executive Council, and the judges should be rendered ' independent of the annual votes of the House of Assembly for their respective salaries . . . and if the officers above enumerated are placed on the footing recommended, they are of the opinion that all the revenues of the province (except the territorial and hereditary revenues) should be placed under the control and direction of the Legislative Assembly.' It was suggested that in both the Canadas a more independent character should be given to the Upper Houses, the Legislative Councils, and 4 that the majority of their members should not consist of persons holding offices at the pleasure of the Crown', but the Committee were not prepared under existing circumstances to recommend the union of the two provinces. Various other subjects, including land tenure in Lower Canada, the dis- posal of the estates which had belonged to the Jesuits, and the Clergy reserves in Upper Canada, were dealt with in the report, and a kind of post- script advised ' strict and instant inquiry ' into the allegations which had been made against Lord Dalhousie's administration, and which had been brought up at a late stage of the proceedings. CHAP, in POLITICAL DIFFICULTIES 57 The Committee had only sat for between two and three months, and their work had been hurried. Their reference to the charges against Lord Dal- housie was unfair to the latter in creating a pre- sumption that the charges were true, and the recommendations made in the report were, in the main, too general to give much guidance towards a detailed and practical solution of the difficulties. Meanwhile Sir James Kempt, reputed to have been a personal friend of Huskisson's, had succeeded Lord Dalhousie, but as Administrator only, not as Governor-General. He was another veteran soldier, had been Quartermaster-General of the Forces in Canada when Sir James Craig was Governor, and had followed Lord Dalhousie as Lieutenant-Governor of Nova Scotia. As Adminis- trator of Canada, he did little more than mark time for two years, when in October 1830 he was succeeded by Lord Aylmer. Kempt's opening speech to the Legislature had been prescribed for him by Sir George Murray, who also addressed to him a dispatch for communication to the Legis- lature dealing with some of the matters which had come under the purview of the Select Committee. The Secretary of State laid down that, while the Imperial Statutes on the subject continued in existence, the revenues raised under their pro- visions could not be handed over to the control of the Provincial Legislature, but that after the salaries of the Governor and of the judges had been met from this source, the balance of the funds would not be appropriated until the Assembly had had an opportunity of advising as to the best 58 BRITISH NORTH AMERICA INTROD. method in which it could be applied to the public service. The dispatch went on to say that a scheme was in contemplation * for the permanent settle- ment of the financial concerns of Lower Canada '. This scheme was embodied in a Bill introduced into the House of Commons in 1829 by Sir George Murray, but not passed into law, whereby it was intended to hand over to the Canadian Assemblies the proceeds arising from the Imperial Act of 1774 in return for a Civil List. Murray's dispatch pro- duced no effect, and the Quebec Assembly still arrogated control of the whole public revenues. The session of 1828-9 in Lower Canada, however, resulted in one important new electoral law, where- by the Eastern Townships were given eight repre- sentatives in the Assembly ; and in 1830 another grievance of the Townships was temporarily reme- died by the establishment in these districts of Land Registry Offices. Lord Aylmer, a soldier like his predecessors in the Government of Canada, held office, for a few months as Administrator and subsequently as Governor-General, from October 1830 to August 1835. Meanwhile the Reform Ministry came into power in England, and Lord Goderich, afterwards Earl of Ripon, went to the Colonial Office. Both Secretary of State and Governor-General were bent on a policy of conciliation, and by the Secretary of State's instructions Lord Aylmer, in February 1831, offered to the Assembly to hand over to their control all the Crown revenues, other than the casual and territorial revenues, in return for a Civil List for the life of the King. The amount to be CHAP, in POLITICAL DIFFICULTIES 59 handed over was estimated at 38,000 per annum, the casual and territorial revenues at over 7,000 per annum, and the cost of the Civil List at 19,500, which included the salaries of the Governor, the Civil Secretary, the judges, and the law officers. The offer fared no better than previous offers of the kind ; the Assembly persisted in their opposi- tion and in their claims ; they refused to grant a Civil List, and embodied a statement of their grievances in a petition to the King. The Home Government meanwhile continued its efforts at conciliation. A dispatch, written in February 1831, while Lord Aylmer was sounding the Assembly, intimated that in the event of permanent provision being made for the payment of the judicial salaries, the judges should in future hold office during good behaviour and not at the Royal pleasure, thereby securing their independence both of the Royal authority and of the control of the popular branch of the Legislature. The dispatch at the same time laid down that no judge would in future be nomi- nated as a member either of the Executive or of the Legislative Council, with the single exception of the Chief Justice of Quebec, who would remain a member of the Legislative Council of the Lower Province, in order to advise on permanent legisla- tion, while at the same time abstaining from party politics. In a later dispatch, dated the 7th of July, Lord Goderich answered in detail the complaints which had been embodied in the petition to the King, and gave every indication of meeting to the utmost within reason the wishes of the Assembly. Yet another dispatch, written in November of the 60 BRITISH NORTH AMERICA INTROD. same year, dealt with the disposal of Crown lands, and laid down that for free grants open sale in the public market ought to be substituted. Nor did the Imperial Government content itself with friendly dispatches from the Secretary of State and instructions to the Governor to move along the path of constitutional reform. Before the session of 1831 ended in England, a law was passed in September whereby the revenues which the Crown had controlled under the Quebec Revenue Act of 1774 were handed over unconditionally to the Legislatures of the two Canadian Provinces. These were revenues which had hitherto been offered in return for a Civil List, and they were now ceded in the hope that the Legislatures would repay con- fidence with confidence, and having freely received would freely give. In the case of Upper Canada the confidence was not misplaced, for the Legis- lature voted a Civil List, but the Quebec Assembly took what was given and made no return. The act was a grave mistake. It deprived the Imperial Government of a lever, which had hitherto been in its hands, for bringing the French Canadian Assembly at Quebec into line with the House of Commons in England, and it left hardly any funds in Canada at the absolute disposal of the Crown other than the casual and territorial revenues. The Duke of Wellington protested against the Bill in the House of Lords, but the protest was unheeded, and, armed with greater powers, the Quebec Assembly became more unmanageable than ever. The Secretary of State invited from that Assem- bly, in return for the concessions which had been CHAP, in POLITICAL DIFFICULTIES 61 made, a law securing the independence of the judges and providing permanently for their salaries, and also a small Civil List to cover the salaries of the Governor and four of the principal officers. In the session of the Quebec Legislature of 1831-2 a Bill was passed nominally securing the inde- pendence of the judges, but leaving their salaries dependent upon annual votes and claiming the right of the Assembly to control the casual and territorial revenues ; while a Civil List amounting only to 5,900 was rejected. The Imperial Government disallowed the Judicial Bill, and intimated that 110 further application would be made to the Assembly for a Civil List, but that the Civil List charges (other than the salaries of the judges) would be met from the funds which still remained at the disposal of the Crown. Meanwhile an election riot at Montreal in 1832, which resulted in two or three deaths from the firing of the soldiers, embittered political feeling ; the dismissal from office of the able Attorney-General Stuart, who had been specially obnoxious to and virulently assailed by the Assembly, gave to that body an added sense of power and increased their aggressiveness ; the incorporation of the British American Land Com- pany, which was formed to develop the lands in the Eastern Townships, and which came into existence about the year 1833, was resented by the French Canadians as an attempt to anglicize the province ; and year by year added to the intensity of race feeling and to the impossibility of com- promise 011 constitutional lines. Early in 1833 Lord Goderich was succeeded as 62 BRITISH NORTH AMKRLCA INTKOD. Secretary of State for the Colonies by Mr. Stanley, afterwards Earl of Derby. In June 1834 Stanley was succeeded by Spring Rice. During Sir Robert Peel's short administration in 1834-5 Lord Aber- deen was Secretary of State, and when Lord Melbourne returned to power in 1835, Lord Glenelg went to the Colonial Office. The contumacy of the Quebec Assembly culminated in February 1834 in a kind of Petition of Rights embodied in ninety- two resolutions, which, among other points, de- manded an elective Legislative Council, held up the United States as a model for Canada, and called for the impeachment of the Governor- General. In the House of Commons the French Canadians had now found a spokesman violent enough for their purpose in John Arthur Roebuck, member for Bath, who in April 1834 moved for the appointment of a Committee ' to inquire into the means of remedying the evils which exist in the form of government now existing in Upper and Lower Canada '. Stanley met his attack by moving for a Select Committee to inquire into and report how far the recommendations of the Com- mittee of 1828 had been carried out, and to inquire into the other grievances set forward by the Assembly of Lower Canada, the scope of the Committee being confined to the Lower Province. This Committee, which included all the members of the earlier 1828 Committee who still had seats in the House of Commons, reported at the beginning of July, but its report was confined to a few lines stating that the Home Government had shown the greatest anxiety to carry out the recommendations CHAP, in POLITICAL DIFFICULTIES 63 made by the Committee of 1828, that the efforts had been in part successful, but in part had failed owing to the differences between the two Houses of the Legislature, and between the Assembly and the Imperial Government, and that the com- mittee thought it unadvisable to express any opinion on the points at issue, or to lay the evidence which they had taken before the House, being persuaded ' that the practical measures for the future administration of Lower Canada may best be left to the mature consideration of the Govern- ment responsible for their adoption and execution '. This report left matters where they were : possibly the members of the Committee were unwilling to exhibit divergent views, or they were minded to keep the House of Commons outside the contro- versy between the Imperial Government and the Quebec Assembly. In Lower Canada matters went from bad to worse. A new general election, held in the autumn of 1834, resulted in further strengthening Papi- neau's following, and the British element in Lower Canada, now thoroughly alarmed, formed consti- tutional associations at Quebec and Montreal. The withholding of supplies had meant withholding of the salaries of the public officials, and to relieve the position, the Secretary of State, Spring Rice, authorized in September 1834 an advance of 31,000 from the military chest. This action of the Home Government was made a fresh grievance on the part of the French Canadian majority, when the new Parliament met in 1835, for they regarded it, to quote their own words, as 'destroying the 64 BRITISH NORTH AMERICA INTROD. wholesome and constitutional influence which the people ought to have through their representatives over every branch of the Executive Government '. The Legislature met on the 21st of February 1835, and was prorogued on the 18th of March, as the Assembly declined to transact any further business. In April, Lord Aylmer published a dispatch from Lord Aberdeen in which it was stated that the Govern- ment Sir Robert Peel's Ministry had decided to send out a Royal Commissioner to Lower Canada. It had been at first intended to send Manners Sutton, Viscount Canterbury, who had been Speaker of the House of Commons, and when he declined, the second Lord Amherst was offered and accepted the appointment ; but the change of Ministry, which took place before he could leave England, resulted in different arrangements for the mission and a different personnel. It is not quite clear what were contemplated by Sir Robert Peel and Lord Aberdeen to have been the relations between Lord Amherst, had he gone out, and Lord Aylmer ; but apparently Lord Amherst was, like Lord Durham at a later date, designated both as High Com- missioner for the special purpose of investigating the grievances of which the Quebec Assembly had so abundantly complained, and also as Governor, so that Lord Aylmer would have been superseded for the time being, but not necessarily recalled. When Lord Melbourne returned to office and Lord Glenelg became Colonial Secretary, Lord Aylmer was told, though in flattering terms, that his ad- ministration must be considered to be terminated, and it was decided to send out three Royal Com- CHAP. ITT POLITICAL DIFFICULTIES 65 missioners, the Chairman of the Commission being also appointed Governor-in-Chief of the two Canadas and of the other British North American provinces, with the exception of Newfoundland. The man selected for the post was an Irish peer, the Earl of Gosford, who was the first civilian Governor of Canada since it became a British possession, and his colleagues as Commissioners were Sir George Gipps, afterwards Governor of New South Wales, and Sir Charles Grey, a retired Indian judge. Gipps was an exponent of Whig views, as they were then understood. Grey was an exponent of Tory principles, and as such was credited with being a nominee of King William the Fourth. The Secretary to the Commission was T. F. Elliot, a member of the Colonial Office, after- wards Assistant Under-Secretary of State for the Colonies. The Commissioners reached Quebec on the 23rd of August 1835, and on the 17th of September Lord Aylmer left for England, regarded by the British population of Canada as sacrificed to the clamour of a disloyal majority. What were in rough outline the main demands of the majority at this date, and what was the tenor of Lord Glenelg's instructions to the Com- missioners ? The Quebec Assembly had many grievances real or alleged, but the points on which they specially laid stress were the following. In the first place, they demanded unconditional con- trol of all the public revenues of every kind. In the second place, they demanded an elective Legis- lative Council. In the third place, they attacked the composition of the Executive Council. In the 1352-1 F <;; BRITISH NORTH AMERICA IXTROTX fourth place, they complained of the way in which the patronage of the Crown had been exercised in the matter of appointments. Fifthly, they de- manded the repeal of the Imperial statutes dealing with the tenure of land in Lower Canada ; and sixthly, in connexion with the disposal of waste lands, they demanded that the charter given to the British American Land Company should be cancelled. They had not hitherto in so many words demanded that the Executive Council should be responsible to the Legislature, but the essence of their demands was to obtain full control of all the Executive offices by securing entire command of all the means of paying them ; and their hostility to the British American Land Company was dictated not only by seeing in it an agency for increasing the proportion of the British population of the province, but also by appreciating that the pay- ments made by the Company to the Crown added to the revenues which were withheld from the elected Assembly. Lord Glenelg's instructions were embodied in terms indicating the utmost desire of the Home Government to meet, as far as possible, the wishes of the Assembly ; but he laid down, as necessary preliminaries to handing over all the remaining Crown revenues to popular control, that provision should be made for securing the independence of the judges, that an adequate Civil List should be granted, that the management of the waste lands of the province, as opposed to the receipts from those lands, should remain with the Crown, and that existing pensions of retired public officers CHAP, m POLITICAL DIFFICULTIES 67 should be continued. He authorized inquiry into the constitution of the Legislative Council, but pointed out, without in so many words vetoing the proposal, that the introduction of the elective principle in connexion with that Council would be a constitutional change of the gravest and most vital kind. He instructed the Commissioners to consider any amendment which would increase the efficiency of the Executive Council ; to investigate the tenures of land in the province, including the seigniorial rights claimed by the Sulpicians in and around Montreal ; and to advise whether or not any further charters should be granted by the Crown, such as had been given to the British American Land Company. He also directed atten- tion to the state of education in Lower Canada, and to the possibility of so adjusting the financial relations between the two Canadian provinces as to admit of the repeal of the Canada Trade Act. Cotemporaneously with the instructions to the Commissioners, Lord Glenelg addressed a dispatch to Lord Gosford, not as Chief Commissioner but as Governor, in which he dealt with such complaints of the Assembly as needed no investigation, but could be dealt with at once by the executive authority of the Governor. Prominent among these was the alleged abuse of patronage, as to which the Secretary of State reiterated and enlarged previous instructions. It is worth while to quote Lord Glenelg's own words on this subject, as the allegation that French Canadians had been unduly excluded ' not only from the larger number, but from all the more lucrative and honourable of 68 BRITISH NORTH AMERICA INTROP. the public employments in their native country ', was, if true, the moat reasonable and substantial of the grievances. Adopting ' in their fullest extent ' instructions, which he said had been given by Lord Goderich, to exercise ' the utmost impartiality in the distribution of public offices in Lower Canada, without reference to national or political distinc- tions, or to any consideration, except that of superior capacity and fitness for the trust ', Lord Glenelg went on, somewhat inconsistently, to suggest that modified preference might be given to French Canadians. ' Your Lordship will remember that between persons of equal or not very dissimilar pretensions, it may be fit that the choice should be made in such a manner as in some degree to satisfy the claims which the French inhabitants may reasonably urge to be placed in the enjoyment of an equal share of the Royal favour. There are occasions also on which the increased satisfaction of the public at large with an appointment, might amply atone for some inferiority in the qualifications of the persons selected.' 1 He then laid down that the patronage of the Governor in making appointments should be sub- ject to the approval of the Secretary of State, and that the general rule should be, as it had been, to appoint residents in Lower Canada. In other points of detail, which need not be specified, Lord Glenelg enjoined on the outgoing Governor con- sonance with the wishes of the Assembly. Assuredly, never was the Home Government more anxious to work in harmony with public feeling in a colony 1 See House of Commons Paper, No. 113, March 1836, pp. 47-8. CHAP, in POLITICAL DIFFICULTIES 09 than was the British Government in its relations to Lower Canada in the year 1835. Lord Gosford called the Quebec Legislature together on the 27th of October 1835. In his opening speech he gave, as desired by Lord Glenelg, the substance of his own instructions and of those to the Royal Commissioners ; and intimating that one object of the coming inquiry was to hand over, on such conditions as should be carefully matured, the whole of the revenues of Lower Canada to the control of the elected representatives, he invited the Assembly to make good the arrears of salary due to the public officers and to continue to provide for their pay while the inquiry was taking its course. The Session dragged on until, in February 1836, the Assembly learnt from a letter written to Papineau, Speaker of the Assembly of the Lower Province, by Marshall Bidwell, Speaker of the Assembly of Upper Canada, that Sir Francis Bond Head, the new Lieutenant-Governor of Upper Canada, had communicated to the Legislature of that Province verbatim extracts of the Instruc- tions to the Commissioners. These were alleged to be at variance with the substance of the instruc- tions as contained in Lord Gosford' s opening speech, and, following Papineau' s lead, the Assem- bly voted supplies for six months only and drew up a fresh address of grievances to the King. The Supply Bill was thrown out by the Legislative Council as not being in accordance with what the Government had requested, and for a fourth year in succession Lower Canada was left without legal supplies to carry on the public service. The 70 BRITISH NORTH AMERICA INTROD. Legislature was prorogued on the 21st of March 1836. Before the prorogation took place, Papineau had written to Bidwell a violent letter, attacking the Home Government, and inviting the co-operation of the Assembly of Upper Canada in the struggle in which Lower Canada was engaged. Meanwhile Lord Gosford and the other two Commissioners continued an inquiry which was already doomed to failure. They were not at one, and their reports were accompanied by qualifying minutes and counter minutes by Sir Charles Grey and Sir George Gipps. The first report, dated the 30th of January 1836, dealt with the proposed Civil List and the conditions upon which the Crown revenues should be ceded to the Assembly, the recommendations being made on the assumption that they would not be carried into effect until the Legislature had made good the outstanding arrears of salary to the public servants. A second report, dated the 12th of March, dealt with the position which had arisen owing to the Assembly having shelved the question of these arrears until their demands should have been complied with, and noted that those demands now included making the Executive Council responsible to the Legislature. The Com- missioners came to the conclusion that, under the circumstances, the best course to adopt was to repeal the Imperial Act of 1831 by which the taxes levied under the Quebec Revenue Act of 1774 had been handed over to the Provincial Legislature. A third report at the beginning of May dealt with reform of the Executive Council, again negativing CHAP, in POLITICAL DIFFICULTIES 71 the responsibility of that Council to the Legisla- ture. A fourth report in June contradicted state- ments made with regard to the Commission by Mr. Roebuck in a pamphlet distributed to mem- bers of the House of Commons. A fifth report in October dealt with the seigniorial rights of the Seminary of St. Sulpice at Montreal ; and a sixth report in November, a general report, dealt with the Legislative Council, tenures of land, and other matters indicated in the instructions. Sir Charles Grey left for England shortly afterwards, Sir George Gipps and Mr. Elliot followed in the spring of 1837, and Lord Gosford was left to face alone what had long been an impossible position. The Commissioners, in recommending the repeal of the Act of 1831, and the resumption by the Imperial Government of control of the revenues which had been handed over to the Assembly, had not taken sufficient account of the effect which such a strong measure might have produced on public opinion in the other British North American provinces. There was discontent in Upper Canada and New Brunswick, and there was danger lest they should make common cause with Lower Canada. This danger was present to Lord Glenelg and his colleagues. Accordingly they rejected the proposal, and in a dispatch of the 7th of June, which answered the last Address from the Quebec Assembly to the King, Lord Glenelg directed Lord Gosford to lay the whole of the Instructions to the Commissioners before the Assembly, in order to clear away the misapprehension which was supposed to have arisen, arid again to invite pay- 72 BRITISH NORTH AMERICA INTROD. inent of the arrears of salaries and provision of adequate supplies. Lord Gosford did as he was instructed. He summoned the Legislature on the 22nd of September 1836, laid before them copies of the Instructions, and communicated Lord Glenelg's dispatch as an answer to the address from the Assembly to the King. The only result was that the Assembly still refused to comply with the Secretary of State's wishes, still persisted in their demands, especially in that for an elected Legislative Council, that they referred to existing conditions as a ' system of metropolitan ascendancy and colonial degradation', and that the Legisla- ture was prorogued on the 4th of October without having transacted any business or passed any laws. It was now time for the Imperial Parliament to interfere, and the ministry was encouraged in taking action by the fact that public feeling in Upper Canada and in New Brunswick had under- gone a change, which seemed to indicate that the attitude of the Assembly at Quebec would no longer find much support in those provinces. The Session opened in England on the 31st of January 1837 ; the King's Speech directed the special attention of Parliament to the state of affairs in Lower Canada ; the Reports of the Commissioners were laid before both Houses ; and on the 6th of March Lord John Russell moved ten Resolutions in the House of Commons. The Resolutions pro- vided for making good the outstanding arrears of pay, by empowering the Governor-General to apply to that purpose the revenues in the hands of the Receiver-General of the province ; they negatived CHAP, in POLITICAL DIFFICULTIES 73 the demand for an elective Legislative Council, for the introduction of the principle of responsi- bility to the Legislature into the Executive Council, and for the cancellation of the charter of the British American Land Company ; they promised repeal of the tenures Acts, as soon as a law adequate for the purpose should have been passed by the provincial Legislature ; they proposed to hand over to the Legislature the net proceeds of the remaining Crown revenues, as soon as a Civil List should have been voted covering the judicial expenditure and the salaries of the principal civil officers ; and they authorized the Legislatures of the two Canadian provinces to make provision for adjusting the trade disputes between the two provinces. The Resolutions did not pass without debate. In addition to Roebuck, various members, such as Hume, O'Connell, and Sir William Moles- worth, keenly opposed the Government ; while in Canada, so cool and experienced a judge of local con- ditions as Sir John Colborne, who was at the time at Quebec in command of the troops, wrote of the eighth Resolution, whereby provincial funds were to be appropriated to the payment of arrears : ' The eighth resolution, of seizing money which does not belong to us, must produce further coercion on the part of Ministers.' x By the middle of May, however, all the Resolutions had been carried through both Houses of Parliament, and steps were taken to bring in a Bill to give to them the force of law. On the 22nd of May Lord Glenelg wrote to Lord 1 Letter dated Quebec, June 5, 1837 (Life of Lord Seaton, 1903, p. 277). 74 BRITISH NORTH AMERICA INTROD. Gosford, directing him to call the Legislature to- gether again, and once more to invite the Assembly to make good the arrears and to vote supplies, so as to render it unnecessary to have recourse to the powers which the Imperial Parliament was about to embody in the form of a law. Shortly afterwards the King died, and, unwilling that the reign of Queen Victoria should open with a measure of coercion, the Government, at the beginning of July, obtained a vote of credit to meet the immediate requirements of the administration in Lower Canada and remitted legislation to a new Parliament. When Lord John Russell's Resolu- tions became known in Lower Canada, they caused much excitement : indignation meetings were held by the partisans of the Assembly, Dr. Wolfred Nelson, who lived on the Richelieu river, taking a prominent part in the agitation, and Papineau being extolled as the Canadian counterpart of O'Connell. Lord Gosford, in accordance with his instructions, called together the Quebec Legislature on the 18th of August, but the Assembly replied to his opening speech by a protest against the Royal Commissioners and the Home Government, and by demanding that the Resolutions passed -by the two Houses of Parliament should be rescinded. The Governor, therefore, on the 26th of August, prorogued the Legislature, and with the proroga- tion, as events proved, came the end of the Constitution which had been framed for Lower Canada under the Act of 1791. It is now time to give an outline of what had been taking place in the other provinces of British CHAP, in POLITICAL DIFFICULTIES 75 North America. Sir John Colborne became Lieu- tenant-Governor of Upper Canada in November 1828. The Report of the Select Committee of the House of Commons upon the Civil Government of Canada, which had been made in the previous July, together with the evidence which had been taken by the Committee, pointed to the conclusion that the two main grievances in this province were the want of independence in the Legislative Council, which was little more than a mouthpiece of the Government, or rather of the dominant bureaucracy, and the favoured position given to the Church of England, especially in the matter of the Clergy Reserves. Colborne was a man of kindly sympathies and no narrow views. He was keenly interested in education, and was the founder of the Upper Canada College. But he was sur- rounded by the men who formed the so-called ' Family Compact ', and whose influence, used against the more democratic section of the com- munity, was strong because it was largely the outcome of real ability and high character. Shortly before his arrival a general election had taken place, and the newly-elected Assembly contained a pro- gressive majority. Marshall Bidwell was the Speaker, William Lyon Mackenzie was one of the members, and in the course of the year 1829 Robert Baldwin was elected to fill a seat which had been vacated by the appointment of the Attorney- General, Beverley Robinson, to be Chief Justice of Upper Canada, Robinson's successor, as Attorney- General, Boulton by name, was a man of far inferior type ; domineering and aggressive, he 70 BRITISH NORTH AMERICA INTHOD. provoked, instead of conciliating, opposition to the Government. The death of King George IV, in June 1830, necessitated a new election, and this time the partisans of the Government secured a substantial majority in the Assembly. The Imperial Act of 1831, which handed over to the Legislature the proceeds of the taxes levied under the Quebec Revenue Act of 1774, was met by the grant of a Civil List to the amount of 6,500 per annum, and thus one great element of friction with the Imperial Government was eliminated. But the Government party in the Assembly had a most unwise leader in Boulton, and on the other side Mackenzie made himself impossible. The violence with which the latter in speech and writing attacked his political opponents was met by pro- ceedings which were equally indefensible. He was repeatedly expelled from the Assembly, and re- peatedly re-elected. He carried his grievances to England and found a champion in Joseph Hume, while the obvious unfairness and unwisdom of the treatment to which he had been subjected led to his chief opponent, Boulton, being dismissed from the appointment of Attorney-General by the Secretary of State. In 1834 the town of York was incorporated as the city of Toronto, and Mackenzie became the first mayor. Towards the end of the year there was a general election for the provincial Parlia- ment, and the Reform party once more gained the upper hand in the Assembly. Mackenzie had somewhat lost in popular estimation by publishing a letter from Joseph Hume, in which the latter had CHAP, in POLITICAL DIFFICULTIES 77 expressed himself to the effect that a crisis was coming in Canada ' which will terminate in inde- pendence and freedom from the baneful domination of the mother country ', and he gravitated away from the more moderate reformers and towards making common cause with Papineau in the Lower Province. Still he was the mouthpiece of the Reform party in the new Parliament of Upper Canada, and it was upon his motion that a select committee on grievances was appointed, of which he was chairman, and ' by which ', to quote Lord Glenelg's words, ' a report was made impugning the administration of affairs in every department of the public service, and calling for remedial measures of such magnitude and variety as appa- rently to embrace every conceivable topic of com- plaint.' x This Report, made in April 1835, and widely distributed in England, specified the almost unlimited patronage of the Crown and the abuse of that patronage as the chief sources of colonial discontent, and it demanded responsible govern- ment and an elected Legislative- Council. Lord Glenelg dealt with it at length in December 1835 in his instructions to Colborne's successor, Sir Francis Bond Head ; and in the dispatch which embodied these instructions, he enclosed extracts from his previous instructions to Lord Gosford and his colleagues, the publication of which by Sir Francis Head caused, as already told, a ferment in the Quebec Assembly. When the grievances report was made public, 1 See Lord Glenelg's Instructions to Sir F. Bond Head, December 5, 1835, House of Commons Paper, No. 113, March 1836, p. 55. 78 BRITISH NORTH AMERICA INTROD. Colborne had been for more than six years Lieu- tenant-Governor of Upper Canada. To the Whig Government in England, anxious to conciliate public feeling in the Canadas, it seemed advisable to make a change, and Colborne himself realized that he was out of harmony with his employers. While Lord Glenelg wrote to recall him, he in turn wrote resigning his appointment, and in the middle of winter, on the 23rd of January 1836, a week after the Parliamentary Session in Upper Canada had been opened, his successor, Sir Francis Bond Head, arrived at Toronto, no intimation of his coming having been received in Upper Canada until he had already reached New York. Head was sworn in on the 25th of January, and on the following day Colborne left for Montreal on his way to England. He stayed at Montreal till the middle of May, then went to New York to embark for home, and while at New York was offered by Lord Glenelg the appoint- ment of Commander-in-Chief of the Forces in both Canadas. He accepted it and went back to Montreal. One of Colborne's last acts, as Lieutenant- Governor of Upper Canada, was to call into opera- tion the sections of the Constitutional Act of 1791, which authorized the Governor or Lieutenant- Governor in either of the Canadas, with the advice of the Executive Council, to constitute and endow Church of England rectories. He signed docu- ments which endowed with lands forty-four rec- tories, and in doing so he stirred up the dangerous Clergy Reserves question, aroused the wrath of the Scotch Church, the Wesleyans, and others, and was accused of hurriedly perpetrating a job for CHAP, in POLITICAL DIFFICULTIES 79 the Church of England before he was superseded, though, as a matter of fact, he was only taking the last step in carrying out views which had been expressed by Lord Goderich when Secretary of State in 1832. He gave offence, too, in Lower Canada by a reference to the dissensions in that province which he made when opening the Parlia- mentary Session at Toronto on the 14th of January 1836, just before Head's arrival. It seemed, there- fore, as though an estimable but somewhat re- actionary Governor was being replaced by a man of broader outlook and more enlightened views. The sequel was to prove that the new-comer was dangerous and flighty in the extreme, and that when a crisis came Colborne was the man to meet it. Sir Francis Bond Head had been a soldier, a traveller, a writer, and a Poor Law Commissioner, before he was appointed Lieutenant-Governor of Upper Canada, but he had had no previous ex- perience of colonial administration. His two years' career as Lieutenant-Governor was that of a self- willed though well-meaning eccentric, not amenable either to an Assembly or to a Secretary of State. He began by publishing his instructions in extenso, instead of communicating their substance to the House of Assembly. In order to bring new blood into the Executive Council, he induced Robert Baldwin and Rolph, leaders of Reform, to take seats upon it, together with the Receiver-General of the province ; but Baldwin's views of what an Executive Councillor should be did not square with those of the Lieutenant-Governor, who had no intention of giving to the Council any real power 80 BRITISH NORTH AMERICA TNTROD. or responsibility, and the result was that in three weeks' time the whole Council resigned. Head then procured a new Council, came into collision with the Assembly, dissolved the Legislature, and, managing to present the issue to the people as being in effect whether or not Upper Canada should remain a loyal province of the British Crown, he secured at the general election of June 1836 an overwhelming majority of supporters in the New Assembly. Bidwell, Mackenzie, Lount, among others, lost their seats, and, resenting the Govern- ment influence which had been used against them, the more violent members of the Reform party turned their minds towards revolution. The new Parliament met in November 1836, and sat till the following March, passing among many other measures a much criticized law that the Legislature should not be dissolved upon the sovereign's death, which was, in other words, an Act for prolonging its own existence. It met again in June 1837 for a short and special session, to deal with a financial crisis caused by commercial depression in the United States ; and the next session, the last which Sir Francis Head opened, began at the end of December 1837, after the close of the abortive rising in Upper Canada, and lasted till the 6th of March 1838. In 1836 Head had dismissed from office a district judge of the name of Ridout, on the alleged ground that he had been an opponent and critic of the Government. In the following year he passed over Bidwell for a judgeship in the Court of Queen's Bench. Lord Glenelg, on learning Ridout's side of the case, directed that he should CHAT, in POLITICAL DIFFICULTIES 81 be reinstated ; and he also gave instructions that Bid well should be offered the next vacant judge- ship. Head point blank refused either to reinstate Ridout or to offer a judgeship to Bidwell, and in September 1837 tendered his own resignation. Lord Glenelg accepted the resignation in a dispatch written towards the end of November and received in January 1838, Mackenzie's rising having taken place in the meantime ; on the 23rd of March the new Lieutenant-Governor, Sir George Arthur, arrived at Toronto ; and Head returned to England to continue unavailing protests against men and events, obstinate and wrongheaded, but none the less the spokesman in exaggerated fashion of the sentiments held by the Conservative section of the community of Upper Canada. The causes which produced friction and led to constitutional changes in Lower and Upper Canada, were at work also in the Maritime Provinces. Nova Scotia was the first of the present Canadian pro- vinces to be given representative institutions, for its House of Assembly dates from 1758, and in later days perhaps the most cogent of all the Canadian advocates of responsible government was the Nova Scotian, Joseph Howe, who first entered the House of Assembly in that Province in 1836. Both in Nova Scotia and in New Brunswick, which, as the result of Loyalist immigration from the United States, had been created a separate province in 1784, the same persons constituted both the Executive Council and the Upper House of the Legislature, viz. the Legislative Council. At the end of 1830, Lord Goderich, then Secretary of State for the 1352-1 O 82 BRITISH NORTH AMERICA INTKUD. Colonies, who was dealing with the Report on the Government of Canada made by the House of Commons Committee of 1828, wrote to the Lieu- tenant-Governors of Nova Scotia and New Bruns- wick, suggesting the desirability of giving a more independent character to the Councils by intro- ducing a larger number of unofficial members and excluding the puisne judges ; and in May 1832 he wrote to Sir Archibald Campbell, Lieutenant- Governor of New Brunswick, proposing that the Executive and Legislative Councils should no longer consist of the same members ; that the Executive Council should be small in number, * including one or two influential members of each branch of the Legislature ; ' * that the number of the Legislative Council should be increased, and that its members should cease to be necessarily members of the Executive or Privy Council. Sir Archibald Campbell agreed that ' the incon- sistency of the same members forming the Privy and Legislative Councils as a body, is an anomaly that never ought to have existed, and the sooner that it is abolished the better '. Accordingly, by Royal Commission to the Governor-General dated the 20th of November 1832, New Brunswick was endowed with two distinct and separate Councils, one Executive and one Legislative. Between three and four years later, in 1836, two delegates from the New Brunswick House of Assembly came to London to support an Address to the King from that body, one of them being the reform leader, 1 See the House of Commons Paper, Nova Scotia, &c., No. 579, August, 1839, pp. 49-50. CHAP, in POLITICAL DIFFICULTIES 83 Lemuel Wilmot. New Brunswick asked for no more than Lord Glenelg had already embodied in his instructions to Lord Gosford and Sir Francis Head ; there was no demand for an Executive Council responsible to the people, nor for an elected Legislative Council, though improvements were suggested in the composition of either Council. The control of all the Crown revenues in return for a Civil List, and different management of the Crown lands, were asked for and readily conceded ; the terms of a Civil List Bill to be passed by the provincial Legislature were amicably settled ; and the delegates went back, gratefully acknowledging the liberal and enlightened policy of the Imperial Government and the personal attention which Lord Glenelg had given to their representations. There was a slight hitch later on, because the new policy was distasteful to Sir Archibald Campbell, and either on principle or through misunderstanding he resigned in 1837, instead of passing the Civil List Bill ; but his successor, Sir John Harvey, as tactful a Governor as he had shown himself to be a good fighter in the war of 1812, speedily carried into effect the reforms which had been contem- plated, and paved the way for responsible govern- ment, which came into being about ten years later. Nova Scotia was more conservative than New Brunswick. It was closely in touch with England, the port of Halifax being open all the year round ; and soldiers and sailors, active or retired, formed a strong element in the community. Accordingly, while in New Brunswick the Executive was, in 1832, separated from the Legislative Council, the two G 2 84 BRITISH NORTH AMERICA INTROD, continued in Nova Scotia to be identical down to the year 1837. In that year the Assembly for- warded an Address to the King, claiming control of the casual and territorial revenues, and asking His Majesty 'to grant us an elective Legislative Council ; or to separate the Executive from the Legislative Council, providing for a just repre- sentation of all the great interests of the province in both ; and by the introduction into the former of some members of the popular branch, and otherwise securing responsibility to the Commons, confer upon the people of this province what they value above all other possessions, the blessings of the British Constitution \ l Lord Glenelg made similar concessions in the case of the constitution of Nova Scotia, as had been made in regard to the other North American provinces, but it is noteworthy that he expressed great doubt as to the advisability of separating the Executive from the Legislative Council. ' The separation of this body into two distinct chambers,' he wrote in April 1837, * the one Legislative and the other Executive, is an experi- ment which was first tried in the Canadas by the Act of 1791, and repeated in New Brunswick in the year 1832. So far as I have been able to judge, the result of this innovation has not been such as to exclude very serious doubts respecting its real usefulness.' 2 In reference to the suggestion that the Executive officers should be under popular control, he wrote that ' Her Majesty's Govern- 1 House of Commons Paper, as above, p. 17. 8 Ibid., pp. 11, 12. The third quotation, from a dispatch of July G> 1837, is not included in the extracts given in this Blue Book. CHAP, in POLITICAL DIFFICULTIES 85 ment must oppose a respectful but, at the same time, a firm declaration that it is inconsistent with a due advertence to the essential distinctions between a metropolitan and a colonial Government, and is therefore inadmissible.' The separation of the Executive from the Legis- lative Council was formally completed by means of the Commission which appointed Lord Durham to be Governor of Nova Scotia, and which was dated the 6th of February 1838 ; and in his Report Lord Durham described the political condition of Nova Scotia as one in which, though there were various questions at issue, there was no strong antagonism between the Government and the people. Nova Scotia had, as a rule, been fortunate in her Lieu- tenant-Governors. More than one had, like Lord Dalhousie, gone on to be Governor-General of Canada. Sir Peregrine Maitland, who had been transferred from Upper Canada to Nova Scotia in 1828, had been mainly an absentee; but his suc- cessor in 1834, Sir Colin Campbell, a soldier of high repute, at the time when Lord Durham wrote, com- manded public confidence and esteem, though a little later he was found too conservative for Joseph Howe and the partisans of responsible government. In March 1834 the House of Assembly of Prince Edward Island asked that that colony might be placed upon an equal footing with the sister province of New Brunswick, by being given a Legis- lative Council distinct from the Executive Council, but the request was refused by the Secretary of State, Spring Rice. In May 1837 Lord Glenelg invited Sir Charles Fitzroy, who was then going 86 BRITISH NORTH AMERICA TNTROD. out to Prince Edward Island as Lieutenant- Governor, to look into the composition of the Legislative Council ; and in March 1838 Fitzroy enclosed an Address from the House of Assembly, again asking that the Executive and Legislative Councils might be separated from each other, in accordance with the change which had taken place in Nova Scotia. Fitzroy supported the proposal and suggested an Executive Council of nine mem- bers, three of whom should be selected from the House of Assembly. Lord Glenelg then sanctioned the separation of the Councils. In Prince Edward Island, however, as will be gathered from Lord Durham's Report, the chief causes of complaint were connected more with the land than with the constitution, for in this island the evils arising !ut of absentee ownership were most acutely felt. The conditions of Newfoundland had always been wholly dissimilar to those of the mainland provinces of British North America, and its story had run in a different channel, but in Newfound- land, too, constitutional difficulties had arisen, and accordingly it was included within the scope of Lord Durham's Commission. By the year 1832 the system had broken down, ' the fundamental principle of which was to prevent the Colonization of the island, and to render this kingdom the domicile of all persons engaged in the Newfound- land fisheries V and in that year the island was given a representative Assembly, created not by Act of Parliament but by the King's Commission 1 Lord Goderich to Governor Sir T. Cochrane, July 27, 1832 (House of Commons Paper, as above, p. 82). CHAP, in POLITICAL DIFFICULTIES 87 to the Governor and by the Royal Instructions. There was also a Council which was in effect, though not in name, at once a Legislative Council and an Executive Council. Foreseeing the likelihood of friction between the Council and the Assembly, Lord Goderich, the Secretary of State who called the constitution into existence, suggested that an arrangement might be made and embodied in a local Act, ' which should consolidate the Council and the Assembly into a single House, in which the representatives of the people would be met by the official servants of the Crown.' * The proposal met with general disapprobation in the colony, and was not carried into effect ; and almost immediately the two houses came to loggerheads, the Council being the aggressor by throwing out a revenue Bill. This was in the first session of the new Legislature in the spring of 1833, and matters were not improved when later in the same year Boulton, who had proved so cantankerous as Attorney-General of Upper Canada, was consoled for losing that appointment by being made Chief Justice of New- foundland. In that capacity he presided over the Council and arrogated to himself the title of Speaker, until his pretensions and those which he made on behalf of the Council were, in October 1834, somewhat summarily disallowed by Spring Rice, then Secretary of State. The disputes between the two Houses went on. In 1837 an Appropriation Bill was thrown out by the Council, whose action was in February 1838 disapproved by Lord Glenelg. Religious animosity had been 1 House of Commons Paper, as above, p. 85. 88 BRITISH NORTH AMERICA INTROD. added to the political squabble, the Irish Roman Catholics being specially bitter against Boulton, who was relieved of his office in 1838. Matters came to such a pass that, under an Imperial act of 1842, the existing Legislature was ended, and replaced by a single chamber, as had been suggested by Lord Goderich. Another Imperial act of 1847 restored the old constitution ; and, finally, in 1855 responsible government came into being. It has been seen that the Quebec Legislature was prorogued by Lord Gosford on the 26th of August 1837. The news of the death of King William IV and of the accession of Queen Victoria had reached Canada at the end of July, but had not affected the political situation or softened party feeling. Montreal was Papineau's birthplace and home, and he was one of the parliamentary representatives of the city. Accordingly, both in 1837 and later, in 1838, disloyalty was more aggressive and more pronounced in the district of Montreal than lower down the river. In the town itself there was a strong element of loyal citizens, but on the other side of the St. Lawrence, in the counties along the line of the Richelieu river, the proximity of the American frontier gave encourage- ment to disaffection ; and behind the island of Montreal, in the county of the Two Mountains on the north bank of the Ottawa river, sedition and lawlessness were rife. The rising, such as it was, was mainly a French Canadian movement, though it was a nondescript kind of disturbance. The Roman Catholic Church, with rare exceptions, exercised its authority on CHAP, m POLITICAL DIFFICULTIES 80 the side of law and order, and there were many French Canadian loyalists, magistrates, and others; while on the other hand, among the leaders of the so-called 'Patriots', British names were as promi- nent as French. There were the brothers Nelson, for instance, and Thomas Storrow Brown, and no paper attacked the Government with greater violence than the English Vindicator, edited at Montreal by Dr. O'Callaghan. But, naturally, the followers of Papineau were in the main French Canadians, whereas the overwhelming majority of the British, including the Irish, population were staunch and determined for the Government. The would-be rebellion had no chance. The towns were on the whole not revolutionary, and the seditious districts had neighbours to hold them in check. The Glengarry Highlanders, in Upper Canada, but on the border line of the two provinces, Roman Catholics of traditional and long-tried loyalty, publicly announced their intention to uphold the Government, and the English-speaking Eastern Townships were strongly opposed to Papineau and his friends. Most of all, though the Governor-in-Chief Lord Gosf ord was, it would seem, reputed to be somewhat weak and temporizing, the man in whose hands was the ultimate issue, the com- mander of the troops, was pre-eminently cool and strong. Sir John Colborne left nothing to chance, he prepared for the crisis and practically forestalled it. In the latter part of July he went up from Quebec to Sorel at the mouth of the Richelieu river, to be near the probable scene of disturbance ; and on the 9th of November, after a riot had taken 00 BRITISH NORTH AMRRTCA INTROD. place in Montreal, he moved into that city. Tn July, at Lord Gosford's instance, a regiment was brought up from Halifax to Quebec ; and at the end of October, with the cordial consent of Sir Francis Bond Head, the 24th regiment was brought down from Toronto to Montreal, where it arrived on the 13th of November. When the trouble came, the military forces, regulars supplemented by volunteers, were mainly concentrated at Montreal ; but preparations had also been made at Quebec, and towards the end of the year more regiments came in overland from Nova Scotia and New Brunswick, recalling the winter marches of the war of 1812. For the winter, when the navigation of the St. Lawrence was closed, was the dangerous time, and as the winter drew on, matters came to some- thing like a climax. Dr. Wolfred Nelson was, as not a few men have been, in public a violent politician, in private a kindly humane man. Ten years previously, at a general election, he had opposed and defeated James Stuart, then Attorney- General, for the borough of Sorel or William Henry, his brother Robert Nelson being at the same election returned as Papineau's colleague for one of the wards of Montreal. He lived and prac- tised his profession at St. Denis on the Richelieu river, and on the 23rd of October 1837 he presided at a public meeting at St. Charles near to his home, on which occasion Papineau was present, a cap of liberty was hoisted, and the representatives of the six confederated counties, as they styled themselves, being the counties bordering on the CHAP, in POLITICAL DIFFICULTIES 91 Richelieu, passed a series of lengthy resolutions, the most practical of which was an invitation to the soldiers to desert their colours and emigrate to the United States. One of the resolutions expressed approval of the political organization in Montreal entitled the ' Fils de Liberte ', of whom Christie contemptuously remarks that they were 'chiefly idle boys, stripling Attornies, and mer- chants' clerks V On the 6th of November the Sons of Liberty, led by Storrow Brown, who was reputed to have been of American birth and who was at the time a dealer in hardware at Montreal, came into collision with the members of a loyalist association, known as the Doric club. In the end the Sons of Liberty fared badly, the office of the Vindicator was gutted and sacked, the Riot Act was read, and troops patrolled the streets. After this outbreak Colborne took up his quarters at Montreal. By this time a kind of reign of terror had come into being in the district of Montreal outside the city itself, and especially in the counties on the southern side of the St. Lawrence. Magis- trates were intimidated and called upon to resign, and the lives and property of the loyalists were no longer safe. In consequence, on the 16th of November, warrants were issued for the arrest of the leaders of sedition, including Papineau him- self, who, however, fled fom Montreal and joined Dr. Wolfred Nelson at St. Denis. A small party of soldiers was, on the evening of the 16th, sent to St. John's on the Richelieu, to arrest two French Canadians named Demaray and Davignon. The 1 Christie, vol. iv, p. 395. 92 BRITISH NORf H AMERICA INTROD. arrest was effected, but as the prisoners were being taken to Montreal, their guard was fired upon, and they were rescued. Colborne immediately sent more troops into the district. One body, under Colonel Wetherall, went straight across the river to the fort at Chambly ; a second body, under Colonel Gore, was taken down the St. Lawrence, and landed at Sorel at the mouth of the Richelieu. Gore was to march up the Richelieu, and Wetherall down it, so as to disperse armed insurgents who were understood to have gathered at St. Denis under Dr. Wolfred Nelson and at St. Charles under Storrow Brown, St. Denis being about eighteen miles up the Richelieu from Sorel, and St. Charles six or seven miles further up the river. Gore started from Sorel with some 250 men on the night of the 22nd of November, and marching all night through sleet and rain did not reach St. Denis till nearly 10 o'clock on the following morning. Here he found Dr. Nelson and his followers prepared for defence, having converted a large stone house into a fort. He attacked with his tired troops, but was not strong enough to carry the position ; and after some hours' fighting he was obliged to retreat, with the loss of six men killed and ten wounded and of the one field piece which he had taken with him. He did not reach Sorel again till the afternoon of the 24th. Wetherall, with a rather larger force than Gore's, left Chambly at precisely the same time to march on St. Charles and eventu- ally join Gore. In the same bad weather he marched through the night of the 22nd and the forenoon of the 23rd, and eventually, being brought CHAP, in POLITICAL DIFFICULTIES 93 to a stand by a broken bridge some few miles short of St. Charles, he encamped for the night, rested his troops, received reinforcements on the following day, the 24th, and did not move until the 25th. Some entrenchments had been thrown up at St. Charles, and they were defended by a considerable number of insurgents, of whom Storrow Brown had taken command. Wetherall summoned the people to disperse, and when they resisted he carried the position, after about an hour's fighting, not without loss, and effectually broke up all resistance, returning to Montreal on the 29th of November. This was practically the end of the rising in the Richelieu counties, although towards the end of the first week of December there was a brush near the American frontier, in which loyalist volunteers intercepted and dispersed a band of rebels who had taken refuge in and crossed over from Vermont. At the beginning of December Gore was sent again to Sorel and up the river to St. Denis and St. Charles. He met with no resistance, he recovered his wounded and his gun, and his troops burnt some houses at St. Denis. Dr. Wolfred Nelson had at once shown more courage and been more unfortunate than his fellows. When he heard of Wetherall's success at St. Charles, he attempted to escape across the frontier into the United States; but after much suffering from cold and privation in the woodlands of the loyalist Eastern Townships, he was taken prisoner on the 12th of December and sent in to Montreal, his kindly care of the wounded being remembered in his own misfortunes. A 94 BRITISH NORTH AMERICA IKTROD. reward had been offered for his capture, and a still larger reward was offered for the capture of Papineau, but the latter made good his escape. He left Dr. Nelson's house at St. Denis on the morning of the day when Gore attacked it, and with O'Callaghan found his way to the United States, leaving to after years a controversy as to the motives for his flight at the moment of danger. Storrow Brown also reached American soil, and he, too, was criticized, though apparently without good reason, for not having been on the spot at St. Charles when the actual fighting took place. After an interval of years insurgents became good citizens again, and memories were softened, but there were two bad murders in this rising in the Richelieu district which could not be smoothed over or forgotten. A young officer, Lieutenant Weir, trying to catch up Gore's column between Sorel and St. Denis on the night of the 22nd of November, took a wrong road, reached St. Denis in advance of Gore's troops, and fell into the insur- gents' hands. When Gore attacked, Weir was placed bound in a wagon to be taken to St. Charles : he jumped out of the wagon, and was there and then shot and stabbed to death by those who were in charge. His body, badly mangled, was subsequently found in the Richelieu river, and was buried at Montreal on the 8th of December. In 1839, a man of the name of Jalbert, who had been in principal charge of the wagon, was tried for the murder, but the jury disagreed and he went unpunished. Even more cold-blooded was the murder of a stone-mason Chartrand, a French CHAP, in POLITICAL DIFFICULTIES 95 Canadian of St. John's, who had enrolled himself as a loyalist volunteer. Coming home from a place five or six miles off on the afternoon of the 28th of November, he was intercepted by a party of ruffians, some of them with loaded guns. He was subjected to a mock trial, condemned as a spy, tied to a tree, and shot. Four men were tried for his murder in 1838, but were acquitted by a jury of their countrymen in face of the strongest evidence of their guilt. Two of them, however, one a ring- leader, were inculpated in the second rising in the autumn of 1838, were tried by court martial and hung early in 1839. Gore's repulse at St. Denis acted as a stimulus to armed disloyalty, and the disloyal county of the Two Mountains, to the north-west of Montreal, gave some trouble. The centre of the disturbance was the village of St. Eustache, and the leaders were a Swiss adventurer of the name of Girod, and a French Canadian, like Wolfred Nelson, a brave but headstrong doctor, of the name of Chenier. Like Nelson at St. Denis, Chenier at St. Eustache turned a building into a fort. This was a convent, of which he took forcible possession on the 1st of December. Sir John Colborne waited for nearly a fortnight until he was fully prepared to settle the matter, and then marched out of Montreal on the 13th of December with 2,000 men. On the 14th the troops took possession of St. Eustache, where Chenier and it is said about 250 others held church, convent, and other buildings, and fought with spirit. Chenier was killed, much of the village was burnt, and a con- 96 BRITISH NORTH AMERICA INTEOD. siderable number of French Canadians were killed or taken prisoners. Girod had taken flight early in the proceedings, but a few days later, being hard pressed, shot himself. The troops went on to St. Benoit, another little centre of disaffection, fomented by one of the very few French Canadian priests who actively opposed the government. Here there was no resistance, but notwithstanding there was burning of houses ; a third village was also visited, and on the 16th the troops returned to Montreal. This was the end of the rising in Lower Canada. The contemporary insurrection in Upper Canada was even more fatuous and abortive. The danger in this province arose from two causes. One was purely temporary, and has already been mentioned, the fact that, when Sir John Colborne asked if any troops could be spared, Sir Francis Bond Head somewhat theatrically denuded Toronto of all the regulars, being well inclined, it would seem, to show to the world the loyalty of the citizens of Upper Canada, his own confidence in them and their confidence in him. The second source of danger was the ease with which raids could be organized from the American shores of the Niagara and Detroit rivers. For the rest, the community of Upper Canada was in the main thoroughly loyal, and race feeling did not complicate the situation. What Papineau was to Lower Canada Mackenzie was to the Upper Province, but with far more courage, even less discretion, and certainly less widespread influence. In both provinces the medical profession seems to have produced CHAP, in POLITICAL DIFFICULTIES 97 leaders among the Patriots or Rebels, which- ever name may be thought more appropriate. As against Wolfred Nelson and Chenier in Lower Canada, Drs. Rolph, Buncombe, and Morrison were prominent in Upper Canada. Among the reformers, Baldwin had no part or lot in the rising, nor had Bidwell, though the latter did not escape suspicion, which induced him, wrought upon, it was said, unfairly by Sir Francis Head, to exile himself for the rest of his life in the United States. During the summer of 1838 Mackenzie had been agitating through the province. The extreme men showed a disposition to come into line with Papineau in Lower Canada, but there was little talk of resort to force, and only gradually, in the country districts, some kind of secret preparation was made for taking up arms. Eventually the plan was evolved of capturing Toronto and the Government, the night of the 7th of December being fixed for the attempt. It was long before Sir Francis Head would admit the possibility of any danger or take any steps towards meeting it, although a good soldier, Colonel Fitzgibbon, whose name had been a household word in the war of 1812, was urgent ih his warnings. At length, at the beginning of December, it was determined to arrest Mackenzie and to call out some of the militia, with the result that the conspirators hastened their movements, and resolved to make their attempt on Toronto on the night of the 4th. But when plans are changed in conspiracies, differences of opinion arise, there is uncertainty and confusion, 1352-1 H 98 BRITISH NORTtf AMERICA INTROD. warning is given to the other side, and the scheme miscarries. The rebels picketed Toronto on the night of the 4th of December, but made no attack. A loyalist, Colonel Moodie, was intercepted and shot; an insurgent leader, Anderson, was shot; citizens were stopped and arrested by the rebels, but one or two broke through, and the alarm was most effectually given in the town. On the next morning, the 5th, after a reconnaissance, Fitzgibbon, with sound military instinct, wished at once to attack the insurgents in their position, but Head refused his consent and sent Baldwin and Rolph to parley with them, in happy ignorance that Rolph was in their inmost secrets. The conference came to nothing, and when night fell, Lount and Mackenzie led their misguided followers towards the city. They came across a small picket of twenty- seven men whom Fitzgibbon had sent out. The picket fired and then ran away, and so did the 700 insurgents. Militia and volunteers were now fast coming into Toronto, and by the following night, the night of the 6th, the Government had some 1,200 fighting men at its back. On the 7th, Fitz- gibbon and Colonel MacNab attacked, and within half an hour the rebels were dispersed and the rising was at an end. MacNab and a force of 500 men went on into the London district, where Dr. Duncombe, of American birth, had been organizing rebellion, but it had all melted away, and Duncombe had fled to the United States. Mackenzie, too, made his way across the frontier, and so did Rolph. Among other prominent rebels, one, Van Egmont by name, who was reputed to have served under CHAP, in POLITICAL DIFFICULTIES 99 Napoleon, died in prison ; two, Lount and Matthews, were hanged. In the United States Mackenzie tried to organize invasion of Canada, and frontier raids followed. Just above the Falls of Niagara, a small island in Canadian waters, Navy Island, was, at his instigation, occupied by a band of filibusters from Buffalo, who held it for a month from the middle of December 1837 to the middle of January 1838. A small Buffalo steamer, the Caroline, had been chartered to carry warlike stores and supplies to the island, and on the night of the 29th of December a party of Canadians rowed across the river to the American shore, cut out and burnt the vessel, and killed one man on the wharf. This incident caused strong resentment in the United States, although, from the Canadian point of view, it was no more than a justifiable reprisal, inasmuch as American soil had been openly made a basis for attack upon a friendly nation, and the raiders were almost entirely American citizens. Eventually, between three and four years later, Daniel Webster obtained from Sir Robert Peel a friendly explana- tion and what was held to be an adequate apology. The raid, or attempted raid, on the Niagara frontier was supplemented by similar attempts in the neighbourhood of Detroit in January and February 1838, in the course of which an Irish American adventurer of the name of Theller was taken prisoner. He was said to have been a doctor, like various other men who were prominent in these Canadian disturbances, and he obtained some notoriety by making a bold escape from H 2 100 BRITISH NORTrf AMERICA TNTROD. his prison in the citadel of Quebec in October 1838. Martial law was proclaimed in the district of Montreal on the 5th of December 1837, and the dis- trict remained under martial law until the following 27th of April, when, just a month before Lord Durham's arrival, Colborne, as acting Governor- General, dispensed with it in accordance with wishes expressed from home. In September 1837 Lord Gosford had placed himself in the hands of the Home Government, intimating that personally he would be glad to resign, though he was ready to continue in office, if the ministers so desired. He had been pledged to a policy of conciliation, and it was rapidly becoming evident that other measures would be necessary, which might better be entrusted to other hands. On the 27th of November Lord Glenelg wrote to accept his resignation, and he wrote also to Sir John Colborne intimating that the administration of the government would devolve upon him. Lord Gosford's departure from Canada was delayed by an injury which he received from a fall, but he finally left Quebec on the 27th of February 1838, and on the same day Colborne assumed the government. In the latter part of March, as already told, Sir Francis Head was replaced in Upper Canada by Sir George Arthur, who had previously been Lieutenant- Go vernor of Van Diemen's Land, now Tasmania. The first Parliament of Queen Victoria met in November 1837. Just before the adjournment for the Christmas holidays news reached England of CHAP, m POLITICAL DIFFICULTIES 101 the outbreak in Canada. ' The adjournment before the Christmas recess,' says the Annual Register for 1838, 1 ' took place almost contemporaneously with the arrival of the intelligence of the Canadian revolt, though not before some younger members of the Radical section had found an opportunity of ex- pressing their exuberant joy at the fact and their confident predictions of its inevitable consequences.' This statement may have been somewhat of an exaggeration, but some of the utterances were deplorable. One of the most violent speeches was made by Sir William Molesworth, who was not alone in hoping that Canada would pass from under the British dominion. That ' that dominion should now be brought to a conclusion I for one most sincerely desire '. This was on the 22nd of December 1837, but Molesworth's normal view was a saner one, for on the following 6th of March, in attacking Lord Glenelg's administration of the colonies, while he still expressed a hope that the people of Lower Canada would become inde- pendent, if their constitution was not restored to them, he stated that he yielded to no member in the House of Commons ' in a desire to preserve and extend the colonial empire of England'. The House met again on the 16th of January 1838, and Lord John Russell immediately intro- duced into the House of Commons a Bill which, after being much amended and recast, became law on the 10th of February, entitled ' An Act to make temporary provision for the government of Lower Canada'. 2 It suspended the constitution of 1791 1 p. 2. 2 1 Vic. c. ix. 102 BRITISH NORTH AMERICA INTROD. in Lower Canada from the date when the Act should be proclaimed in the province until the 1st of November 1840; and it empowered the Crown to constitute a special Council, by authorizing the Governor to appoint councillors in accordance with instructions. The operation of the laws to be passed by the Council was limited to the 1st of November 1842, ' unless continued by competent authority', and the Council was precluded from passing any legislation which should impose new taxes or involve constitutional changes. All laws were to be proposed to the Council by the Governor, and the presence of five councillors at least was required for the passing of a law. When explain- ing the proposals of the Government, Lord John Russell intimated that the extensive powers conferred by the Act would be entrusted to Lord Durham. Lord Durham himself in the House of Lords gave expression to the reluctance with which he undertook the charge. As a matter of fact he had been invited by Lord Melbourne in the previous July to take the governor-generalship of Canada, but had declined. He was again approached after the news of the rebellion had been received, and it was only on the day before Parliament met in January 1838 that he finally consented to go out. The new Act practically created a dictatorship, and was, therefore, strongly opposed by the Radicals in its passage through Parliament. It would have been even more hotly opposed but that Durham was conspicuous for his Radical sympathies. Roebuck, not then in Parliament, was heard against the Bill at the bar of either CHAP, in POLITICAL DIFFICULTIES 103 House. In the House of Lords Brougham was specially bitter against the Government and its policy. But the policy prevailed. The Act was sent out to Canada with instructions to Colborne to call together a special Council in order to deal with immediate requirements, but to make it clear that Lord Durham on arrival would con- stitute his own Council. Colborne acted accord- ingly and nominated a Council consisting of 21 members, 11 of whom were French Canadians. The Council met on the 18th of April and was prorogued on the 5th of May. Lord Durham arrived at the end of May, and on the 28th of June nominated his own special Council consisting of five members only, unconnected with political life in Canada. Was there any real justification for the armed rising in the two Canadian provinces ? The answer must be that there was not. There was ground for discontent, the discontent of communities growing and conscious of growth, and desirous with reason of more extended control of their own destinies, the discontent in Lower Canada of a French race largely officered by Englishmen, the discontent in Upper Canada of a democratic party stonewalled by official Conservatism. But the popular demands were, for the time and place, excessive and unreasonable, the grievances were clothed in exaggerated language, and the weakness and speedy collapse of the outbreak in either province testified to the absence of deep-seated and widespread resentment against grinding tyranny. It may be said that the rebellion was the product 104 BRITISH NORTH- AMERICA INTROD. of three causes, first the war of American Inde- pendence, secondly, unwise speeches in England, thirdly, real, though not overwhelming grievances. The war of American Independence and its out- come coloured the whole of the subsequent colonial history of England ; especially it affected the history of the British provinces which bordered on the United States. The popular view of the war, adopted and embellished by the Whigs, was that it was a signal and crowning illustration for all time of the triumph of liberty over oppression : and the terms used of it implied that the English had been guilty of the wildest excesses of tyranny. This led to similar exaggeration, whenever in after years there was friction between a colony and the motherland ; and in the case of Canada speeches made by men like Roebuck or Hume, who were either paid advocates of the colonies or so con- stituted as to be incapable of imagining that the Home Government for the time being could be right, or speeches again made from the Irish point of view by O'Connell, contributed to a distorted vision of the actual facts. Lower Canada had not even the cause of complaint which the thirteen colonies had been able to put forward, that new taxes were being imposed from without upon the provincials by the Government at home. As far as the finances were concerned, it was a question not of taxation but of appropriation. In the words of the Annual Register for 1838, 1 ' Throughout the unfortunate differences which we are about to notice, no question ever existed with respect to 1 p. 4. CHAP, in POLITICAL DIFFICULTIES 105 the imposition of duties or the levying of money. The claims of either party were limited to the right of appropriating what must, at all events, be collected and what, if not disposed of j must accumulate from year to year in the public chest.' In refusing a Civil List, in return for the control of their finances, the democratic party in Canada were refusing what it would have been right and reasonable to grant, and the attacks made upon successive Governors-General were unworthy and contemptible. None the less, there were wrongs to be righted and causes of friction to be removed : the time had come in all the provinces of British North America to recognize that the peoples were now not children but adults, and the man had come, in Lord Durham, to show the better way. CHAPTER IV LORD DURHAM'S COMMISSION AND INSTRUCTIONS WHEN Lord Durham's Report was laid before Parliament in 1839, it was prefaced by the Commis- sion which is now reprinted, and which had already been given separately to Parliament on the 9th of July 1838. It was a Royal Commission under the Great Seal, appointing him to be ' High Commis- sioner and Governor-General of all Her Majesty's provinces on the continent of North America, and of the islands of Prince Edward and Newfound- land'. The Commission recites that he had already received five several Commissions appoint- ing him to be Governor-in-Chief of the four provinces of Lower Canada, Upper Canada, Nova Scotia, and New Brunswick, and of Prince Edward Island. Similar powers had been given to his predecessors ; but, as appears from Lord Glenelg's letter to Lord Durham of the 3rd of April 1838; only three Commissions had previously been issued for the five colonies, instead of one for each. The Commission then goes on to appoint him ' to be our High Commissioner for the adjustment of certain important questions depending in the said provinces of Lower and Upper Canada, respecting the form and future Government of the said provinces ', and to authorize him as High Com- CHAP, iv LORD DURHAM'S COMMISSION 107 missioner ' to enquire into and as far as may be possible to adjust all questions depending in the said provinces of Lower and Upper Canada, or either of them, respecting the form and ad- ministration of the Civil Government thereof respectively '. Then, ' with a view to the adjust- ment of such questions,' the Commission appoints him to be Governor-General of all the British North American provinces and islands, including Newfoundland, but the commission of the exist- ing Governor of Newfoundland is specially safe- guarded. Finally the Commission empowers him to hold the offices of ' High Commissioner and Governor- General of our said provinces on the continent of North America, and of the said islands of Prince Edward and Newfoundland'. This document gave Lord Durham a threefold authority. In the first place he was, like his predecessors, Governor-in-Chief of Lower Canada, Upper Canada, Nova Scotia, New Brunswick, and Prince Edward Island. His legal powers were those of Governor-in-Chief. He was not, nor had his predecessors been, Governor-in-Chief of Newfoundland, for in Newfoundland there was a Governor and not merely a Lieutenant-Governor. In the second place he was High Commissioner to do special work in two of the provinces. In the third place he was Governor-General of all the provinces and islands, including Newfoundland. The appointment of Governor-in-Chief applied to each province or island separately, excluding Newfoundland. The appointment of Governor- 108 BRITISH NORTH AMERICA INTROD. General applied to them all collectively, includ- ing Newfoundland ; but it is not quite easy to appreciate why the appointment of Governor- General of all the provinces and islands collectively was conferred upon him ' with a view to the adjustment' of the special questions in Lower and Upper Canada, in connexion with which he had been appointed High Commissioner ; nor is it clear why he is styled High Commissioner as well as Governor-General of all the provinces and islands. 1 The meaning of the document can be interpreted from the first two paragraphs of Lord Durham's Report. It was, that certain grave troubles had come into existence in two Cana- dian provinces which required a very special man, clothed with very special authority, to deal with them : that the conditions in other parts of British North America were not dissimilar: that the chosen man should, therefore, in addition to possessing the ordinary powers of government which previous Governors-in-Chief had enjoyed, be given a High Commissionership intended pri- marily to apply to Lower and Upper Canada and only to special purposes in those two provinces, but to apply also, if required, in combination with a general authority as Governor-General, to the whole of British North America, even including Newfoundland. In short, the difficulties which had arisen in Lower and Upper Canada differed 1 In the Commission to Charles Buller empowering him to inquire into public lands (see voL iii, Appendix B), Lord Durham appears as Governor-General only, not as High Commissioner, and Newfoundland is wrongly given a Lieutenant-Governor instead of a Governor. CHAP, iv LORD DURHAM'S COMMISSION 109 rather in degree than in kind from those which had occurred or might occur elsewhere in British North America, and therefore all the provinces and islands were, so to speak, grouped under Lord Durham's authority as Governor-General, and to all he might, if necessary, appty whatever powers appertained to him as High Commissioner. Thus, in the first of the three letters or dispatches in which Lord Glenelg conveyed to him the instruc- tions of the Government, the letter of the 20th of January, it is stated : ' Neither ... is it the intention of Her Majesty's Government to exclude other subjects from your consideration, or to restrict you from entertaining other proposals, whether affecting the two Canadas only or all the British North American provinces, which you may be induced to think conducive to the permanent establishment of an improved system of Govern- ment in Her Majesty's North American possessions. Your Commission will be co-extensive with the whole of these possessions ' ; and in the letter of the 21st of April reference is made to the powers which were vested in him ' for the purpose of a general superintendence over all British North America '. The formal Royal Instructions, which accom- panied Lord Durham's five Commissions as Gover- nor-in-chief, were much the same as had been given to his predecessors. In the case of Lower and Upper Canada, the old Instructions which had been handed on from Lord Dalhousie's time were continued, with the proviso that they should apply ' so far only as the same are not obsolete or have not been superseded by any such statute as 110 BRITISH NORTH AMERICA TNTROD. aforesaid or as the same may not be found to bo inapplicable to the present state of affairs in our said province ' ; and in the case of Lower Canada, a separate Instruction was added as to constituting the special Council authorized by the newly passed Act ' to make temporary provision for the Govern- ment of Lower Canada '. Over and above these formal Instructions, Lord Glenelg conveyed to him the views of the Melbourne Ministry in the three letters of the 20th of January, 3rd of April, and 21st of April 1838, which are reprinted in vol. in, and of which a few words must be said. It will be remembered that Parliament met on the 16th of January 1838. The Instructions contained in the letter of the 20th of January were therefore given almost immediately after Lord John Russell had introduced the Bill for sus- pending the constitution of Lower Canada, which eventually, on the 10th of February, became the Act ' to make temporary provision for the Government of Lower Canada ', and they followed close upon Lord Durham's acceptance of the charge which had been offered to him. The Government were anxious to lose no time in embodying their policy in the form of Instructions, but the letter of the 20th of January was absurdly premature, seeing that the law with which the Instructions were coupled had yet to be passed. It will be seen that in this letter Lord Glenelg authorized Lord Durham somewhat elaborately, though leaving him a discretion in the matter, to call together an advisory committee of the two Canadas with an elective element in it, for the purpose of consulting CHAP, iv LORD DURHAM'S COMMISSION 111 the members on some or all of the outstanding questions, especially those which were common to the two provinces. A reference to this proposed committee had been embodied in the preamble to the Bill which was then before the House of Commons. The first draft of the Bill recited that, whereas under existing circumstances the House of Assembly in Lower Canada could not be called together without detriment to the public interests, ' and whereas it is nevertheless expedient that the said Province should be permanently governed on constitutional principles adapted to promote the interests of all classes of Her Majesty's subjects in the said Province : And whereas, in order to the preparation of such measures as it may be desir- able to propose to Parliament for improving the constitution of the provinces of Lower Canada and Upper Canada, or either of them, and for regulating divers questions in which the said pro- vinces are jointly interested, Her Majesty hath been pleased to authorize the Governor-General of Her Majesty's provinces in North America to summon a meeting, to be holden within the said provinces of Lower Canada and Upper Canada, consisting of the said Governor-General and of certain persons to be by Her Majesty or on Her Majesty's behalf for that purpose appointed, and also consisting of certain other persons representing the interests and opinions of Her Majesty's subjects inhabiting the said provinces, and whereas it is in the mean- time necessary that temporary provision should be made for the Government of the said province of Lower Canada, Be it therefore enacted . . . ' The fact was that the Whig Ministry, being driven to a measure of coercion, tried to sweeten 112 BRITISH NORfET AMERICA INTROD. it, and to conciliate their Radical following, by introducing into the preamble of the Bill and into the Instructions to their Commissioner evidence of the Liberal and Constitutional principles on which they prided themselves. But they had to reckon with Sir Robert Peel, who would have none of this preamble, and pointed out with irresistible force that it was an attempt, by a side wind in the form of a preamble to an Act, to make Parliament responsible for the acts and the policy of the Executive Government. On the same grounds he refused to give any Parliamentary recognition to Lord Glenelg's Instructions to Lord Durham, 1 and he pointed out the palpable absurdity of giving instructions in January to a man who would not arrive in Canada till the end of May. The end of it was that, being given a lead from his own side, by ' Bear ' Ellice and Charles Buller, Lord John Russell struck the preamble out of the Bill, and no more was heard of the elaborate instructions for calling together an advisory committee. Lord Glenelg's letter of the 20th of January 1838 is a wordy document with high phrases and fine sentiments, evidently designed for the shop- window; but it will be noted that the letter refers specially to the complaint made against the Quebec Assem- bly that it was animated by an 'anti-commercial spirit of legislation ', and that prominence is given to the relations between the two Canadian pro- 1 An extract from Lord Glenelg's letter of instructions to Lord Durham of January 20, 1838, was laid before Parliament on January 23, 1838. The whole letter, together with the letters of April 3 and April 21 , was included in the Parliamentary Paper of February 11, 1839. CHAP, iv LORD DURHAM'S COMMISSION 113 vinces and the difficulties which had arisen in this connexion. Some kind of federal legislature is suggested which should supplement, but not take the place of, the separate legislatures of Lower and Upper Canada. The letter also adverts to the constitution of the Legislative Council hi Lower Canada, and to the resolution of the House of Commons that the Council should be given a more popular character without being made elective. The letter of the 3rd of April deals with Lord Durham's Commissions and with his relations, under their terms and under the Royal Instructions, to the Lieutenant-Governors. It may be inferred from it that Lord Durham was not expected to visit Newfoundland, as no reference is made to the possibility of his doing so. The letter of the 21st of April is by way of completing a series of Instructions. It is again a wordy document with a number of copybook plati- tudes. It refers more especially to relations with the United States, and to the desire of the Whig Government that gentle treatment should, in other than exceptional cases, be meted out to those in Canada who were inculpated in the late rising. With this end in view, Lord Durham is given an unrestricted power of pardon. The letter concludes with an assurance of the full confidence of Her Majesty's Government and ' of their utmost support and assistance '. On the whole, it would be somewhat difficult to find a more futile set of Instructions to a strong man setting out on a difficult mission, but they had the merit of leaving him a wide discretion. 1352-1 CHAPTER V THE REPORT ITS SCOPE, CHARACTER, AND SUBSTANCE THE SCOPE OF THE REPORT LORD DURHAM having been appointed Governor- General of all the British North American Colonies, including Newfoundland, the nominal scope of his Report was the whole of British North America ; and, in so far as the Report laid down general principles, or foreshadowed a union of all the provinces, it did to a greater or less extent include them all. But the primary object of his mission was to adjust outstanding and pressing questions in Lower and Upper Canada, ' respecting the form and future Government ' of those two provinces ; and it has been seen that, as a matter of fact, his stay in British North America hardly exceeded five months, all of which time he spent in Lower Canada with the exception of eleven days which he gave to the Upper Province. Nova Scotia, New Brunswick, Prince Edward Island, and Newfound- land, he never visited at all. He interviewed delegates from Nova Scotia, New Brunswick, and Prince Edward Island ; and the Crown Lands Inquiry, which was entrusted to Charles Buller, included these three colonies as well as the two Canadas ; but, except in connexion with Crown CHAP, v THE SCOPE OF THE REPORT 115 lands, only three pages of the Report in its original Blue Book form are devoted to ' the Eastern provinces and Newfoundland ' ; and, while the Commission which empowered Buller to inquire into Crown lands included Newfoundland, the actual inquiry and Buller's Report left out that island altogether. It was in fact a farce, as events turned out, to have brought Newfoundland at all into the Commission and into the Report, for Lord Durham says plainly (ii. 202): 'With respect to the colony of Newfoundland, I have been able to obtain no information whatever, except from sources open to the public at large '. The scope of the Report may then be fairly summed up by saying that it deals in detail with Lower and Upper Canada, and that it contains information, deductions and suggestions which were applicable in the first place to the Maritime Provinces of North America, and in the second place to other parts of the world, including Newfoundland, which had been colonized by British citizens more applicable indeed to some other provinces of the Empire than to Newfoundland, for the conditions of Newfoundland were sui generis and wholly different from those of an ordinary British colony. The Report is, in short, mainly a special report upon the two Canadas, but partly also a general essay upon the best method of adjusting the relations between Great Britain and British colonies which are not merely dependencies, including a model scheme of colonization by means of the proper application of the public lands of the colonies. i 2 116 BRITISH NORTH AMERICA INTROD. THE CHARACTER OF THE REPORT Turning to the character of the Report, critics wishing to find fault might lay stress upon one or two instances of direct misstatement, and more numerous instances of obvious exaggeration; but the Report must fairly be considered as a whole, and its two main features, apart from the substance of the recommendations which it contains, are in the first place its plain speaking, and in the second place its breadth of view. The first of these two characteristics may be illustrated by reference to the marginal notes, which form a running analysis, unusual in a Blue Book, and suitable rather to a history or a general essay than to the report of a special commission. Here are three notes which follow one another on ii. 59, 60 : 4 The Canadians would revenge themselves on the English by any aid ' ; ' The English population will never tolerate the French pretensions to nationality ' ; ' They complain of being the sport of parties at home.' And here are three more on ii. 292-4 : ' Hopeless inferiority of the French- Canadian race ; ' ' Economical obstacle to perpetua- tion of their nationality ; ' * The French nation- ality is destitute of invigorating qualities.' Notes of this kind, and such strong language as will be found in the body of the Report, would never see the light in the report of a Royal Commission at the present day, though possibly some approach to it might now and again be found in separate dispatches. It is interesting to speculate how far this plain speaking was the outcome of the man, CHAP.V THE CHARACTER OF THE REPORT 117 and how far of the time a time before summaries of speeches and reports were telegraphed to the ends of the earth. Lord Durham was not accus- tomed to mince his words, nor did he greatly regard the feelings of others. His right-hand man, Charles Buller, had a trenchant pen, and both men were at once indifferent to political niceties, and minded to read their countrymen at home a lesson for all time on the subject of colonial administration. Hence the Report is full blooded, and, while nothing is set down in malice, nothing is extenuated. The writer is determined to paint a graphic picture of the truth, as it appeared to his eyes, and he has beyond question succeeded in his effort. But if Lord Durham and Buller had lived in our own day, it cannot be doubted that the Report would not have been so outspoken. Violent party speeches are as common as ever, but in the matter of reports, especially with regard to the dominions beyond the seas, the men of the present time weigh their words more carefully than was the case seventy years ago. It is well that it should be so. We could wish that our Parliamentary Papers were marked by the vigour, the clearness, the eloquence, the honesty which, over and above its supreme ability, are conspicuous in Lord Durham's Report, but we could and would dispense with criticisms and terms of expression which may be valuable for confidential purposes, but in public documents are calculated to give abiding offence to classes or to communities. And Lord Durham's Report, great and remedial as it was, by form as well as by substance gave 118 BRITISH NORTH AMERICA INTROD. grave offence in both Canadas. As late as the 3rd of February, 1910, Sir Wilfrid Laurier referred to it in the Canadian House of Commons in the following terms. ' It is a singular fact that the report of Lord Durham was received by the French Canadians of that day with pained surprise. The reason is known to those who have studied the history of that period. Friend of liberty as he was, broad as he was in his conceptions, f ar-visioned as events show him to have been, Lord Durham himself did not appreciate the effect of liberal institutions. Coming to Canada at a time when the very atmo- sphere was reeking with rebellion, he formed a hasty judgement upon the French population of that day, which he expressed in hasty and some- what haughty language. He thought they could not be reconciled to British rule, and stated in his report that the conditions should be such in Canada that the two provinces should be united, so that French Canada should be ruled by the stern and relentless hand of an English-speaking majority. It is not to be wondered at that when the report was made known in Canada, it not only caused, as I have said, pained surprise, but produced a feeling of injustice and wrong.' 1 Equal irritation was aroused in Upper Canada by the publication of the report, as will be seen by the Report of the Select Committee of the House of Assembly of the Upper Province, which was forwarded by Sir George Arthur to England in May 1839. Here is one passage referring to Lord Durham's comments on the methods of expenditure on public works in the province. 1 Quoted from the Canadian Hansard. CHAP, v THE CHARACTER OF THE REPORT 119 ' There is something so offensive and unbecoming in these passages of the report, as to induce the committee, from that and other internal evidence, to believe that that portion of it which relates to Upper Canada was not written by and never received the careful revision of his Lordship.' l The House of Assembly and its committee no doubt represented mainly those whom Lord Durham considered to be the Tories of Upper Canada, and the passage in his Report which they so bitterly resented hardly called for so much resentment. Still the Report might have achieved its purpose without giving such dire offence. Its great breadth of view might have been more appreciated at the time, if the comments had been somewhat more carefully worded and a little less unc ompr omising. This breadth of view might be illustrated by quotations on almost every point and on almost every page, but it will be enough to take one point only and to note the strong and healthy Imperialism, the confidence in the English race, the love of and pride in the British Empire, which is really the keynote of the Report, and which was wholly alien to the ordinary Whig doctrines and modes of thought at the time when Lord Durham went to Canada. He was an Imperialist in the best sense. He believed in Libertas, but he believed also in Imperium. He was not afraid of force, if used for what he conceived to be a good purpose. He was not inclined to make concessions, merely 1 Parliamentary Paper containing copies or extracts of correspondence relating to the affairs of Canada, No. 289, June, 1839, p. 27. 120 BRITISH NORTH AMERICA INTROD. because the majority asked for them, but only, if they were sound in principle and likely to conduce to future greatness. He did not consider that undoing, or at the most giving new machinery, was the one and only thing needful. The bent of his mind was constructive, and he would not be content without creating something greater than before. He was not inclined to let the colonies go hang. He believed in their potential value to England, and in a future for England and for them of strength and partnership. England was to give them freedom and security, but she was to have something in return. ' The country which has founded and maintained these Colonies at a vast expense of blood and treasure, may justly expect its compensation in turning their unappropriated resources to the account of its own redundant population ; they are the rightful patrimony of the English people, the ample appanage which God and Nature have set aside in the New World for those whose lot has assigned them but in- sufficient portions in the Old ' (ii. 13). The marginal note to this fine passage is ' Advantages derivable by the Mother country from these Colonies ' ; and even the inaccuracy which may be noted in it, that of treating French Canada as though it had been an original colony of Great- Britain, bears witness to the same breadth of conception, which refused to look upon the province of Quebec merely as a conquered depen- dency, the home of an alien race, and persisted in regarding it as an integral part of the British Empire. Similarly Lord Durham's scheme for CHAP, v THE CHARACTER OF THE REPORT 121 the disposal of the public lands in the British North American provinces was ' intended to promote the common advantage of the Colonies, and of the Mother country ' (ii. 327) ; and in the same spirit Charles Buller, in his Report on Public Lands, laid stress on the fact that the subject was one of Imperial concern. ' Higher interests than those of the Colonies, the interests of the Empire of which they form a part, demand that Parliament should establish at once, and permanently, a well considered and uniform system. The waste lands of the Colonies are the property, not merely of the Colony, but of the Empire, and ought to be administered for Imperial, not merely for Colonial, purposes ' (Appendix B, iii. 37). This British patriotism and Imperial outlook, the seeking for what is or may become great and broad, and strong, runs through the whole report. The French Canadians should be merged in an English nationality because they would thereby become an integral part of a greater community, and have a goodlier heritage. ' It is to elevate them from that inferiority that I desire to give to the Canadians our English character' (ii. 292). The legislative union of all the British North American provinces, if it could be accomplished, ' would form a great and powerful people, pos- sessing the means of securing good and respon- sible Government for itself, and which, under the protection of the British Empire, might in some measure counterbalance the preponderant and increasing influence of the United States on the American continent ' (ii. -309). Responsible 122 BRITISH NORTH AMERICA INTROD. government should be given not only as a means to popular contentment, but also as making for strength, whereas ' there is every reason to believe that a professedly irresponsible Government would be the weakest that could be devised ' (ii. 298). One reason given for the union of the two Canadas is that ' the full establishment of responsible Government can only be permanently secured by \/ giving these Colonies an increased" importance in the politics of the Empire-!__(ii. 304) ; and this permanence of self-government in a strong com- munity is held to be necessary ' for the well- being of the Colonies, and the security of the Mother country ' (ii. 285). Any danger to the Imperial connexion from making the colonies greater and stronger is scouted. ' I am, in truth, so far from believing that the increased power and weight that would be given to these Colonies by Union would endanger their connexion with the Empire, that I look to it as the only means of fostering such a national feeling throughout them as would effectually counterbalance whatever tendencies may now exist towards separation ' (ii. 310). By enlarging the colonial unit, by widening the area and adding to the population, by endowing with responsibility, greater men would be produced, new and wider interests would be created ; and the danger of Absorption into the United States would be met ' by raising up for the North American colonist some nationality of his own, by elevating these small and unimportant communities into a society having some objects of a national importance ' (ii. 311). The spirit which CHAP, v- THE CHARACTER OF THE REPORT 123 inspires the Report is indicated by the concluding words, in which Lord Durham records his ' earnest desire to perpetuate and strengthen the connexion 1 between this Empire and the~ North American ' colonies, which would then form one of the brightest ornaments in your Majesty's Imperial Crown '. In the debates in the House of Lords on the Reunion Bill, in the summer of 1840, Lord Melbourne took exception to the terms of the Report. ' There were unquestionably many things in that report which he did not praise, and which he did not think were prudent matters to be brought forward, and which he thought it would have been wiser to have omitted.' J This was when the committee stage was reached on the 7th of July. A week earlier, in the debate on the second reading, Brougham had declared himself in favour of giving up the North American colonies, and so had Lord Ashburton. Lord Durham was too outspoken for the Whig Prime Minister : he was a better and broader Englishman than Brougham. THE SUBSTANCE OF THE REPORT In dealing, as briefly as the subject permits, with the substance of Lord Durham's Report, it is proposed to notice in the first place the two, \ main recommendations which it contains, viz. "y ' *\ the reunion of the two Canadas, and the grant of responsible government : then to take the recommendations made under the following heads : public lands, emigration, improvement of means of communication, municipalities, administration 1 Hansard, 1840, vol. Iv, p. 515. 124 BRITISH NORTH AMERICA INTROD. of justice, and education ; and finally to consider the passages of the report which refer to a future general union of British North America, those in which reference is made to the United States, and those which embody Lord Durham's views on the Colonial Office, and on colonial administration generally. REUNION OF THE TWO CANADAS Why did Lord Durham recommend that the two Canadas should be reunited, and what form of reunion did he recommend ? He recommended that the two provinces should be reunited, first and foremost, because under existing conditions he considered reunion to be a necessary preliminary to the grant of responsible government ; secondly, because he considered that reunion would result in a greater and a stronger whole, with more possibilities for the future, and that the interests of the inhabitants of both provinces, especially of the French Canadians, demanded reunion. The form of reunion which he recommended was , and not political union only but a complete^ amalgamation of peoples, races, languages, and laws. He recommended, as far as it was humanly possible, absolute unity, easier to depict on paper than to carry out into fact. It has been noted that the Report is not only a special report upon the best means of solving the difficulties which had actually arisen in the two Canadas, but also in part an essay upon colonial administration in general, upon the advantages to CHAP, v REUNION OF THE TWO CANADAS 125 be derived from giving responsible government to British colonies, which are not merely foreign dependencies. In itself the principle of responsible government was of wide application. Wherever the majority of the population consisted of British citizens, or of Europeans who had been trained in British citizenship, and had enjoyed some measure of British institutions, there it was, in Lord Durham's view, prima facie, good, sound, and desirable that self-government within certain denned limits should be established. But though the principle was so far of general application, the application was necessarily subject to conditions of time and place ; and Lord Durham was sent out primarily to deal with a particular time and a particular place. The particular time was the close of armed rebellion, and the particular place, or one of the two particular places, was a province which adjoined the American Republic, but in which the large majority of the inhabitants were of French descent. Thus Lord Durham set before himself, in regard to Canada, something like the problem which Aristotle propounded for solution in the Politics. He set himself to consider in the first place, what is the best constitution; and in the second place, what is the best constitution, given a particular set of conditions. He answered the second problem not so much by departing from his model constitution, as by proposing to alter the conditions so as to enable the model con- stitution to be brought into being. On the grant of self-government he had clearly made his mind up before he went out to Canada. After arrival 126 BRITISH NORTH AMERICA INTROD. in Canada, when brought face to face with existing facts, he did not modify his theory to suit the facts, but he set himself to modify the conditions in order to make the theory practicable. 1 Thus, in regard to Lower and Upper Canada, the two main recommendations of the Report are inseparably connected together. He recommended that the two Canadas should be reunited, and that to the single province thus formed responsible government should be given. He commented most strongly upon the bad effects produced by the want of responsible government in Lower Canada, but he did not recommend that under existing conditions, Lower Canada, as it stood, should be endowed with responsible government. He became convinced, when on the spot, that the root cause of the evils in French Canada was not to be found in the constitution, though the defects of the constitution had aggravated the evils. He traced the mischief ultimately to race antipathy .(\\a.tf>]y responsible to the Legislature, in which the ministers are members of the Legislature, chosen from the party which includes the majority of the elected repre- sjentatives of the people. He meant a British system, and therefore he would entrust its working only to a British majority. The Act of 1791 had given to either of the two Canadas representative institutions without respon- sible government. It had embodied, to use Lord Durham's somewhat exaggerated words, ' the com- bining of apparently popular institutions with an utter absence of all efficient control of the people over their rulers ' (ii. 74). To Lord Durham, as a student of English history, as an heir of English traditions, as a foremost fighter in the democratic ranks, as England understood democracy, repre- sentative institutions without responsible govern- ment were a monstrosity, a contradiction in terms. 4 It is difficult to understand how any English CHAP, v RESPONSIBLE GOVERNMENT 139 statesmen could have imagined that representative and irresponsible government could be successfully combined ' (ii. 79). ' From the commencement^ therefore, to the end of the disputes which mark the whole Parliamentary history of Lower Canada, I look on the conduct of the Assembly as a constant warfare with the Executive, for the purpose of; obtaining the powers inherent in a representative body by the very nature of representative govern- ment ' (ii. 83, 84). Now it will be noted that in his Report Lord Durham continually contrasts the condition of the two Canadas with that of the United States, and attributes the greater prosperity, which was in evidence in the United States, in part to the fact that the citizens of the American republic lived ' under a perfectly free and eminently responsible government' (ii. 261). x Moreover, in one passage he lays down that ' this entire separation of the legis- lative and executive powers of a state is the natural error of Governments desirous of being free from the check of representative institutions ' (ii. 79). He never seems to have realized, or at any rate he ignores, the vital difference between the British and the American constitutions, that in the former the Executive is, to use Professor Dicey 's terms, 2 1 On the other hand, Lord Durham says (ii. 331), ' The warmest admirers, and the strongest opponents of republican institutions, admit or assert that the amazing prosperity of the United States is less owing to their form of government, than to the unlimited supply of fertile land.' 2 The Law of the Constitution, sixth ed., 1902, Appendix, note 3, on the ' Distinction between a parliamentary executive and a non- parliamentary executive '. Professor Dicey points out (p. 432) that ' the strong point of a non-parliamentary executive is its comparative independence ' On this subject see Mr. Bryce's American Common- 140 BRITISH NORTH AMERICA INTROD. parliamentary, and in the latter non-parliamentary, that the American constitution is an instance of the successful combination of representative and (in the English sense) irresponsible government ; while his statement, that the separation of the legislative and executive powers of a state is an error due to the desire to be free from the check of representa- tive institutions, is amazing in face of the fact that this separation had been originally recom- mended by political thinkers, and carried into effect in America and in France, as a supposed security against arbitrary government, as an indis- pensable guarantee of a free constitution. 1 In the United States the people elect the Presi- dent ; but, during the President's term of office, the executive officers whom he appoints, though they belong to the party to which he belongs, and therefore are so far in harmony with the wishes of the majority of the electors, are, like the President himself, not members either of the Senate or of wealth. He writes : ' There exists between England and the United States a difference which is full of interest. In England the legislative branch has become supreme, and it is considered by Englishmen a merit in their system that the practical executive of the country is directly responsible to the House of Commons. In the United States, however, not only in the national government, but in every one of the states, the exact opposite theory is proceeded upon that the executive should be wholly independent of the legislative branch' (1888 ed., vol. i, pp. 385-6). 1 See on this point Cornewall Lewis's Government of Dependencies, Preliminary Inquiry, 1891 ed., p. 41, &c. Locke, Montesquieu, Paley, &c., supported this theory of the separation of the legislative and executive powers, and Cornewall Lewis says that it ' became in the last (the eighteenth) century a sort of political axiom which every one supposed himself to understand, and which no one thought of ques- tioning '. CHAP, v RESPONSIBLE GOVERNMENT 141 the House of Representatives, but are wholly independent of and in no sense responsible directly or indirectly to the Legislature. Thus Lord Durham, on the one hand, insisted upon the vital necessity of responsible government as Englishmen understood it, and, on the other, held up as a model a country in which the system of responsible government in the English sense did not and does not exist. He would no doubt have contended, if challenged on the point, that the two cases of Great Britain and the United States were and are entirely differentiated by the existence of the Crown in the one case and of the elected President in the other, 1 and it is very noteworthy what importance this advanced Liberal attached to 'the stable authority of an hereditary monarchy' (ii. 263) ; but it is a weakness in the Report that, with its constant references to the United States, it does not seem to appreciate that the political system existing in the country, which bordered on Canada and which had been colonized from Great Britain, was not an accurate illustration of his theory of responsible government as embodying the one vital principle of a Parliamentary Executive. Why did the author of the Report not appreciate the difference between the two cases ? Because he 1 This is clearly pointed out by Merivale in the Appendix, written in 1861, to No. XXII of his Lectures on Colonisation and the Colonies. Speaking of the American system of a non-parliamentary executive, he says, ' Not to speak of other objections to this system, it is clearly incompatible with colonial institutions under a Governor appointed by the Crown. His ministers would be ministers of the Crown, and antagonistic, or so considered, to the community and legislature. It might work if governors were elected by the people, as is the American President ' (p. 650). 142 BRITISH XOHTII AMERICA IN TROD. was intensely British, because he could not con- ceive of liberties for white men in lands under the British Crown without British Parliamentary government. The citizens were to be made British, if not -British already ; their institutions were to be those, and those only, which he had known in Great Britain and helped so largely to develop. 1 As he understood responsible government- government with a Parliamentary Executive so other English statesmen of the time understood it. What were the objections which they took to it ? The objections all resolved themselves into the one main contention that men cannot serve two masters. How, it was argued, is it possible to hWe divided responsibility ? If the Executive is responsible to the Colonial Legislature, it cannot be responsible to the Imperial Parliament ; wRereas4t ^was assumed that, if a colony was to remain part of the British Empire, its administration must be responsible to the Imperial advisers of the Crown and to the Imperial Parliament. Thus Lord Glenelg con- tended, in his Instructions to Sir Francis Bond 1 Lord Durham's son-in-law, Lord Elgin, thoroughly understood the difference between the British and American systems. Writing to Lord Grey from Canada on November 1, 1850, he says : ' The faithful carrying out of the principles of constitutional government is a departure from the American model, not an approximation to it. ... The fact is that the American system is our old colonial system with, in certain cases, the principle of popular election substituted for that of nomina- tion by the Crown. Mr. Fillmore stands to 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 in the conduct of legisla- tion, the same want of concurrent action between the parts of the political machine '. Canadian Constitutional Development (Egerton and Grant), p. 327. CHAP, v RESPONSIBLE GOVERNMENT 143 Head, dated the 5th of December 1835, 1 that the existing system in Upper Canada, if properly worked, was already responsible government, only the responsibility lay to the Home authorities. ' Experience would seem to prove that the administration of public affairs in Canada is by no means exempt from the control of a practical responsibility. To His Majesty and to Parliament the Governor of Upper Canada is at all times most fully responsible for his official acts. . . This responsibility to His Majesty and to Parliament is second to none which can be imposed on a public man, and it is one which it is in the power of the House of Assembly at any time, by address or petition, to bring into active operation.' It has been seen that in March 1837 the House of Commons passed a series of resolutions, one of which was in the following terms : ' That while it is expedient to improve the composition of the Executive Council in Lower Canada, it is unad- visable to subject it to the responsibility demanded by the House of Assembly of that province.' Speaking in support of this resolution, Lord John Russell said that the Assembly demanded that ' the executive council should be a responsible council similar to the cabinet in this country ', and his comment was : ' I hold this proposition to be entirely incom- patible with the relations between the mother country and the Colony. . . . That part of the constitution which requires that the ministers of the Crown shall be responsible to Parliament and 1 See House of Commons Paper, No. 113, March 2, 1836, p. 64. 144 BRITISH NORTlT AMERICA IN TROD. shall be removable if they do not obtain the confi- dence of Parliament, is a condition which exists in an Imperial legislature and in an Imperial legis- lature only. It is a condition which cannot be carried into effect in a colony it is a condition which can only exist in one place, namely the seat of the Empire.' He used similar terms in the debates of the following January, when the constitution of Lower Canada was being suspended and Lord Durham was being sent out ; and, after Lord Durham's Report had been received, laid before Parliament, and fully considered, he reiterated the same views to the new Governor-General of Canada, Poulett Thomson, in his dispatch of the 14th of October 1839, which will be found in the Appendix. It will be seen on reference to that dispatch that Lord John Russell apparently did not appreciate the full force and intent of Lord Durham's recommenda- tions. He gives an unqualified negative to the grant of responsible government, treating the question as decided by the resolutions against it which had been passed in Parliament ; but he adds that ' 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 demand had been for a Parliamentary Executive on the model of the British constitution, for the conversion of the Executive Council into a Cabinet. To this Lord John Russell answers. The prerogative of the Crown in England is never exercised without CHAP, v RESPONSIBLE GOVERNMENT 145 advice. The Governor is the representative of the Crown and receives his orders from the Crown. ' 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 instructions from England, the parallel of constitutional responsi- bility entirely fails ; if, on the other hand, he is to follow the advice of his council, he is no longer a subordinate officer, but an independent sovereign.' Lord John Russell then goes on to point out that the force of these objections had been felt in regard to questions of other than internal concern, draw- ing the distinction which had been drawn in Lord Durham's report and to which further reference will be made ; but he maintains that, even in regard to the purely domestic matters of a colony, the principle of responsible government is inadmissible. He held, and others held with him, that a colony must either be a dependency or an independent state. Cornewall Lewis, writing in 1841, took the same view. ' If the government of the dominant country substantially govern the dependency, the repre- sentative body cannot substantially govern it ; and conversely, if the dependency be substantially governed by the representative body, it cannot be substantially governed by the Government of the dominant country. A self-governing dependency 1352'J L 146 BRITISH NORTH AMERICA INTROD. (supposing the dependency not to be virtually independent) is a contradiction in terms.' ] Many years later, in 1870, we find similar views still put forward by a Colonial Governor of great ability and long experience. Sir Philip Wodehouse, Governor of the Cape Colony, contending against the proposal to give responsible government to that colony, and opposing it largely on the ground of the existence of the native population, wrote : ' I have never regarded responsible government as applied to a colony, more properly speaking a dependency, as anything less than an absolute contradiction in terms. How can a ministry, responsible to its own constituencies, render obedience to the permanent power ? The issue between them may be shirked or postponed, but it must come. Responsible government I have always held to be applicable only to communities fast advancing to fitness for absolute independence, and I think that the course of events in British North America, Australia, New Zealand, and Jamaica has, in different forms, gone very far to establish that view.' 2 Occasion will be taken later to note how far these objections were valid, and what light subsequent history has thrown upon them/ The contention in Lord Durham's Report was that a clear line could be drawn between matters of Imperial and matters of purely colonial concern, and that in regard to the second class of questions, those of purely colonial concern, the colony should no longer be 1 Government of Dependencies, 1891 cd., chap, x, p. 289. 1 Correspondence relating to the Affairs of the Cape of Cood Hope, C. 459, 1871, p. 15. CHAP, v RESPONSIBLE GOVERNMENT 147 a dependency ; that on the contrary, it should be given through national institutions the sense of national existence ; and that, in reference to these internal matters, the Governor, as the representa- tive of the Crown, should act on the advice of a colonial cabinet, not on the advice given to the Crown by ministers in England. He states his case so clearly that it is difficult to understand how Lord John Russell could have felt any doubt about his meaning, except for the fact that the Report, in order to emphasize the opinions of the writer, is apt to exaggerate the contention of those who held the contrary view. Thus, in the following passage, Lord Durham represents those who were opposed to responsible government as maintaining that 'the administration of a colony should be carried on by persons nominated without any reference to the wishes of its people ', a statement which is not only too wide but directly contrary to the tenor of Lord Glenelg's dispatches. Otherwise the passage sums up precisely the meaning and intent of responsible government : ' I know that it has been urged, that the prin- ciples which are productive of harmony and good government in the mother country, are by no means applicable to a colonial dependency. It is said that it is necessary that the administration of a colony should be carried on by persons nominated without any reference to the wishes of its people ; that they have to carry into effect the policy, not of that people, but of the authorities at home ; and that a colony which should name all its own administrative functionaries would, in fact, cease to be dependent. I admit that the system which L2 148 BRITISH NORTH AMERICA INTROD. I propose would, in fact, place the internal govern- ment of the colony in the hands of the colonists themselves ; and that we should thus leave to them the execution of the laws, of which we have long entrusted the making solely to them ' (ii. 280-1). Thus, within certain limits or under certain restrictions, Lord Durham recommended that, given a majority of British citizens, Canada or any British colony under similar conditions to those of Canada, should be self-governing as England is self-governing, that is to say, that within those limits it should be subject to the Crown only, advised by the colonial ministers, who should be members of and responsible to the Colonial Legis- lature. What were these limits and restrictions ? In the last pages of the Report Lord Durham sums up his recommendations, and we have an outline of the constitution which he proposed for Canada. The two provinces were to be reunited under one Legislature, and reconstituted as one province ; the Bill to be introduced into the Imperial Parliament for reuniting the two provinces was to provide for the voluntary admission of the other North American provinces into the Union at a later date ; a Parliamentary Commission was to be appointed to mark out electoral divisions and give representation as nearly as possible in pro- portion to population ; the two provinces in this, as in other matters, were to be dealt with as one, and any plan for giving an equal number of representatives to Lower and to Upper Canada was to be discarded ; the same Parliamentary Commission was to form a plan for constituting CHAP, v RESPONSIBLE GOVERNMENT 149 elective local bodies subordinate to the General Legislature, and the plan was to be embodied in an Imperial Act, so as to prevent the General Legislature from encroaching on the local bodies ; ' a general Executive on an improved principle ' was to be established, and with this recommenda- tion is coupled a recommendation that a Supreme Court of Appeal should be established for all the British North American Colonies ; this General Executive was to be such that ' the responsibility to the United legislature of all officers of the Government, except the Governor and his Secre- tary, should be secured by every means known to the British Constitution ' ; the constitution of the Legislative Council was to be revised by the Imperial Parliament, so as to enable it ' to act as an useful check on the popular branch of the legislature', without a repetition of the collisions between the two Houses which had occurred in past years ; the entire administration of thgjpublic lands was to be left to the Imperial Government ; all the other revenues of the Crown were to be given over to the Legislature in return for an adequate Civil List ; the judges were to be placed in the same position, as regards tenure and salary, as in England ; no money votes were to be pro- posed except with the consent of the Crown, i.e. by the responsible ministers. In a previous passage Lord Durham had specified that the .only matters in which the mother country need retain control over the colony were, ' the constitution of the form of government, the regulation of foreign relations and of trade with the mother country, the other 150 BRITISH NORTH AMERICA INTROD. British colonies, and foreign jiations^-aniL the dis- posal of the public lands- ^ii. 282). The above being an outline of Lord Durham's proposals, the answer to the question, What limits or restrictions did he contemplate in respect to the grant of responsible government? is, first, that he drew a line between matters of imperial and matters of purely colonial concern ; and secondly, that in what he considered to be the purely colonial sphere, he made certain recommendations which would have the effect of restricting the powers of the elected branch of the Legislature. Under the first head he reserved to the control of the Imperial Government the constitution of the colony, its foreign relations, the whole of its external trade, and the whole of its public lands. It will be noted that he does not mention the control of the armed forces on land or sea. Presumably he would have included this most important matter under the head of foreign relations ; but how far he would have left the militia laws, and the control of the militia in normal times, to the discretion of the Colonial Legislature, does not appear. By reserving to the Imperial Government the manage- . ment of the public lands, he reserved control of no small proportion of the colonial revenues; and, turning to the second head, it will be noted that he insisted, as a matter of course, on also reserving a Civil List, and on securing in permanence the sala- ries of the judges. These reservations were directly contrary to the claims which had been so persis- tently advanced by the Assembly of Lower Canada. It is true that Lord Durham coupled them with CHAP, v RESPONSIBLE GOVERNMENT 151 the grant of responsible government, but the French-Canadian leaders had contended that, on its merits, a permanent Civil List was not suited to the circumstances of the Province of Quebec. In this respect, and in others, notably in the recommendation that money votes should only be initiated upon the authority of the Crown, we trace the intensely British cast of Lord Durham's mind. The new system in Canada was to be the British system ; responsible government was to be given in internal matters, because England had respon- sible government ; but all the British checks were to be applied. On the subject of the Legislative Council the Report is disappointing, and gives no guidance. Lord Durham tells us what the Council should not be ; he condemns its existing com- position, he dismisses the possibility of recon- stituting it upon the lines of the House of Lords, and thereby departs from his British model, but he gives no hint as to how it should be recast, and contents himself with insisting that it should be an effective check upon the popular Legislature, again looking to the British system, and again controverting, to some extent at any rate, the French-Canadian views. Lastly, writing, we may assume, with the Municipal Corporations Act, which the Whig Government had carried in 1835, fresh in his mind, 1 Lord Durham lays the greatest stress upon the establishment of a good system of 1 ' In 1835 the Municipal Corporations Act restored to the inhabitants of towns those rights of self-government, of which they had been deprived since the fourteenth century ' (Green's Short History of the English People, Epilogue). I.-.L' BRITISH NORTH AMERICA INTROD. municipal institutions, as a check upon the General Legislature. The local bodies in Canada were to be subordinate to the General Legislature, but they were to take something from it, notably the oppor- tunities which dabbling in purely local matters gave for jobbery and corruption. As colonial liberties were to be safeguarded against interfer- ence from home by the grant of responsible govern- ment, so local liberties were to be safeguarded by Imperial Statute and by the prerogative of the Crown against interference on the part of the Central Legislature. ' A general legislature, which manages the private business of every parish, in addition to the common business of the country, wields a power which no single body, however popular in its constitution, ought to have ; a power which must be destructive of any con- stitutional balance ' (ii. 287). 1 PUBLIC LANDS Lord Durham's Report abounds in references to questions connected with lands and land tenure in British North America, seigniories, townships, clergy reserves, and the like ; and twenty-one continuous pages of the Report in the original Blue Book form, out of one hundred and nineteen, are devoted to the Disposal of Public Lands and Emigration. The best known of the Appendices 1 On this subject, the value of municipal institutions as a corrective of the Central Legislature, see Merivale's Lectures on Colonisation and Colonies, Appendix of 1861, pp. 651-4. He points out how the colonial legislatures in Australia would not adopt the policy of creating local bodies ' partly because its adoption would have diminished the excessive power of the central legislature '. See also below, pp. 217-9. CHAP, v PUBLIC LANDS 153 is Charles Buller's Report upon the same question, which Buller tells us in his account of Lord Dur- ham's mission was, as a matter of fact, really due to Gibbon Wakefield. Buller also supplied a short special Report upon militia claims to grants of land ; his assistant, Mr. Hanson, made a special Report on the excessive appropriation of public lands under the name of clergy reserves ; and among the Appendices which have not been re- printed are a long Report on the Jesuits' estates, made by Mr. Dunkin, secretary to the Commission of Enquiry into the State of Education in Lower Canada, another Report by Buller on the Com- mutation of the Sulpician feudal tenures, more especially in the island of Montreal, and a Report by Turton on the establishment of a Registry of Real Property in Lower Canada. Corresponding to the space allotted to the consideration of land questions is the strength of the terms in which Lord Durham emphasizes the importance of the subject of public lands. ' The disposal of public lands in a new country has more influence on the prosperity of the people than any other branch of government ' (ii. 242). ' In the North American colonies of England, as in the United States, the function of authority most full of good or evil consequences has been the disposal of public land ' (ii. 206). Such a scheme as Buller outlined, and he adopted, for the disposal of public lands, was, in his opinion, If more calculated tharl any other reform whatever to attach the people\ of British North America to Your Majesty's throne,] and to cement and perpetuate an intimate con- 154 BRITISH NORTH AMERICA INTROD. nexion between the colonies and the mother country ' (ii. 207-8). ' The warmest admirers, and the strongest opponents of republican institutions, admit or assert that the amazing prosperity of the United States is less owing to their form of govern- ment, than to the unlimited supply of fertile land, which maintains succeeding generations in an un- diminishing affluence of fertile soil ' (ii. 331). Two points should be noted at the outset. The JirsJ} is that the part of the Report which deals with the disposal of public lands is the one part which includes in fact, and not merely in name, the whole of British North America, with the excep- tion of Newfoundland.^ Thejsecond point is that, when dealing with public lands and emigration, Lord Durham has in view the interests of the mother country as immediately and directly as those of the colonies. 1 At the beginning of the Report he speaks of the lands and resources of British North America as ' the rightful patrimony of the English people, the ample appanage which God and nature have set aside in the New World for those whose lot has assigned them but in- sufficient portions in the Old ' (ii. 13). At the end of the Report he sums up, ' I see no reason, there- fore, for doubting that, by good government, and the adoption of a sound system of colonization, the British possessions in North America may thus be made the means of conferring on the suffering classes of the mother country many of the bless- ings which have hitherto been supposed to be peculiar to the social state of the New World ' (ii. 331-2). Lord Durham had a scheme for, or CHAP, v PUBLIC LANDS 155 a vision of, the true management of colonies, and their full and free development, but always in con- nexion with and in relation to the mother country. His scheme included on the one side constitutional reform, with subsidiary reforms appended. The basis of this was responsible government, and in proposing responsible government he was concerned to consider how much he could give to the colonies, so as to make the colonial legislatures national legislatures. The other side of the scheme looked rather towards the mother country, and in regard to the disposal of public lands he was concerned to hold for the mother country what he considered that the mother country had won. His concep- tion was broad and generous. He looked out upon the Empire as a whole, and did not forget the interdependence of the interests of the different parts. He was imperially minded, whether he con- sidered the colonies or whether he considered the mother country ; and to his mind public lands and emigration formed a necessary complement to con- stitutional reform. In the matter of responsible government primarily he gave to the colonies, in the matter of public lands primarily he kept for the mother country. It will be remembered that in emphasizing the importance of the subject of public lands, in deal- ing with it as a matter of prime interest to the mother country, and in the method of disposal of the lands which he put forward, he was the mouth- piece of Gibbon Wakefield's views. Wakefield had been with him in Canada, and the Report was written and published just at the time when the 15B BRITISH NORTH AMERICA INTROD. principles which Wakefield had laid down in regard to public lands and colonization found most general acceptance. In 1834 the South Australian Act had been passed, and at the end of 1836 that colony was founded, intended to be a model colony, planted upon the lines of the Wakefield system. In August of that same year, 1836, the Select Committee of the House of Commons upon the disposal of public lands in the British colonies issued their Report, embodying Wakefield's views ; and although Canada, as Lord Durham reminds us, was not directly within the purview of that committee, there are abundant references in the evidence given by Wakefield himself, as well as by other witnesses, to the dealings with land in the British North American colonies. Both before he went to Canada and after his return, Lord Durham was in close touch with Wakefield in the schemes for the colonization of New Zealand. In short, he and Charles Buller alike were in this matter Wakefield's disciples ; Wakefield must be credited with the special Report on the subject which bears Charles Buller's signature; and whoever actually wrote the part of the main Report which relates to public lands and emigration, no one doubts that the inspiration came from Gibbon Wakefield. * The essence of the Wakefield system was, that all the public lands of a colony should be sold at a uniform substantial fixed price, and that the proceeds of the sales should be mainly devoted to sending out emigrants who, from the high price of the land, would not be able to become land- holders in the first instance, but would supply the CHAP, v PUBLIC LANDS 157 labour necessary for the development of the new country, while relieving the competition in the labour market at home. The system will be found fully discussed in Meriyalels lectures on coloniza- tion and colonies, 1 and reference should be made to a speech made by Sir William Molesworth on the subject in the House of Commons on the 27th of June 1839, a few months after the publication of Lord Durham's and Buller's Reports. 2 Moles- worth spoke in support of resolutions embodying Waken" eld's principles. The resolutions set forth the advantages to the United Kingdom -to be derived from ' the occupation and cultivation of waste lands in the British colonies by means of emigration '. They laid down that ' the pros- perity of colonies, and the progress of colonization, mainly depend upon the manner in which a right of private property in the waste lands of the colony may be acquired ', and that the most effectual method of disposing of the waste lands was ' the plan of sale at a fixed uniform and sufficient price, for ready money, without any condition or restric- tion, and the employment of the whole or a large fixed proportion of the purchase money ' in pro- viding passages for emigrants. They further laid down that ' it is essential that the permanence of the system shall be secured by the legislature, and that its administration should be entrusted to a distinct subordinate branch of the Colonial 1 Among later accounts see chap, i in Book III of Professor Egerton's Xhort History of British Colonial Policy. See the Selected Speeches of Sir William Molesworth, edited by Professor Egerton. 1903. Speech on the Wakcfield system of disposing of the colonial lands. 158 BRITISH NORTH AMERICA INTROD. department, authorized to sell Colonial lands in this country ', and to raise loans for emigration on the security of the land sales. Finally they cited the success which had attended the application of the system in the case of South Australia. Moles- worth, in his speech, credited Wakefield with first enunciating in 1829 the principles set out in the resolutions, and developing them in 1833. He said that they had been partially adopted by the Colonial Office in 1832, and had been embodied in the South Australian Act ; that in 1836 they were recognized by Lord Glenelg in a circular addressed to the West Indian colonies ; that in the same year they were approved by the committee of the House of Commons, to which reference has already been made ; and that they had been confirmed by the transportation committee which reported in 1838. ' They form,' he continued, ' no inconsiderable and by no means the least valuable portion of Lord Durham's report on Canada. My honourable friend the member for Liskeard (Charles Buller) has adopted them in his able report on the waste lands of the North American colonies. And lastly, within a few weeks, a company with a capital of 250,000, has been established on these very prin- ciples, to colonize New Zealand.' Nowhere in the world, perhaps, have lands and land tenure figured so largely in political liistory as in British North America. A library of books might be written upon British North American land questions without exhausting the subject, and probably without elucidating the most confusing questions which present them- CHAP, v PUBLIC LANDS 159 selves to any one who studies the Blue Books and Reports. There was in the first place the question of the dual system of land tenure in Lower Canada, the French and the English, the feudal tenure and that of free and common soccage. The com- petition and conflict between the two tenures had gone on ever since the date of the Royal Pro- clamation of 1763, long before the Constitution Act of 1791 had divided the Province of Quebec into the two Canadas ; and in course of time, after the passing of that Act, its result had been to create in Lower Canada an English district, as opposed to the French regions of the seigniories. The seigniories lay along the St. Lawrence. ' Along the alluvial banks of the St. Lawrence and its tributaries, they [the French Canadians] have cleared two or three strips of land, cultivated them in the worst method of small farming, and estab- lished a series of continuous villages, which give the country of the seigniories the appearance of a never-ending street ' (ii. 28-9). The townships lay away from the St. Lawrence on the borders of the United States. They formed the English part of Lower Canada. Thus the Assistant Commissioners of Municipal Enquiry reported that ' The bulk of the population of the townships is composed of old American loyalists and more recent settlers from the United States ; the remainder are emigrants from Britain ' (Appendix C, iii. 142) ; and earlier, in 1823, a petition from the townships to the House of Commons recited that * The townships, or English Lower Canada, are peopled wholly by inhabitants of 160 BRITISH NORTH AMERICA INTROD. 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 soccage, who have a Protestant clergy V Not the least interest- ing feature in the townships was the fact that they originated, as Buller and Lord Durham point out, in the practice of * Leaders and Associates ', whereby the land regulations were evaded and the lands which were granted by the Crown became accumulated in very few hands. The following is the evidence given on the subject before Buller's Commission by John Davidson, one of the Commissioners of Crown Lands in Lower Canada. ' After the passing of the Constitutional Act of 1791, lands were granted by patent to leaders of Townships and their associates. Under this system 1,200 acres were granted to the leader, and 1,200 acres to each of his associates, it being quite notorious that in many cases the whole, and in none less than 1,000 acres, were immediately re- conveyed by each associate to the leader. . . . The whole was a plan devised for the purpose of elud- ing the instructions from the Home Government, under which no person could obtain a grant of more than 1,200 acres.' Thus the land in the eastern townships was taken up, largely by Americans, on British tenure, and thus a distinctively English district grew up in the land of the French Canadians. But the 1 Appendix to the Report of the Parliamentary Committee of 1828 on the Civil Government of Canada, p. 323. CHAP, v PUBLIC LANDS Wl English, with their predilection for the free and common soccage tenure, were not to be found only in the townships. They invaded also the seig- niories. ' The wealthy capitalist, 5 Lord Durham tells us, ' invested his money in the purchase of seigniorial properties, and it is estimated that at the present moment full half of the more valuable seigniories are actually owned by English pro- prietors ' (ii. 36). One of them was ' Bear ' Ellice, who became owner of the seigniory of Beauharnois, and it was at his instance that provisions were embodied in the Canada Trade Act of 1822 to facilitate the conversion of French into English land tenure. This was followed by the Canada Tenures Act of 1825, which was avowedly intended gradually to extinguish the French system. These enactments met with much hostility from the Nationalist party in the Quebec Assembly, who considered them to be part of a policy designed to denationalize French Canada, and contended that the effect of the Tenures Act was to convert the seignior into an English landlord, and to deprive the censitaire or habitant of the rights which he enjoyed under the old feudal tenure. Again and again the French Canadian party renewed their protests, and in 1836 they went so far as actually to pass a Bill, which the Legislative Council rejected, repealing the two Imperial Acts, so far as they provided for commutation of French into English tenure. It seems strange that Lord Durham made no specific recommendations on the main subject in his Report ; but Buller tells us that it had been fully intended to deal with the 1352-1 M 102 BRITISH NORTH AMERICA INTROD. question ; the extinction of the feudal tenures was a necessary part of the scheme for converting Lower Canada into a British province; and in reference to the Sulpician seigniory in the island of Montreal, Buller speaks of * the pernicious influ- ence of these feudal tenures, which in all parts of the province retard the extension of its commerce and the development of its natural resources ', just as Lord Durham himself writes of ' ancient and barbarous laws ' (ii. 265). The attitude which was taken up on the subject by the Imperial Government, and definitely stated in Lord Glenelg's Instructions to Lord Gosford in July, 1835, 1 was that the matter must eventually be settled by or at the instance of the local Legislature, and by the local Legislature of United Canada the question was finally determined, when, in the year 1854, they passed the Act ' for the abolition of feudal rights and duties in Lower Canada '. The troubles arising out of conflicting systems of land tenure, one French and the other English, were confined to Lower Canada. The difficulties which were created by the system of clergy re- serves were common to both the provinces, but were especially prominent in Upper Canada, where Lord Durham considered the clergy reserves to be ' the most mischievous practical cause of dissen- sion ' (ii. 179). These reserves had been called into being by the Constitutional Act of 1791, certain sections of which provided that there should be a permanent 1 Copy of Instructions given to the Earl of Gosford, &c. } House of Commons, Paper, No. 113, March, 1836, p. 10. CHAP, v PUBLIC LANDS 163 appropriation of public lands in the two provinces for the endowment of a Protestant clergy. As regards the future it was enacted that, whenever grants of Crown land were made, an amount of land was to be reserved for the purpose of such endowment, as nearly equal in value as could be estimated to one-seventh of the lands which were granted for other purposes. The Act went on to authorize the creation of parsonages or rectories in each parish according to the establishment of the Church of England, and there ensued an inter- minable controversy, more especially in the Pro- testant province of Upper Canada, as to whether the scope of the Act was confined to the Church of England or included also other Protestant denominations. Apart from this fruitful element of dissension, the provisions in question operated as a bar to what would now be called closer settle- ment, for, whenever Crown land was alienated, a certain amount was locked up in clergy reserves, which remained undeveloped for want of the capital necessary to develop them. To meet this evil an Imperial Act was passed in 1827, 1 permit- ting the Government to sell a certain proportion of the reserves, the proceeds to be applied to the improvement of the unsold reserves or to the purposes for which the reserves were originally made. The action of Sir John Colborne in estab- lishing a large number of Church of England rectories, to which Lord Durham refers (ii. 175), greatly increased the opposition to the system, although, as has been already pointed out, 1 7 & 8 Geo. IV. c. 62. M 2 164 BRITISH NORTH AMERICA INTROD Colborne acted in accordance with the Secretary of State's views in 1832, and the course which he adopted was upheld in the courts of law. The system, in short, had given rise to abuses, as is shown in Mr. Hanson's Report on the excessive amount of land which had been appropriated for the purposes in question; it had caused much practical inconvenience ; and it had proved to be out of place and out of time, for in Lower Canada the overwhelming number of the inhabitants were Roman Catholics, with a fully developed and time- honoured church organization, while Upper Canada was a new and sparsely settled country, in which the great majority of the colonists, though they were Protestants, were not members of the Church of England. ' The apparent right which time and custom give to the maintenance of an ancient and re- spected institution cannot exist in a recently settled country, in which everything is new ; and the establishment of a dominant church there is a creation of exclusive privileges in favour of one out of many religious denominations, and that composing a small minority, at the expense not merely of the majority, but of many as large minorities ' (ii. 178). The prominence which the question of the clergy reserves attained in the politics of Upper Canada may be in part attributed to the strong character of Strachan,^ the leader (though a Scotchman) of the Church of England party in the province, and a foremost figure in the ' Family Compact '. Shortly after Lord Durham left Canada, Strachan CHAP, v PUBLIC LANDS 165 was, towards the end of 1839, created the first Church of England Bishop of Toronto, and as he played a great part in the secular as well as in the Church politics of the time, so the system, of which he was the champion, became, apart from its merits or demerits, one of the burning questions in the political life of Upper Canada. Lord Dur- ham was more specific in his recommendation on this subject than he was in regard to the seigniorial system. ' It is most important that this question should be settled, and so settled as to give satisfaction to the majority of the people of the two Canadas, whom it equally concerns. And I know of no mode of doing this but by repealing all provisions in Imperial Acts that relate to the application of the Clergy Reserves, and the funds arising from them, leaving the disposal of the funds to the local legislature, and acquiescing in whatever decision it may adopt ' (ii. 179). As will be told later, this recommendation was eventually carried out, and in 1854 the Canadian Parliament passed an Act by which the clergy reserves were finally secularized. It has been noticed that among the Appendices to Lord Durham's Report are Reports upon the Jesuits' estates, and upon the desired commutation of the feudal tenures enjoyed by the Seminary of St. Sulpice. At the time of the cession of Canada to Great Britain, the Jesuits owned various seig- niories and other valuable landed property in Lower Canada. After the passing of the Quebec Act in 1774, the new Royal Instructions. given to 166 BRITISH NORTH AMERICA INTROD. Governor Carleton on the 3rd of January, 1775, expressly ordered * that the Society of Jesuits be suppressed and dissolved, and no longer continued as a body corporate and politic, and all their rights and possessions and property shall be vested in Us for such purposes as we may hereafter think lit to direct and appoint '. It was not, however, until 1800 that the Crown took full possession of the estates. In the meantime, in or about 1770, King George III had given some promise of these estates to Lord Amherst as a reward for his services in Canada, and the claim of the Amherst family was not finally extinguished until 1803. In Canada it had always been contended that the proceeds of the Jesuits' estates ought to be devoted to education, and eventually, in 1831, Lord Goderich handed over the revenues from this source to the Quebec Legislature for educa- tional purposes. In the following year that Legis- lature passed an Act applying the funds in ques- tion to education, and by a later Canadian Act of 1856 the Jesuits' estates were appropriated to form ' The Lower Canada Education Investment Fund '. Many years afterwards, subsequent to the Con- federation Act, the provincial Legislature of Quebec passed in 1888 the Jesuits' Estates Act, under which a sum of $400,000 was paid in compensa- tion for the property which the Jesuits had once owned. 1 It will be observed that Lord Durham criticizes the British Government on the ground that ' it has applied the Jesuits' estates, part of the pro- 1 Sec The Seigniorial System in Canada, Muuro, p. 250, note 4. CHAP, v PUBLIC LANDS 167 perty destined for purposes of education, to supply a species of fund for secret service ; and for a number of years it has maintained an obstinate struggle with the Assembly in order to continue this misappropriation ' (ii. 136). From the Report of the Commissioner of Inquiry into the State of Education in Lower Canada (vol. iii, App. D), and from Mr. Dunkin's special Report upon the Jesuits' estates, it is clear that this criticism applies wholly or mainly to the years between 1800 and 1831, Mr. Dunkin's account being that ' the revenues of the estates during the interval between this period (1800) and the year 1831, when they were sur- rendered by the Provincial Parliament for the support of education, were appropriated by the local executive as a part of the property of the Crown, and no report as to the mode of their application was made public '. The Seminary of St. Sulpice had never, like the Jesuits, fallen under the ban of the British Govern- ment. On the contrary, the Sulpicians had been allowed to retain undisturbed possession of their estates, and in consequence it was held by the law officers of the Crown in England, who were con- sulted in the matter during Sir James Craig's Government, by Lord Goderich in 1831, and by Lord Gosford and his fellow commissioners, who made a special Report upon the question in October 1836, that the Crown could not without great hardship disregard their proprietary rights. The Sulpicians owned three seigniories in the district of Montreal, one of which included nearly the whole island of Montreal, and the object of Lord 168 BRITISH NORTH AMERICA INTROD. Gosford and his colleagues, as well as of Charles Buller's later recommendations, was which were felt to be a growing encumbrance in proportion to the growth of the city of Montreal. No time was lost in dealing with the matter after Buller had reported. In April 1839jbhe Special Council of Lower Canada passed an ordinance incorporat- ing the seminary, confirming~Fts title o~its seig- niories, and providing for the commutation of the seigniorial rights^ thereby ^to ^ate^EE^rords in which the objects of^tEef ordinance were described ' relieving a wealthy and enterprising com- munity from the encumbrances and drawbacks of a feudal tenure '. The ordinance contained a clause providing that it should not take effect, until confirmed by an Imperial Act, or other legis- lative authority competent which the Special Council was not to give it perpetuity. Sir John Colborne from Canada, and Lord Durham in Eng- land, earnestly pressed that the matter should be settled without delay ; and in the following year, 1840, by duly authorized local legislation this long outstanding question was set to rest. 1 1 What happened was rather complicated. The Special Council for Lower Canada was created by the Imperial ' Constitutional Act Suspen sion Act, 1838.' That Act provided that any laws passed by the Council should expire on November ], 1842, ' unless continued by competent authority.' Therefore the Council could not in any case apart from the reservation clause in the ordinance referred to in the text legislate in perpetuity for the Seminary of St. Sulpice. But in August 1839 the Imperial Parliament passed the Suspension Act Amendment Act, 1839, which repealed the provision making laws passed by the Special Council expire on November 1, 1842, and the same Act, while prohibiting the Special Council from legislating on the temporal or spiritual rights of CHAP, v PUBLIC LANDS 169 In all new countries, as a general rule, land companies play a prominent part, and Canada was 110 exception to the rule. Two companies deserve special mention, one of which went to work in Upper Canada, the other in the eastern townships of the Lower Province. The former, the Canada Company, was the elder of the two, and was given legal recognition by an Act of the Imperial Parlia- ment, passed in June 1825, 1 which was followed by a Royal Charter incorporating the company and bearing the date of the 19th of August 1826. The preamble of the Act shows clearly that the object which the Government had in view in passing it, was the settlement and cultivation of the Crown and clergy reserves in Upper Canada by sale within limits to a chartered company ; and Buller, in his Report on Public Lands, wrote that ' The sale to the Canada Company, though in form an exceptional method of disposing of public lands, was in effect, and was intended to be, a delegation of the powers of Government in this important ecclesiastics, or the law of tenure, made a special exception in favour of legislation for commuting the seigniorial rights of the Seminary of St. Sulpice. When the Act had been passed, Lord John Russell, who was then Secretary of State for the Colonies, returned the ordinance to be revised and re-enacted. Meanwhile there had been considerable opposi- tion to it in Canada on the ground that it was too favourable to the Seminary. Poulett Thomson therefore passed a new ordinance through the Council in 1840, following more closely the lines laid down by Buller, and less favourable to the ecclesiastics. There was still some opposition both in Canada and in England, but the ordinance was allowed to stand. When the Canadian Act ' for the abolition of feudal rights and duties in Lower Canada ' was passed in 1854, the settlement which had been made was safeguarded, but further provisions with regard to the Seminary and its tenures were included in the Seigniorial Amendment Act of 1859. l An amending Act was passed in 1828. 170 BRITISH NORTH AMERICA INTROD. particular to a private company ' (Appendix B, iii. 55). The quantity of land sold to the company, and the terms on which it was sold, are given as follows in the evidence of John Radenhurst, chief clerk of the Surveyor-General's office in Upper Canada, who appeared before Buller's Commission. ' The company at first contracted for the pur- chase of 1,384,413 acres of Crown Reserves and 829,430 of Clergy Reserves at 3s. 6d. per acre. The Government were, however, unable to perform their contract, so far as related to the Clergy Reserves, and, as a substitute, the company were aUowed to select 1,100,000 acres in a block on the shores of Lake Huron, at the same price for the whole as was to have been paid for 800,000 acres of Clergy Reserves, making the whole of their pur- chase 2,484,413 acres ; the purchase money was to be paid in the following annual instalments, viz. In the year ending July 1827, 20,000; 1828, 15,000; 1829, 15,000; 1830, 15,000; 1831, 16,000; 1832, 17,000; 1833, 18,000; 1834, 19,000 ; 1835, 20,000 ; and 20,000 a year for the next seven years. The company was to be at liberty to expend one third part of the purchase money of the block of 1,100,000 acres in public works and improvements within such block of land, such as canals, bridges, roads, churches, wharfs, and school houses, &c.' John Gait, the Scotch novelist, had much to do with the inception and the early work of the Canada Company. He was the founder of Guelph, and the town of Gait bears his name. The main sphere of the company's operations was the Huron district, due west of Toronto, between Lakes Huron and CHAP. V PUBLIC LANDS 171 Ontario ; and undoubtedly much was done to develop and settle this part of Upper Canada. In 1856 an Imperial Act was passed giving facilities for winding up the company ; but when the Colonial Land and Emigration Commissioners issued their last colonization circular in 1877, they reported that the company had still 400,000 acres to sell or lease. A further Imperial Act was passed in 1881, and the Company is still in active operation. The British American Land Company made an agreement with Stanley, afterwards Lord Derby, then Secretary of State for the Colonies, on the 3rd of December 1833. Under this agreement the Government sold to the company 847,661 acres in the eastern townships for 120,000, payment being at the rate of 3s. Qd. an acre for Crown reserves and surveyed land, and 3s. for unsurveyed land. The company was incorporated by Royal Charter on the 20th of March 1834, and the charter was confirmed by Act of Parliament dated the 22nd of May 1834. /The charter extended to the whole of British North America, including Newfoundland, and the company was empowered to hold lands purchased from the Crown or from private persons up to three millions of acres at any one time in the British North American provinces. One section of the Act authorized the commutation of any feudal rights on lands acquired under , seigniorial tenure into free and common soccage./ The com- pany's operations were, as a matter of fact, confined to the eastern townships, where the actual amount of land acquired from the Crown seems not to have been quite as large as was specified in the first 172 BRITISH NORTH* AMERICA INTEOD. contract with the Government. The colonization circular of 1877, to which reference has been made above, states that the company purchased from the Crown in the eastern townships, where its head-quarters were at Sherbrooke, about 767,000 acres, and that the directors were then offering for sale nearly 500,000 acres. The company met with bitter opposition from the French Canadian maj ority in the Quebec Legislature, and repeated demands were made that the charter should be cancelled and the Act repealed. The introduction of British immigrants, which was welcome in Upper Canada, was resented by the French of Lower Canada as part of a policy designed to denationalize the province. It was contended that the Executive Government had no right to dispose of the waste lands of the province without the authority of the Legislature ; and that, in the sale to the company of so large a tract of land, the rights of the Canadian people had been disregarded in favour of mono- polists in the United Kingdom, and the rights of cultivators in favour of landlords. There were two Acts of Parliament which were constant sources of complaint against the Imperial Government by the Quebec Legislature, both connected with land- one was the Tenures Act, the other was the Act which confirmed the charter of the British American Land Company. The Imperial Government, how- ever, refused to entertain any proposals which involved repudiating their contract, and the com- pany is still in existence, working under the pro- visions of successive Imperial Acts, the latest of which was passed in 1894. CHAP, v PUBLIC LANDS 173 A troublesome and long-standing question con- nected with land in Canada was that of claims to land by those who had served in the militia in the war of 1812. So far as Lower Canada was con- cerned, this question formed the subject of a special Report by Charles Buller, which is given in App. A (vol. iii) ; and Lord Durham embodied in his own main Report (ii. 225-30) the instructions which he gave to the commissioners whom he appointed to settle the claims, after receiving Buller's recom- mendations. Some time after the war of 1812, free grants of land in the Lower Province were promised by Royal Instructions to militiamen who had served in the war, the boon being intended for the six battalions of embodied militia, as opposed to what was known as the sedentary militia, though some of the latter also preferred claims. The grants were to range from 100 acres to the privates to 1,200 to the commanding officers. They were to be made on condition of settlement ; but sufficient facilities for settlement were not given, and the land claims were in large measure disposed of by the militiamen to land speculators. There resulted, in Buller's words, 'the maximum of injury to the province with the minimum of benefit to the militiamen ' ; and, on his recom- mendation, Lord Durham appointed a board of commissioners to investigate the claims, and to pay off those claimants who had made good their title by orders representing the money value of the land to which they were entitled, at the average selling price of Crown lands during the last ten years. There had been similar trouble in Upper 174 BRITISH NORTH AMERICA INTROD. Canada in the years after the war ; and John Richards, who had been specially deputed by the Imperial Government in 1830 to visit the British North American provinces and make a Report in connexion with Waste Lands and Emigration, 1 wrote : ' The Province of Upper Canada appears to have been considered by Government as a land fund, to reward meritorious servants. Lots are given to reduced officers ; say, 1,200 acres to a Colonel, 1,000 to a major, 800 to a captain, 500 to a lieu- tenant, 200 to a serjeant, and 100 to a disbanded soldier, and to the United Empire Loyalists, their sons and daughters, 200 acres each.' The interest of the matter lies in noting not merely or mainly the abuses which arose from making free grants of land to disbanded soldiers, but rather the great part which the practice played in the history of Canada. Thus in the days of Louis XIV, when Colbert and Talon were busy colonizing Canada, discharged soldiers of the famous Carignan Salieres regiment were planted out on the land under feudal tenure. After the cession of Canada to Great Britain, by the Royal Proclamation of 1763, grants of land were offered to soldiers and sailors who had served in America in the previous war on conditions of settlement ; similar grants were offered after the war of American Independence. It was in principle a good and sound method of rewarding those who had fought for their country, and attaching to the soil colonists 1 The report was made in January 1831, and laid before the House of Commons in March 1832, No. 334. See p. 4. CHAP, v PUBLIC LANDS 175 who had shown that they could defend it. But in the case in point, the militiamen had already their homes in the land, and there was no question of attracting them to remain in it as settlers. Moreover, as Buller pointed out, in Lower Canada ' the majority of the militia were French Canadians, who have not hitherto been, and are not now, an emigrating people ' ; the result, therefore, of giving them grants of land would at best only have trans- ferred them reluctantly from one district of the province to another, while the actual outcome was to make the land claims the subject of traffic and speculation. Various other questions connected with lands in the two Canadas might be noted. There was a difficulty caused by squatters who had settled on the waste lands of the Crown without any legal title. Their case is referred to in Buller's Report, and Lord Durham met or proposed to meet it by naming a date, and giving to all bona fide settlers, who had established themselves on Crown lands without title before that time, a right of pre- emption at the price which had been fixed for Crown lands in their neighbourhood. He wrote a separate dispatch on this matter, and it formed the subject of later correspondence between Lord John Russell and Poulett Thomson. There was again the subject of the lands assigned to the Six Nation Indians in Upper Canada ; but, without further reference to these specific questions, it is time to comment upon the general subject of Crown lands in Canada, and upon Buller's scheme, which was Wakefield's scheme, and which Lord Durham 176 BRITISH NORTH AMERICA INTROD. adopted for dealing with the lands in the public interest. Buller's, or rather Wakefield's, scheme was designed partly to remedy the evils which had resulted from the profusion of land grants in the past ; partly to provide a sound working system for disposing of public lands in the future. In the past the Government had parted with a vast amount of land to private owners, with the result that much was locked up and uncultivated. In order to bring these lands into cultivation, Buller proposed that a tax at the rate of 2d. an acre should be levied upon all wild lands, and that the proceeds of the tax should be applied, either directly or by being made part security for a development loan, to making roads, improving communications, and facilitating the settlement of the country. Proprietors were to be allowed to pay the tax in land, such land * to be taken by the Government at the rate of 4s. per acre, in lots of not less than 100 acres ' ( App. B, iii. 88). Thus the Government would recover some of the land which had been alienated in the past, and the proprietors who paid the tax would be recouped for losing some of their land, by the increased value which would accrue from the proceeds of the tax to the lands which they still retained in their own hands. The tax was to be imposed and its continuance guaranteed by a central authority, the Imperial Parliament. As regards the future, BuUer recom- mended that all public lands should be sold not by auction, but at a fixed price ; that this fixed price should be uniform, one and the same in all parts CHAP, v PUBLIC LANDS 177 of British North America, and that the money should be paid at the time of sale. The price, he suggested, might be 10