Documents OF THE Canadian Constitution 1/59-1915 SELECTED AND EDITED BY W. P. M. DENNED Y, M.A., (Department of Modern History, University of Toronto). AUTHOR OF "LIFE OF PARKER "j " STUDIES IN TUDOR HISTORY " ETC., ETC. TORONTO OXFORD UNIVERSITY PRESS AND AT LONDON, NEW YORK, MELBOURNE, BOMBAY AND MADRAS MCMXVIII COPYRIGHT, CANADA, 1918, BY OXFORD UNIVERSITY PRESS. UNIVERSITY OF CALIFORNIA | I ANTA BARBARA COLLEGE LIBRA?. KM- , i-.' <) r> o D D O t$ O TO G. M. WRONG Professor of Modern History in the University of Toronto. AS A TOKEN OF FRIENDSHIP AND ESTEEM. PREFACE My primary object in publishing this collection of documents has been to provide students of Canadian Constitutional develop- ment in the Department of Modern History, University of To- ronto, with a handy and convenient volume. I have not therefore thought it necessary to edit the documents in close detail. The notes which I have provided are meant to encourage work rather than to give full information. Nor have I written a long historical introduction. The history of the Canadian Constitution can be divided into six well defined periods. I have arranged the docu- ments selected for each of these periods in chronological order so that the student can easily follow the development which they suggest, and I have linked up each section with introductory notes in which I attempt t6 sum up, briefly and in broad generalization, the history to which the documents afford illustrations. With the growing interest, however, in Constitutional history, especially within the British Empire, I venture to hope that the volume may prove useful to a wider circle of readers than those for whom it has primarily been compiled. If such a volume as this needs a defence, necessity and experi- ence must bear the burden of it. Many of the well-known volumes of documents e.g., by Messrs. Shortt and Doughty, Professors Egerton and Grant, and Mr. W. Houston are out of print, and even had they been accessible, none of them fulfilled exactly what experience had taught me was necessary a single volume in which acts of parliament, ordinances, proclamations and such dry-as-dust material would be vitalized by being brought into touch with let- ters, speeches and contemporary illustrations. These are of the greatest help in making dull documents live, and in giving that contemporary outlook which is the hardest thing for beginners in history to acquire. Experience has guided me, too, not only in compiling the book, but in selecting the documents. To the skilled student of the subject my selections may appear arbitrary; but I have tried to include no document which has not proved its value in actual teaching, and I have excluded many which, whatever their intrinsic importance, have not satisfied that test. The test itself is, I feel, arbitrary ; but when a selection had to be made, it served a practical and useful purpose. I have omitted any selec- tions from Lord Durham's Report, which must be read as a whole by all students of the Canadian Constitution, and selections from it would be superfluous. I have also excluded any select cases illustrating the workings of the British North America Act of 1867. The cases are too numerous and too confusing for selec- tions in a volume such as this. In the final section of the book I have given references which will facilitate their study. With regard to the text, I have as a general rule strictly ad- hered to the sources given at the head of each document. I have also purposely referred to Christie's History of Lower Canada as a source, because the reference will help the student. As far as possible, however, I have collated documents taken from Christie with official copies. On the whole, Christie gives an accurate text. I should like to acknowledge my thanks to the Dominion Archivists, to Professors Egerton and Grant, and Mr. W. Houston, whose work in the same field has made mine all the more easy. I owe much to the kindness of officials in the various libraries where I have worked, especially to those of the Legislative Library, Toronto. The Librarian of that Library has gone to the trouble of having most of the parliamentary papers relating to Canada bound together under years. These he has called Imperial Blue Books Relating to Canada. Under that title I refer to documents which will also be found in the British Parliamentary Papers. This admirable arrangement has saved me hours of work. The dedication feebly acknowledges a friendship which lies deeper than common work in a common subject would suggest. UNIVERSITY OF TORONTO, 1st February, 1918. CONTENTS FIRST PERIOD 1759-1763 Introductory Note to the Period 3 I. Articles of the Capitulation of Quebec, 1759 .... 5 II. Articles of the Capitulation of Montreal, 1760 ... 6 III. Treaty of Paris, February 10, 1763 14 IV. The Royal Proclamation of October 7, 1763 .... 18 SECOND PERIOD 1763-1774 Introductory Note to the Period 25 V. Instructions to Governor Murray, Dec. 7, 1763 ... 27 VI. Ordinance Establishing Civil Courts, 1764 .... 37 This Ordinance was issued by Governor Murray to regulate and establish the administration of justice in the Province. VII. Murray to the Lords of Trade, October 29, 1764 . . 40 Murray complains of the British in Canada and praises the Canadians. He looks for further privileges for the latter. He hopes the Ordinance (No. VI) will be approved, as he considers it necessary to prevent emi- gration. VIII. Petition of the Quebec Traders to the King, 1764 . . 41 The Petitioners outline their settlement and progress, even under military rule which they endured, hoping for civil administration. Murray's rule is objected to as vexatious and partial ; complaints are made that he is negligent in his religious duties. His recall is asked for, and a new and more sympathetic Governor re- quested. A House of Assembly is also petitioned for in which the British alone should sit. IX. Ordinance of November 6, 1764 43 This Ordinance aimed at quieting the uneasiness of the Canadians in connexion with security in their property. X. Report of the Attorney General and the Solicitor General of England regarding the Civil Government of Quebec, 1766 44 The Report claims that much disorder has been caused by the failure to provide for the use of the French language and for the employment of Canadian judges and advocates ; by the fact that the Canadians feared that a strict interpretation of the Royal Proclamation (No. IV) was imminent. The provision of Canadian jurors had, however, removed many misunderstand- ings. Further changes, however, in the judicature are advised. Recommendations are given : to follow in civil cases French custom, and in criminal cases English criminal law. Contents. Page XI. Ordinance of 1766 48 This amends and amplifies No. VI. XII. Maseres' Considerations on the Expediency of an Act of Parliament for the Province of Quebec, 1766 . . 49 Parliament and not the King must settle Canadian questions. The whole legal system needs careful con- sideration. A House of Assembly is not now expedient reasons are given ; but if it is to be established, Parliament and not the King must be responsible. XIII. Commission to Chief Justice William Hey, 1766 ... 53 XIV. Remonstrance of the Members of Council to Carleton October 13, 1766 55 Five members of the Council blame the Governor for his methods in consulting only a part of the Council and in connexion with appointments to the Council. XV. Carleton's reply to No. XIV, October, 1766 .... 55 The Governor curtly dismisses the complaint. He will take advice when and where he can best get it, and will act on his own best judgment. XVI. Carleton to Shelburne, December 24, 1767 .... 56 Complains of the legal system erected by No. VI. Its continuance will produce discontent. XVII. Hillsborough to Carleton, March 6, 1768 57 Hillsborough gives his interpretation of The Royal Proclamation of 1763 (No. IV). With regard to property, there was no intention of overturning the laws and customs of Canada. Remedial instructions are promised. XVIII. Maseres' Report to Hillsborough, 1769 57 Reports that Governor Carleton recommends the con- tinuance of English criminal law and the revival of the whole body of French civil law in use before the conquest. XIX. Maseres' Criticism of No. XVIII, 1769 58 Disapproves of the revival of the whole body of French civil law. Elaborate reasons are given. He recommends a code of laws for Quebec in which French and English civil and criminal laws should be judiciously included after careful selection. If inex- pedient, let English criminal law continue, and let the French law relating to tenures, etc., be revived. XX. Carleton to Hillsborough, March 28, 1770 .... 61 Encloses No. XXI. and justifies it. XXI. Ordinance for Improving the Administration of Justice, 1770 63 An elaborate ordinance by means of which Carleton vainly hoped that some of the corruptions of the legal system would be improved. XXII. Case of the British Merchants Trading to Quebec, 1774. 72 A detailed elaboration of the principles underlying No. VIII. Petitioners rely on documents to prove their case. They fear the revocation of the Royal Proclamation (No. IV.), etc. They have built up Contents. xi Page their trade and business on the presumption of English law being in use and maintained. They dread the revival of the French code. They defend the morality of introducing and maintaining the English system, especially in relation to trade, contracts, trial by jury, habeas corpus. Prosperity has followed the methods already employed. No objections to French law in relation to landed property. House of Assembly re- quested. Complaints made against the erection of a Legislative Council as outlined in the proposed Quebec Act. Sufficient Protestant landholders now in the Province to form a House of Assembly. Objections to the admission of Roman Catholics to the Council, which, if it must be constituted, must be made inde- pendent of the Governor, its continuance limited to a certain time, and its numbers fixed. Payment for Councillors suggested. XXIII. Lord Mansfield's Judgment in Campbell v. Hall, 1774 . 79 Discusses inter alia (a) the general position of a con- quered country in relation to law, (b) the Proclama- tion of 1763 (No. IV.). XXIV. Debates in the British Parliament on the Quebec Act, 1774 86 XXV. The Quebec Act, (14 George III, c. 83.), 1774 . . .132 XXVI. The Quebec Revenue Act, (14 George III, c. 88), 1774 . 136 Provides for the raising of a provincial revenue. XXVII. Address from the General Congress to the Inhabitants o-f Quebec, October 26, 1774 139 The revolting Southern Colonies invite the Canadians to make common cause with them. THIRD PERIOD 1774-1791 Introductory Note to the Period 147 XXVIII. The Quebec Revenue Act (15 George III. c. 40), 1775 . 149 This Act "amends and explains" No. XXVI. XXIX. Instructions to Governor Carleton, 1775 150 XXX. Ordinance for Establishing Civil Courts, February 25, 1777 158 This document, with the two following, represents Carleton's scheme for legal administration. XXXI. Ordinance to Regulate Procedure in Civil Courts, Feb- ruary 25, 1777 160 XXXII. Ordinance for Establishing Criminal Courts, March 4, 1777 164 XXXIII. Colonial Tax Repeal Act (18 George III. c. 12), 1778 . 165 XXXIV. Haldimand to Germain, October 25, 1780 166 Haldimand considers that the sentiments of the major- ity in the Province should prevail, and that the Quebec Act saved the Province from becoming one of the United States. xii Contents. Page XXXV. Treaty of Paris, 1783 167 XXXVI. Haldimand to Lord North, November 6, 1783 . . .170 Hears rumours that the "ancient subjects" intend to plead the arrival of the Loyalists in the Province as a strong support to their claim for a House of Assem- bly. Habeas Corpus to be put on a secure and clear- cut foundation. XXXVII. Postmaster-General Finlay to Sir Evan Nepean, October 22, 1784 170 A House of Assembly not understood by the gener- ality of the Canadians. Education very backward. A foundation must be laid by education. It is therefore necessary to establish free parochial schools, and to disseminate information about the functions of repre- sentative institutions before constituting them in. the Province. Habeas Corpus and juries discussed. XXXVIII. Petition for a House of Assembly, 1784 172 From the British and some of the Canadians. The old claims are set forth, but, in addition, a detailed plan of a new written constitution is outlined. XXXIX. Plan for a House of Assembly, 1784 175 This plan is supplementary to No. XXXVIII. XL. Objections to a House of Assembly, &c., 1784 . . . 176 A reply, section by section, on the part of the major- ity of Canadians, to No. XXXVIII. XLI. Address from Roman Catholic Subjects to the King, 1784. 178 Further reply to No. XXXVIII. Inter alia, priests are needed and education is suffering. Permission is asked to bring priests from Europe. An Assembly feared as a method of taxation. Delay is asked at any rate, until the people have been canvassed. XLII. Instructions to Lord Dorchester, 1786 180 XLIII. Finlay to Nepean, February 13, 1787 185 Difficulties in the legal world still continue. A new nomenclature growing up "new Canadians and old Canadians" very pleasing to the noblesse. Is it wise to perpetuate French ideas, etc.? Is not the experi- ence of the lukewarmness of the habitans in the Revo- lutionary War a warning? XLIV. Ordinance re Proceedings in Civil Courts, April 30, 1787. 186 XLV. Ordinance re Criminal Courts, April 30, 1787 ... 188 This is an amendment to No. XXXII. XLVI. Debate on Adam Lymburner's Evidence before the House of Commons, 1788 189 XLVII. Sydney to Dorchester, September 3, 1788 191 Parliament cannot postpone the discussion and settle- ment of Canadian questions any longer. Will Dor- chester therefore send as full an account of them as possible, and such as may be laid before Parliament? Particular attention in this account must be laid on an Assembly, taxation, trial by jury. It is proposed to divide the Province. Will an Assembly be imme- diately necessary in the new district settled by the Loyalists? Contents. xiii Page XLVIII. Dorchester to Sydney, November 8, 1788 193 Reply to No. XLVII. Statistics of population. The commercial element is chiefly responsible for the de- mand for an Assembly. The habitans are incapable of forming an opinion ; clergymen are neutral ; the noblesse are opposed. Taxation is feared above all; but the dangers of an Assembly among an uneducated and simple people are not overlooked. Dorchester is opposed to a division of the Province at present, gives his reasons ; but should Parliament decide on it, he encloses a description of a proposed boundary line. XLIX. Finlay to Nepean, February 9, 1789 195 Discusses further an Assembly. Growing demand for popular power to tax as a "spur to trade," and as "England holds her colonies for the sole purpose of extending her commerce." He believes any form of government will satisfy the Canadians, provided taxa- tion and religion are left alone. L. Grenville to Dorchester, October 20, 1789 .... 196 A private dispatch supplementing No. LI. Concessions are proposed. He thinks it wise to give them when they will be considered favours, rather than to wait till they may be extorted. Dorchester's opinion is asked on the entire proposals, especially in connexion with Crown Reserves. LI. Grenville to Dorchester, October 20, 1789 197 Encloses first draft of the Constitutional Act of 1791. Plan is "to assimilate the constitution to that of Great Britain," and to divide the Province. Boundaries are a delicate question. United States must not be irri- tated. The constitution and composition of the new Legislative and Executive Councils and House of Assembly discussed. Hereditary Legislative Council proposed through a Provincial Baronetage. LII. Dorchester to Grenville, February 8, 1790 201 Acknowledges No. LI. Returns draft of Act with his suggestions inserted. Objects to an hereditary Legis- lative Council. Discusses, as requested, the structure of the proposed new constitution. Encloses an im- portant letter from Chief Justice Smith, together with the Chief Justice's proposed additions to the new Bill (Nos. LIII. & LIV.). LIII. Chief Justice Smith to Dorchester, February 5, 1790 . 203 Outlines his personal experience in the Southern Colo- nies. Attributes the Revolution to the fact that they had "outgrown their constitution." Seeks to avoid a similar evil in the remaining British Colonies in Amer- ica, and sends his proposals which he thinks would prevent it. LIV. Proposed Additions to the New Canada Bill, 1790 . . 205 Chief Justice Smith's outline for a "General Govern- ment" for all British North America a federal plan. LV. The Constitutional Act (31, George III. c. 31), 1791 . 207 xiv Contents. FOURTH PERIOD 1791-1840 Introductory Note to the Period LVI. Act Introducing English Civil Law into Upper Canada, 1792 227 LVI I. Act Establishing Trial by Jury in Upper Canada, 1792 . 228 LVIII. Act for Appointing Town-Officers in Upper Canada, 1793 229 LIX. Extracts from Rules of House of Assembly, Lower Canada, 1793 232 These Rules deal with the questions of language and supply. LX. Dorchester's Suggestions for the Government of Canada, February 19, 1793 233 The establishment of a "General Government" for all British North America. LXI. Dundas to Dorchester, July 17, 1793 234 Impossibility of carrying out at present the sugges- tions of No. LX. LXII. Simcoe to Portland, December 21, 1794 234 Is about to appoint County Lieutenants in imitation of England and to incorporate certain towns. En- closes copy of his proposed letter to the new Lieuten- ants. LXIII. Simcoe to Lieutenants of Counties, 1794 236 Enclosure referred to in No. LXII. LXIV. Portland to Simcoe, May 20, 1795 .237 Disapproves of both schemes outlined in No. LXII. The despatch is an interesting official comment on colonial government. LXV. Milnes to Portland, November 1, 1800 238 Finds the Executive in the Province very weak. Clerical influence too powerful to admit of an in- crease of the Crown's. Recommends that the clergy take out licences from the Government, as intended by the Royal Instructions. The disbanding of the militia an unfortunate necessity. Necessity of settling Protestants on the waste lands and of increasing the Roman Catholic Bishop's salary in order to secure him more closely to the Crown. The defects of the Assembly outlined. Education and the Protestant re- ligion need attention. LXVI. Portland to Milnes, January 6, 1801 244 Reply to No. LXV. Impossible to reform the social conditions due to the original settlement of the coun- try. Agrees that the clergy should be brought under the control of the Governor by issuing the intended licences to them. Approves of a reorganization of the militia, but with some weeks' annual training. Contents. xv Page LXVII. Observations on the Government of Lower Canada by John Black, October 9, 1806 246 These "Observations" by a resident in Lower Canada amplify Milnes' letter of November 1, 1800 (No. LXV.). Recommends the reuniting of the Provinces. LXVIII. Ryland's Observations on the Political State of Lower Canada, 1808 248 Foretells sedition in the House of Assembly. Advises increasing the numbers of the Legislative Council, the appointment of men trained in England to the Bench, and the passing of an Imperial Act authorizing the provision of a member of the House of Assembly for every new county or district settled by the Govern- ment with a sufficient number of English settlers. LXIX. Craig to Castlereagh, August 5, 1808 250 The majority of the House of Assembly affects to believe that there is a Ministry in Lower Canada and that it is responsible to the House of Assembly. LXX. Craig to Castlereagh, June 5, 1809 250 House of Assembly has been discussing the exclusion of the judges and has expelled a member on account of being a Jew. Has dissolved the House. LXX I. Castlereagh to Craig, September 7, 1809 254 Official reply to No. LXX. Reluctantly approves of Craig's measures ; advises moderation in language and method. LXXII. Castlereagh to Craig, September 7, 1809 254 A personal reply to No. LXX. Discusses Craig's actions in a friendly way and advises more caution and tact if he is to maintain the dignity of his office. There is no opposition on the part of the British Government to a measure excluding the Judges from Assembly. LXXIII. Craig to Liverpool, May 1, 1810 256 A long despatch covering the whole problem of Lower Canadian conditions as they appeared to the Governor. The vast majority of the people are French in sym- pathies ; the Catholic Bishop's appointment not in ac- cordance with law ; his patronage completely in his own hands ; the clergy have no direct communication with the Governor; they are undoubtedly attached to France on account of Napoleon's Concordat ; the Legislative Council one of the most respectable things in the Province ; outside his duty to question the wis- dom of a House of Assembly, but within it to criticise; it is composed of ignorant and illiterate men who are dominated by a clever faction which permits of no governmental influences ; Napoleon's successes have turned their heads, and they are avowedly preparing to bring Lower Canada under his dominion ; this idea is unfortunately becoming popular; the faction in the House of Assembly hold the ignorant electors in the hollow of their hand, and the latter now look on "La Chambre" as the real Government ; the newspaper Le Canadien vilifies the officials ; "La Nation Canadienne" , shall be preserved to him, the said provisions belonging to him, and not to the King ; and he shall be at liberty to sell them to the French and English. "Everything that is actually in the "magazines, destined for the use of the troops, is to be delivered to the "British commissary, for the King's forces." ARTICLE XXV A passage to France shall likewise be granted, on board of His Britan- nic Majesty's ships, as well as victuals to such officers of the India company as shall be willing to go thither, and they shall take with them their fam- ilies, servants and baggage. The chief agent of the said company, in case he should chuse to go to France, shall be allowed to leave such person as he shall think proper till next year, to settle the affairs of the said company, and to recover such sums as are due to them. The said chief agent shall keep possession of all the papers belonging to the said company, and they shall not be liable to inspection. "Granted." ARTICLE XXVI The said company shall be maintained in the property of the Ecarla- tines and Castors, which they may have in the town of Montreal; they shall not be touched under any pretence whatever, and the necessary licenses shall be given to the Chief Agent, to send this year his Castors to France, on board His Britannic Majesty's ships, paying the freight on the same footing as the British would pay it. "Granted, with regard to what may "belong to the company, or to private persons ; but if his most Christian "Majesty has any share in it, that must become the property of the King." ARTICLE XXVII The free exercise of the Catholic, Apostolic, and Roman religion, shall subsist entire, in such manner that all the states and the people of the towns and countries, places and distant posts, shall continue to assemble in the churches, and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly. These people shall be obliged, by the English Government, to pay their priests the tithes, and all the taxes they were used to pay under the Government of his most Christian Majesty. "Granted, as to the free exercise of their religion ; the "obligation of paying the tithes to the priests will depend on the King's "pleasure." ARTICLE XXVIII The Chapter, Priests, Curates and Missionaries shall continue, with an entire liberty, their exercise and functions of cures, in the parishes of the towns and countries. "Granted." ARTICLE XXIX The Grand Vicars, named by the Chapter to administer to the diocese during the vacancy of the Episcopal See, shall have liberty to dwell in the towns or country parishes, as they shall think proper. They shall at all times be free to visit the different parishes of the Diocese with the ordinary ceremonies, and exercise all the jurisdiction they exercised under the French Dominion. They shall enjoy the same rights in case of the death of the future Bishop, of which mention will be made in the following article. "Granted, except what regards the following article." ARTICLE XXX If by the treaty of peace, Canada should remain in the power of His Britannic Majesty, his most Christian Majesty shall continue to name the Bishop of the colony, who shall always be of the Roman communion, and under whose authority the people shall exercise the Roman religion. "Refused." ARTICLE XXXI The Bishop shall, in case of need, establish new parishes, and provide for the rebuilding of his Cathedral and his Episcopal palace; and, in the meantime, he shall have the liberty to dwell in the towns or parishes, as he shall judge proper. He shall be at liberty to visit his Diocese with the 1759-1763] Constitutional Documents of Canada. 11 ordinary ceremonies, and exercise all the jurisdiction which his predecessor exercised under the French Dominion, save that an oath of fidelity, or a promise to do nothing contrary to His Britannic Majesty's service, may be required of him. "This article is comprised under the foregoing." ARTICLE XXXII The communities of nuns shall be preserved in their constitutions and privileges ; they shall continue to observe their rules, they shall be exempted from lodging any military, and it shall be forbid to molest them in their religious exercises, or to enter their monasteries : safe-guards shall even be given them, if they desire them. "Granted." ARTICLE XXXIII The preceeding article shall likewise be executed, with regard to the communities of Jesuits and Recollects and of the house of the priests of St. Sulpice at Montreal ; these last, and the Jesuits, shall preserve their tight to nominate to certain curacies and missions, as heretofore. "Refused "till the King's pleasure be known." ARTICLE XXXIV All the communities, and all the priests, shall preserve their moye- ables, the property and revenues of the Seignories and other estates, which /-"' they possess in the colony, of what nature soever they be; and the same estates shall be preserved in their privileges, rights, honours, and exemp- tions. "Granted." ARTICLE XXXV If the Canons, Priests, Missionaries, the Priests of the seminary of the foreign Missions, and of St. Sulpice, as well as the Jesuits, and the Recollects, chuse to go to France, a passage shall be granted them in His Britannic Majesty's ships, and they shall have leave to sell, in whole, or in part, the estates and moveables which they possess in the colonies, either to the French or to the English, without the least hindrance or obstacle from the British Government. They may take with them, or send to France, the produce of what nature soever it be, of the said goods sold, paying the freight as mentioned in the XXVIth article ; and such of the said Priests, who chuse to go this year, shall be victualled during the pas- sage, at the expense of His Britannic Majesty; and they shall take with them their baggage. "They shall be masters to dispose, of their estates and "to send the produce thereof, as well as their persons, and all that belongs "to them, to France." ARTICLE XXXVI If by the treaty of peace, Canada remains to His Britannic Majesty, all the French, Canadians, Acadians, merchants and other persons who chuse to retire to France, shall have leave to do so from the British General, who shall procure them a passage : and nevertheless, if, from this time to that decision, any French or Canadian merchants or other persons, shall desire to go to France, they shall likewise have leave from the British General. Both the one and the other shall take with them their families, servants, baggage. "Granted." ARTICLE XXXVII The Lords of Manors, the Military and Civil officers, the Canadians as well in the towns as in the country, the French settled, or trading, in the whole extent of the colony of Canada, and all other persons whatsoever, shall preserve the entire peaceable property and possession of the goods, noble and ignoble, moveable and immoveable, merchandises, furs and other effects, even their ships; they shall not be touched, nor the least damage done to them, on any pretence whatever. They shall have liberty to keep, let or sell them, as well to the French as to the British ; to take away the produce of them in bills of exchange, furs, specie or other returns, when- ever they shall judge proper to go to France, paying their freight, as in the XXVIth article. They shall also have the furs which are in the posts above, and which belong to them, and may be on the way to Montreal ; and, for this purpose, they shall have leave to send, this year, or the next, canoes 12 Constitutional Documents of Canada. [1759-1763 fitted out, to fetch such of the said furs as shall have remained in those posts. "Granted, as in the XXVIth article." ARTICLE XXXVHI All the people who have left Acadia, and who shall be found in Canada, sj including the frontiers of Canada on the side of Acadia, shall have the same treatment as the Canadians, and shall enjoy the same privileges. I "The King is to dispose oi his ancient subjects: in the meantime, they "shall enjoy the same privileges as the Canadians." ARTICLE XXXIX None of the Canadians, Acadians or French, who are now in Canada, and on the frontiers of the colony, on the side of Acadia, Detroit, Michilli- maquinac, and other places and posts of the countries above, the married and unmarried soldiers, remaining in Canada, shall be carried or trans- ported into the British colonies, or to Great Britain, and they shall not be troubled for having carried arms. "Granted, except with regard to the "Acadians." ARTICLE XL The savages or Indian allies of his most Christian Majesty, shall be maintained in the lands they inhabit, if they chuse to remain there; they shall not be molested on any pretence whatsoever, for having carried arms, and served his most Christian Majesty; they shall have, as well as the French, liberty of religion, and shall keep their missionaries. The actual Vicars General, and the Bishop, when the Episcopal See shall be filled, shall have leave to send to them new missionaries when they shall judge it necessary. "Granted, except the last article, which has been already re- fused." ARTICLE XLI The French, Canadians, and Acadians, of what state and condition soever, who shall remain in the colony, shall not be forced to take arms against his most Christian Majesty, or his Allies, directly or indirectly, on any occasion whatsoever; the British Government shall only require of them an exact neutrality. "They become subjects of the King." ARTICLE XLII The French and Canadians shall continue to be governed according to the custom of Paris, and the laws and usages established for this country, / and they shall not be subject to any other imposts than those which were established under the French Dominions. "Answered by the preceding "articles, and particularly by the last." ARTICLE XLIII The papers of the Government shall remain, without exception, in the power of the Marquis de Vaudreuil and shall go to France with him. These papers shall not be examined on any pretence whatsoever. "Granted, "with the reserve already made." ARTICLE XLIV The papers of the Intendancy, of the offices of Comptroller of the Marine, of the ancient and new treasurers of the King's magazines, of the offices of the revenues and forges of St. Maurice, shall remain in the power of M. Bigot, the Intendant; and they shall be embarked for France in the same vessel with him ; these papers shall not be examined. "The same as "in this article." ARTICLE XLV The Registers, and other papers of the Supreme Council of Quebec, of the Prevote, and Admiralty of the said city ; those of the Royal Juris- dictions of Trois Rivieres and of Montreal ; those of the Seignorial Juris- / dictions of the colony; the minutes of the Acts of the Notaries of the towns and of the countries ; and in general, the acts, and other papers, that may serve to prove the estates and fortunes of the citizens, shall remain in the colony, in the rolls of the jurisdictions on which these papers depend. "Granted." 1759-1763] Constitutional Documents of Canada. 13 ARTICLE XLVI The inhabitants and merchants shall enjoy all the privileges of trade, under the same favours and conditions granted to the subjects of His Britannic Majesty, as well as in the countries above, as the interior of the colony. "Granted." ARTICLE XLVII The negroes and pants of both sexes shall remain, in their quality of slaves, in the possession of the French and Canadians to whom they be- long; they shall be at liberty to keep them in their service in the colony, or to sell them ; and they may also continue to bring them up in the Roman religion. "Granted, except those who shall have been made prisoners." ARTICLE XLVIII The Marquis de Vaudreuil, the General and Staff Officers of the land forces, the Governors and Staff Officers of the different places of the colony, the Military and Civil Officers, and all other persons who shall leave the colony, or who are already absent, shall have leave to name and appoint attornies to act for them, and in their name in the administration of their effects, moveable and immoveable, until the peace ; and, if, by the treaty between the two crowns, Canada does not return under the French dominions, these officers, or other persons, or attornies for them, shall have leave to sell their manors, houses, and other estates, their moveables and effects, etc., to carry away or send to France, the produce thereof, either in bills of exchange, specie, furs or other returns, as is mentioned in the XXVIIth Article. "Granted." ARTICLE XLIX The inhabitants and other persons, who shall have suffered any damage in their goods, moveable or immoveable, which remained at Quebec, under i/^ the faith of the capitulation of that city, may make their representations to the British Government, who shall render them due justice against the person to whom it shall belong. "Granted." ARTICLE L, AND LAST The present capitulation shall be inviolably executed in all its articles, and bona fide, on both sides, notwithstanding any infraction, and any other pretence, with regard to the preceding capitulations, and without making use of reprisals. "Granted." POSTSCRIPT ARTICLE LI The British General shall engage, in case any Indians remain after the surrender of this town, to prevent their coming into the towns, and that they do not, in any manner, insult the subjects of his most Christian Majesty. "Care shall be taken that the Indians do not insult any of the "subjects of his most Christian Majesty." ARTICLE LII The troops and other subjects of his most Christian Majesty, who are to go to France, shall be embarked, at latest, fifteen days after the signing of the present capitulation. "Answered by the Xlth Article." ARTICLE mi The troops and other subjects of his most Christian Majesty, who are to go to France, shall remain lodged and encamped in the town of Mont- real, and other posts which they now occupy, till they shall be embarked for their departure ; passports, however, shall be granted to those who shall want them, for the different places of the colony to take care of their affairs. "Granted." ARTICLE LIV All the officers and soldiers of the troops in the service of France, who are prisoners in New England : and who were taken in Canada, shall be sent back, as soon as possible, to France, where their ransom or exchange shall be treated of, agreeable to the cartel ; and if any of these officers have affairs in Canada, they shall have leave to come there. "Granted." 14 Constitutional Documents of Canada. [1759-1763 ARTICLE LV As to the officers of the Militia, the Militia, and the Acadians, who are prisoners in New England, they shall be sent back to their countries. Done at Montreal, the 8th of September, 1760. "VAUDREUIL." Granted, except what regards the Acadians. Done in the camp before Montreal, the 8th September, 1760. "JEFFERY AMHERST" III TREATY OF PARIS, FEBRUARY 10, 1763 1 [Trans. : Shortt and Doughty.] The definitive Treaty of Peace and Friendship between His Britannick Majesty, the Most Christian King, and the King of Spain. Concluded at Paris the 10th day of February, 1763. To which the King of Portuga 1 acceded on the same day. ****** Article I. There shall be a Christian, universal, and perpetual peace, as well by sea as by land, and a sincere and constant friendship shall be re-established between their Britannick, Most Christian, Catholick, and Most Faithful Majesties, and between their heirs and successors, kingdoms, dominions, provinces, countries, subjects, and vassals, of what quality or condition soever they be, without exception of places or of persons: So that the high contracting parties shall give the greatest attention to main- tain between themselves and their said dominions and subjects this recipro- cal friendship and correspondence, without permitting, on either side, any kind of hostilities, by sea or by land, to be committed from henceforth, for any cause, or under any pretence whatsoever, and every thing shall be carefully avoided which might hereafter prejudice the union happily re- established, applying themselves, on the contrary, on every occasion, to procure for each other whatever may contribute to their mutual glory, interests, and advantages, without giving any assistance or protection, directly or indirectly, to those who would cause any prejudice to either of the high contracting parties : there shall be a general oblivion of every thing that may have been done or committed before or since the com- mencement of the war which is just ended. II. The treaties of Westphalia of 1648 ; those of Madrid between the Crowns of Great Britain and Spain of 1667, and 1670 ; the treaties of peace of Nimeguen of 1678, and 1679; of Ryswick of 1697; those of peace and of commerce of Utrecht of 1713; that of Baden of 1714; the treaty of the triple alliance of the Hague of 1717; that of the quadruple alliance of London of 1718; the treaty of peace of Vienna of 1738; the definitive treaty of Aix la Chapelle of 1748 ; and that of Madrid, between the Crowns of Great Britain and Spain of 1750: as well as the treaties between the Crowns of Spain and Portugal of the 13th of February, 1668; of the 6th of February, 1715; and of the 12th of February, 1761 ; and that of the llth of April, 1713, between France and Portugal, with the guaranties of Great Britain, serve as a basis and foundation to the peace, and to the present treaty : and for this purpose they are all renewed and confirmed in the best form, as well as all the general, which subsisted between the high contract- ing parties before the war, as if they were inserted here word for word, so that they are to be exactly observed, for the future, in their whole tenor, and religiously executed on all sides, in all their points, which shall not be derogated from by the present treaty, notwithstanding all that may have been stipulated to the contrary by any of the high contracting parties : and all the said parties declare, that they will not suffer any privilege, Only those articles of the Treaty have been printed which are essential to Cana- dian history. 1759-1763] Constitutional Documents of Canada. 15 favour, or indulgence to subsist, contrary to the treaties above confirmed, except what shall have been agreed and stipulated by the present treaty. ****** IV. His Most Christian Majesty renounces all pretensions which he has heretofore formed or might have formed to Nova Scotia or Acadia in all its parts, and guaranties the whole of it, and with all its dependencies, to the King of Great Britain: Moreover, his Most Christian Majesty cedes and guaranties to his said Britannick Majesty, in full right, Canada, with all its dependencies, as well as the island of Cape Breton, and all the other islands and coasts in the gulph and river of St. Lawrence, and in general, every thing that depends on the said countries, lands, islands, and coasts, with the sovereignty, property, possession, and all rights acquired by treaty, or otherwise, which the Most Christian King and the Crown of France have had till now over the said countries, lands, islands, places, coasts, and their inhabitants, so that the Most Christian King cedes and makes over the whole to the said King, and the Crown of Great Britain, and that in the most ample manner and form, without restriction, and without any liberty to depart from the said cession and guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. His Britannick Majesty, on his side, agrees to grant the liberty of the Catholick religion to the inhabitants of Canada: he will, in consequence, give the most precise and most effectual orders, that his new Roman Catholick subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the French inhabitants, or others who had been subjects of the most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, provided it be to the subjects of His Britannick Majesty, and bring away their effects as well as their persons, without being restrained in their emigration, under any pretence whatsoever, except that of debts or of criminal prosecutions: The term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratification of the present treaty. V. The subjects of France shall have the liberty of fishing and drying on a part of the coasts of the Island of Newfoundland, such as it is speci- fied in the XIHth article of the treaty of Utrecht ; which article is renewed and confirmed by the present treaty, (except what relates to the island of Cape Breton, as well as to the other islands and coasts in the mouth and in the gulph of St. Lawrence) : And His Britannick Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the gulph of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said gulph of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton, out of the said gulph, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coasts of the island of Cape Breton ; and the fishery on the coasts of Nova Scotia or Acadia, and every where else out of the said gulph, shall remain on the foot of former treaties. VI. The King of Great Britain cedes the islands of St. Pierre and Macquelon, in full right, to his Most Christian Majesty, to serve as a shelter to the French fishermen; and his said Most Christian Majesty engages not to fortify the said islands ; to erect no buildings upon them but merely for the conveniency of the fishery; and to keep upon them a guard of fifty men only for the police. VII. In order to re-establish peace on solid and durable foundations, and to remove forever all subject of dispute with regard to the limits of the British and French territories on the continent of America ; it is agreed, that, for the future, the confines between the dominions of His Britannick Majesty and those of his Most Christian Majesty in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the 16 Constitutional Documents of Canada. [1759-1763 River Mississippi, from its source to the River Iberville, and from thence, by a line drawn along the middle of this river, and the lakes Maurepas and Potchartrain to the sea ; and for this purpose, the Most Christian King cedes in full right, and guaranties to His Britannick Majesty the river and port of the Mobile, and every thing which he possesses, or ought to possess, on the left side of the River Mississippi, except the town of New Orleans and the island in which it is situated, which shall remain to France, provided that the navigation of the River Mississippi shall be equally free, as well to the subjects of Great Britain, as to those of France, in its whole breadth and length, from its source to the sea, and expressly that part which is between the said island of New Orleans and the right bank of that river, as well as the passage both in and out of its mouth: It is farther stipulated, that the vessels belonging to the subjects of either nation shall not be stopped, visited, or subjected to the payment of any duty whatsoever. The stipulations inserted in the IVth article, in favour of the inhabitants of Canada, shall also take place with regard to the inhabitants of the countries ceded by this article. VIII. The King of Great Britain shall restore to France the islands of Gaudaloupe, of Mariegalante, of Desirade, of Martinico, and of Belle- isle; and the fortresses of these islands shall be restored in the same con- dition they were in when they were conquered by the British arms, provided that His Britannick Majesty's subjects, who shall have settled in the said islands, or those who shall have any commercial affairs to settle there or in other places restored to France by the present treaty, shall have liberty to sell their lands and their estates, to settle their affairs, to recover their debts, and to bring away their effects as well as their persons, on board vessels, which they shall be permitted to send to the said islands and other places restored as above, and which shall serve for this use only, without being restrained on account of their religion, or under any other pretence whatsoever, except that of debts, or of criminal prosecutions : and for this purpose, the term of eighteen months is allowed to His Britannick Majesty's subjects, to be computed from the day of the exchange of the ratifications of the present treaty ; but, as the liberty granted to His Britan- nick Majesty's subjects, to bring away their persons and their effects, in vessels of their nation, may be liable to abuses if precautions were not taken to prevent them ; it has been expressly agreed between his Britannick Majesty and his Most Christian Majesty, that the number of English ves- sels which have leave to go to the said islands and places restored to France, shall be limited, as well as the number of tons of each one; that they shall go in ballast ; shall set sail at a fixed time ; and shall make one voyage only ; all the effects belonging to the English being to be embarked at the same time. It has been farther agreed, that his Most Christian Majesty shall cause the necessary passports to be given to the said vessels; that, for the greater security, it shall be allowed to place two French clerks or guards in each of the said vessels, which shall be visited in the landing places and ports of the said islands and places restored to France, and that the merchandize which shall be found therein shall be confiscated. IX. The Most Christian King cedes and guaranties to his Britannick Majesty, in full right, the islands of Grenada, and the Grenadines, with the same stipulations in favour of the inhabitants of this colony, inserted in the IVth article for those of Canada: And the partition of the islands called neutral, is agreed and fixed, so that those of St. Vincent, Dominico, and Tobago shall remain in full right to Great Britain, and that of St. Lucia shall be delivered to France, to enjoy the same likewise in full right, and the high contracting parties guaranty the partition so stipulated. * * * * * * XVII. His Britannick Majesty shall cause to be demolished all the fortifications which his subjects shall have erected in the bay of Honduras, and other places of the territory of Spain, in that part of the world, four months after the ratification of the present treaty: and his Catholick men, to be disturbed or molested under any pretence whatsoever in the said Majesty shall not permit his Britannick Majesty's subjects, or their work- 1759-1763] Constitutional Documents of Canada. 17 places, in their occupation of cutting, loading, and carrying away logwood ; and for this purpose they may build without hindrance, and occupy, without interruption, the houses and magazines necessary for them, for their fam- ilies, and for their effects: and his Catholick Majesty assures to them, by this article, the full enjoyment of those advantages and powers on the Spanish coasts and territories, as above stipulated, immediately after the ratification of the present treaty. XVIII. His Catholick Majesty desists, as well for himself as for his successors, from all pretension which he may have formed in favour of the Guipuscoans, and other his subjects, to the right of fishing in the neigh- bourhood of the island of Newfoundland. XIX. The King of Great Britain shall restore to Spain all the terri- tory which he has conquered in the island of Cuba, with the fortress of the Havannah; and this fortress, as well as all the other fortresses of the said island, shall be restored in the same condition they were in when conquered by his Britannick Majesty's arms, provided that his Britannick Majesty's subjects who shall have settled in the said island, restored to Spain by the present treaty, or those who shall have any commercial affairs to settle there, shall have liberty to sell their lands and their estates, to settle their affairs, recover their debts, and to bring away their effects, as well as their persons, on board vessels which they shall be permitted to send to the said island restored as above, and which shall serve for that use only, without being restrained on account of their religion, or under any other pretence whatsoever, except that of debts or of criminal prosecutions: And for this purpose, the term of eighteen months is allowed to his Britannick Majesty's subjects, to be computed from the day of the exchange of the ratifications of the present treaty: but as the liberty granted to his Britannick Majesty's subjects, to bring away their persons and their effects, in vessels of their nation, may be liable to abuses if precautions were not taken to prevent them; it has been expressly agreed between his Britannick Majesty and his Catholick Majesty, that the number of English vessels which shall have leave to go to the said island restored to Spain shall be limited, as well as the number of tons of each one; that they shall go in ballast; shall set sail at a fixed time ; and shall make one voyage only ; all the effects belonging to the English being to be embarked at the same time : it has been farther agreed, that his Catholick Majesty shall cause the necessary passports to be given to the said vessels ; that for the greater security, it shall be allowed to place two Spanish clerks or guards in each of the said vessels, which shall be visited in the landing places and ports of the said island restored to Spain, and that the merchandize which shall be found therein shall be confiscated. XX. In consequence of the restitution stipulated in the preceding article, his Catholick Majesty cedes and guaranties, in full right, to his Britannic Majesty, Florida, with Fort St. Augustin, and the Bay of Pensa- cola, as well as all that Spain possesses on the continent of North America, to the East or to the South East of the River Mississippi. And, in general, every thing that depends on the said countries and lands, with the sove- reignty, property, possession, and all rights, acquired by treaties or other- wise, which the Catholick King and the Crown of Spain have had till now over the said countries, lands, places, and their inhabitants ; so that the Catholick King cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample manner and form. His Britannick Majesty agrees, on his side, to grant to the inhabitants of the countries above ceded, the liberty of the Catholick religion: he will, consequently, give the most express and the most effectual orders that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the Spanish inhabitants, or others who had been subjects of the Catholick King in the said countries, may retire, with all safety and freedom, wherever they think proper; and may sell their estates, provided it be to his Britannick Majesty's subjects, and bring away their effects, as well as their persons, without being restrained in their emigration, under any pretence whatso- B 18 Constitutional Documents of Canada. [1759-1763 ever, except that of debts, or of criminal prosecutions : the term limited for this emigration being fixed to the space of eighteen months, to be com- puted from the day of the exchange of the ratifications of the present treaty. It is moreover stipulated, that his Catholick Majesty shall have power to cause all the effects that may belong to him, to be brought away, whether it be artillery or other things. ****** XXII. All the papers, letters, documents, and archives, which were found in the countries, territories, towns and places that are restored, and those belonging to the countries ceded, shall be, respectively and bond fide, delivered, or furnished at the same time, if possible, that possession is taken, or, at latest, four months after the exchange of the ratifications of the present treaty, in whatever places the said papers or documents may be found. IV THE ROYAL PROCLAMATION, 7 OCTOBER, 1763 [Trans. : Shortt and Doughty.] George R. WHEREAS WE have taken into Our Royal Consideration the exten- sive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace concluded at Paris, the 10th day of Febru- ary last; and being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail themselves with all convenient Speed, of the great Benefits and Advantages which must accrue therefrom to their Commerce, Manufactures, and Navigation, We have thought fit, with the Advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of our Said Privy Council, granted our Letters Patent, under our Great Seal of Great Britain, to erect, within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled and called by the names ot Quebec, East Florida, West Florida and Grenada, and limited and bounded as follows, viz.! First The Government of Quebec, bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John, to the South end of the Lake Nipis- sim ; from whence the said Line, crossing the River St. Lawrence, and the Lake Champlain, in 45. Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River St. Lawrence from those which fall into the Sea ; and also along the North Coast of the Baye des Chaleurs and the Coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St. Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St. John. Secondly The Government of East Florida, bounded to the Westward by the Gulph of Mexico and the Apalachicola River, to the Northward by a Line drawn from that part of the said River where the Chatahouchee and Flint Rivers meet, to the source of St. Mary's River, and by the course of the said River to the Atlantic Ocean ; and to the Eastward and Southward by the Atlantic Ocean and the Gulph of Florida, including all islands within Six Leagues of the Sea Coast. Thirdly The Government of West Florida, bounded to the Southward by the Gulph of Mexico, including all Islands within Six Leagues of the Coast, from the River Apalachicola to Lake Pontchartrain ; to the West- ward by the said Lake, the Lake Maurepas, and the River Mississippi; to the Northward by a Line drawn due East from that part of the River Mississippi which lies in 31 Degrees North Latitude, to the River Apalachi- cola or Chatahouchee ; and to the Eastward by the said River. 1759-1763] Constitutional Documents of Canada. 19 Fourthly The Government of Grenada, comprehending the Island of that name, together with the Grenadines, and the Islands of Dominico, St. Vincent's, and Tobago. And to the end that the open and free Fishery of our Subjects may be extended to and carried on upon the Coast of Labrador, and the adjacent Islands, We have thought fit, with the advice of our said Privy Council, to put all that Coast, from the River St. John's-, to the Hudson Streights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands lying upon the said Coast, under the care and Inspection of our Governor of Newfoundland. We have also, with the advice of our Privy Council, thought fit to annex the Islands of St. John's and Cape Breton, or Isle Royale, with the lesser Islands adjacent thereto, to our Government of Nova Scotia. We have also, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia, all the Lands lying between the Rivers Alata- maha and St. Mary's. And whereas it will greatly contribute to the speedy settling our said new Governments, that our loving subjects should be informed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Con- sent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government; and We have also given Power to the said Governors, with the consent of our Said Councils, and the Representa- tives of the People, so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and restrictions as are used in other Colonies ; and in the mean time, and until such Assemblies can be called as aforesaid, all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England ; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and public Justice within our said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sen- tences of such Courts, in all Civil Cases, to appeal, under the usual Limita- tions and Restrictions, to Us in our Privy Council. 1 We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies, upon the Continent full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Person* who shall resort thereto, for such Lands, Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such moderate Quit-Rents, Services and Acknowledgments, as have been ap- pointed and settled in our other Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and settlement of our said Colonies. < And Whereas, We are desirous, upon all occasions, to testify our Royal Sense and approbation of the Conduct and bravery of the Officers and *For a contemporary comment on thii section, ee below No. XVII. 20 Constitutional Documents of Canada. [1759-1763 Soldiers of our Armies, and to reward the same, We do hereby command and impower our Governors of our said Three new Colonies, and all other our Governors of our several Provinces on the Continent of North Amer- ica, to grant without Fee or Reward, to such reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years ,to the same Quit-Rents, as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement, viz.: To every Person having the Rank of a Field Officer.. 5,000 Acres To every Captain 3,000 Acres To every Subaltern or Staff Officer 2,000 Acres To every Non-Commission Officer 200 Acres To every Private Man 50 Acres We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same conditions, to such reduced Officers of our Navy of like Rank as served on board our Ships of War in North America at the times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such Grants. And whereas it is just and reasonable, and essential to our Interests, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Comander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions ; as also that no Governor, or Commander in Chief in any of our other Colonies or Plantations in America do pre- sume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid ; And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that purpose first obtained. And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements. And whereas great Frauds and Abuses have been committed in pur- 1759-1763] Constitutional Documents of Canada. 21 chasing Lands of the Indians to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians; in order therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council, strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement; but that, if at any Time any of the said Indians / should be inclined to dispose of the said Lands, the same shall be Purchased only for Us in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie; and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, con- formable to such Directions and Instructions as we or they shall think proper to give for that Purpose; And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or the Commander in Chief of any of Our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade: And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted / shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid. And we do further expressly enjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who stand- ing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Territory, and to send them under a proper guard to the Colony where the Crime was committed of which they stand accused, in order to take their Trial for the same. Given at our Court at St. James', the 7th Day of October, 1763, in the Third Year of our Reign. GOD SAVE THE KING SECOND PERIOD 1763-1774 SECOND PERIOD 1763-1774 During the Second Period the government was carried on by a loose interpretation of the Proclamation of 1763 and by various instructions given to the Governors. Of the latter I have only printed those which are of importance. The constitutional arrange- ment, pending the giving of representative institutions, was almost similar to that in a "Crown Colony." From the very beginning of this period difficulties began. The presence of British settlers in Canada alien to the Canadians in' race, speech and religion, complicated the situation. They took up a position of superiority which irritated Governors Murray and Carleton. Their demands for a strict interpretation of the Pro- clamation of 1763 in connexion with law and justice, and for a House of Assembly in which the Canadians should not be repre- sented, fill the documents of the period. In this section I have printed documents which illustrate various attempts (i) to inter- pret the Proclamation of 1763 (ii) to obtain a House of Assembly ; and I have added (iii) several despatches which throw light on the chaotic state of the administration of law, and on the general difficulties with which the officials met in carrying on the government. Out of these difficulties came efforts to improve conditions. Ordinances and various reports to the British Gov- ernment which I have selected illustrate these efforts. The period closes with the debates on the Quebec Act, which received the royal assent on June 22, 1774. From these debates liberal selec- tions have been made, as they are invaluable in studying this period. 1763-1774] Constitutional Documents of Canada. 27 INSTRUCTIONS TO GOVERNOR MURRAY, 7 DECEMBER, 1763' [Trans. : Shortt and Doughty.] George R. Instructions to Our Trusty and Wellbeloved James Murray, Esq., Our Captain General and Governor in Chief in and over our Province (L.S.) of Quebec in America, and of all our Territories dependent there- upon. Given at Our Court of St. James's the seventh Day of December, 1763, in the Fourth Year of Our Reign. 1. With these Our Instructions You will receive Our Commission under Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and over Our Province of Quebec in America, bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John to the South End of the Lake Nipissin; from whence the said Line crossing the River St. Lawrence and the Lake Champlain in forty five Degrees of North Latitude, passes along the High Lands, which divide the Rivers that empty themselves into the said River St. Lawrence, from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs and the Coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St. Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St. John : You are therefore to take upon You the Execution of the Office and Trust We have reposed in You, and the Administration of Govern- ment, and to do and execute all Things in due manner that shall belong to your Command, according to the several Powers and Authorities of Our said Commission under Our Great Seal of Great Britain, and these Our Instructions to You, or according to such further Powers and Instructions as shall at any Time hereafter be granted or appointed You under Our Signet and Sign Manual, or by Our Order in Our Privy Council. 2. And You are, with all due Solemnity, to cause Our said Commis- sion to be published at Quebec, which We do appoint to be the Place of your Residence and the principal Seat of Government, in the Districts of Montreal and Trois Rivieres, and in such other parts of your Government as You shall think necessary and expedient, as soon as possible; which being done, You are in the next place to nominate and establish a Council for Our said Province, to assist You in the Administration of Government, which Council is, for the present, to be composed of the Persons, Whom We have appointed to be Our Lieutenant Governors of Montreal and Trois Rivieres, Our Chief Justice of Our said Province, and the Surveyor Gen- eral of Our Customs in America for the Northern District, and Eight other Persons to be chosen by You from amongst the most considerable of the Inhabitants of, or Persons of Property in Our said Province; which Persons so nominated and appointed by You as aforesaid, (Five of which We do hereby appoint to be a Quorum), are to be Our Council for Our said Province, and to have and enjoy all the Powers, Privilege and Authority usually exercised and enjoyed by the Members of Our Councils in Our other Plantations, and also such others as are contained in Our said Commission under Our Great Seal of Great Britain, and in these Our Instructions to You ; and they shall meet together at such Time or Times, Place or Places, as You, in your Discretion, shall think necessary and expedient : It is nevertheless Our Will and Pleasure, that the said Chief Justice, or Sur- veyor General of Our Customs, shall not be capable of taking the Admin- 'Murray's Commission as Civil Governor was dated 21 November, 1763. He did not take up his new position, however, till August, 1764. Doubtless this delay wai due to the provisions of the fourth section of the Peace of Paris (q.v.). 28 Constitutional Documents of Canada. [1763-1774 istration of the Government upon the Death or Absence of You Our Governor, or the Commander in Chief for the Time Being. 3. And You are forthwith to call Our said Council together, or such of them as can be conveniently assembly, and to cause Our said Commis- sion to You to be read at such Meeting ; which being done, You shall then take yourself, and also administer to Our Lieutenant Governors respec- tively, and to the Members of Our said Council, the Oaths mentioned in an Act, passed in the first Year of the Reign of His Majesty King George the First, intituled, "An Act for the further Security of His Majesty's Person "and Government, and the Succession of the Crown in the Heirs of the late "Princess Sophia, being Protestants, and for extinguishing the Hopes of "the pretended Prince of Wales, and his open and secret Abettors;" as also to make and subscribe, and cause them to make and subscribe, the Declaration mentioned in an Act of Parliament made in the Twenty fifth Year of the Reign of King Charles the Second, intituled, "An Act for pre- "venting Dangers which may happen from Popish Recusants." And You and every one of Them are likewise to take an Oath for the due Execution of your and their Places and Trusts, with regard to your and their equal and impartial Administration of Justice ; and You are also to take the Oath required by an Act passed in the seventh and eighth Years of the Reign of King William the Third to be taken by Governors of Plantations, to do their utmost that the Laws relating to the Plantations be observed. 4. And You are forthwith to transmit unto Our Commissioners for Trade and Plantations, in order to be laid before Us for Our Approbation or Disallowance, the Names of the Members of the Council so to be ap- pointed by You, as aforesaid; as also a list of the Names and Characters of Eight other Persons in Our said Province, whom You judge properly qualified to serve in that Station; to the End that, if any of the Persons appointed by You, as aforesaid, shall not be approved and confirmed by Us, under Our Signet and Sign Manual, the Place or Places of such Per- sons so disapproved may be forthwith supplied from the said List, or otherwise, as We shall think fit. 9. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite ; as likewise all such others, from time to time, as You shall find convenient for Our Service to be imparted to them. 10. You are to permit the Members of Our said Council to have and enjoy Freedom of Debate and Vote, in all affairs of public Concern that may be debated in Council. 11. And whereas it is directed, by Our Commission to You under Our great Seal, that so soon as the Situation and Circumstances of Our said Province will admit thereof, you shall, with the Advice of Our Coun- cil, summon and call a General Assembly of the Freeholders in Our said Province; You are therefore, as soon as the more pressing Affairs of Gov- ernment will allow to give all possible attention to the carrying this impor- tant Object into Execution: But, as it may be impracticable for the present to form such an Establishment, You are in the mean time to make such Rules and Regulations, by the Advice of Our said Council, as shall appear to be necessary for the Peace, Order and good Government of Our said Province, taking Care that nothing be passed or done, that shall any ways tend to effect the Life, Limb or Liberty of the Subject, or to the imposing any Duties or Taxes : and that all such Rules and Regulations be transmitted to Us, by the first Opportunity after they are passed and made, for Our Approbation or Disallowance. And it is Our Will and Pleasure, that when an Assembly shall have been summoned and met, in such man- ner as You, in your Discretion, shall think most proper, or as shall be hereafter directed and appointed, the following Regulations be carefully observed in the framing and passing all such Laws, Statutes and Ordin- ances as are to be passed by You, with the Advice and Consent of Our said Council and Assembly ; viz. : That the Style of Enacting the said Laws, Statutes and Ordinances be by the Governor, Council and Assembly and no other; 1763-1774] Constitutional Documents of Canada. 29 That each different Matter be provided for by a different Law, without including in one and the same Act such Things as have no proper Relation to each other; That no Clause be inserted in any Act or Ordinance ,which shall be foreign to what the Title of it imports; and that no perpetual Clause be part of any temporary Law ; That no Law or Ordinance whatever be suspended, altered, continued, revived or repealed by general Words ; but that the Title and Date of such Law or Ordinance be particularly mentioned in the enacting part; That no Law or Ordinance, respecting private Property, be passed without a Clause suspending its Execution, until Our Royal Will and Pleasure is known; nor without a saving of the Right of Us, Our Heirs and Successors, and of all Bodies politic and corporate, and of all other Persons, except such as are mentioned in the said Law or Ordinance, and those claiming by, from, and under them ; and before such Law or Ordin- ance is passed, Proof must be made before You, in Council, and entered in the Council Books, that public Notification was made of the Party's Intention to apply for such Act in the several Parish Churches, where the Lands in Question lie, for three Sundays at least successively before any such Law or Ordinance shall be proposed ; and You are to transmit, and annex to the said Law, or Ordinance, a Certificate under your hand, that the same passed through all the Forms abovementioned ; That in all Laws or Ordinances for levying Money, or imposing Fines, Forfeitures or Penalties, express mention be made, that the same is granted or reserved to Us, our Heirs and Successors, for the public Uses of the said Province, and the Support of the Government thereof, as by the said Law, or Ordinance shall be directed; and that a Clause be inserted, declaring, that the Money arising by the Operation of the said Law, or Ordinance shall be accounted for unto Us in this Kingdom, and to Our Commissioners of Our Treasury, or Our High Treasurer for the time being, and audited by Our Auditor General of Our Plantations, or his Deputy ; That all such Laws, Statutes, and Ordinances be transmitted by You within three Months after their passing, or sooner, if Opportunity offers, to Our Commissioners for Trade and Plantations : that they be fairly abstracted in the Margents, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is intro- ductive of a new Law, declaratory of a former Law, or does repeal a Law then before in being; and You are also to transmit, in the fullest manner the Reasons and Occasion for enacting such Laws, or Ordinances, together with fair Copies of the 'Journals of the Proceedings of the Council and Assembly, which You are to require from the Clerks of the said Council and Assembly. 12. And to the end that nothing may be passed or done to the Preju- dice of the true Interests of this Our Kingdom, the just Rights of Us, Our Heirs and Successors, or the Property of Our Subjects; it is Our express Will and Pleasure, that no Law whatever, which shall in any wise tend to affect the Commerce or Shipping of this Kingdom, or which shall any ways relate to the Rights and Prerogative of Our Crown, or the Property of Our Subjects, or which shall be of an unusual or extraordinary Nature, be finally ratified and assented to by You, until You shall have first trans- mitted a Draught of such Law, and shall have, received Our Directions thereupon, unless You take care, that a Clause be inserted, suspending and deferring the Execution thereof, until Our Pleasure is known concerning the same. 13. And whereas Laws have formerly been enacted in several of Our Plantations in America for so short a Time, that Our Royal Assent or Refusal thereof could not be had before the Time, for which such Laws were enacted, did expire; You shall not give your- Assent to any Law, that shall be enacted for a less Time than two Years, except in Cases of immin- ent Necessity, or immediate temporary Expediency ; and You shall not re-enact any Law, to which Our Assent shall have been once refused, with- out express Leave for that purpose first obtained from Us, upon a full 30 Constitutional Documents of Canada. [1763-1774 Representation by You to be made to Our Commissioners for Trade and Plantations, in order to be laid before Us, of the Reasons and Necessity for passing such Law ; nor give your Assent ifo any Law Tor repealing any other Law, which shall have passed in your Government, and shall have received Our Royal Approbation, unless You take care that there be a Clause inserted therein, suspending a~nd deferring the Execution thereof, until Our Pleasure shall be known concerning the same. 15. And whereas the Members of several Assemblies in the Plantations have frequently assumed to themselves Privileges no ways belonging to them, especially of being protected from Suits at Law during the Term they remain of the Assembly, to the great Prejudice of their Creditors and the Obstruction of Justice ; and some Assemblies have presumed to adjourn themselves at Pleasure, without leave from Our Governor first obtained ; and Others have taken upon them the sole framing of Money Bills, refusing to let the Council alter or amend the same; all which practices are very detrimental to Our Prerogative; If therefore You find, that the Members of the Assembly of Our Province of Quebec insist upon any of the said Privileges, You are to signify to them that it is Our express Will and Pleasure, that You do not allow any Protection to any Member of the Council or Assembly, further than in their Persons, and that only during the Sitting of the Assembly; and that You do not allow them to adjourn themselves otherwise than de die in diem, except Sundays and Holy-days, without Leave from You, or the Commander in Chief for the time being, first obtained ; It is also Our further Pleasure, that the Council have the like Power of framing Money Bills as the Assembly. 16. And whereas by Our aforesaid Commission under Our Great Seal of Great Britain, You are authorized and impowered, with the Advice and Consent of our Council, to constitute and appoint Courts of Judicature and Justice; it is therefore our Will and Pleasure, that You do, as soon as Possible, apply your Attention to these great and important Objects; and that, in forming the necessary Establishments for this purpose, You do consider what has taken place in this respect in Our other Colonies in America, more particularly in Our Colony of Nova Scotia. 17. And whereas it is for the Ease, Satisfaction and Benefit of all Our Subjects, that Appeals should be allowed, in all Civil Causes, from the Courts in Our Plantations ; it is therefore Our Will and Pleasure, that, when the several Courts and Offices necessary for the Administration of Justice shall have been settled, appointed and confirmed, in consequence of the Power vested in You by Our Commission under Our Great Seal and by these Our Instructions, You do, as near as different Circumstances will admit, conform yourself to the Regulations prescribed in the Instructions given to Our Governor of Nova Scotia in respect to such Appeals, Copies of which Instructions are' hereunto annexed. 18. You are, with the Advice and consent of Our Council in the Province under your Government, to take especial Care to regulate all Salaries and Fees belonging to Places, or paid upon Emergencies, that they may be within the Bounds of Moderation, 1 and that no Exaction be made on any Occasion whatsoever, as also that tables of all Fees be publickly hung up in all Places where such Fees are to be paid; and You are to transmit Copies of all such Tables of Fees to Our Commissioners for Trade and Plantations, in order to be laid before Us. 20. You shall not appoint any Person to be a Judge or Justice of the Peace, without the Advice and Consent of the Majority of the Members of Our Council, present in Council; nor shall You execute yourself, or by Deputy, any of the said Offices ; and it is Our further Will and Pleasure, that all Commissions, to be granted by You, to any Person or Persons to be Judges or Justices of the Peace, or other necessary Officers, be granted during Pleasure only. 21. You shall not displace any of the Judges, Justices of Peace, or 'Murray's successor. Sir Guy Carleton, introduced a scheme in 1770 which was intended to regulate fees, about which many complaints were made. (See Nos. XX, XXI). The new scheme wa not entirely successful. 1763-1774] Constitutional Documents of Canada. 31 other Officers or Ministers, without good and sufficient Cause which You shall signify in the fullest and most distinct manner to Our Commissioners for Trade and Plantations, in order to be laid before Us, by the first Opportunity after such Removals. 22. And whereas frequent Complaints have heretofore been made of great Delays and undue Proceedings in the Courts of Justice in several of Our Plantations, whereby many of Our good Subjects have very much suffered ; and it being of the greatest Importance to Our Service, and to the Welfare of Our Plantations, that Justice be everywhere speedily and duly administered, and that all Disorders, Delays, and other undue Prac- tices in the Administration thereof, be effectually prevented ; We do par- ticularly require You to take especial Care, that in all Courts, where You are authorized to preside, Justice be impartially administered ; and that in all other Courts, established within Our said Province, all Judges, and other Persons therein concerned, do likewise perform their several Duties without any Delay or Partiality. 23. You are to take Care, that all Writs be issued in Our Name throughout the Province under your Government. 24. Whereas there are several Offices in Our Plantations granted under the Great Seal of Great Britain, and Our Service may be very much prejudiced by reason of the Absence of the Patentees, and by their appoint- ing Deputies not fit to officiate in their Stead ; You are therefore to inspect such of the said Offices as are in the Province under your Government, and to enquire into the Capacity and behaviour of the Persons exercising them, and to report thereupon, to Our Commissioners for Trade and Plantations, what you think fit to be done or altered in relation thereunto ; and you are, upon the Misbehaviour of any of the said Patentees or their Deputies, to suspend them from the Execution of their Office, till You shall have repre- sented the whole Matter unto Us, and received Our Directions therein ; and in case of the Death of any such Deputy, it is Our express Will and Pleas- ure, that You take Care that the Person appointed to execute the Place, until the Patentee can be informed thereof, and appoint another Deputy, do give sufficient Security to the Patentee, or, in case of Suspension, to the Person suspended, to be answerable to him for the Profits accruing during such Interval by Death, or during Such Suspension, in case We shall think fit to restore the Person Suspended to his Place again. It is nevertheless Our Will and Pleasure, that the Person executing the Place during such Interval by Death or Suspension, shall, for his Encouragement, receive the same Profits as the Person dead, or suspended did receive; And it is Our further Will and Pleasure, that, in case of a Suspension of a Patentee, the Person appointed by you to exercise the Office during such Suspension, shall receive a Moiety of the Profits which would otherwise become due to such Patentee, giving Security to such Patentee to be answerable to him for the other Moiety, in case We shall think fit to restore him to his Office again ; And it is Our further Will and Pleasure, that You do countenance and give all due Encouragement to all Our Patent Officers in the Enjoyment of their legal and accustomed Fees, Rights, Privileges and Emoluments, according to the true Intent and Meaning of their Patents. 28. And whereas We have stipulated, by the late Definitive Treaty of Peace concluded at Paris the 10th Day of February, 1763, to grant the Liberty of the* Catholick Religion to the Inhabitants of Canada, and that We will consequently give the most precise and most effectual Orders, that Our new Roman Catholick Subjects in that Province may profess the Wor- ship of their Religion, according to the Rites of the Romish Church, as far as the Laws of Great Britain permit; It is therefore Our Will and Pleas- ure, that you do, in all things regarding the said Inhabitants, conform with great Exactness to the Stipulations of the said Treaty in this respect. 29. You are, as soon as possible, to summon the Inhabitants to meet together, at such Time or Times, Place or Places, as you shall find most convenient, in order to take the Oath of Allegiance, and make and sub- scribe the Declaration of Abjuration mentioned in the aforesaid Act passed 32 Constitutional Documents of Canada. [1763-1774 in the first Year of the Reign of King George the First, for the further Security of His Majesty's Person and Government, and the Succession oi the Crown in the Heirs of the Late Princess Sophia, being Protestants, and for extinguishing the Hopes of the Pretended Prince of Wales, and his open and secret Abettors; which Oath shall be administered to them by such Person or Persons as you shall commissionate for such Purpose ; and in case any of the said French Inhabitants shall refuse to take the said Oath, and make and subscribe the Declaration of Abjuration, as aforesaid, You are to cause them forthwith to depart out of Our said Government 30. And it is Our further Will and Pleasure, that all such Inhabitants, professing the Religion of the Romish Church, do, at all such Meetings, or at such other Time or Times as You shall think proper, and in the Manner you shall think least alarming and inconvenient to the said Inhabitants, deliver in upon Oath an exact Account of all Arms and Ammunition, of every Sort in their actual Possession, and so, from time to time, of what they^hall receive into their Possession, as aforesaid. 1. You are as soon as possible to transmit to Us, by Our Commis- Tioners for Trade and Plantations, an exact and particular Account of the Nature and Constitution of the several Religious Communities of the Romish Church, their Rights, Claims, Privileges and Property, and also the Number, Situation and Revenue of the several Churches heretofore estab- lished in Our said Province, together with the Number of Priests or Curates officiating, in such Churches. 32. You are not to admit of any Ecclesiastical Jurisdiction of the See of Rome,"br any other foreign Ecclesiastical Jurisdiction whatsoever in the Province under your Government 1 . 33. And to the End that the Church of England may be established both in Principles and Practice, and that the said Inhabitants may by De- grees be induced to embrace the Protestant Religion, and their Children be brought up in the Principles of it ; We do hereby declare it to be Our Intention, when the said Province shall have been accurately surveyed, and divided into Townships, Districts, Precincts or 'Parishes, in such manner as shall be hereinafter directed, all possible Encouragement shall be given to the erecting Protestant Schools in the said Districts, Townships and Precincts, by settling, appointing and alloting proper Quanties of Land for that Purpose, and also for a Glebe and Maintenance for a Protestant Min- ister and Protestant School Masters ; and you are to consider and report to Us, bv Our Commissioners for Trade and Plantations, by what other Means the Protestant Religion may be promoted, established and encour- aged in Our Province under your Government. 34. And You are to take especial Care, that God Almighty be devoutly and duly served throughout your Government, the Book of Common Prayer, as by Law established, read each Sunday and Holyday, and the blessed Sacrament administered according to the Rites of the Church of England. 35. You are not to prefer any Protestant Minister to any Ecclesias- tical Benefice in the Province under your Government, without a Certificate from the Right Reverend Father in God the Lord Bishop of London 1 , of his being comformable to the Doctrine and Discipline of the Church of England, and of a good Life and Conversation ; And if any Person here- after preferred to a Benefice shall appear to you to give Scandal, either by his Doctrine or Manners, you are to use the best Means for his Removal. 36. You are to give Orders forthwith, that every Orthodox Minister within your Government be one of the Vestry in his respective Parish ; and that no Vestry be held without him, except in case of Sickness, or, after Notice of a Vestry summoned, he omit to come. 37. And to the End that the Ecclesiastical Jurisdiction of the Lord 'For the history of the early Ecclesiastical government of the Roman Catholic Church in British Canada, see Gosselin, L'Eglise du Canada aprcs la Conquete (Que- bec, 1916). 'For the history of the Church of England in Canada, see C. H. Mockridge, The Bishops of the Church of England in Canada and Newfoundland (1896). 1763-1774] Constitutional Documents of Canada. 33 Bishop of London may take place in Our Province under your Govern- ment, as far as conveniently may be, We do think fit, that You give all Countenance and Encouragement to the Exercise of the same, .excepting only the Collating to Benefices, granting Licences for Marriage, and Pro- bates of Wills, which We have reserved to You, Our Governor, and to the Commander in Chief of Our said Province for the Time being. 38. And We do further direct, that no Schoolmaster who shall arrive in Our said Province from this Kingdom, be henceforward permitted to keep School, without the Licence of the said Lord Bishop of London; and that no other Person now there, or that shall come from other Parts, shall be admitted to keep School in your Government, without your Licence first obtained. 39. And You are to take especial Care, that a Table of Marriages, established by the Canons of the Church of England, be hung up in all Places of publick Worship, according to the Rites of the Church of England. 41. And whereas it is stipulated by the aforesaid Treaty concluded at Paris the 10th Day of February, 1763, that the French Inhabitants, or Others, who have been Subjects of the Most Christian King in Canada, may retire with all Freedom and Safety wherever they shall think proper, and may sell their Estates, provided it be to Our Subjects, and bring away their Effects, as well as their Persons, without being restrained in their Emigration under any Pretence whatsoever, except that of Debts, or crim- inal Prosecution, and that the Time limited for the Emigration shall be fixed to the Space of Eighteen Months, to be computed from the Day of the Exchange of the Ratifications of the Treaty ; You are therefore in all things to conform yourself to this Stipulation, and to take care, that such of the French Inhabitants as intend to remove within the Time limited 1 be not obstructed or impeded, provided they do not sell their Estates to Others than His Majesty's Subjects, and that, so long as they remain under your Government, they do in all things conform thereto in like manner as Our other Subjects. 42. And it is Our further Will and Pleasure, that all and every the French Inhabitants in Our said Province, who are now possessed of Lands within the said Province, in Virtue of Grants or Concessions made before the signing of the Preliminary Articles of Peace on the third Day of No- vember, 1762; do within such limited Time as You in your Discretion shall think fit, register the several Grants or other Deeds or Titles, by which they hold or claim such Lands, in the Secretary's Office ; which said Grants, Deeds or other Titles, shall be entered at large in the said Office, so that the particular Quantity of Land, it's Site and Extent, the Conditions upon which it is granted, either as to Rents, Services, or Cultivation, may appear fully and at length. 43. And in case it shall appear, upon a strict and accurate Examina- tion of the said Grants and Title Deeds, to be taken in such manner as You shall think proper, that any of the Grantees, or Persons claiming Lands under such Grants and Title Deeds, are in possession of more Land than is contained within such Grants or other Concessions ; or that the Terms and Conditions, upon which the Lands were granted, have not been complied with, agreeable to what is stipulated in such Grants or Conces- sions ; It is Our Will and Pleasure, that you forthwith represent the same to Us, by Our Commissioners for Trade and Plantations, to the End that you may receive such Directions thereupon, as the Nature and Circum- stances of the Case shall appear to require. 61. And you are to inform yourself with the greatest Exactness of the Number, Nature and Disposition of the several Bodies or Tribes of Indians, of the manner of their Lives, and the Rules and Constitutions, by which they are governed or regulated. And You are upon no Account to molest or disturb them in the Possession of such Parts of the said Prov- *For a discussion of the numbers who emigrated, see Munro, The Seigniorial System in Canada. 34 Constitutional Documents of Canada. [1763-1774 Iince, as they at present occupy or possess ; but to use the best means You can for concilating their Affections, and uniting them to our Government, reporting to Us by Our Commissioners for Trade and Plantations, what- ever Information you can collect with respect to these People, and the whole of your Proceedings with them. 62. Whereas We have, by Our Proclamation dated the seventh day 1 of October in the Third year of Our Reign, strictly forbid, on pain of Our ' Displeasure, all Our Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands reserved to the several Nations of Indians, with whom We are connected, and who live under Our Protection, without Our especial Leave for that Purpose first obtained ; It is Our express Will and Pleasure, that you take the most effectual Care that Our Royal Directions herein be punctually, complied with, and that the Trade with such of the said Indians as depend upon your Government be carried on in the Manner, and under the Regulations prescribed in Our said Proclamation. 63. You are to use your best Endeavours in improving the Trade of those Parts, by settling such Orders and Regulations therein, with the Advice of Our said Council, as may be most acceptable to the Generality of the Inhabitants. And it is Our Express Will and Pleasure, that you do not, upon any Pretence whatever, upon pain of Our highest Displeasure, give your Assent to any Law or Laws for setting up any Manufactures and carrying on any Trades, which are hurtful and prejudicial to this Kingdom; and that You do use your utmost Endeavours to discourage, discountenance and restrain any Attempts which may be made to set up such Manufactures, or establish any such Trades. 64. Whereas by the 5th and 6th Articles of the Treaty of Peace and 1 Neutrality in America, concluded between England and France the 6th-16 Day of November, 1686, the Subjects and Inhabitants of each Kingdom are prohibited to trade and fish in all Places possessed, or which shall be possessed by the other in America; and if any Ships shall be found trad- ing contrary to the said Treaty, upon due Proof the said Ships shall be confiscated; but in case the Subjects of either King shall be forced by Stress of Weather, Enemies, or other Necessity into the Ports of the other in America, they shall be treated with Humanity and Kindness, and may provide themselves with Victuals, and other Things necessary for their Sustenance, and the Reparation of their ships, at reasonable Rates ; pro- vided they do not break bulk, nor carry any Goods out of their Ships, ex- posing them for Sale, nor receive any Merchandize on board, under Penalty of Confiscation of Ship and Goods; It is therefore Our Will and Pleasure, that You signify to Our Subjects under your Government the Purport and Intent of the abovesaid two Articles ; and that you take particular Care, that none of the French Subjects be allowed to trade from their said Settlements to the Province under your Government, or to fish upon the Coast thereof. 65. And it is Our Will and Pleasure, that You do not Dispose of any Forfeitures or Escheats to any Person, until the Sheriff, or other proper Officer, have made Enquiry, by a Jury upon their Oaths, into the true Value thereof, nor until you have transmitted to Our Commissioners of Our Treasury, and to Our Commissioners for Trade and Plantations, a par- ticular Account of such Forfeitures and Escheats, and the Value thereof. And you are to take Care, that the Produce of such Forfeitures and Es- cheats, in case We shall think proper to give You Directions to dispose of the same, be duly paid to Our Treasurer or Receiver General of Our said Province, and a full Account transmitted to Our Commissioners of Our Treasury, or Our High Treasurer for the Time being, and to Our Com- missioners for Trade and Plantations, with the Names of the Persons to whom disposed. !68. Whereas great Inconveniences have happened heretofore by Mer- chant Ships and other Vessels in the Plantations wearing the Colours borne by Our Ships of War, under Pretence of Commissions granted to them by the Governors of the said Plantations, and, by trading under those Colours, 1763-1774] Constitutional Documents of Canada. 35 not only amongst Our own Subjects, but also those of other Princes and States, and committing divers Irregularitys, they may very much dishonour Our Service ; For preventing thereof You are to oblige the Commanders of all such Ships, to which you shall grant Commissions, to wear no other Colours than such as are described in an Order of Council of the seventh of January, 1730, in relation to Colours to be worn by all Ships and Ves- sels, except Our Ships of War. 1 69. And whereas there have been great Irregularitys in the manner of granting Commissions in the Plantations to private Ships of War, You > are to govern yourself, whenever there shall be Occasion, according to the Commissions and Instructions granted in this Kingdom; But you are not to grant Commissions of Marque or Reprizal against any Prince or State, or their Subjects, in Amity with Us, to any Person whatsoever, without Our special Command. 70. Whereas We have been informed that, during time of War, Our Enemies have frequently got Intelligence of the State of Our Plantations by Letters from private Persons to their correspondents in Great Britain, taken on board Ships coming from the Plantations, which has been of dangerous Consequence; Our Will and Pleasure therefore is, that you signify to all Merchants, Planters and Others, that they be very cautious, in time of War, whenever that shall happen, in giving any Accounts by Letters of the public State and Condition of Our Province under your Government; And you are further to give Directions to all Masters of Ships, or other Persons to whom you may entrust your Letters, that they put such Letters into a Bag, with a sufficient weight to suit (?) the same immediately in Case of imminent danger from the Enemy ; And you are also to let the Merchants and Planters know, how greatly it is for their Interests that their Letters should not fall into the Hands of the Enemy, and therefore they should give like Orders to Masters of Ships in relation and therefore that they should give like Orders to Masters of Ships in rela- tion to their Letters ; And you are to further advise all Masters of Ships, that they do sink all Letters, in case of dangers, in the Manner before men- tioned. 71. And whereas, in Time of War, the Merchants and Planters in Our Plantations in America did correspond and trade with Our Enemies, and carry Intelligence to them, to the great Prejudice and Hazard of Our said Plantations ; You are therefore by all possible Methods to endeavour to hinder such Trade and Correspondence in Time of War. 72. And You are to report to Us, by Our Commissioners for Trade and Plantations, What is the Nature of the Soil and Climate of the Province under your Government, If it differs in these Circumstances from Our other Northern Colonies, in what that Difference consists? And what beneficial Articles of Commerce the different Parts of it are capable of producing? What Rivers there are, and of what Extent and Convenience to the Planters? What are the principal Harbours ; how situated, and of what Extent ; and what is the Depth of Water, and Nature of the Anchorage in each of them? What Quantity of Land is now under actual Improvement and Settle- ment? What are the chief Articles of Produce and Culture; the annual Amount of the Quantity of each; and upon what Terms and Conditions the Inhabitants hold their Lands, either of Cultivation, Rent, or Personal Service? What is the Quantity, Nature and Property of the Land uncultivated ; how much of it is capable of Culture; and what part thereof is private Property? What is the Number of Inhabitants, Whites and Blacks, distinguishing each? What Number of the Former is capable of bearing Arms, and what Number of the Latter is annually necessary to be supply 'd in proportion to the Land cultivated? What was the Nature, Form and Constitution of the Civil Govern- 36 Constitutional Documents of Canada. [1763-1774 ment; what Judicatures were there established, and under what Regula- tions did the French Inhabitants carry on their Commerce? 73. You are from time to time to send unto Us, by Our Commis- sioners for Trade and Plantations, as aforesaid, an Account of the In- crease and Decrease of the Inhabitants, Whites and Blacks, and also an Account of all Persons born, christened and buried. 74. Whereas, it is absolutely necessary, that We be exactly informed of the State of Defence of all Our Plantations in America, as well in rela- tion to the Stores of War that are in each Plantation, as to the Forts and Fortifications there ; and what more may be necessary to be built for the Defence and Security of the same; You are as soon as possible to prepare an Account thereof with relation to Our said Province in the most par- ticular manner; And You are therein to express the present State of the Arms, Ammunition and other Stores of War, belonging to the said Prov- ince, either in public Magazines, or in the Hands of private Persons ; to- gether with the State of all Places, either already fortified, or that you judge necessary to be fortified for the Security of Our said Province ; And you are to transmit the said Accounts to Our Commissioners for Trade and Plan- tations, as also a Duplicate thereof to Our Master General or principal Officers of Our Ordnance ; Which Accounts are to express the Particulars of Ordnance, Carriages, Balls, Powder, and other Sorts of Arms and Am- munition in Our public Stores, and so from time to time of what shall be sent you, or bought with the public Money, and to specify the Time of the Disposal, and the Occasion thereof: And You are half yearly to transmit a general Account of the State of the Fortifications and Warlike Stores, specif y'd in the manner above mentioned. 75. You are from time to time to give an Account, what strength your Neighbours have by Sea and Land, and of the Condition of their Plantations, and what Correspondence You keep with them. 76. And in case of any Distress of any other of Our Plantations, You shall, upon Application of the respective Governors thereof unto you, assist them with what Aid the Condition and Safety of Our Province under your Government can spare. 77. If anything shall happen, which may be of Advantage or Security to Our Province under your Government, which is not herein, or by your Commission provided for, We do hereby allow unto you, with the Advice and Consent of Our Council, to take Order for the present therein, giving unto Our Commissioners for Trade and Plantations speedy Notice thereof, in order to be laid before Us, that you may receive Our Ratification, if We shall approve the same provided always, that you do not, by Colour of any Power or Authority hereby given you, commence or declare War without Our Knowledge and particular Commands therein. 78. And whereas We have, by the second Article of these Our In- structions to you, directed and appointed that your chief Residence shall be at Quebec; you are nevertheless frequently to visit the other parts of your Government, in order to inspect the Management of all public Affairs, and thereby the better to take Care, that the Government be so adminis- tered, that no disorderly Practices may grow up contrary to Our Service and the Welfare of Our Subjects. 79. And whereas great Prejudice may happen to Our Service, and the Security of the Province, by your Absence from those Parts, You are not, upon any Pretence whatsoever, to come into Europe, without having first obtained Leave for so doing from Us under Our Sign Manual and Signet, or by Our Order in Our Privy Council ; Yet nevertheless in case of Sickness, You may go to South Carolina, or any other of Our Southern Plantations, and there stay for such Space as the Recovery of your Health may absolutely require. 80. And whereas We have thought fit by Our Commission to direct, that in case of your Death or Absence, and the Death or Absence of Our Lieutenant Governors of Montreal and Trois Rivieres, and in case there be at that time no Person within Our said Province, commissionated or appointed by Us to be Commander in Chief, that the Eldest Councillor, 1763-1774] Constitutional Documents of Canada. 37 who shall be at the time of your Death or Absence, or at the Death or Absence of Our Lieutenant Governors, as aforesaid, residing within Our said Province under your Government, shall take upon him the Adminis- tration of Government, and execute Our said Commission and Instruc- tions, and the several Powers and Authorities therein directed : It is nevertheless Our express Will and Pleasure, that in such case the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without Our particular Order for that Purpose ; And that he shall not remove or suspend any of the Members of Our Council, nor any Judges, Justices of the Peace, or other Officers Civil or Military, without the Advice and Consent of at least seven of the Members of Our said Council, nor even then without good and sufficient Reasons for the same, which the said President is to transmit, signed by himself and the rest of Our said Council, to Our Com- missioners for Trade and Plantations, by the first Opportunity in order to be laid before Us. 82. And You are upon all Occasions to send unto Our Commissioners for Trade and Plantations only, a particular Account of all your Proceed- ings, and of the Condition of Affairs within your Government, in order to be laid before Us ; provided nevertheless, whenever any Occurences shall happen within your Government of such a Nature and Importance as may require Our Immediate Directions by One of Our principal Secretaries of State, and also upon all Occasions and in all Affairs wherein you may re- ceive Our Orders by One of Our principal Secretaries of State, you shall in all such Cases transmit to Our Secretary of State only an Account of all such Occurences, and of your Proceedings relative to such Orders : ESTABLISHING CIVIL COURTS, 1764 1 [Vans. : Shortt and Doughty.] An ORDINANCE, for regulating and establishing the Courts of Judica- ture, Justices of the Peace, Quarter-Sessions, Bailiffs, and other Matters relative to the Distribution of Justice in this Province. Whereas it is highly expedient and necessary, for the well governing of His Majesty's good Subjects of the Province of Quebec, and for the speedy and impartial Distribution of Justice among the same, that proper Courts of Judicature, with proper Powers and Authorities, and under pro- per Regulations, should be established and appointed : His Excellency the Governor, by and with the Advice, Consent and Assistance of His Majesty's Council, and by Virtue of the Power and Authority to him given by His Majesty's Letters Patent, under the Great Seal of Great-Britain, hath thought fit to Ordain and Declare; and his said Excellency, by and with the Advice, Consent and Assistance afore- said, Doth hereby Ordain and Declare, That. a.. Superior Court of Judicature, or Court of King's Bench, be established in this Province., to sit and hold Terms in the Town of Quebec, twice in every Year, vis. : One to begin on the Twenty-first Day of Janu- ary, called ^Hillary Term, the other on the Twenty-first Day of June, called Trinity Term. In this Court His Majesty's Chief-Justice presides, with Power and Authority to hear and determine all criminal and civil Causes, agreeable to the Laws of England, and to the Ordinances of this Province ; and from this Court an Appeal lies to the Governor and Council, where the Matter in Contest is above the Value of Three Hundred Pounds Sterling; and from the Governor and Council an Appeal lies to the King and Council, 1 This Ordinance was passed under the terms of the Proclamation of 1763 (No. IV) and of the Instructions to Murray (No. V). It was amended in 1766 (see No. XI). 38 Constitutional Documents of Canada. [1763-1774 where the Matter in Contest is of the Value of Five Hundred Pounds Sterling or upwards, In all Tryals in this Court, all His Majesty's Subjects in this Colony to be admitted on Juries without Distinction. 1 And His Majesty's Chief-Justice, once in every Year, to hold a Court of Assize, and General Goal-Delivery, soon after Hillary Term, at the Towns of Montreal and Trois-Rivieres, for the more easy and convenient Distribution of Justice to His Majesty's Subjects in those distant Parts of the Province. And whereas an inferior Court of Judicature, or Court of Common- Pleas, is also thought necessary and convenient, // is further Ordained anr upwards. The Judges in this Court are to determine agreeable to Equity, having Regard nevertheless to the Laws of England, as far as the Circumstances and present Situation of Things will admit, until such Time as proper Ordinances for the Information of the People can be established by the Governor and Council, agreeable to the Laws of England. The French Laws and Customs to be allowed and admitted in aU Causes in this Court, between the Natives of this Province, where the Cause of Action arose before the first Day of October, One Thousand Seven Hundred and Sixty-Four. The first Process of this Court to be an Attachment against the Body^ An Execution to go against the Body, Lands or Goods of the De- fendant. Canadian Advocats, Procters, &c., may practise in this Court. And whereas it is thought highly necessary for the Ease, Convenience and Happiness of all His Majesty's loving Subjects, That Justices of the Peace should be appointed for the respective Districts of this Province, with Power of determining Property of small Value in a summary way, // is therefore further Ordained and Declared, by the Authority afore- said, and full Power is hereby Given and Granjted to any one of His Majesty's Justices of the Peace, within their respective Districts, to hear and finally determine in all Causes or Matters of Property, not exceeding the Sum of Five Pounds current Money of Quebec, and to any two Jus- tices of the Peace, within their respective Districts, to hear and finally determine in all Causes or Matters of Property, not exceeding the Sura of Ten Pounds said Currency, which Decisions being within, and not exceed- ing the aforesaid Limitation, shall not be liable to an Appeal ; and also full Power is, by the Authority aforesaid, Given and Granted, to any three of said Justices of. the Peace to be a Quorum, with Power of holding Quarter-Sessions in their respective Districts every three Months, an^ also to hear and determine all Causes and Matters of Property which shall be above the Sum of Ten Pounds, and not exceeding Thirty Pounds cur- rent Money of Quebec, with Liberty of Appeal to either Party to the 1 Murray explained this clause to the British Government. He desired "all sub- jects" to be eligible for jury-service, because (a) he did not consider it just to confine such service to the minority of English-speaking subjects in Canada, and (b) because he considered that if he did so many Canadians would emigrate. (See No. VII.) 1763-1774] Constitutional Documents of Canada. 39 Superior Court, or Court of King's-Bench : And it is hereby Ordered, That the aforesaid Justices of the Peace do issue their Warrants, directed to the Captains and other Officers of the Militia in this Province, to be by them executed, until the Provost-Marshal, legally authorised by His Ma- jesty, shall arrive, and other inferior Officers be appointed for that Pur- pose; all Officers, Civil and Military, or other His Majesty's loving Sub- jects, are hereby commanded and required to be aiding and assisting to the said Justices and Officers of Militia in the due Execution of their Duty. And it is further Ordered and Directed, by the Authority afore- said, That two of the said Justices of the Peace do sit weekly in Rotation, for the better Regulation of the Police, and other Matters and things in the Towns of Quebec and Montreal, and that the Names of the Justices who are to sit in each Week, be posted up on the Door of the Session- House by the Clerk of the Peace, two Days before their respective Days of Sitting, that all Persons may know to whom to apply for Redress. And whereas there are not at present a sufficient Number of Protes- tant Subjects, resident in the intended District of Trois-Rivieres, qualified to be Justices of the Peace, and to hold Quarter-Sessions, It is therefore further Ordained and Declared, by the Authority aforesaid, That from henceforth this Province shall be divided into two Districts, to be known and called by the Names of Quebec and Montreal, for the Time being, and until there may be a competent Number of Persons, settled at or near Trois-Rivieres, duly qualified to execute the Office of Justices of the Peace, and the Power of holding such Quarter-Sessions above-mentioned, or until . His Majesty's Pleasure be known in that Behalf; and that the said two Districts be divided and bounded by the River Godfroy on the South, and the River St. Maurice on the North Side. And whereas it is thought very expedient and necessary, for the speedy and due Execution of the Laws, and for the Ease and Safety of His Majesty's Subjects, That a sufficient Number of inferior Officers should be appointed in every Parish throughtout this Province ; It is there- fore Ordered, by the Authority aforesaid, That the Majority of the House- holders, in each and every Parish, do, on the Twenty-fourth Day of June, in every Year, elect and return to the Deputy-Secretary, within fourteen Days after such Election, six good and sufficient Men to serve as Bailiffs and Sub-Bailiffs in each Parish, out of which Number the King's Gov- ernor, or Commander in Chief for the Time being, with the Consent of the Council, is to nominate and appoint the Persons who are to act as Bailiffs and Sub-Bailiffs in each Parish; and such Nomination or Ap- pointment is to notified by the Deputy-Secretary to the respective Parishes and also published in the QUE"BEC-GAZETTE, some Time in the last Week in August in every Year; and the said Bailiffs and Sub-Bailiffs, so nominated as aforesaid, are to enter upon, and begin to execute their re- spective Offices on the Twenty-ninth Day of September in every Year. No Person to be elected a second Time to the same Office, except the whole Parish has served round, or that those who have not, are laid aside for some material Objection, which must be supported by Proof: But that there may never be an entire Set of new Officers at one Time, but that those who remain may be able to instruct those who enter into Office, one of those Persons who served as Sub-Bailiffs in each Parish, to be elected and nominated Bailiffs of said Parish the ensuing Year. If a Bailiff dies in his Office, the Governor, or Commander in Chief, will nominate one of those returned by said Parish to serve as Sub-Bailiffs for the Remainder of the Year; and when a Sub-Bailiff happens to die in Office, the Bailiffs' shall assemble the Parish upon the next publick Feast Day insuing his Decease, who shall proceed to elect and return, as afore- said, another Sub-Bailiff. The Election of Bailiffs and Sub-Bailiffs for this present Year, to be on the Twentieth Day of October; their Names to be returned immediately after the Election : Their Nomination will be notified and Published by the Deputy-Secretary as soon as may be, and they shall enter upon, and begin to execute their respective Offices, on the first Day of December, but all 40 Constitutional Documents of Canada. [1763-1774 Elections, &c., after this Turn, shall be upon the Days and Times above- mentioned and appointed for that Purpose. The Bailiffs are to oversee the King's High-ways and the publick Bridges, and see that the same are kept in good and sufficient Repair; to arrest and apprehend all Criminals, against whom they shall have Writs or Warrants, and to guard and conduct them through their respective Parishes, and convey them to such Prisons or Places as the Writ or War- rant shall direct : They .are also to examine all Bodies that are exposed, and on whom any Marks of Violence appear, in presence of five reputable Householders of the same Parish, whom he is hereby impowered to sum- mons to inspect the same, and report in Writing the State and CircufEF" stances thereof to the next Magistrate that a further Examination may Be made therein jf necessary; but this to be done only where the Coroner cannot by any Possibility attend, which in this extensive Province may frequently happen. Where any Disputes happen concerning the Breaking or Repairing of Fences, upon Complaint made to the Bailiff, he shall summons the Defend- ant,, who is to choose three indifferent Persons, and the Plaintiff three more, and these six, the Bailiff presiding, to decide the Dispute; frolrn their Sentence either Party may appeal to the Quarter-Sessions ; the Per- sjon found in Fault to pay One Shilling and no more, to the Person wKo~ shall draw up the Decision. These Bailiffs to be sworn into their Office by the next Justice of the Peace, as soon as may be after their Nomination as aforesaid, and the said Oath to be returned to the next Quarter-Sessions by such Justice. GIVEN by His Excellency the Honorable JAMES MURRAY, Esq.; Captain-General and Governor in Chief of the Province of Quebec, and Territories thereon depending in America, Vice Admiral of the same, Gov- ernor of the Toivn of Quebec, Colonel-Commandant of the Second Bat- talion of the Royal American Regiment, &c., &c. In Council, at Quebec, the \7th of September, Anno, Domini, 1764, and in the Fourth Year of the Reign of Our Sovereign Lord George the III, by the Grace of God of Great-Britain, France and Ireland, KING, Defender of the Faith, &c., &c. (Signed) JA. MURRAY. By Order of His Excellency in Council. VII GOVERNOR MURRAY TO THE LORDS OF TRADE 1 [Trans. : Shortt and Doughty.] , Quebec, 29th Oct'r, 1764. My Lords, ****** Little, very little, will content the New Subjects but nothing will sat- isfy the Licentious Fanaticks Trading here, but the expulsion of the Ca- nadians who are perhaps the bravest and the best race upon the Globe, a Race, who cou'd they be indulged with a few priveledges which the Laws of England deny to Roman Catholicks at home, wou'd soon get the better of every National Antipathy to their Conquerors and become the most faithful and most useful set of Men in this American Empire. I flatter myself there will be some Remedy found put even in the Laws for the Relief of this People, if so, I am positive the populer clamours in England will not prevent the Humane Heart of the King from following its own Dictates. I am confident too my Royal Master will not blame the unanimous opinion of his Council here for the Ordon- 'This letter and the document which follows (No. VIII) are selected to illustrate the difficulties which Murray had with the few hundred British traders settled in Canada. 1763-1774] Constitutional Documents of Canada. 41 nance establishing the Courts of Justice, as nothing less cou'd be done to prevent great numbers from emigrating directly, and certain I am, unless the Canadians are admitted on Jurys, and are allowed Judges and Lawyers who understand their Language his Majesty will lose the greatest part of this Valuable people. ****** I have the Honor to be with the greatest truth and regard, My Lords, Y'r Lordships' mo. Ob't, &c., (Signed) JA. MURRAY. VIII PETITION OF THE QUEBEC TRADERS [Trans.: Shortt and Doughty.] To the King's Most Excellent Majesty The Humble Petition of Your Majesty's most faithful and loyal Sub- jects, British Merchants and Traders in behalf of themselves and their fellow Subjects, Inhabitants of your Majesty's Province of Quebec May it please Your Majesty. Confident of Your Majesty's Paternal Care and Protection extended even to the meanest and most distant of your Subjects, We humbly crave your Majesty's Gracious Attention to our present Grievances and Dis- tresses. We presume to hope that your Majesty will be pleased to attribute our approaching your Royal Throne with disagreeable Complaints, to the Zeal and Attachment we have to your Majesty's Person and Government, and for the Liberties and Priviledges with which your Majesty has in- dulged all your Dutifull Subjects. Our Settlement in this Country with respect to the greatest part of us; takes it's date from the Surrender of the Colony to your Majestys Arms; Since that Time we have much contributed to the advantage of our" Mother Country, by causing an additional Increase to her Manufac- tures, and by a considerable Importation of them, diligently applied our- selves to Investigate and promote the Commercial Interests of this Prov- ince and render it flourishing. To Military Government, however oppressive and severely felt, we submitted without murmur, hoping Time with a Civil Establishment would remedy this Evil. With Peace we trusted to enjoy the Blessing of British Liberty, and happily reap the fruits of our Industry: but we should now despair of ever attaining those desirable ends, had we not your Majesty's experi- enced Goodness to apply to. The Ancient Inhabitants of the Country impoverished by the War, had little left wherewith to purchase their common necessaries but a Paper Currency of very doubtfull Value : The Indian War has suspended our Inland Trade for two years past, and^Bbth these Causes united have greatly injured our Commerce. For the redress of which we repose wholly on your Majesty, not doubting but the Wisdom of your Majesty's Councils will in due time put the Paper Currency into a course of certain and regular Payment, and the Vigour of Your Majesty's Arms terminate that War by a peace advantage- ous and durable. We no less rely on your Majesty for the Redress of those Grievances we suffer from the Measures of Government practised in this your Ma- j sty's Province, which are The Deprivation of the open Trade declared by your Majesty's most gracious Proclamation, by the Appropriation of some of the most com- modious Posts of the Resort of the Savages, under the Pretext of their being your Majesty's private Domain. 42 Constitutional Documents of Canada. [1763-1774 The Enacting Ordinances Vextatious, Oppressive, unconstitutional, in- jurious to civil Liberty and the grotestant Came. Suppressing dutifull and becorrilflfr Remonstrances of your Majesty's Subjects against these Ordinances in Silence and Contempt. The Governor instead of acting agreeable to that confidence reposed in him by your Majesty, in giving a favorable Reception to those of your Majesty's Subjects, who petition and apply to him on such important Oc- casions as require it, doth frequently treat them with a Rage and Rude- ness of Language and Demeanor, as dishonorable to the Trust he holds of your Majesty as painful to those who suffer from it. His further adding to this by most flagrant Partialities, by ferment- ing Parties and taking measures to keep your Majesty's old and new Sub- jects divided from one another, by encouraging the latter to apply for Judges of their own National Language. His endeavouring to quash the Indictment against Claude Panet (his Agent in this Attempt who laboured to inflame the Minds of the People against your Majesty's British Subjects) found by a very Worthy Grand Inquest, and causing their other judicious and honest Presentments to be answered from the Bench with a Contemptuous Ridicule. This discountenancing the Protestant Religion by almost a Total Ne- glect of Attendance upon the Service of the Church, leaving the Pro- testants to this Day destitute of a place of Worship appropriated to them- selves. The Burthen of these Grievances from Government is so much the more severely felt, because of the natural Poverty of the Country; the Products of it been extemely unequal to support its Consumption of Imports. Hence our Trade is miserably confined and distressed, so that we lye under the utmost Necessary of the Aids and Succours of Government, as .well from Our Mother Country as that of the Province, in the Place of having to contend against Oppression and Restraint. We could enumerate many more Sufferings which render the Lives of your Majesty's Subjects, especially your Mayesty's loyal British Sub- jects, in the Province so very unhappy that we must be under the Neces- sity of removing from it, unless timely prevented by a Removal of the present Governor. Your Peitioners therefore most humbly pray your Majesty to take the Premises into your gracious Consideration, and to appoint a Governor over us, acquainted with other maxims of Government than Military only; And for the better security of your Majesty's dutiful and loyal Subjects, in the Possession and Continuance of their Rights and Liberties, we beg leave also most humbly to petition that it may please your Majesty, to order a House of Representatives to be chosen in this as in other your Majesty's, frovmces-r there being a number more than Sufficient of Loyal and well affected Protestants, exclusive of military Officers, to form a competent and respectable House of Assembly; and your Majesty's new Subjects, if your \fajesty shall think fit, may be allowed to elect Protestants without burdening them with such Oaths as in their present mode of thinking they cannot conscientiously take. We doubt not but the good effects of these measures will soon appear, by the Province becoming flourishing and your Majesty's People in it happy. And for Your Majesty and your Royal House your Petitioners as in Duty bound shall ever pray, &c., &c. (Signed by 21 traders.) 1763-1774] Constitutional Documents of Canada. 43 IX ORDINANCE OF NOV. 6th, 1764 [Trans.: Shortt and Doughty.] An ORDINANCE, for quieting People in their Possessions, and fix- ing the Age of Alaturity. WHEREAS it appears right and necessary, to quiet the Minds of the People, in Regard to their Possessions, and to remove every Doubt re- specting the same, which may any ways tend to excite and encourage vex- tatious Law-Suits ; and until a Matter of so serious and complicated a Nature, fraught with many and great Difficulties, can be seriously con- sidered, and such Measures therein taken, as may appear the most likely to promote the Welfare and Prosperity of the Province in General, His Excllency, by and with the Advice and Consent of His Majesty's Council, Doth hereby Ordain and Declare, That until the tenth day of August next, the Tenures of Lands, in respect to such Grants as are prior to the Cession thereof, by the Definitive Treaty of Peace, signed at Paris the tenth day of February, One Thousand Seven Hundred and Sixty-three, and the Rights of Inheritance, as practised before that Period, in such Lands or Effects, of any Nature whatsoever, according' to the Custom of this Country, shall remain to all Intents and Purposes the same, unless they shall be altered by some declared and positive Law; for which Purpose [he present Ordinance shall serve as a Guide and Direction in all such Matters, to every Court of Record in this Province: Provided that noth- ing in this Ordinance contained shall extend, or be construed to extend to the Prejudice of the Rights -of the Crown, or to debar His Majesty, His Heirs or Successors from obtaining, by due Course of Law, in any of His Courts of Record in this Province, according to the Laws of Great- Britain, any Lands or Tenements, which at any Time hereafter may be found to be vested in His Majesty, his Heirs or Successors, and in the Possession of any Grantee or Grantees, his, her, or their Assigns, or such as claim under them, by Virtue of any such Grants as aforesaid, or under Pretence thereof, or which hereafter may be found to have become for- feited to His Majesty, by Breach of all or any of the Conditions in such Grants respectively mentioned and contained. And be it Ordained and Declared, by the Authority aforesaid, That from and after the first Day of January, One Thousand Seven Hundred and Sixty-five, every Person arrived at the Age of Twenty-one compleat Years, shall be deemed for the future of full Age and Maturity agreeable to the Laws of England, and shall be entituled to take full Possession from that Time of every Estate or Right to him belonging; in Conquence thereof to sue for the same, or bring to Account the Guardians, or other Persons who may have been entrusted therewith. GIVEN by His Excellency the Honorable JAMES MURRAY, Esq.; Captain-General and Governor in Chief of the Province of Quebec, and Territories thereon depending in America, Vice Admiral of the same, Governor of the Town of Quebec, Colonel-Commandant of the Second Battalion of the Royal American Regiment, &c., &c. In Council,^ at Que bee, the 6th Day of November, Anno, Domini, 1764, and in the Fifth Year of the Reign of our Sovereign Lord George the III, by the Grace of God, of Great-Britain, France and Ireland, KING, Defender of the Faith, &c., &c. JA. MURRAY. 44 Constitutional Documents of Canada. [1763-1774 X REPORT OF ATTORNEY AND SOLICITOR GENERAL REGARD- ING THE CIVIL GOVERNMENT OF QUEBEC, 1766 1 [Trans.: Shortt and Doughty.] To the Right honble the Lords of the Committee of Council for Plantation affairs. My Lords, In humble obedience to your Order of the 19th of No- vember last wherein it is recited, that His Majesty having been pleased, to refer to your Lordships several memorials and Petitions from His Ma- jesty's Subjects in Canada as well British as French, complaining of sev- eral of the Ordinances and proceedings of the Governor and Council of Quebec, and of the present Establishment of Courts of Judicature and other Civil Constitutions ; Your Lordships had on that Day, taken the said paper into your Consideration, together with a Report made there- upon by the Lords Commissioners for Trade and Plantations dated the 2d Sept. last and finding that the said Lords Commissioners had proposed another System of Judicature to be substituted in lieu of that which is now subsisting You thought it proper to Order, that the said Memorials, Petitions and Reports (which were thereunto annexd) should be referr'd to Us, to consider and report Our Opinion, and observations thereon, to- gether with such alterations to be made in what is proposed in the said Report of the Lords Commissioners for Trade and Plantations, and such other regulations and propositions as we should think fitt to suggest for the forming a proper plan of Civil Government for the said province of Quebeck; and to that end we were directed to take into our Considera- tion such parts of the annex't report of Governor Murray, upon the state of the said province as relate to the Civil Government thereof whilst the same was Annex'd to the Crown of France, And were also required to send for Lewis Cramahe, Esq., Secretary to Governor Murray, and Fowler Walker, Esq., Agent for the said Province of Quebec, who were Order'd to attend us from time to time, to give us such further Lights and in- formation as might be requisite for the purpose aforementioned. We have perused the several papers referr'd to us, together with the said two Reports and have also been attended by the Gentlemen named in your Order; and upon the whole matter, beg leave humbly to submit to your Lordships such Reflections as have occurred to us in the Course of that imperfect Consideration, which we have been able at this Busy Sea- son of the year to give to the Great subject of the Civil Govniment of Quebec and the propositions made by the Lords Commissioners of Trade and Plantations. My Lords, it is evident that Two very principal sources of the Dis- orders in the province have been. 1st The attempt to carry on the Ad- ministration of Justice without the aid of the natives, not merely in new forms, but totally in an unknown tongue, by which means the partys Understood Nothing of what was pleaded or determined having neither Ca- nadian Advocates or Sollicitors to Conduct their Causes, nor Canadian jurors to give Verdicts, even in Causes between Canadians only, Nor Judges Conversant in the French Language to declare the Law, and to pronounce Judgment; This must cause the Real Mischiefs of Ignorance, oppression and Corruption, or else what is almost equal in Government to the mischiefs themselves, the suspicion and Imputation of them. The second and great source of disorders was the Alarm taken at the Construction put upon His Majesty's Proclamation of October 7th, 1763. As if it were His Royal Intentions by his Judges and Officers in that Country, at once to abolish all the usages and Customs of Canada, with 'This document is the first of a series of documents, official and otherwise, which throw light on the state of law in Canada during the period 1763-1774. (For others, ee Nos. XII, XVI, XVII, XVIII, XIX.) 1763-1774] Constitutional Documents of Canada. 45 the rough hand of a Conqueror rather than with the true Spirit of a Law- ful Sovereign, and not so much to extend the protection and Benefit oi His English Laws to His new subjects, by securing their Lives, Liberty's and propertys with more certainty than in former times, as to impose new, unnecessary and arbitrary Rules, especially in the Titles to Land, and in the modes of Descent, Alienation and Settlement, which tend to confound and subvert rights, instead of supporting them. 1st To the first of these Evils the Order made by your Lordships on the 15th of November last founded on the Report of the Lords Commis- sioners of Trades and Plantations, requiring the Governor and Comman- der in Chief of the province (by an additional Instruction) to Publish an Ordinance 1 for admitting Canadian Jurors, in the several cases therein express'd, and for permitting Canadian, Advocates, Attorneys, and Proc- tors, under proper regulations, provides an adequate Remedy. 2d To the Second Evil the Lords Commissioners of Trade and plan- tations by their Report, have apply'd themselves with great Care, ability and Judgement to suggest Remedys, by pointing out the defects in the late Ordinance of Sept'r, 1764, and reforming the Constitution of Justice; We concur with their Lordships in the objections made to the Ordinance; And upon the several articles of the Plan laid down in that report, the following observations Occur to Us, both for the Comfirmation and Im- provement of them. 1st The first Article proposes a Court of Chancery consisting of the Gov'r and Council, who shall also be a Court of Appeals, from whom an appeal will lie to the King in Council ; By this Article the Lords of Trade very rightly mean to Invest the Gov'r and Council with Two different Jurisdictions ; The One as a Court of Equity, to give relief originally in that Capacity the other as a Court of Errors, to review in the second Instance the Judgments of the Court of Common Law, mentioned in the next Article. 2d The Second Article proposes a Superior Court of Ordinary Juris- diction, uniting all the proper powers in Criminal and Civil Cases and matters of Revenue, in this Court, it is recommended that a Chief Jus- tice should preside, Assisted by three puisne Judges ; These are required to be conversant in the French Language, and that one of them particu- larly should be knowing in the French usages. This proposition appears to us well conceiv'd, and we submit to your Lordships, whether it may not be adviseable, that they should be instructed to confer sometimes with the Canadian Lawyers most respected for Learn- ing, "Integrity and Conduct, who may prove of the greatest assistance to ' English Judges. Competent Salarys for the Encouragement of Able and Worthy men seem absolutely necessary in this Establishment, with a due distinction between the Chief Justice and his Brethen. The new Judge of Vice Admiralty for America has appointments of 800 per Annum. 3d The Third Article relates to Terms for the sitting of the Superior Court at Quebec, either according to the terms appointed at Westminster, or as may be more convenient. This matter must be accomodated to the Seasons, Climate and Convenience of the people in their Tillage and other General employments, therefore it seems proper to be left to the future Judgement of the Gov'r, Chief Justice and Principal servants of the Crown, entrusted with the Government of the province and ought to be fix'd by Ordinance. 4th The Fourth Article proposes four Sessions of Assize, Oyer and Terminer and Goal Delivery at Quebec, with like special Commissions, once or oftener in the year at Trois Rivieres and Montreal. We submit to your Lordships, that it may be unnecessary to lay down any particulai Rules for holding four Sessions in the manner mentioned at Quebec ; be- cause all Civil and Criminal Causes arising in that District may be tried at Bar in Term time, or (as the legal Expression is) in Bank by Order of the Judges, or under the General powers of the Supreme Court, As to the See No. XI. 46 Constitutional Documents of Canada. [1763-1774 Circuit Courts to be held once, or perhaps twice in the year (which seems better) at Trots Rivieres and Montreal. We think, that it may be proper to require that the Judges shall continue in each of those places, at the least, for a Certain Number of Days to give time and opportunity for the resort of partys and the convenient dispatch of Business, in like manner as was done by Henry the 8th in establishing the Courts of Great Sessions for Wales, and by the Parliament in his late Majesty's Reign, when the Circuit Courts were settled for Scotland. 5th The Fifth Article recommends the Distribution of the province into three Countys or Districts, of which, Quebec, Montreal and Trois Rivieres shall be the three Capital Towns, and that an Annual Sheriff shall be named for each. We are humbly of opinion that this Distribution of the province is more natural and convenient than the plan lately followed by the Gov- ernor and Council, and it will be more agreeable to the People, as it is conformable to their Antient Division of the Country. But considering the difficulty of procuring English and protestarit sheriffs, especially at Trois Rivieres (where at present only Two persons who are half pay Officers reside thus qualified) it may deserve consideration whether such Sheriff should not serve longer than one year, till such time as the gradual increase of Inhabitants may facilitate an Annual Rotation ; or whether the Annual Sheriff of Quebec may not also serve that office for Trois Rvvieres. This will oblige him, to appoint two Deputys or under Sheriffs, that is one for each District. And if this method be taken, the Sheriff may be made an Annual Officer, because Quebec can afford sufficient number of propei persons to supply the Rotation, and Montreal (it is agreed) Can do the like. 6th The Sixth Article proposes to give the Justices of the Peace in the three several Districts, at their General Quarter Sessions, Power to deter- mine finally all causes not exceeding the value of Ten Pounds (the Title to Lands not being in Question) with a Jury where it exceeds Five Pounds and without one where it falls under that sum, it gives also to Two Jus- tices in Petty Sessions, similar Authority in Similar cases, where the value of the matter in dispute is not more than Forty Shillings. The latter Authority appears to us well proposed ; but we submit, whether it may not be better to reserve the Jurisdiction in matters exceeding that value as far as Ten pounds to be determined in Quebec, By proceeding in nature of the Civil Bill in Ireland before the Judges of the Superior Court, or by proceeding in nature of the summary Bench ; Actions at Bar- badoes, and in like manner in the Circuit Courts at Trois Rivieres and Montreal twice in the year; The value of Ten pounds is .considerable in such a Colony and the reputation of the Justices of. Peace is, as yet scarce" enough established for such a Jurisdiction; Under this Article We beg leave to suggest that in the Commission of the Peace for each District it may be useful and popular and endear his Majesty's Government to his new Subjects; if one or Two Canadians should be appointed Justices, with the others who are British, particularly if Protestants can be found fit for that Office. 7th The Seventh and last point mentioned in the Report of the Lords of Trade, on which we shall observe, is that Article, wherein they pro- pose, that in all cases where Rights and Claims are founded on events prior to the Conquest of Canada the several Courts shall be Govern'd in their proceedings, by French usages and customs which have heretofore prevailed in respect to such property. This proposition is undoubtly right, as far as it goes, in respect of Cases which happen'd, antecedent to the Conquest; but we beg leave to take occasion from hence, to enlarge a little on this subject of the Rule of Judgment to be observed in the Courts of Quebec as it is of the greatest moment to the honor and Justice of the Crown, and to the peace and pros- perity of the Province. There is not a Maxim of the Common Law more certain than that a Conquer'd people retain their antient Customs till the Conqueror shall de- 1763-1774] Constitutional Documents of Canada. 47 clare New Laws. To change at once the Laws and manners of a settled Country must be attended with hardship and Violence ; and therefore wise Conquerers having provided for the Security of their Dominion, proceed gently and indulge their Conquer'd subjects in all local Customs which are in their own nature indifferent, and which have been received as rules of property or have obtained the force of Laws. It is the more material that this policy be persued in Canada; because it is a great and antient Colony long settled and much Cultivated, by French Subjects, who now inhabit it to the number of Eighty or one hundred thousand. Therefore we are humbly of opinion, that the Judges to be employed by his Majesty in this province will answer all the ends of their trust, both as to the King and . to the people, if their conduct in Judicature be modell'd by the following General Rules. 1st First in all personal actions grounded upon Debts, promises, Con- tracts and Agreements, whether of a Mercantile or other nature, and upon wrongs proper to be compensated in damages, to reflect that the substan- tial maxims of Law and Justice are every where the same. The modes of proceeding and Trial, and perhaps In some degree also the strict Rules of Evidence may vary, but the Judges in the province of Quebec cannot ma- terially err, either against the Laws of England, or the antient Customs of Canada; if in such Cases they look to those substantial maxims. 2d Secondly in all suits or Actions relating to Titles of Land, the Descent, Alienation, Settlements and incumbrances to Real property, We are humbly of opinion, that it would be oppressive to disturb without much and wise deliberation and the Aid of Laws hereafter to be enacted in the province the local Customs and Usages now prevailing there ; to introduce at one Stroke the English Law of Real Estates, with English modes of Conveyancing Rules of Descent and Construction of Deeds, must occasion infinite confusion and Injustice. British Subjects who purchase Lands there, may*and ought to conform to the fix'd local Rules of Property in Canada, as they do in particular parts of the Realm, or in other Dominions of the Crown. The English Judges sent from hence may soon instruct themselves by the assistance of Canadian Lawyers and intelligent Persons in such Rules, and may Judge by the Customs of Canada, as your Lord- ships do in Causes from Jersey by the Custom of Normandy; It seems reasonable also, that the rules for the Distribution of personal property in Cases of Intestacy and the modes of assigning and Conveying. It should be adhered too for the present. 3d Thirdly in all suits entertained before the Gov'r and Council, as a Court of Chancery or Equity, it is obvious, that the General Rules of Law and Justice must be the same as in the other Courts, according to the sub- ject matter of the suit with this difference only, that the relief is more compleat and specific, and adapted to supply the Defects, or allay the Rigor of those Rules. 4th Fourthly in Criminal Cases, whether they be Capital Offences or Misdemeanors, it is highly fitting (as far as may be) that the Laws of England be adapted in the Discription and Quality of the offence itself, in the manner of proceeding to charge the party to Bail or detain him. The Certainty, the Lenity of the English Administration of Justice and the Benefits of this Constitution will be more peculiarly and essentially felt by his Majesty's Canadian Subjects, in matters of Crown Law, which touch the Life, Liberty and Property of the Subject, than in the conform- ity of his Courts to the English Rules of Real and Personal Estates. This Certainty and this Lenity are the Benefits intended by his Ma- jesty's Royal proclamation, so far as concerns Judicature. These are Irrevocably Granted and ought to be secured to his Canadian subjects, ac- cording to his Royal Word. For this purpose it may not be improper upon the appointment of a new Gov'r with a new Commission revised and Con- sider'd by your Lordships, to direct that Governor to publish an explana- tory proclamation in the Province, to quiet the minds of the People as to the true meaning of the Royal proclamation of Oct'r, 1763, in Respect to 48 Constitutional Documents of Canada. [1763-1774 their local Customs and usages, more especially in Titles of Land and Cases of Real Property. Sth Fifthly in Rules of process and the Practice of the Courts. We beg leave to suggest, that it may be expedient to order the new Chief Jus- tice 1 , with the assistance of the other Judges, to be appointed and the At- torney General' of Quebec to consider, and prepare a suitable Plan adapted to the Jurisdiction of the different Courts, and the convenience of the Suitors. The Forms of proceeding out to be simple easy and as summary and expeditious as may consist with the advancement of right and the protection of Innocence, useful hints may be taken not only from the su- preme Courts of Westminster, but from the practice of the Courts in Wales, and from many of the Colonys. Some time will be necessary, be- fore such a plan can be framed and experience alone can perfect it. As soon as they shall have prepared it, the Governor and Council may enact it by an Ordinance and transmit the same in the accustomed manner, to be laid before his Majesty for his Royal approbation. All which is humbly submitted, &c. C. YORKE. WM. DE GREY. April 14th, 1766. XI ORDINANCE OF 1766 [Trans.: Shortt and Doughty.] An ORDINANCE, To alter and amend an Ordinance of His Excel lency the Governor and His Majesty's Council of this Province, passed the Seventeenth Day of September, 1764. Whereas by an Ordinance of His Excellency the Governor and His Majesty's Council of this Province, made and passed the Seventeenth Day of September, 1764, Intitled, An Ordinance for regulating and establishing the Courts of Judicature in this Province; His Majesty has most graciously been pleased to signify His Royal Will and Pleasure therein, by an addi- tional Instruction to His said Excellency the Governor, "That the Welfare "and Happiness of His loving Subjects in this Province, which will ever be "Objects of His Royal Care and Attention, do require that the said Ordin- "ance should be altered and amended in several Provisions of it, which "tend to restrain His Canadian Subjects in those Privileges they are in- "tituled to enjoy in common with his natural born Subjects:" And there- fore it is His further Royal Will and Pleasure, That it should be declared, And by His Honour the President of His Majesty's Council by & with the Advice, Consent & Assistance of His Majesty's Council of this Pro- vince, and by the Authority of the same, ft is hereby Ordained and De- clared, That all His Majesty's Subjects in the said Province of Quebec, without Distinction, are intituled to be impannelled, and to sit and act as Jurors, in all Causes civil and criminal cognizable by any of the Courts or Judicatures within the said Province. And for the more equal and impartial Distribution of Justice, Be it further Ordainad and Declared, by the Authority aforesaid, That in all pivil Causes or Actions between British born Subjects and British born Subjects, the Juries in such Causes or Actions are to be composed of British born Subjects only; And that in all Causes or Actions between Canadians and Canadians, the Juries are to be composed of Canadians only; And that in all Causes or Actions between British born Subjects and Canadians, the Juries are to be composed of an equal Number of each, if 1 i.e. William Hey. For his commission, see below, No. XIII. 2 i.e. Francis Maseres, who was appointed Attorney-General for Quebec in March, 1 766. 1763-1774] Constitutional Documents of Canada. 49 it be required by either 'of the Parties in any of the above mentioned Instances. And be it further Ordained and Declared, by the Authority aforesaid, That His Majesty's Canadian Subjects shall and are hereby permitted and allowed, to practise as Barristers, Advocates, Attornies and Proctors, in all or any of the Courts within the said Province, under such Regulations as shall be prescribed by the said Courts respectively for Persons in general under those Descriptions. And be it further Ordained and Declared, by the Authority aforesaid, That this Ordinance shall continue in Force until His Majesty's Pleasure be further known herein; and that so much of the said Ordinance of the said Seventeenth of September, 1764, as is not hereby altered and changed, shall and is hereby declared to be temporary only. GIVEN by the Honorable PAULUS AEMILIUS IRVING, Esq.; President of His Majesty's Council, Commander in Chief of this Province. and Lieutenant-Colonel of His Majesty's Army, at the Castle of Saint Lewis, in the City of Quebec, this 1st Day of July, in the Sixth Year of His Majesty's Reign, and in the Year of Our Lord One Thousand Seven Hundred and Sixty-six. P. AEMIS. IRVING. XII CONSIDERATIONS ON THE EXPEDIENCY OF PROCURING AN ACT OF PARLIAMENT FOR THE SETTLEMENT OF THE PROVINCE OF QUEBEC (BY BARON MASERES) ; LONDON, PRINTED IN THE YEAR MDCCLXVI [Trans. : Shortt and Doughty.] ****** Upon these reasons we may conclude 1 , that the exercise of the Catholic religion cannot, consistently with the laws" of Great Britain, be tolerated in the province of Quebec. Yet that it should be tolerated is surely very reasonable, and to be wished by all lovers of peace and justice' and liberty of conscience. By what authority then shall it be tolerated? This is the only question that remains. Shall the King alone undertake to tolerate it? Will it be adviseable that he should exercise, though for so good an end, a power of dispensing with the laws? Will it not give room to a thousand censures and odious reflections and comparisons? The authority of Parliament seems to be a much safer foundation to establish this measure upon, in a manner which neither the new English inhabitants of the province can^ Contest, nor the French Catholics suspect to be inadequate. The next great difficulty that occurs, is the settlement of the laws, by which the province of Quebec is for the future to be governed. The law upon this subject seems to be this; 1st, That the laws of the conquered continue in force __ till_ thejwill of the conqueror is declared" to the contrary; this follows from the necessity of the case, since otherwise the conquered provinces would be governed by no laws at all. 2dly, That after the declaration of the will of the conqueror, the conquered are to be governed by such laws as the conqueror shall think fit to impose, whether those are the old laws by which they have been governed before, or the laws by which the conquerors are governed themselves, or partly one, and partly the -other, or a new set of laws different from both. 3dly, That by the conqueror is to be understood the conquering nation, that is, in the present case, the British nation ; that consequently by the will of the conqueror is to be understood the will of the British nation, which in all matters relating *Maseres argued that certain unrepealed Statutes (e.g., The Elizabethan Act of Supremacy) complicated the religious situation in Canada. D 50 Constitutional Documents of Canada. [1763-1774 to legislation is Expressed by the King and Parliament, as in all matters relating to the executive power it is expressed by the King alone ; that therefore the Parliament only have a power to make laws for the province of Quebec, or to introduce any part of the laws of Great Britain there, or to delegate such a power of making or introducing laws to any other hands, notwithstanding it may happen that in fact such a power may inadvertently have been delegated to the governor and council of the province by a private instruction of the King alone. For if the contrary doctrine were true, that the King alone had the whole legislative power in the province of Quebec, it would follow, that not only all the conquered Canadians, but all the new English settlers there, would become slaves or subjects to an abso- lute and arbitrary government, the moment they set their foot there. ****** It is therefore to be wished, that an Act of Parliament might be ob- tained that at once declared what laws should take place in the province of Quebec, whether the laws of the conquered, or the laws of Great Britain, or some of the laws of the conquered, and some of the laws of Great Britain; Or whether any other laws should be introduced there, more peculiarly fitted to the circumstances of the province ; and if any, then what laws should he so introduced: Or, if this detail be thought too troublesome for the Parliament to enter upon, and their informations concerning the state of the province should be deemed to be as yet too imperfect to enable them to go through such a business with propriety, then it is to be wished that an act of Parliament may be obtained, by which such a legislative power of making laws and ordinances for the good government of the province might be delegated to the governor and council, as has been already exercised by them by virtue of an instruction from the King alone. By such a delegated parliamentary authority, they may enquire into the state of the Canadian laws and customs already in force there, and may revise them and reduce them into writing, and enact such of them as shall be found beneficial to the province, and fit to be continued ; and may intro- duce such parts of the laws of England, as they shall think to be for the advantage of the province ; and likewise as occasion offers, make such other new laws and regulations as shall be necessary for the good government of it: And in so doing they will have a due regard to the heads of advice suggested by Mr. Attorney Yorke, and to such other intimations and in- structions as the government shall think proper to communicate to them. And lest this legislative power should be abused or injudiciously executed by the governor and council, there might be a clause in the act of Parlia- ment directing them to transmit these several laws and ordinances to the King and Privy Council in England, to be by His Majesty in council allowed or disallowed, as his Majesty shall see cause. Only they should be in force till disallowed, and, if not disallowed within a certain time, as foi instance two years, they should then be in force for ever, unless repealed by act of Parliament. Laws and ordinances founded on such a parliamen- tary authority will easily firfd obedience from the people, which it is to be feared no others will; and the judges of the province will carry them into execution with ten times as much spirit and confidence as if they were doubtful of their legal validity. Suppose a Criminal in Canada to be guilty of an offence that is capital by the laws of England, but is not so by the laws of Canada that have hitherto been received, (a supposition that is no way difficult, as the crim- inal law of England abounds with capital offences), in what manner shall such a man be punished, unless there is a parliamentary declaration deter- mining the punishment that shall attend his crime? Could any lesser authority warrant the infliction of death for such a crime? Or would any judge chuse, though he should be sure of never being called to account for it, to pass such a sentence without the highest authority? But if the punishments of crimes be settled by authority of Parliament, whether im- mediately by the Parliament itself, or mediately by ordinances made by the governor and council of the province, by virtue of a legislative authority 1763-1774] Constitutional Documents of Canada. 51 communicated to them by act of parliament, the judges will be under no other difficulty what punishments to inflict upon the several criminals, that come before them, than they are in Great Britain itself. Some persons are of opinion, that the laws of Great Britain do at once take place in a conquered province, without any authoritative introduction of them, either by the King, or Parliament. But this opinion seems desti- tute of foundation, and is sufficiently refuted by the advice of the learned Mr. Yorke 1 , His Majesty's attorney-general, who has advised that the Canadians should be permitted to retain their own laws, relating to inherit- ances and the alienation of their real estates, which would be impossible without an act of Parliament for that purpose, if the whole System of the laws of England did ipso facto become the law of the province upon its being conquered, or ceded to the Crown. Indeed, the whole system of -the laws of England, taken in the gross, and without a selection, would be by no means a blessing to the Canadians. The game-laws, the poor-laws, the fictions and subtleties in various sorts of actions and conveyances, the niceties arising from the doctrine of uses, and the tedious and operose instruments founded on them, would really be a great misfortune to them ; and from their novelty and strangeness, would be thought to be a much greater. This doctrine therefore of the instant validity of the whole mass of the laws of England throughout the conquered Province cannot be true. And if the whole system of those laws is not valid there, then certainly no part of them can be so. For if they are, then who shall distinguish which of them are valid there and which are not? It may therefore be concluded, as at first, that none of the laws of England are valid in the conquered province ipso facto by virtue of the conquest ,or cession, without a positive introduction there by a sufficient authority: and this sufficient authority seems, for the reasons already men- tioned, to be only the Parliament of Great Britain. ****** As to the erecting an assembly in that province, it is a measure which probably will not for some years to come be found expedient. If an' assembly were now to be constituted, and the directions in the governor's commission, above alluded to, were to be observed, by which none of the members elected there are to be permitted to sit and vote in the assembly till they have subscribed the declaration against Popery, it would amount to an exclusion, of all the Canadians, that' is, of the bulk of the settled inhabitants of the province An assembly so constituted, might pretend to be a representative of the people there, but in truth it would be a repre- sentative of only the 600 new English settlers, and an instrument in their hands of domineering over the 90,000 French. Can such an assembly be thought just or expedient, or likely to produce harmony and friendship between the two nations? Surely it must have a contrary effect. On the other hand, it might be dangerous in these early days of their submission, to admit the Canadians themselves to so great a degree of power. Bigotted, as they are, to the Popish religion, unacquainted with, and hitherto prejudiced against the laws and customs of England, they would be very unlikely for some years to come, to promote such measures, as should gradually introduce the Protestant religion, the use of the English language, of the spirit of the British laws. It is more probable they would check all such endeavours, and quarrel with the governor and council, or with the English members of the assembly, for promoting them. /Add to this, that they are almost universally ignorant of the English language, so as to be absolutely incapable of debating in it, and consequently must, if such an assembly were erected, carry on the business of it in the French language, which would tend to perpetuate that language, and with it their prejudices and affections to their former masters, and postpone to a very distant time, perhaps for ever, that coalition of the two nations, or the melting down the French nation into the English in point of language, affections, religion, and laws, which is so much to be wished for, and which 1 See No. X. 52 Constitutional Documents of Canada. [1763-1774 otherwise a generation or two may perhaps effect, if proper measures are taken for that purpose. And further it may be observed, that the Cana- dians themselves do not desire an assembly, but are contented to be pro- tected in the enjoyment of their religion, liberties, and properties, under the administration of his Majesty's governor and council. If, to give a proper stability to this mode of government, it is carried on by authority of Parliament, and is properly superintended, as no doubt it will be, by the wisdom of his Majesty's Privy-Council, they will think themselves ex- tremely happy under it. The persons who most desire the immediate constitution of an assembly, ar_e some of the six hundred English advi -n- turers, who probably are ambitious of displaying their parts and eloqm-nr.' in the characters of leading Assemblymen. But if an assembly is to be constituted, even this too had better be done by act of Parliament than by the King's "single authority, as it is no less than severing from the general body of his Majesty's dominions a particular part of them, with respect to the purposes of making laws and imposing taxes. Could the King, if he thought proper, and a particular county of England was to desire it of him, sever that county from the rest of England, and no longer summon any of its members to Parliament, but instead thereof constitute a little Parliament in that County itself, that should make laws and lay taxes for the inhabitants of that single county? It is presumed that he could not: and the erecting an assembly ifi a con- quered province is an act of much the same nature. It is true indeed, that some of the American charters and assemblies owe their rise to this author- ity: but this was in the reign of the Stuarts, who were fond of extending their prerogative; and, on account of the inconsiderableness of the colonies at that time, these things were then unnoticed ; so that they do not prove the strict legality of the practice. Since that time these charters have been put in practice by the colonies, and acquiesced in by the mother-country, and in some measure recognized in Parliament; and this usage, acquiescence and recognition are in truth their best support. But if an assembly is to be constituted, in which the Catholics or Canadians are to be admitted, (as In justice and reason they ought to bej if any assembly at all is to be erected), the authority of Parliament seems to be still more necessary to give validity to such a measure. For the reasons that have been just now mentioned, it seems evident, that the measure of erecting an assembly in the province of Quebec is somewhat premature. How soon it will become expedient and proper, experience only can shew. But in the mean time, however short that time may be, it seems necessary to have recourse to the authority of Parliament for settling the government of the province, and removing the difficulties that obstruct the settlement in the three great articles of Religion, Law and Revenue. It is therefore the humble request of all the gentlemen who have lately been appointed to the principal offices in the government of Quebec, to his Majesty's Ministers of State, that they would use their influence and endeavours to procure such an act of Parliament as they shall upon the whole matter think to be necessary, to remove the difficulties that have been stated, and to enable the said gentlemen to administer the government of that province in their several departments, with security to themselves, and advantage to the province. 1763-1774] Constitutional Documents of Canada. 53 XIII COMMISSION OF THE CHIEF JUSTICE, 1766 [Trans. : Shortt and Doughty.] GEORGE THE THIRD, by the Grace of God, of Great Britain, France, and Ireland, KING, Defender of the Faith, and so forth; To our Trusty and well beloved WILLIAM HEY, Esquire, Greeting. Know, ye, that we having taking into our Royal Consideration, Your Loyalty, Integrity, and ability, Have, assigned, Constituted, and appointed, AND WE, do hereby assign, Constitute, and appoint, you, the said Commission WILLIAM HEY, our Chief Justice of, and in our Province of Quebec in j? h jf{ hc America; To enquire by the Oaths of honest and lawful men of the Province of province aforesaid, and by other lawful ways, Methods, and means, by Quebec, which you can or may the better Know, as well within liberties as without, of whatsoever Treasons, rm'sprisions of Treason, Insurrections, Rebellions, Murders, Felonies, Homicides, Killings, Burglaries, Rapes of Women, Un- lawful Congregations and Assemblies, words spoken, Misprisions, Confed- eracies, False Allegations, Trespasses, Riots, Routs, Escapes, Contempts, Falsities, Negligencies, Concealments, Maintenances, Oppressions, Cham- Power to porties, Deceits, and other Misdoings, Offences, and Injuries whatsoever, inquire of all as also of the accessaries thereto within the province aforesaid, as wellfg^" s s ' and within liberties as without, by whomsoever and howsoever had, done, per- other offences; petrated, or Committed, or which hereafter may happen to be done, per- petrated or Committed, and by whom, to whom, when, where, and how, and of all other articles and Circumstances, the premises, or any of them, and the same any wise Concerning : And the said treasons and other the premises to hear * hear and and determine, according to the law and Custom of that part of our King-^cording 5 to dom of Great Britain called England, and of our said province" of Quebec, the laws of hereafter to be made. THEREFORE WE Command that, at such certain England and days and places as you shall appoint, You make diligent inquiry of the O f e t e p^fvince premises; and all and singular the premises you hear and determine; and hereafter to the same do and fulfil in form aforesaid, doing therein that which to be made- Justice doth belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made : Saving to us our Amerciaments and other things thereby to us belonging; for we will Comtftand all and every our Sheriffs or provost Marshal's of our province aforesaid ; That at such certain days, and places as you our Chief Justice shall make known to him, them, or any of them, they cause to come then and there before you such and so many honest and lawful men of our said province as well within liberties as without, by whom the Truth of the matter may be the better Known and inquired of. AND FURTHER, KNOW YE That we have assigned, Constituted, p wer to and appointed, and by these presents, do assign, Constitute and appoint deliver goals you, the said WILLIAM HEY, our Goal of our Province aforesaid, of the < f n oners prisoners therein hereafter to be to deliver. AND, therefore we Command confined, you that, at such Certain days and places as you shall appoint, you come to our Court-House of our said Province the Goal in our said province of the prisoners hereafter therein to be to deliver, doing therein what to justice doth, or may, belong or appertain, according to the Law and Custom of that part of our Kingdom of Great Britain called England, and of our said province of Quebec hereafter to be made; saving to us our amercia- ments and other things thereby to us belonging : For we will Command all and every our Sheriffs and provost Marshals of our said Province of Quebec that, at such Certain days and places as you our Said Chief Justice shall make known to him, them, or any of them, they Cause to Come then and there before you our said Chief Justice all the prisoners of the same Goal and their attachments. AND FURTHER KNOW YE That we have assigned, Constituted, JJj|^ to h( 5 ar and appointed, and by these presents, do assign, Constitute and appoint a j} civll 54 Constitutional Documents of Canada. [1763-1774 and actions, whether real, personal, or mixt, either between the King and a subject, or between subject and subject. This Office to be held during the King's pleasure and the Chief Justice's resi- dence in the Province. YOU, the said WILLIAM HEY, Our Chief Justice of Our Supreme Courl of Judicature of our said province of Quebec, to inquire by the oaths of honest and lawful men of the province aforesaid, and by other lawful ways, methods and means, by which you can or may the better Know, as well within Liberties as without, of all civil pleas, actions, and suits, as well real and personal, as mixed, between us and any of our Subjects, or be- tween party and party, by whomsoever had, brought, sued and Commenced, and of all other articles and circumstances the premises, or any of them, any wise Concerning: and the said pleas, actions, and suits, and every of them, to hear and determine in manner and form aforesaid, doing therein that which to Justice doth belong and appertain according to the Laws and Customs of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations of our said province of Quebec, KgreafteTm that behalf to be Ordained and made. THEREFORE WE Command you that, at such Certain Days and places, as you shall appoint, you make diligent inquiry of the premises; and all and singular the premises to hear and determine in manner and form aforesaid, doing therein that which to justice doth belong or appertain according to the Law and Custom of that part of our Kingdom of Great Britain Called England, and the Laws, Ordinances, Rules, and Regulations, of our said province of Quebec hereafter in that behalf to be made: FOR WE will Command all and every Our Sheriffs or provost Marshal of our province aforesaid that at such Days and places, as you our Said Chief Justice shall make Known to him, them, or any of them, they Cause to Come then and there before you, such and so many honest and lawful men of our said province, as well within liberties as without, by Whom the truth of the matter may be the better Known. TO HAVE, HOLD, AND EXERCISE the said Office of our Chief Justice of and in our Said province of Quebec, for and during our Royal Will and pleasure and your Residence within our Said province ; Together with all and Singular the Rights, profits, free priviledges, and Emoluments to the said Office belonging, in as full and ample manner as any other Chief Justice of any of our provinces of America HATH heretofore held and Enjoyed, or of right ought to have, hold, or Enjoy, the same with full power and authority to hold the Supreme Courts of Judicature at such places and times as the same may or ought to be held within our said province. IN TESTIMONY whereof we have Caused these our Letters to be made patent and the Great seal of our said province of Quebec, to be here- unto Affixed, and to be entered on record in one of the Books of patents in our Registers Office of Inrollments of the said Province WITNESS Our Trusty and well beloved. The Honble. Guy Carleton, Esquire, Our Lieutenant Governor and Commander in Chief in and over our said pro- vince of Quebec and the Territories thereon depending in America, at our Castle of Saint Lewis in our said City of Quebec, The Twenty-fifth Day ot September in the Year of our Lord one Thousand seven hundred and sixty- six, and in the Sixth Year of our Reign. (Signed) GUY 1 Murray was recalled to England in April, 1766, but he continued to hold his office as Governor. Sir Guy Carleton was appointed his deputy on 7 April, 1766, with the title Lieutenant-Governor. He acted under the Instructions given to Murray (No. V) until he was appointed Governor in 1768, when he received a new set of Instruc- tions addressed to himself. For his work in Canada, see A. G. Bradley, Life of Lord Dorchester. 1763-1774] Constitutional Documents of Canada. 55 XIV REMONSTRANCE OF MEMBERS OF COUNCIL TO CARLETON 1 [Trans.: Shortt and Doughty.J Quebec, Octor. 13th, 1766. We, the underwritten Members of His Majesty's Council for the Province^ of Quebec, think it our indispensible duty to communicate to you our sense of the method lately adopted of calling together only a part of the Council: The bad consequences which may arise from Practice are manyfold ; But as you are pleased to signifye to Us by Coll. Irving that it was accident, & not Intention, it is needless for us to enumerate them. We would be wanting to ourselves, & Others in the same Circumstances if we did not remonstrate against an opinion lately insinuated, as if Mandamus's from Brittain suspended Appointments to the Council made by Govr. Murray. We apprehend his Commission & Instructions, by which he was authorized to constitute a Council & to make choice of the Persons, to be to all Intents, & purposes, a Mandamus to each of Us, provided His Majesty did not disapprove of Us, when reported to Him by the Gov- ernour : The many Difficulties which for Two Years we had to encounter in a new Establishment for a Province under very peculiar circumstances, perhaps entitle us to some Reguard: At any Rate tho' His Majesty may have an undoubted Right to encrease the number of his Council by granting Mandamus's to whom He pleases, it is to bcj presumed that by so doing there is no Intention to deprive Us either of our Right to Precedence, or to a Seat in Council : A late event on the Departure of Govr. Murray is a proof of the contrary. If by the Constitution or Custom of the Colonys the number of the Council is restricted, Mandamus's are in that Case to be regarded only as an Order for the Admission of the Persons named therein, Provided there is a Vacancy. If the Deference which we feel for every Manifestation of the Will of our Sovereign has prevented us from objecting to any person possessed of a Mandamus from being sworn into the Council, We apprehend that if the Council is at present, or hereafter may be restricted, The Councillor last admitted is to be considered as the Supernumerary. We have the honr. to be wth. the greatest respect Sr. yr. most obedt. hble. Servts. (Signed) P. AEMIS. IRVING WAR. MURRAY ADAM MABANE FRS. MOUNIER JAMES CUTHBERT. XV GOVERNOR CARLETON'S REPLY [Trans.: Shortt and Doughty.] October, 1766. Gentlemen As Lieutenant Colonel Irving has signified to you, that the Part of my Conduct, you think worthy your Reprehension, happened by Accident, let him explain to you his Reasons for so doing, He had no authority from me But that there may be no further t Doubt, I hereby make known to you, that I both have and will, on all Matters which do not require the Consent 1 These two documents (Nos. XIV and XV) illustrate not only the difficulties which met Carleton in his new work, but also something of his methods. 56 Constitutional Documents of Canada. [1763-1774 of Council, call together such Councellors as I shall think best qualified to give me Information : and further, that I will ask the Advice and Opinion of such Persons, tho' not of the Council as I shall find Men of good Sense, Truth, Candor, and Impartial Justice; persons who prefer their Duty to the King and the Tranquility of His Subjects to unjustifiable Attachments, Party Zeal, and to all selfish mercenary views : After I have obtained such Advice, I will still direct as to me shall seem best for His Majesty's Service, and the Good of His Province Committed to my Care I further make Known to you, and for the first time I give an Opinion, that for the present His Majesty's Council consists of twelve Members; those named and appointed immediately by the King have the Preference, next follow those appointed by Governor Murray till the Seats are all full : You will be pleased to recollect, Gentlemen, that Mr. Stewart, tho' sworn into Council after Mr. Mounier, has by Virtue of the King's imme- diate Appointment constantly taken Place and Precedence of you all. I must also remind you, that His Majesty's Service requires Tran- quility and Peace in His Province of Quebec, and that it is the indispensable Duty of every good Subject, and of every honest Man, to promote so desirable an End. (Signed) GUY CARLETON. My Lord, XVI CARLETON TO SHELBURNE 1 [Trans. : Shortt and Doughty.] Quebec, 24th Deer., 1767. This System of Laws 2 established Subordination, from the first to the lowest, which preserved the internal Harmony, they enjoyed untill our Arrival, and secured Obedience to the Supreme Seat of Government from a very distant Province. All this Arrangement, in one Hour, We over- turned, by the Ordinance of the Seventeenth of September One Thousand seven hundred and sixty four, and Laws, ill adapted to the Genius of the Canadians, to the Situation of the Province, and to the Interests of Great Britain, unknown, and unpublished were introduced in their Stead; A Sort of Severity, if I remember right, never before practiced by any Conqueror, even where the people, without Capitulation, submitted to His Will and Discretion. How far this Change of Laws, which Deprives such Numbers of their Honors, Privileges, Profits, and Property, is conformable to the Caputula- tion of Montreal, and Treaty of Paris; How far this Ordinance, which affects the Life, Limb, Liberty, and Property of the Subject, is within the Limits of the Power, His Majesty has been pleased to Grant to the Gov- ernor and Council ; How far this Ordinance, which in a Summary Way, Declares the Supreme Court of Judicature shall Judge all Cases Civil and Criminal by Laws unknown and unpublished to the People, is agreeable to the natural Rights of Mankind, I humbly submit; This much is certain, that it cannot long remain in Force without a General Confusion and Discontent . * * * * * * I am with much Respect and Esteem Your Lordship's Most Obedient Humble Servant GUY CARLETON. 1 William, Earl of Shelburne, was appointed Secretary of State for the Southern Department on July 13, 1766. 2 In the earlier part of this despatch, which is here omitted, Carleton described the various laws and customs which prevailed in Canada before the British Conquest. 1763-1774] Constitutional Documents of Canada. 57 XVII HILLSBOROUGH 1 TO CARLETON [Trans. : Shortt and Doughty.] Whitehall, March the 6th, 1768. Sir, ****** I had the Honor to serve His Majesty at the Board of Trade, in the year 1763, when His Ma'ty was pleased to publish His Royal Proclamation relative to the new Colonies, and, whatever the legal sense conveyed by the Words of that Proclamation may be, of which I pretend not to be a Judge, I certainly know what was the Intention of those who drew the Proclama- tion, having myself been concerned therein ; And I can take upon me to averr, that it never entered into Our Idea to overturn the Laws and Cus- toms of "Canada, with regard to Property, but that Justice should be administered agreably to them, according to the Modes of administering Justice in the Courts or Judicature in this Kingdom, as is the Case in the County of Kent, and many other parts of England, where Gavel-kind Borough-English and several other particular customs prevail, altho' Justice is administered therein according to the Laws of England. It was most unfortunate for the Colony of Quebec, that weak, ignorant, and interested Men, were sent over to carry the Proclamation into Execu- tion, who expounded it in the most absurd Manner, oppressive and cruel to the last Degree to the Subjects, and entirely contrary to the Royal Intention. The Distance of the Colony, the Difficulties arising from many Circumstances, unnecessary for me to enumerate, and the Differences of Opinion occasioned by various Causes, have prevented, as yet, the necessary Measures from being taken, to correct this original and fatal Mistake ; But I trust I shall soon be impowered to signify His Majesty's Pleasure, to you, to carry into Execution, such as will not only releive His Majesty's new Subjects from the uncertain, and consequently unhappy Situation, they are now in ; but give them entire Satisfaction for the future, by securing to them their Property upon a stable Foundation, and rendering the Colony more flourishing and happy than it has ever been. ****** I am &c HILLSBOROUGH. XVIII To the Earl of Hillsborough A DRAUGHT 2 of An Intended Report of the Honourable the Governor in Chief and the Council of the Province of Quebec to the King's most Excellent Majesty in his Privy Council; concerning The State of the Laws and the Administration of Justice in that Province. [Trans.: Shortt and Doughty.] His excellency has thought fit to mention only one method of settling the laws of the province, which he strongly recommends to his Majesty, as the only way of doing justice and giving satisfaction to the Canadians, which is, to continue the laws of England with respect to crim- inal matters, but to revive the whole body of the French laws that were in use there before the conquest with respect to civil matters 1 Wills, Earl of Hillsborough, was appointed first Secretary of State for the Colonies on the creation of that Department in 1768. a Francis Maseres drew up a draft report on the state of law and justice in Quebec, which was handed over to Carleton on 27 February, 1769. Carleton did not approve of it and another report was drawn up containing his own ideas, which are those of this document. The entire report has not been found, and we are indebted to a record by Maseres from which this extract has been taken. 58 Constitutional Documents of Canada. [1763-1774 XIX ATTORNEY GENERAL MASERES' CRITICISM OF GOVERNOR CARLETON'S REPORT ON THE LAWS OF THE PROVINCE, 1769 [Trans.: Shortt and Doughty.] ****** Your Majesty's attorney general of this province approves that part of the foregoing report which gives an account of the constitution of the government of this province during it's subjection to the French king, and believes the said account to be true in most particulars ; but he cannot assent to that part of the said report which suggests to your Majesty the expediency of reviving the whole of the French laws in civil matters, for the following reasons. In the first place, he thinks it will be a deviation from that plan of conduct which your Majesty has hitherto thought fit to pursue with respect to this province ever since the conquest of it by your Majesty's arms in 1760, which he conceives to have been, to endeavour to introduce the English laws and the English manner of government into it, and thereby to assimilate and associate this province to your Majesty's other colonies in North America, and not to keep it distinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter system had been that which your Majesty had adopted, your Majesty would have given orders to your general, Sir Jeffery Amherst, to whom this province was surrendered, to keep up, from the first moment of the conquest, all the courts of justice that were at that time in being in the colony, and even the several officers that composed them, upon the same footing on which they then subsisted. But as your Majesty's said general did immediately suppress all the former jurisdictions, and erect military councils in their stead, and in the articles of capitulation refused to promise the inhabitants of this province the continuance of the custom of Paris, and the other ancient laws and usages by which they had been governed, though requested in that behalf by the French general; and as your Majesty did afterwards, in the fourth article of the definitive treaty of peace in 1763, engage to indulge your new Canadian subjects even in the delicate and important article of the free exercise of their religion, only jo far as the laws of England will permit; and as your Majesty, by your royal proclamation of the 7th of November 1 , 1763, did encourage your British and other ancient subjects to go and settle in this and the other new-erected governments, and did promise them, as excitement thereunto, the immediate enjoyment of tb. benfit of the laws of England; and as your Mftjttly did afterwards, by your oofliiimsiuii'oi vice admiral of this province granted to General Murray, expressly introduce all the laws of the English courts of admiralty into this province; and by your commission to the same gentleman to be captain general and governour in chief of this province, did direct him to summon an assembly of the freeholders and planters in this province, and in conjunction with them to make laws and ordinances not repugnant to the laws of England, by which it seems to be pre-supposed that the laws of England were already introduced there ; and did in other parts of the said commission allude to divers of the laws of England as being already in force here, as particularly the laws relating to the oaths of abjuration and supremacy, and the declaration against transubstantiation From these several exertions of your Majesty's royal authority in favour of the laws of England, your Majesty's attorney general of this province humbly collects it to have been your Majesty's gracious in- tention to assimilate this province in religion, laws, and government to the other dominions belonging to your Majesty's crown in North America; he therefore conceives that the immediate revival of all the French laws re- lating to civil suits in this province, in the manner suggested in the fore- An error for "October." (See No. IV). 1763-1774] Constitutional Documents of Canada. 59 going report, will have at least the appearance of a deviation from the plan of conduct which your Majesty has hitherto adopted, and of a step towards a preference of the contrary system of keeping this province distinct from and unconnected with, all your Majesty's other colonies in North America: and this appearance he humbly conceives to be itself a considerable incon- venience, and very fit to be avoided, unless very strong reasons of justice or policy made such a measure necessary, which he does not conceive to be the case; for, on the contrary, he apprehends that the said total revival of the custom of Paris, and all the other French laws relating to civil suits, will be attended with the following additional inconveniencies. . In the first place, it will make it difficult for any of your Majesty's \ English subjects to administer justice in this province, as it will require much labour and study, and a more than ordinary acquaintance with the French language to attain a thorough knowledge of those laws. In the next place, it will keep up in the minds of your Majesty's new Canadian subjects the remembrance of their former government, which will probably be accompanied with a desire to return to it. When they hear the custom of Paris, and the parliament of Paris, and its wise deci- sions, continually appealed to as the measure of justice in this country, they will be inclined to think that government to be best, under which those wise laws could most ably be administered, which is that of the French king ; which, together with the continuance of their attachment to the Popish religion, will keep them ever in a state of disaffection to your Majesty's government, and in a disposition to shake it off on the first opportunity that shall happen to be afforded them by any attempt of the French king to recover this country by force of arms. And in the third place, it will discourage your Majesty's British sub- jects from coming to settle here when they see the country governed by a set of laws, of. which they have no knowledge, and against which they entertain (though perhaps unjustly) strong prejudices^. Your Majesty's attorney general of this province is further of opinion, that the body of your Majesty's new Canadian subjects are by no means either so distressed or so discontented by the introduction of the English laws into this province as they are represented in the foregoing report: at least he has seen no proofs of either such great distress or high discontent. What he has principally observed to be the subject of their complaints has been, either the expence or the dilatoriness of our law-proceedings ; which he therefore conceives stand in need of reformation: and he is of opinion, that to establish three courts of general jurisdiction in all matters criminal as well as civil in the province; to sit every week in the year (with a very few exceptions) in the towns of Quebec, Three Rivers, and Montreal, would be the most adequate remedy for these complaints. And as to the substance of the laws which are to be henceforwards admitted in this province, he conceives that the best way of all to settle these would be to make a code of them, that should contain all the laws of every kind, criminal as well as civil, that were intended to be of force here, to the exclusion of all other laws, both French and English, that were not inserted in the said code ; by which means all pretence would be taken away both from the French and British inhabitants of this province for complaining that they are governed by unknown laws. This he conceives to be a work of difficulty indeed, but by no means impracticable; and he apprehends that it would be a work of very great utility to the province, even though it should be very imperfectly executed, and many important articles should happen to be omitted in it; provided only that those things that were inserted in it were useful and reasonable, and set forthrhrarctear and proper manner : because he apprehends that the rules so inserted would be sufficient to govern at least all the common cases that would happen in the ordinary course of human affairs, such as descents in the right line, the right of representation in grand-children whose parents are dead, the dower of widows, the rents and services due to seigniors, the obligations and duties due from them to their tenants, the seignior's right to the com- mon mutation fines, his right of pre-emption of his tenant's land when the 60 Constitutional Documents of Canada. [1763-1774 tenant is disposed to sell it, the rules of evidence in courts of justice, the solemnities necessary to be observed to give validity to a deed or will, and the like obvious and important matters ; which would be sufficient to pre- vent the province from falling into confusion. And as to the nicer cases which might be omitted in such a code, they might afterwards be supplied by particular ordinances passed from time to time for that purpose. But if this measure of making such a code of laws should not be thought adviseable, your Majesty's attorney general of this province is humbly of opinion that it would be most expedient to let the English law continue to subsist in this province as the general law of the province, and to pass an ordinance to revive those of the former French laws which relate to the tenure, inheritance, dower, alienation, and incumbrance of landed property, and to the distribution of the effects of persons who die intestate. His reasons for thinking that the French laws upon these heads ought to be revived, are as follows. These heads of law are three in number: First .those relating to the tenures of land in this province, or the mutual obligations subsisting be- tween landlords and tenants with respect to them. Secondly, the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring landed property. And Thirdly, the laws relating to dower, inheritance and the distribution of the effects of persons who die irtf estate. And these several heads of law ought, as he humbly apprehends, to be revived in this province upon separate and distinct grounds. The laws of tenure, he conceives, ought to be considered as having been already granted by your Majesty to your new Canadian subjects by that article in the capitulation of 1760 1 , by which your Majesty's general granted them the enjoyment of all their estates, both noble and ignoble, and by the permission given them by your Majesty in the definitive treaty of peace in 1763", to continue in the possession of them; these laws being essentially necessary to such possesion and enjoyment. Such are the laws relating to the quit-rents due by the freeholders, who hold by rent-service, to the seigniors, the mutation-fines, the right of pre-emption, and the rights of escheat in certain cases; all which constitute the principal part of the property of the seigniors. But the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring, landed property, are not, as he apprehends, absolutely necessary to the enjoyment of the lands themselves, and there- fore ought not to be reckoned quite so sacred and unchangeable as the laws of tenure themselves. Yet he conceives them to be very nearly con- nected with those laws, and almost dependant upon them, so that they could not be changed in any considerable degree without diminishing the value of the lands themselves, by means of the practical difficulties that would occur in making use of the new modes of conveying land that would be established in their stead; and therefore he thinks that they ought to be continued. And further, he conceives it will be the more necessary to revive or continue the French laws upon the subject, in order to prevent the introduction of the English laws upon the same subject, namely, the doctrine of estates-tail, the statute de donis, the method of defeating that statute by common recoveries, the doctrine of fines, the statute of uses, and the doctrine of uses in general, and other nice doctrines relating to real estates, which are full of so much subtlety, intricacy, and variety, that, if they were to be introduced into this province, they would throw all the inhabitants of it, without excepting even the English lawyers, into an inextricable maze of confusion. For these reasons he apprehends that the English laws upon this subject ought never to be introduced here; and that the former laws of the province relating to it ought for the present to be revived. Lastly, as to the French laws concerning dower and the inheritance of lands and the distribution of the goods of intestates, with respect to 1 See No. II, Capitulations of Montreal, Article XXXVII. 1 See No. Ill, Treaty of Paris, Article IV. 1763-1774] Constitutional Documents of Canada. 61 such marriages as have been contracted, and such deaths as have happened, since the establishment of the civil government in this province, your Majesty's attorney general of this province is humbly of opinion, that those laws ought not to be considered as necessary appendages to the property of your Majesty's Canadian subjects in this province, and as having there- fore been granted to them by implication in the articles of capitulation and the definitive treaty of peace; because they do not affect the property, or the rights, of the Canadians then in being, to whom alone those grants were made, but only guide and determine the course and devolution of that property after their deaths among persons that were then unborn. This, therefore, he conceives to be a matter upon which the authority of a legis- lator may properly be exercised. And he further apprehends, that in some time hence a change of the laws relating to these subjects, and especially of those relating to dower and the inheritance of land, would be highly beneficial to this province, the present excessive subdivision of the lands, by repeated partitions of them amongst numerous families, being productive ' of considerable inconveniencies. But this, he apprehends, need not be done at present; and he conceives, that, if ever it should be thought adviseable to do it, it ought to be done by a full and express declaration beforehand of the time at which the proposed changes should take place, with a power given to such persons as disliked them to prevent their taking "place in their respective families by express provisions and agreements to the contrary, and should be accompanied with such temperaments and modifications as should make the adopting them be in a manner the voluntary act of the persons who were affected by them. But for the present he conceives it might be better to postpone those important changes, and to revive the ancient laws of this province concerning inheritance and dower, and the distribution of intestates estates, as well as those relating to the tenures of land and the power and manner of aliening and mortgaging and other- wise incumbring it. And this one ordinance, reviving the said ancient laws i elating to landed property and the distribution of the effects of persons who die intestate, would, as he conceives, be sufficient to preserve the tran- quillity of the province, and to give satisfaction to the bulk of the Cana- dians : at least, he apprehends it would be enough to begin with : and if, upon trial, it should be found necessary to revive some other of the French laws that formerly subsisted in this province, it might be done by another ordinance or two, that might be passed for that purpose, when the necessity of them should become apparent. By sucft an ordinance as is abovemen- tioned passed at present, and by the establishment of an easy and cheap method of administering justice in this province with sufficient expedition, he conceives that the far greater part of your Majesty's Canadian subjects would be contented. This therefore is what he humbly presumes to recom- mend to your Majesty as the best method which he can suggest for the settlement of the laws of this province, after the fullest consideration of this difficult and important subject. FRANCIS MASERES, Attorney General. Quebec, September llth, 1769. XX CARLETON TO HILLSBOROUGH [Trans.: Brymner, Canadian Archives Report (1890).] Quebec, 28th March, 1770. My Lord, Herewith inclosed, I transmit to your Lordship an Ordinance 1 , just published to correct the ill consequences of the clause therein repealed, and to put an end to the improper and oppressive use made thereof in some 1 This Ordinance (No. XXI) was an attempt to correct flagrant abuses in connexion with the recovery of debts. Carleton's letter sufficiently explains the crying evils. 62 Constitutional Documents of Canada. [1763-1774 Parts of this Province, a measure become so necessary to the Ease and Happiness of the People, and in the end to the King's Interests, that it would have been highly injudicious to have either delayed or suspended their Relief any longer. Your Lordship has been already informed that the Protestants, who have settled or rather sojourned here since the Conquest, are composed only of Traders, disbanded Soldiers, and officers, the latter one or two , excepted, below the Rank of Captain ; of those in the Commission of the Peace, such as prospered in Busines, could not give up their Time to sit as Judges, and when several from accidents and ill Judged undertakings, ' became Bankrupts, they naturally sought to repair their broken Fortunes at the expense of the People; Hence a variety of Schemes to increase the Business and their own Emoluments, Bailiffs, of their own creation, mostly ; French soldiers, either disbanded or Deserters, dispersed through the Parishes with blank Citations, catching at every little Feud or Dissension among the People, exciting them on to their Ruin, and in a manner forcing them to litigate, what, if left to themselves, might have been easily accom- \modated, putting them to extravagant Costs for the Recovery of very small isums, their Lands, at a time there is the greatest scarcity of money, and consequently but few Purchasers, exposed to hasty sales for Payment of Ihe most trifling Debts, and the money arising from these sales consumed in exhorbitant Fees, whils the Creditors reap little Benefit from the De- fstruction of their unfortunate Debtors; This, my Lord, is but a very faint /sketch of the Distresses of the Canadians, and the cause of much Reproach to our national Justice, and the King's Government. In my last Tour through the Country, the outcry of the People was general, the inclosed copy of a Letter I received, at my return to this Place, from a very sensible old Captain of the Militia, is exactly the Language of all I met in this Progress, and some recent instances could be brought of their Resistance to Officers of Justice, acting illegally indeed, a strong symptom among many others of their Patience being near ex- hausted. But among other Reasons, besides the foregoing, (which I am apt to believe, your Lordship will, however, think fully sufficient) that might be alleged for the Expediency of reducing the Justices of the Peace to nearly the same Power, they have in England, and of rviving Part of the ancient mode of administering Justice in this Province, there was one, which had due weight, and that was the confusion arising from so many different Jurisdictions, all acting upon different Ideas and Notions, to the great Perplexity of the honest Part of His Majesty's new Subjects, and of which the cunning and ill designing among them did not neglect to make their advantage; and if your Lordship only considers, that the new Residents here, since the Conquest came not only from all Parts of the King's exten- sive Dominions, but from all Parts of the World beside, there is no great Reason to wonder at that variety of sentiment in Regard to what is right or wrong, and that in general being men of no great Learning, or extra- ordinary abilities, they should conform their notions of Justice, to what they had formerly seen practiced, rather than to the present circumstances of things in this Province. By the present Plan, it is intended, that the King's Judges, paid by the Crown, may in future chiefly, if not altogether, take cognizance of matters of Property, which of course, will produce a greater uniformity in the Administration of Justice, and as these Gentlemen enjoy Salaries, it will be more incumbent upon them, in point of Interest, as well as for their Honor and Reputation, to give Satisfaction to the Publick, than it ever can be upon those, who for their daily subsistence depend meerly upon the Emolument of Office, which it will consequently ever be their Interest to enhance. 1763-1774] Constitutional Documents of Canada. XXI 63 AN ORDINANCE FOR THE MORE EFFECTUAL ADMINISTRA- TION OF JUSTICE, AND FOR REGULATING THE COURTS OF LAW IN THIS PROVINCE, 1770 [Trans. : Shortt and Doughty.] Whereas it has been found by Experience, that the several Provisions contained in an Ordinance, bearing Date the Seventeenth Day of September One thousand, seven hundred and Sixty ^four, and intituled, amongst other Things, "An Ordinance for regulating" and establishing the Courts of "Judicature", by virtue of which certain Powers and Authorities are given to the Justices of the Peace for this Province, as well separately as colle tively, to hear and determine in matters of private Property between Part and Party, instead of answering the good purposes for which they were ordained, have become an intolerable Burthen to the Subject, and proved the means of great Disquiet, Vexation, and Oppression. It is therefore Ordained and declared, by His Excellency the Captain General, and Governor in Chief of this Province, by and with the Advice and Consent of the Council of the same, That from and after the day of the Date of the Publication of this Ordinance, all Jurisdiction, Power and Authority in Matters of Private Property, belonging to or exercised by any Justice or Justices of the Peace for this Province, or any District, Part or Member of the same, except Such as have already procured, or hereafter may procure a Special Commission for that Purpose, under the Hand and Seal of the Governor, or Commander in Chief for the Time being, shall be clearly annulled, taken away, and determined; and that from and after the day of the Date of the Publication, aforesaid no Justice or Justices of the Peace, except as before excepted, shall have any Power or Authority to hear, examine or determine any Matter of Private Property between Party and Party, or to make, pronounce, or deliver any Judgment, Sentence, Order, and Decree, or to do any Judicial Act whatsoever touching the same. And it is further Ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, the following Clauses or Parts of an Ordinance, bearing Date the Seventeenth day of September One thousand, seven hundred and sixty-four, and in- tituled, amongst other Things, "An Ordinance for regulating and establish- ing the Courts of Judicature" shall be repealed, and the same are hereby repealed and absolutely revoked and made void ; that is to say, "And "Whereas it is thought highly necessary for the Ease, Convenience, and "Happiness of all His Majesty's loving Subjects, that Justices of the Peace "should be appointed for the respective Districts of this Province, with "Power of determining Property of small Value in a summary way; it is "therefore further ordained and declared by the Authority aforesaid, and "full Power is hereby given and granted to any one of His Majesty's "Justices of the Peace within their respective Districts, to hear and finally "determine in all Causes or Matters of Property, not exceeding the Sum "of Five Pounds Current Money of Quebec ; and to any Two Justices of "the Peace within their respective Districts, to hear and finally determine, "in all Causes or Matters of Property not exceeding the Sum of Ten "Pounds said Currency; which Decisions being within, and not exceeding "the aforesaid Limitation, shall not be liable to an Appeal : And also full "Power is by the Authority aforesaid given and granted to any Three of "the said Justices of the Peace to be a Quorum, with Power of holding "Quarter Sessions in their respective Districts every Three Months, and "also to hear and determine all Causes and Matter of Property which shall "be above the sum of Ten Pounds, and not exceeding Thirty Pounds, "Current Money of Quebec, with Liberty of Appeal to either Party to the "Superior Court ,pr Court of King's Bench ;" and all and every other Ordinance or Ordinances, and all and every Article, Clause or Sentence, in them and every of them, by which any Jurisdiction, Power, or Authority, ' v>. -A* ances, save and Matters of pri\ i \Jr . Justice or Justic ^ required to do a 64 Constitutional Documents of Canada. [1763-1774 to hear and determine in Matters of Private Property between Party and Party, is given, limited and Appointed to any Justice or Justices of the Peace, for so much as concerneth the same, shall also be repealed, and the same are hereby repealed, and absolutely revoked and made void. And it is further ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, if any Justice or Justices of the Peace, or any other Person whatsoever, shall offend or do anything contrary to the Purport, true Intent, and Mean- ing of this Ordinance, he or they so offending, besides being liable to answer the same in a Criminal way, Shall also forfeit and lose, unto the Party grieved by any Thing so done, his, her, or their treble Damages, which he, She, or they shall sustain and be put unto by means or Occasion of any Thing so done as aforesaid; the same to be recovered in any of the Courts of Record in this Province, by Action of Debt, or in any other way, and Manner, according to the known and Established Practice of the Court in which such Action shall be brought. Provided always, That nothing contained in this Ordinance shall ex- tend, or be construed to extend, to take away, determine, or abridge any of the Powers given and granted to any Justice or Justices of the Peace for this Province, by Virtue of His Majesty's Commission of the Peace to A iM ,* them directed, or to restrain or hinder them in the exercise of any other Powers to them limited and appointed by any other Ordinance or Ordin- except such as relate to the Administration of Justice in private Property, between Party and Party only: but such ustices of the Peace is and are hereby further authorized and /' required to do and execute all and every matter or Thing to him or them Vl enjoined by Virtue of the said Commission of the Peace, and also to hear and determine all Penalties and Forfeitures arising from the Breach of any Ordinance or Ordinances, and to proceed therein in the same Manner or they would have done if this Ordinance had not been made, .nd provided also, That nothing herein contained shall extend, or be construed to extend to reverse, alter, or suspend any Judgment or Judg- ments already pronounced or given by any Justice or Justices of the Peace, upon which no execution has yet been Awarded ; or to supersede, vacate, alter, or suspend any Writ or Writs of Execution already awarded, and not yet returned ; but the said Justice or Justices of the Peace is and are hereby further authorized and required to award Execution upon such Judgments already pronounced and given, and the Provost Marshal is hereby authorized and required to enforce the same, and also to proceed upon such Writs of execution as are already awarded and not yet returned, and to levy the Debt and Costs and make such Return to the Justice or Justices awarding the same, as he would have done before the Publication of this Ordinance. And whereas the providing an Easy, plain, and summary Method of proceeding for the Recovery of small Debts, with a due Regard at the same Time to a certain Degree of Solemnity and Deliberation, which ought ever to accompany the Administration of Public Justice, very much con- tributes to promote Industry, and to support and Encourage useful Credit : It is therefore ordained and declared by the Authority aforesaid, That from and after the Day of the Date of the Publication aforesaid, all Man- ner of Disputes and Differences between Party and Party for any Sum not exceeding Twelve Pounds Currency of this Province, except as is here- inafter excepted, shall be heard, tried, and adjudged before the Judges of the Courts of Common Pleas for the Time being only, who are hereby authorized and required to take Cognizance thereof, and the same to hear adjudge and finally determine as to them shall seem just in Law and Equity, any Ordinance or Ordinances, or any Clause, Matter or Thing in them or any of them contained, to the contrary hereof in any wise not- withstanding. And whereas some Inconveniences have arisen from the present Prac- tice of adjourning the Court of Common Pleas from Quebec to Montreal, and from the want of a fixed, settled, and Established Court for the hear- 1763-1774] Constitutional Documents of Canada. 65 ing and determining all matters arising within the District of Montreal, before Judges specially appointed for that District, and constantly residing within the same; It is further Ordained and Declared, by the Authority aforesaid, That from and after the Day of the Date of the Publication of this Ordinance, the Court of Common Pleas, heretofore held by Adjournment at different Days and Times in the Town of Montreal, and considered and taken to be a Part or Member of the Court of Common Pleas established at Quebec, shall be, and it is hereby constituted a Court of Record, with Original Jurisdiction of its own, independent of, and no wise connected with the Court of Common Pleas established at Quebec, which Court of Common Pleas for the District of Montreal shall, for the future, be held before Judges constantly residing within the said Town of Montreal, who shall have the same Power and Authority, and the same is hereby given and granted to them to hear and determine within the District of Montreal and to award Execution, and to do and execute all and every Matter or Thing touching the Administration of Justice, in as full and ample a manner as is now or has at any Time been used, practised, or done by the Court of Common Pleas established at Quebec, in and for the District of Quebec: And that from and after the Day of the Date of the Publication aforesaid the said Court of Common Pleas in the Town of Quebec, and the said Court of Common Pleas in the Town of Montreal, shall be taken and adjudged to have each their separate Jurisdictions, independent of and unconnected with each other, that is to say, the said Court of Common Pleas at Quebec, in and over all matters and Things arising within the District of Quebec, and the Court of Common Pleas at Montreal in and over all matters and Things arising within the District of Montreal. Provided always, and it is hereby further Ordained and Declared by the Authority aforesaid, that from and after the Day of the Date of the Publication aforesaid, where any Person or Persons, against whom Judg- ment shall be obtained in either of the said Courts of Common Pleas, shall not have any Lands, Goods, or Effects, wherewith to satisfy the said Judg- ment within the Jurisdiction of that Court wherein such Judgment shall have been obtained, but such Person or Persons shall have Lands, Goods, or Effects, within the Jurisdiction of the other Court of Common Pleas, that then and in that Case it shall and may be lawful for the Judge or Judges of the Court of the District in which such Judgment shall have been obtained to award Execution to the Provost Marshal of the District in which such Lands, Goods, or Effects shall be found, who shall, before he proceeds to do anything therein, carry the said Writ of Execution to one of the Judges of the Court of the District in which such Lands, Goods, or Effects shall be found, who is hereby authorized and required to endorse the same; which Writ of Execution, being so indorsed as aforesaid, the said Provost Marshal of the District in which such Lands, Goods, or Effects shall be found, shall proceed to levy the Debt and Costs, and make Return thereof, under his Hand and Seal to the Judge or Judges of the Court from whence such Writ of Execution was originally awarded ; and such Writ of Execution together with the Return thereof, under the Hand and Seal of the Provost Marshal subscribing the same, shall be by him conveyed, so soon after the making and signing thereof, as conveniently may be, to the Provost Marshal of the District from whence such Writ was originally awarded, who is hereby authorized and required to deliver the same into the Court of Common Pleas from whence such Writ was originally awarded, on the First Court Day next after the coming of the said Writ and Return into his Hands ; and the Judge or Judges of the said Court of Common Pleas, by whom such Writ of Execution was originally awarded, are hereby authorized and required to receive the same ; and the same shall be as valid and effectual, to all Intents and Purposes, as if the Provost Marshal making and subscribing the same had himself been present, and delivered the same into the Court with his own Hands. Provided, nevertheless, That the Provost Marshall executing the said Writ, and making Return thereof as aforesaid, only shall be answerable E 66 Constitutional Documents of Canada. [1763-1774 as well for the Truth of the said Return, as for any Misbehaviour, Omis- sion, or Neglect in the manner of executing the said Writ, or making Return thereof before the Judge or Judges of the Court from whence such Writ of execution was originally awarded, and not before the Judge or Judges of the Court of the District to which he belongs: And in case any Person or persons against whom such Judgment as aforesaid shall be obtained, not having any Lands, Goods, or Effects within the Province, wherewith to satisfy the said Judgment, shall usually reside without the Jurisdiction of the Court in which such Judgment shall be obtained, or being, at the Time of obtaining the said Judgment, resident within the same, shall alter his or their place of Residence, and withdraw his or their Person, or Persons from the Jurisdiction of the Court in which such Judg- ment shall have been obtained, it shall and may be lawful for the Judge or Judges of the said Court in which such Judgment shall have been ob- tained, in all cases where such Writ may legally issue, to award a Writ or Writs of Capias ad Satisfaciendum to the Provost Marshal of the District in which such Person or Persons shall reside or be found, which Writ or Writs, being so indorsed as aforesaid, the said Provost Marshal of the District in which such person or persons shall reside or be found, shall proceed to execute the same, and to arrest the Body or Bodies of such Person or Persons, and him or them to convey to the Common Gaol of the District in which such Person or Persons Shall be arrested, there to remain till the Debt and Costs are paid, or he or they be otherwise delivered by due Course of Law. And in order to avoid the Delays and Inconveniences occasioned by the present practice of holding the said Courts of Common Pleas at certain fixed Times and Periods, according to the Directions of the aforesaid Ordinance of September One thousand, seven hundred and sixty-four, and to the Intent that the Judges of the said Courts may be enabled to give more speedy and effectual Relief in all Cases, as well where the matter or Thing in Demand shall exceed the Sum of Twelve Pounds, and where it falls short of or is equal to it; it is further Ordained and Declared by the Authority aforesaid That from and after the Day of the Date of the Publication of this Ordinance, the said Courts of Common Pleas, as well at Quebec, as at Montreal, shall be .constantly open to the Suitor, and they are hereby required to be kept open at all times throughout the Yeaj, except on Sundays, and at Seed Time, a Month at Harvest, and a Foft- njght at Christmas and Easter, and except during such Vacation as ShaH be from Time to Time appointed by the Judges for making their respective Circuits throughout the Province, Twice in every Year : and the Judges of the said Courts are hereby authorized and required to issue their Process, and to do and execute all and every other Matter or Thing touching the Administration of Justice, without Regard to Terms or any stated Periods of Time, as Limited and Appointed by the Ordinance of September, one thousand seven hundred and sixty-four, or any other Ordinance, custom or usage whatsoever, aft and every of which Ordinance, or Ordinances, so far as they relate to the Sitting of the said Courts, or prescribe any Limita- tions of Time for that Purpose, are hereby annulled, revoked, and made Void, in as full and ample a manner as if they were herein particularly enumerated and set forth. Provided always, and it is further Ordained and Declared by the Authority aforesaid, That the Judges of the said Courts of Common Pleas, as well in Quebec as in Montreal, shall appoint One Day in every week (except Sunday, or in such Vacation as aforesaid) at their Discretion for the hearing and determining all matters wherein the Cause of Action shall exceed the Sum of Twelve Pounds, which Day shall be declared at the rising of the Court on the Court day next preceding ; and no Adjournment of the Court shall be made for any longer time than One Week, upon any Pretence or Ground whatsoever. Provided also, That Friday in every week, except it be in such Vacation as aforesaid, shall be always a Court Day, as well in the Town of Quebec as Montreal, for the hearing and determining all Matters wherein the 1763-1774] Constitutional Documents of Canada. 67 Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid ; on which Day one of the Judges of the said Courts of Common Pleas shall attend, as well at Quebec as at Montreal, for the Dispatch of Business, who is hereby authorized and required to proceed to hear and determine all matters where the Cause of Action shall not exceed the Sum of Twelve Pounds, in the Absence of the other Judge such Judge being prevented from attending by Sickness, or any other Lawful and reasonable Cause ot Excuse ; and every Judgment, sentence, Order or Decree, given, made or pronounced, and every Writ of Execution awarded by such Judge, in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, shall be in all Respects as binding and valid as if both the Judges of the said Court had been present and concurred in giving, making or pronouncing such Judgment, or in awarding such Writ of Execution. And, to the Intent that this Part of the Jurisdiction of the said Courts of Common Pleas, which attaches upon matters where the Value of the Thing in Demand does not exceed the Sum of Twelve Pounds, and the manner and Form of proceeding therein may be clearly comprehended, so as to enable the Party, either by himself or his Agent, to Prosecute his own means of Redress with Dispatch, certainty, and Moderation in Point of Expence; It is further Ordained and Declared by the Authority afore- That from and after the Day of the Date of the Publication aforesaid, in all Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds Currency, no Process whatsoever shall issue against any Defendant or Defendants, until the Plaintiff or Plaintiffs, or his, her or their Agent or Agents shall have first produced and left with, or being unable to write or read, shall have first procured, from the Clerk of the Court in which such Action is intended to be brought, who is hereby ordered and required to make out the same, a Declaration either in English or French Language, according to the following Form. Quebec ) Day of 177 ) . A.B. Plaintiff Montreal ) C.D. Defendant The Plaintiff demands of the Defendant the Sum of due to the Plaintiff from the Defendant, for which Said Sum, though Often demanded, still remains due; therefore the Plaintiff demands Judgment. Which Declaration, being so produced to and left with, or so as aforesaid made out by the Clerk of the Court in which such Action is intended to be brought, shall be filed by the Said Clerk with the other Records of the Court, and the said Clerk shall immediately make out an attested Copy thereof, and upon the back of such Copy Indorse a Summons, to which he shall procure the name of One of the Judges of the said Court to be set. commanding the Defendant either to pay the Debt and Costs to the Plain- tiff, or else to appear upon some subsequent Court Day, according to the Discretion of the Judge who signs the same, Regard being had to the Distance of the Defendant's Place of Residence, and the means of Com- munication therewith, which Summons shall be in the following Form. To C. D. the Defendant in this Action. You are hereby commanded and required to pay to the Plaintiff the within named Sum of together with Costs, or else to be and appear, either in Person, or by your Agent, before me at the Court House of the Town of Quebec/Montreal, together with your Witnesses, if any you have, on Day of on which Day the Mat- ter of Complaint against you, as contained in the within Declaration, will be heard and finally determined, otherwise Judgment will be given against you, by Default in this Action. E. F., Judge of the Court of Common Pleas. And this Attested Copy of the Declaration, together with the Writ of Summons, indorsed and signed as aforesaid (for all which the Clerk of 68 Constitutional Documents of Canada. [1763-1774 i the said Court shall receive from the Plaintiff the Sum of Six Pence, and no more, where the Original Declaration shall be produced and delivered to him, and the Sum of one shilling, and no more where he shall make out the Original Declaration himself, at the Request of the Party) shall be de- livered to the Plaintiff or Plaintiffs, or his, her or their Agent or Agents, who shall convey, or cause the same to be conveyed, to One of the Bailiffs of the Parish in which such Defendant resides, who is hereby authorized and required to serve the same upon the Defendant personally, if he can be found, or otherwise upon his Wife, Son, Daughter, Servant, or some othet grown Person, at his the said Defendant's Dwelling House, or usual Plac of Abode, and at the same Time to shew him, her, or them the attested Copy of the Declaration, together with the Writ of Summons annexed, under the Hand of the Judge issuing the same, and to acquaint him, her or them, with the Contents thereof, and to leave a Copy of the same at the said House ; and the Bailiff serving such Process as aforesaid, is hereby further authorized and required to attest the said Service at the Foot of the said Writ of Summons, together with the Day and Time of serving the same, according to the following Form : I, G. H., Bailiff of the Parish of did on Day of Personally serve the within-named Defendant with the Copy of the Declaration, and Writ of Summons annexed, by shewing him the same, and acquainting him with the Contents thereof, and by leaving a Copy of the same at his House with the of the said Defendant, such being of the age of or thereabouts. And this Copy of the Declaration, with the Writ of Summons an- nexed, and the Certificate of the Service so made by the Bailiff, shall be delivered by him to the Plaintiff, if thereto personally required by the Plaintiff himself, who shall pay the Bailiff, for the Service and Attestation as aforesaid, the Sum of one Shilling, and no more, which Sum of one Shilling, together with the Charges of issuing and returning the said Pro- cess, shall be allowed him in his Costs, in Case he shall obtain Judgment against the said Defendant in the Action ; but in case the said Plaintiff shall not personally demand the Custody of the said Process, after such Service and Attestation as aforesaid, that then the Bailiff so serving and attesting the same shall forthwith return the same to the Court of Com- mon Pleas from whence such Process issued, who shall direct the Costs of returning the same, together with the Fee of one Shilling for the Ser- vice and Attestation thereof, to be paid to the said Bailiff by the Defend- ant, if he shall be condemned in the Suit, or by the Plaintiff, if he shall discontinue the Action, or otherwise fail in the Proof of the Matter con- tained in his Declaration. And it is further ordained and Declared, by the Authority aforesaid, That if any Defendant, after having been duly summoned as aforesaid, shall refuse to pay the said Debt and Costs, and shall not appear, either by himself or Agent, before the Court, at the Time and Place mentioned in the said Writ of Summons, it shall and may be Lawful for the Judge or Judges of the said Court, upon view of the Certificate of the said Bailiff as aforesaid, or other due Proof of the Service of the said Writ of Summons in Manner aforesaid, to hear the Cause on the Part of the Plaintiff or Plaintiffs only and to make such Order, Decree, or Judgment, and to award such reasonable Costs of Suit, as to him or them shall seem most agreeable to Equity and .good Conscience: And if upon the Day of Return of such Writ, or on such other Day, as shall be specially ap- pointed by the Court for the hearing of the Cause, the Defendant so sum- moned as aforesaid shall appear, either by himself, or his Agent, and the Plaintiff shall not appear, either by himself or his Agent, or appearing shall not Prosecute, or Prosecuting shall fail in the Proof of the Matter contained in his Declaration, that then upon due Proof that such Defend- ant was served with such Process, it shall and may be Lawful for the Judge or Judges of the said Court to dismiss the said Defendant, and decree and award him such Costs as in his or their Discretion shall seem 1763-1774] Constitutional Documents of Canada. 69 meet, and to award Execution against the said Plaintiff for Recovery and levying thereof, in the same manner as other Executions are hereby directed to be awarded against the Defendant, where the Plaintiff shall obtain Judgment in the Action. Provided always, and it is hereby further Ordained and Declared by the Authority aforesaid, That no Execution shall be awarded against any Defendant until the next Court day after that on which Judgment shall be given in the Cause, to the Intent that the Party may have time to sat- isfy such Judgment by paying the Debt and Costs into the Hands of the Plaintiff or Plaintiffs, or his, her, or their Agent, or to the Clerk of the Court, who is hereby Authorized and required to receive the same for his, her, or their Use, unless it shall be made appear to the Judge or Judges pronouncing such Judgment that the Defendant or Defendants is or are preparing to leave the District, or otherwise to defeat the Plaintiff of the Effect of his, her, or their Judgment, in which case it shall and may be Lawful for the Judge or Judges pronouncing the said Judgment to award execution immediately; But in Default of such Payment as aforesaid, that then it shall and may be Lawful for the Judge or Judges giving such Judgment, on the Friday next ensuing the said Judgment, to award the Execution under his or their Hand and Seal, directed to the Head Bailiff of the Parish wherein the Defendant resides, or to some other discreet Person dwelling in or near the said Parish, whom the Judge or Judges shall think proper to name for that Purpose, and which he or they are hereby authorized and impowered to do, commanding him to levy the Debt and Costs, together with his Fees for levying and returning the said Writ (which Fee shall be expressed in the Warrant of Execution) out of the Goods and Chattels belonging to such Defendant only, with an Express exception nevertheless therein contained to his, the Party's, Beasts of the Plough, Implements of Husbandry, Tools of his Trade, and one Bed and Bedding, unless the other Goods and Chattels of such Defendant or De- fendants shall prove insufficient, in which case such Beasts of the Plough, Implements of Husbandry, and Tools of his Trade, shall be sold, but not the Bed and Bedding ; and the said Bailiff or other Person, to whom such Writ of Execution shall be awarded as aforesaid, shall, before he pro- ceeds to do any Thing therein, give Notice at the Church Door of the Parish wherein such Writ is intended to be executed, immediately after Divine Service, both Morning and Evening, on Two successive Sundays next after the coming of the said Writ, of the Day and Time appointed for the Sale of the Defendant's Goods, on which Day he shall proceed to sell the same to the highest Bidder, and for the most Money he can get, till he shall have raised sufficient to discharge the Whole of the said Writ of Execution, after which, if any Goods remain in Execution, the same shall be immediately restored to the Defendant ; and in case the Defend- ant or Defendants against whom such Writ of Execution as aforesaid shall be awarded, shall not have Goods or Chattels sufficient to satisfy the said Writ of Execution, either in the whole or in Part, that then the Bailiff, or other Person as aforesaid authorized, shall enquire whether the said Defendant or Defendants hath or have any Lands in his or their Possession or Occupation, or in the Hands of any other Person in Trust for him or them, lying within the Parish wherein such Defendant or De- fendants shall reside, or elsewhere within the Jurisdiction of the Court trom whence such Writ of Execution shall be awarded; and if the Bailiff, or other Person so as aforesaid authorized, shall be fully informed and satisfied that such Defendant or Defendants hath or have any Lands as aforesaid, such Bailiff, or other Person so as aforesaid authorized, is hereby required to make Return thereof upon the Back of the Writ, speci- fying the extent and (Duality of the same, and particularly if any Part thereof be Land usually sowed with Corn, or Meadow Land reserved for Hay, and upon such Return it shall and may be Lawful for the Judge or Judges of the Court from whence such Writ issued, to issue another Writ to the Bailiff of the Parish in which such Lands lie, or to some other dis- creet Person, residing in or near the same, commanding him to enter upon 70 Constitutional Documents of Canada. (1763-1774 such Arable or Meadow Land belonging to such Defendant or Defend- ants, at the proper Season, immediately after the reaping or mowing the same, and before any Part of the Produce thereof shall be removed and carried off, and of such Produce,, whether of Corn or Hay, to set apart so much as in his Discretion he shall think sufficient to discharge the whole of the Writ so to him directed, and the same to sell upon the Land for the most Money that he can get, leaving the overplus, if any there be, upon the Land, for the use of the Defendant or Defendants. And it is further Ordained and Declared by the Authority aforesaid, that if any Defendant or Defendants, or any Person or Persons by his or their Direction, after Notice to him or them of the coming of such Bailiff or other Person as aforesaid upon the Land (which Notice he is hereby required to give) shall make any Resistance, or prevent his com- ing upon the Land to execute the Writ, or otherwise disturb him in the execution of it, or shall remove or carry away all or any of the parcels of Corn or Hay, so as aforesaid set off, without having first satisfied the Whole of the said Writ of Execution, he or they so offending shall pay and forfeit, over and above the Sum so commanded to be levied, the Sum of Ten Pounds Currency of this Province, to be recovered in a Summary way, before one of the Judges of the Court issuing the said Writ of Execution, by the Person against whom such Offence shall have been committed, or any other Person who shall sue for the same. Provided also, and it is hereby further Ordained and Declared, by the Authority aforesaid, That it shall and may be Lawful for any Judge or Judges issuing any Writ of Execution in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, upon due Proof before him or them made of the distressed Circumstances of the Defendant or Defendants in the Action to indorse upon the same his or their Order to the Bailiff, or other Person as aforesaid, commanding him to levy and raise the same by Installments, in such Proportions, and at such Days and Times as to him or them shall seem meet. Provided nevertheless, That the whole of the Time so allowed, and given, shall not exceed the Space of Three months from the day of the Date of issuing such Writ of Execution ; and provided also, that if it shall appear, upon due Proof thereof made before such Judge or Judges issuing such Execution as aforesaid, that the Defendant or Defendants hath, or have, at any Time after the Service of the Declaration and Writ of Sum- mons as aforesaid, conveyed away or secreted all or any Part of his or their Goods, or Effects, in order to defeat the Plaintiff or Plaintiffs of his, her, or their Demand, that then and in such Case it shall and may be lawful to and for the said Judge or Judges immediately to award a Writ of Execution against the Body or Bodies of the said Defendant or De- fendants, directed to the Bailiff or other Person as aforesaid, command- ing him to arrest the said Defendant or Defendants, and him or them to convey to the Common Gaol of the District, there to remain till such Debt and Costs be fully satisfied, or other Order be made by the said Court for his or their Deliverance. And whereas it may be of still further Utility and Convenience, and the means of extending the Benefit of these Regulations more generally throughout the Province, to constitute and appoint other Jurisdictions, by which Disputes of a still inferior Nature may be terminated, as well in the Towns of Quebec and Montreal, as in other parts of the Province re- mote from the Courts of Justice; It is further Ordained and Declared by the Authority aforesaid, That it shall and may be lawful to and lor any Person or Persons as well within the Towns of Quebec and Montreal, as in other remote Parts of the Province, being thereto specially appointed by Commission under the Hand and Seal of the Governor, or Commander in Chief for the Time being, to hear and determine, and also to award Execution in all Causes where the matter in Question shall not exceed the Sum of Three Pounds, Current money of this Province, so as the Title of Lands be not drawn in Question in any such Proceedings, in as full and ample manner as any Judge or Judges of either of the Courts of Common 1763-1774] Constitutional Documents of Canada. 71 Pleas are hereby authorized and impowered to do in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as afore- said, any Thing to the Contrary hereof in this Ordinance notwithstand- ing; and the Person or Persons so as aforesaid appointed by Commis- sion, as well in the Towns of Quebec and Montreal, as elsewhere within the Province, are hereby authorized and commanded, in the Execution of the Powers to them entrusted of hearing, determining, and awarding as aforesaid, to keep and observe all the Rules, and Regulations herein pre- scribed, limited, and directed, to the Judge or Judges of the Courts of Common Pleas, in the Exercise of their Jurisdiction, in matters where the Cause of Action shall not exceed the Sum of Twelve Pounds, and to conform to the same, both in their Judgments and Process, as fully and perfectly as if the same were herein particularly set forth at large and enjoined; and all Bailiffs of Parishes, or other Persons to whom any Writs of Summons, Warrants of Execution, or any other Process what- soever, in matters where the Cause of Action shall not exceed the Sum of Three Pounds as aforesaid, shall be directed by any Person or Persons so appointed, as aforesaid, are hereby authorized and required to pay due Obedience to the same, and cause the same to be executed, and Returns thereof to be made to the Person or Persons so appointed, issuing the same as they would do or make to any Judge or Judges, of the Courts of Common Pleas, if such Process had issued from him or them ; pro- vided that Such Person or Persons as shall be appointed for this purpose within the Towns of Quebec and Montreal shall not sit or hold any Court for the hearing and determining Matters within their Jurisdiction on any Friday, but on some other Day in every Week, according to their Discre- tion other than Friday, or in such Vacation as aforesaid. And whereas great and manifold Inconveniences and Losses have arisen to the Proprietors of Real Estates in this Province, by having their Houses and Lands taken in Execution and exposed to sale for the Pay- ment of small Debts, and also from the hasty and informal method oi setting the same to sale, even in cases where the extent of the Judgment will admit of no other satisfaction; It is further Ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication of this Ordinance, no Process whatsoever shall be awarded for the sale of any House or Houses, Land or Lands, Tenement or Tenements, upon any Judgment or Judgments, where the Original Cause of Action shall not exceed the Sum of Twelve Pounds Current Money of this Province ; and that from and after the Day of the Date of the Publication aforesaid, no Houses, Lands, or Tenements, taken in Execution upon any Judgment or Judgments ob- tained in His Majesty's Supreme Court of Judicature for this Province, or upon any Judgment or Judgments obtained out of the Courts of Common Pleas in Quebec or Montreal, shall be extended or sold by the Provost Marshall, or any Person whatsoever, unless the Personal Property of the Defendant or Defendants in the Action shall be found insufficient. And it is further Ordained and Declared by the Authority aforesaid, That upon the issuing of any Writ of Execution for the sale of any Houses or Lands, or so soon after as may be, the Provost Marshal of the District in which such Houses or Lands shall lie or be shall cause the same to be advertized in the Quebec Gazette, both in English and French, and therein set forth, as near as may be, the Quantity and Condition of such Houses and Lands, together with the Terms and the Day of Sale, which Day of sale shall not be till Six Months after such Publication, and at the same Time, or so soon after as conveniently may be, he shall also cause a true Copy of the said Advertisement, both in English and French to be sent to the Head Bailiff of the Parish where such Houses or Lands shall lie or be, who is hereby ordered and required to fix the same upon the Door of such Parish Church, and to re-place the same, so often as it shall be removed, defaced, or rendered illegible by Time or Accident, and also to publish and declare the Contents thereof every Sunday at the Door of the said Church immediately after Divince Service, both in the Morn- 72 Constitutional Documents of Canada. [1763-1774 ing and Afternoon, that the same may be fully known and understood by the Inhabitants thereof, for which the said Bailiff shall receive, out of the Produce arising from the Sale the Sum of One Spanish Dollar, to be paid by the Provost Marshal and allowed in his Accounts. Provided always, and it is hereby, and by the Authority aforesaid, further Ordained and Declared, That from and after the Day of the Date of the Publication aforesaid, all Houses and Lands against which any Writ or Writs of Execution shall be awarded for the sale of the same, shall be taken to be, and they are hereby and by the Authority aforesaid, declared to be obliged and bound in Law to pay and satisfy all and every Judgment or Judgments, which shall and may be obtained against the Owner and Proprietors thereof, from the Day on which such Judgment or Judgments shall be pronounced or given ; and that no Mortgage, Sale, or Assignment, or any Deed of Conveyance, or any Disposition without Deed whatsoever, howsoever, or to whomsoever, made after the Day on which such Judgment or Judgments shall be pronounced or given as afore- said, shall defeat, avoid, suspend, or delay the Force and Operation of such Judgment or Judgments ; but all and every such Mortgage, Sale, As- signment, Deed, and Disposition, shall be taken to be, and all and every of them are and is hereby declared to be fraudulent, as against the said Judgment, Creditor or Creditors, and to have no Validity, Power, Opera- tion, or Effect whatsoever, to the Prejudice of such Judgment Creditor or Creditors. And lastly, It is further Ordained and Declared by the Authority aforesaid ; That all Judges and other Persons authorized to administei Justice, issuing any Writ of Execution, as well where the Cause of Action shall exceed the Sum of Twelve Pounds as aforesaid, as where it falls short of, or is equal to that Sum, shall and they are hereby authorized and required to mark upon such Writ of Execution the Day on which Judgment was given in the Cause, and if Two or more Writs of Execution shall be issued upon Judgment given the same day, against the same De- fendant or Defendants, and so marked upon the Writs, such Execution shall have the same Privilege, and be satisfied in the same Proportions, and the Provost Marshal, Bailiff, or other Person, to whom such Writs of Execution shall be Awarded, receiving the same, is hereby authorized and commanded, after the sale of the whole of such Defendant or Defendants Real and Personal Estate, where the Said Writs shall be awarded against both, in case the same should not be sufficient to satisfy the whole of the said Judgments, to pay over and divide the Neat Produce of such Sale or Sales, after deducting his own Costs and Charges, amongst the several Plaintiffs, in Proportion to the Amount of their respective Judgments. (Signed) GUY CARLETON. 1 February, 1770. XXII CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC, 1774 1 [Trans.: Shortt and Doughty.] The Case of the British Merchants trading to Quebeck, and others of his Majesty's natural-born Subjects, who have been induced to venture their Property in the said Province on the Faith of his Majesty's Proc- lamation, and other Promises solemnly given. The king's most excellent majesty was graciously pleased, by his royal proclamation of the seventh of October, one thousand seven hundred and sixty-three 1 , passed under the great seal of Great-Britain to invite his loving subjects, as well of his kingdoms of Great-Britain and Ireland, as 1 This document has been selected out a number, as it provides a good summary of the case for the minority in Canada. z See No. IV. 1763-1774] Constitutional Documents of Canada. 73 of his colonies in America, to resort to the said province of Quebeck, and the other provinces then lately ceded to his majesty by the French king, in order to avail themselves, with all convenient speed, of the great benefits and advantages that must accrue therefrom to their commerce, manufac- tures, and navigation ; and as an encouragement to them so to do, to pub- lish and declare that his said majesty had, in the letters patent under the great seal of Great-Britain, by which the new governments in the said ceded countries had been constituted, given express power and directions to his governours in the said new colonies, that so soon as the state and '' circumstances of the said new colonies would admit thereof, they should ! summon and call general assemblies within the said governments, in such [ manner and form as is used and directed in those colonies and provinces in America which were under his majesty's immediate government; and that his majesty had also given powers to the said governours, with the consent of his majesty's councils of the said province, and the represen- tatives of the people in the same, so to be summoned as aforesaid, to make, constitute and ordain laws, statutes, and ordinances for the publick peace, welfare, and good government of his majesty's said colonies, and of the people and inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies ; and was pleased further to declare, that in the mean time, and \ until such assemblies could be called as aforesaid, all persons inhabiting j in, or resorting to, his majesty's said colonies might confide in his majesty's I royal protection for the^enjoyment of the benefits of the laws of England; ' and that for that purpose his majesty had given power, under the great seal, to the governours of his majesty's said new colonies, to erect and constitute, with the advice of his majesty's councils of the said provinces icspectively, courts of judicature and publick justice within the said col- onies, for the hearing and determining all causes, as well criminal as civil, according to law and equity and as near as may be, agreeably to the laws of England. And in pursuance of the said proclamation, and of the commission of captain-general and governour in chief of the said province of Quebeck, granted to major-general Murray, in the following month of November, one thousand seven hundred and sixty-three, and by him received and published in the month of August of the following year, one thousand seven hundred and sixty-four, the said major-general Murray did, with the advice of his Majesty's council of the said province, make and publish an ordinance 1 of the said province on the seventeenth day of September, in the same year, one thousand seven hundred and sixty-four, for erecting and constituting courts of judicature; and by the. said ordinance did erect two principal courts of judicature, called the Courts of King's Bench, and Common Pleas ; and did by the said ordinance give power and authority to the chief justice of the province, before whom the said court of King's Bench was to be held, to hear and determine all criminal and civil causes, agreeably to the laws of England, and the ordinances of the said province; and did likewise, by the said ordinance direct and command the judges of the said second court, called the Court of Common Pleas, to determine all matters brought before them agreeably to equity, having regard never- theless to the laws of England, as far as the circumstances and then present situation of things would admit, until such time as proper ordi- nances for the information of the people could be published by the gov- ernour and council of the said province, agreeable to the laws of England. And on the sixth day of Nevember, in the same year, one thousand seven hundred and sixty-four, another provincial ordinance 3 was published by the said governour Murray, and his majesty's council of the said prov- ince, for the sake of quieting the minds of his majesty's new Canadian subjects, and removing the apprehensions occasioned by the said introduc- tion of the laws of England into the said province, by which it was or- 1 See No. VI. " See No. IX. 74 Constitutional Documents of Canada. [1763-1774 dained and declared, that until the tenth day of August then next ensuing, that is, in the year of our Lord one thousand seven hundred and sixty- five, the tenures of the lands, in respect of such grants as were prior to the cession of the said province, by the definitive treaty of peace signed at Paris, on the tenth day of February, one thousand seven hundred and sixty-three, and the rights of inheritance, as practised before that period, in such lands or effects of any nature whatsoever, according to the cus- tom of the said country, should remain to all intents and purposes the same, unless they should be altered by some declared and positive law. And the said two ordinances have been transmitted to his majesty, and never disallowed by him, and are therefore generally understood by his majesty's British subjects in the said province, to have received the sanction of his majesty's royal approbation; and in consequence of the said two ordinances, together with the proclamation aforesaid of the seventh of October, one thousand seven hundred and sixty-three, and the two commissions of governour in chief of the said province, granted suc- cessively to major-general Murray and major-general Carleton, which seem in every part of them to pre-suppose that the laws of England were in force in the said province of Quebeck, being full of allusions and refer- ences to those laws on a variety of different subjects, and do not contain any intimation of a saving of any part of the laws and customs that pre- vailed in the said province in the time of the French government, we the British merchants trading to Quebeck, and all the ancient British subjects residing in the said province have been made to understand and believe, that the laws of England have been introduced into the said province, and that they have had the sanction of his majesty's royal word, that they should continue to be observed in the said province. We cannot therefore but express our surprise and concern at hearing that a bill 1 is now brought into parliament, by which it is intended, that the said royal proclamation of October, one thousand seven hundred and sixty-three, and the commission under the authority whereof the govern- ment of the said province is at present administered, and all the ordinances of the said province, relative to the civil government and administration of justice in the same, and all commissions to judges and other officers of the same, should be revoked, annulled and made void. We numbly beg leave to represent, that many of us have, through a confidence in the said royal proclamation, and other instruments proceed- ing from, and allowed by, his majesty's royal authority, ventured to send considerable quantities of merchandize into the said province, and to give large credits to divers persons residing in the same, both of his majesty's new Canadian subjects, and of his antient British subjects, who have, through a like confidence in the said proclamation, resorted to, and set- tled themselves in, the said province. And that we have employed oui property and credit in this manner, in a firm belief, that we should have the remedies allowed us by the laws of England for the security and re- covery of it; and that if we had supposed the French laws, which pre- vailed in the said province under the French government, to be still in force there, or to be intended to be revived in the same, we would not have had any commercial connections with the inhabitants of the said province, either French or English. And therefore we beg leave to repre- sent, that we think ourselves intitled, upon the mere grounds of justice, (without desiring any favour to be shewn us on the account of our being his majesty's antient, and faithful, and protestant subjects, that are at- tached to his royal person and government by every tie of religion, in- terest, and habitual duty and affection) to insist that, if it be resolved to persist in this new measure of reviving all the former laws of Canada concerning property and civil rights, and abolishing the laws of England that have prevailed there in their stead since the establishment of the civil government in one thousand seven hundred and sixty-four, the execution thereof may at least be postponed until we shall have had sufficient time to withdraw our effects from the said province, and obtain payment of 'i.e. The Quebec Act (No. XXV). 1763-1774] Constitutional Documents of Canada. 75 the debts which are owing to us in the same, by the remedies and methods of trial allowed and appointed by the laws of England in that behalf ; through a reliance on which remedies and methods of trial we were in- duced to venture our said effects there, and permit those debts to be con- tracted. And this time, we humbly represent, cannot well be less than three years. We further beg leave to represent, that we apprehend his majesty's former conduct in introducing the laws of England into the said province by his proclamation and other instruments aforesaid, to have been in no wise unusual, or severe, or particularly harsh, with respect to his new Canadian subjects, nor to have been unexpected by them, but to have been the natural and known consequence of the conquest and cession of the country to his majesty by the late peace, according to the policy of the crown of Great-Britain on the occasion of similar conquests in former times. And we particularly beg leave to observe, that the whole law of England has been introduced into the kingdom of Ireland, in consequence of the conquest of it by the arms of England, without any the least mix- ture of the antient Irish laws, even upon the subjects of tenures and de- scents of land ; and no inconvenience has been found to follow from it ; but, on the contrary, the similitude of laws is at this day a strong ground of union and mutual affection between the inhabitants of the two countries. And the like has been done with respect to the principality of Wales; in. which the English law is the only law that has been allowed for more/- *" than two hundred years past : and the like good effects have followed from MAJL^-^^ it. And in the last century, upon the conquest of the province of New- York, then called the New Netherlands, from the Dutch, the same policy was observed, and the Dutch laws were totally abolished, and the English laws introduced in their stead, which have prevailed there ever since. And yet, at that time, the Dutch settlers in that province were very numerous, and from them much the greater part of the present inhabitants are de- scended. And in conformity to these examples, we did conceive his most gracious majesty to have intended to introduce the laws of England, by his proclamation aforesaid, into the four new governments of Granada, East Florida, West Florida, and Quebeck, instead of the French and Spanish laws, which had prevailed therein under the former governments. And we conceive this conduct of his most gracious majesty, to have been no way derogatory to the articles of capitulation, granted to his Canadian subjects by general Amherst, upon the surrender of the whole country to his majesty's arms in September, one thousand seven hundred and sixty; because, when the French general expressly demanded, in one of the articles of capitulation 1 , "That the French and Canadians should continue to be governed according to the custom of Paris, and the laws and usages established for that country, and that they should not be subject to any other imposts than those that were established under the French domin- ion ;" the said general Amherst, in his answer to the said demand, de- clares, "That they become the king's subjects ;" thereby avoiding to tie up and preclude his late majesty, and his royal successors, from making such changes in the laws and taxes of the said province, as to his royal wisdom should seem meet. We further beg leave to represent, that we are most especially anx- ' ious for the preservation of those parts of the English law which relate to matters of navigation, commerce, and personal contracts, and the me- thod of determining disputes upon those subjects by the trial by jury, and likewise for those parts of it which relate to actions for the reparation of injuries received, such as actions of false imprisonment, and of slander, and of assault, and whatever relates to the liberty of the person, and most of all for the writ of habeas corpus, in cases of imprisonment; which we take to be, in the strongest and most proper sense of the words, one of the benefits of the laws of England, of which his majesty has promised us the enjoyment by his proclamation above-mentioned, and which we apprehend 1 See No. II, Sections 41 and 42. 76 Constitutional Documents of Canada. [1763-1774 to be a part of the English system of jurisprudence, to which our new Canadian fellow-subjects will not object. And we beg leave to represent, that the province of Quebeck has thriven exceedingly, both in agriculture and trade, since the establishment of the civil government of the province, and the introduction of the Eng- lish laws into the same; having exported last year about three hundred and fifty thousand bushels of corn ; whereas, in the time of the French government, they exported none at all, and produced hardly enough for their own subsistence. And we further beg leave to represent, that much the greater part of this trade is carried on by his majesty's old British subjects in the said province; by which they may justly claim to themselves the merit of hav- ing been the principal promoters of the late great improvement of the province. And we further beg leave to represent, that we fry y* m*an object to a revival or continuance of the former French laws concerning the tenures of land, and the methods of alienating and conveying land, nor even con- cerning the inheritance of land belonging to Canadians born, or to be born, of marriages already contracted;. nor concerning dower, or the other civil rights of either men or women resulting from the matrimonial contract, so far as they relate to marriages already contracted. And we conceive that the revival of the French laws in these particulars, with full powers given to the Canadians of future times to continue them in their respec- tive families at their pleasure by marriage-agreements, last wills, or deeds in their life-time, would be sufficient to give full satisfaction to the bulk of his majesty's new Canadian subjects, and make them acquiesce very chearfully in the general establishment of the laws of England, in con- formity to his majesty's proclamation above-mentioned, upon all other matters. And we further beg leave to represent, that several of his majesty's Old British subjects are possessed of a considerable quantity of landed property in the said province, and that others of them are daily becoming so : and hereupon we will venture to affirm, that sixteen of the seigniories of that province, and some of them the most valuable ones in the country, are in the hands of the said Old British subjects. And we further beg leave to represent, that, in consequence of his majesty's most gracious promise contained in his proclamation aforesaid, that t as soon as the situation and circumstances of the said province would permit, an assembly of freeholders and planters of the same should be called by his majesty's governour thereof, which, in conjunction with the said governour, and his majesty's council of the said province, should have power to make laws and ordinances for the welfare and good gov- ernment of the said province, we have constantly entertained hopes that an assembly of the freeholders of the same would soon be established, SmTtnat we should enjoy the benefits resulting from that free and equit- able method of government in common with the inhabitants of the ad- joining provinces of North-America. And therefore we beg leave to represent, that we have been very greatly alarmed by that part of the bill now before parliament, which seems to cancel the said most gracious promise of our sovereign, and to deprive us of all hopes of obtaining the establishment of a general as- sembly of the freeholders of the said province, and to establish in the stead thereof a very different mode of government in the said province, by a legislative council, consisting of persons appointed by, and remove- able at the pleasure of, the crown ; more especially as the said new mode of government, (which we presume nothing but some urgent and very peculiar circumstances of necessity can be thought a sufficient reason for adopting) is not limited in the said bill to continue for only a certain small number of years, after which they might hope to have an assembly in the said province, agreeably to the said royal promise, but is established in very general terms, that remove that agreeable prospect out of their sight. 1763-1774] Constitutional Documents of Canada. 77 We further beg leave to represent, that we have hitherto been made to understand, that the reason of the omission of his majesty's governours of the said province to call a general assembly of the freeholders of the same, from the first establishment of the civil government thereof, in the year one thousand seven hundred and sixty-four, to the present time, ac- cording to the powers and directions given them by his majesty in that behalf, in their commissions of captain-general and governpur in chief of the said province, has been the difficulty of finding a sufficient number of subjects of his majesty in the said province properly qualified, in all re- spects, to be members of such assembly, according to the directions of the said commissions, which required, that all persons who should become members either of the said assembly of the freeholders of the said prov- ince, or of his majesty's council of the same, should take the oath of ab- juration of the pope's power, and subscribe the declaration against tran- substantiation, as well as take the oath of allegiance and the oath of ab- juration of the pretender's right to the crown of these realms, before they were admitted to sit and vote in such assembly and council. And this objection, we beg leave to represent, is now thought, by persons well acquainted with the said province, to be at an end, there being now a sufficient number of freeholders in the said province to constitute a house ! of assembly, willing and ready to take the said oaths and declaration ; in proof of which we beg leave to inform this honourable house, that a peti- tion has been lately presented to his majesty from the British and pro- testant inhabitants of the said province, signed by a great number of per- sons of that description, requesting his majesty to summon and call such a general assembly of the freeholders of the said province, and assuring him that there are a sufficient number of persons in the said province qualified according to the direction of his majesty's commission for that purpose, and humbly representing to his majesty, that the situation and circumstances of the said province are at present such, as not only render the said measure of establishing a general assembly practicable, but like- wise make it to be highly expedient for the regulation and improvement of the said province. And we beg leave further to represent, that if it be thought inex- pedient on the one hand to constitute a house of assembly, consisting of protestants only, agreeably to the directions of his majesty's commis- sions before-mentioned, on account of the great superiority of the num- bers of the Roman-Catholicks in the said province, who would thereby be excluded from sitting in such assembly; and, on the other hand, it be thought dangerous to summon a general assembly into which the Roman- Catholicks should be admitted indiscriminately with the protestants ; and, on account of this twofold difficulty, it be judged necessary to have re- course to the new method of government above-mentioned, by investing a council of persons nominated, and removoable at, the pleasure of the crown, with a certain degree of legislative authority; we humbly hope that the same reasons which make it be judged dangerous to admit the Roman-Catholick inhabitants of the said province into a share of the legislative authority by means of an open assembly of the same, will be thought sufficient to exclude them from obtaining a share of the same authority by an admission into this new legislative council ; which, being a single body invested with the power of making laws for the province, will be of more weight and consequence in the same, than as assembly of the freeholders would be, if the plan of government promised by his majesty's proclamation and commissions above-mentioned, by a governour, council and assembly, had been pursued. And therefore we cannot but express our concern to find, that in the bill now before parliament 1 , there is no provision that all, or even any of, the members of the said intended council should of necessity be protestants, but that they may be all Roman- Catholicks notwithstanding any thing contained in the same. And there fore we most humbly and earnestly intreat this honourable house to take 1 The Quebec Act (see No. XXV). 78 Constitutional Documents of Canada. [1763-1774 care that, if such a legislative council must be established in the said province, in lieu of an assembly of the freeholders of the same, the mem- bers thereof shall be all protestants; or, if that be thought too much to grant to them, that at least a majority of the members of the said council should necessarily be protestants, and only a few of the most moderate sort of Roman-Catholicks should be admitted into it, who should be re- quired to take the oath of abjuration of the pope's authority, though not to subscribe the declaration against transubstantiation ; which is a tem- perament, which, as we conceive, might lead to good effects hereafter. (And we further beg leave to represent both on our own account, and In behalf of our friends and correspondents, the antient British inhabi- tants now residing in the said province, that, if the said province must ! be governed by a legislative council, nominated by his majesty, without the concurrence of an assembly of the freeholders of the same, we humbly hope that a clause will be inserted in the bill, to render the members of . the said council incapable of being either removed or suspended by his majesty's governpur of the said province, and liable only to be removed by his majesty himself, by his order in his privy council, (of whose wis- dom and justice we can entertain no suspicion) to the end, that the said counsellors may both act with a spirit of freedom and independence be- coming their high offices of legislators of the said province, and be thought to do so by the people of the same, instead of being considered as depend- ent creatures and tools of the will and pleasure of the governour for the time being, as we conceive will be the case, if he shall be invested with a power of removing or suspending them from their said offices at his dis- cretion. And we beg leave further to represent, that it is also our wish, if such a legislative council shall be established in lieu of an assembly, that the number of the members thereof may be fixed and certain, instead of being liable to vary between the numbers of seventeen and twenty-three persons, as is proposed in the present bill ; and likewise, that the said council may be made as numerous as conveniently may be, to the end, that it may contain within it persons acquainted with every part of the prov- ince, and the interests of the inhabitants residing in the same, and that their acts and resolutions may be, for the most part, agreeable to the sen- timents of the body of the people over whom they are to preside. And, with respect to this point, we beg leave to represent, that it is the opinion of some of the most judicious and respectable of our friends and corre- spondents in the said province, that it would be easy to find thirty-one persons amongst the British and other protestant inhabitants of the said province, capable of being useful members of such a council. And we further beg leave to represent, that in case such a legislative council should be established, it is our earnest desire that provision may be made in the said bill, that a certain number of the members of the same shall be necessary to transact business ; without which it may hap- pen, that a very small part of the whole body, as, for example, five or six persons, shall occasionally exercise the great powers vested in the whole, and make laws and ordinances that shall bind all the inhabitants of the province; which, we humbly conceive, would be highly inexpedient and unbecoming, and cause great uneasiness in the said province. And we are humbly of opinion, that the number thus made necessary to the exercise of these high legislative powers, ought to be more than half the whole number of the members of such council. And we further beg leave to suggest it as our opinion concerning this legislative council, that it would be expedient that the members thereof should receive some reasonable reward out of the publick revenue of the province, for every attendance at the meetings of the said council on the legislative business of the said province, sufficient, at least, to defray the expences of travelling to the place where the said meetings shall be held, and of residing there during the time of the said meetings; to the end, that at all the meetings of the said council, there may be a very full at- tendance of counsellors, who may concur in exercising the sai4 high au- 1763-1774] Constitutional Documents of Canada. 79 thority; without which, the ordinances they shall pass will not be very likely to obtain the reverence due to them from the people, nor meet with a chearful obedience. But above all, we beg leave to repeat our most earnest hopes and de- sires, that the establishment of the said legislative council (if it shall be resolved that such a one shall be established), may be only for a small number of years, to the end, that, in case it shall hereafter appear to his majesty, that the situation and circumstances of the said province will ad- mit of the summoning a general assembly of the freeholders of the same, we may at last reap the benefit of his most gracious promise to us in his proclamation and commissions above-mentioned, that we should be gov- erned in the usual and approved method of his majesty's other colonies in America, by a governour, council, and assembly. We therefore humbly hope, that the honourable house of commons will take our case into consideration, and permit us to be heard by our council at the bar of their house, to the several heads mentioned in this state of it, and to such other parts of the bill now before them, as we shall apprehend ourselves to be concerned in interest to object to, either on our own account, or in the behalf of our correspondents and friends, the Old British subjects of the crown now residing in the said province. And we have a firm reliance on the wisdom and justice of this honour- able house, the representatives of the Commons of Great-Britain, for a satisfactory determination upon all the matters contained in this case, and upon the other points which may be submitted to their consideration by our counsel at their bar, and for the protection of our rights and lib- erties, as British subjects, who have acted under the sanction of his ma- jesty's royal proclamation above-mentioned. XXIII LORD MANSFIELD'S JUDGMENT IN CAMPBELL v. HALL, 1774' [Trans. : Shortt and Doughty.] The case of the Island of Grenada ; in relation to the payment of four and one-half in the hundred of goods imported therefrom; between Alexander Campbell, Esq., Plaintiff, and Wm. Hall, Esq., Defendant, in the Court of King's-Bench, before Lord Chief-Justice Mansfield : 15 George III, A.D. 1774. November 28. The unanimous judgment of the Court was this day given by Lord Mansfield, as follows : This is an action brought by the plaintiff, Alexander Campbell, who is a natural-born subject of Great Britain, and who, upon the third of May, 1763, purchased lands in the island of Grenada; and it is brought against the defendant, William Hall, who was collector for His Majesty at the time of levying the imposts, and of the action brought, of a duty of four and a half per cent, upon goods exported from the island of Grenada. The action is to recover a sum of money, which was levied by the de- fendant and paid by the plaintiff, as for this duty of four and a half per cent, upon sugars, which were exported from the island of Grenada, from the estate and by the consignment of the plaintiff. The action is an action for money had and received ; and it is brought upon this ground, namely, that the money was paid to the defendant with- out consideration, the duty for which he received it not having been im- posed by lawful or sufficient authority to warrant the same. And it is stated in the special verdict that the money is not paid over, 1 This Judgment has been printed in full because (a) it provides contemporary legal opinion regarding the laws of a conquered country and (b) because it establishes the legal position of the Proclamation of 1763 (No. IV). 80 Constitutional Documents of Canada. [1763-1774 but continues in the defendant's hands, by consent of the Attorney- General, for His Majesty, in order that the question may be tried. The special verdict states Grenada to have been conquered by the British arms from the French King in 1762; that the island was ceded by capitulation ; and that the capitulation upon which it surrendered was by reference to the capitulation upon which the island of Martinico had been surrendered on the 7th of February, 1762. The special verdict then states some articles of that capitulation, par- ^ ticularly the fifth, which grants that Grenada should continue to be gov- erned by its own laws till His Majesty's pleasure be known. It next states the sixth article, where, to a demand of the inhabitants of Grenada requiring that they, as also the religious orders of both sexes, should be maintained in the property of their effects, moveable and immoveable, of what nature soever, and that they should be preserved in their privileges, rights, honours, and exemptions, the answer is that the inhabitants, being subjects of Great Britain, will enjoy their properties and the same privi- leges as in the other His Majesty's Leeward Islands. Then it states another article of the capitulation, namely, the 7th article, by which they demand that they shall pay no other duties than what they before paid to the French King; that the capitation tax shall be the same, and that the expenses of the courts of justice, and of the ad- ministration of government should be paid out of the King's demesne: in answer to which they are referred to the answer I have stated, as given in the foregoing article; that is, being subjects they will be entitled in like manner as the other His Majesty's subjects in the British Leeward Islands. The next thing stated in the special verdict in the treaty of peace signed on the 10th of February, 1763; and it states the part of the treaty of peace by which the island of Grenada is ceded, and other articles which are not material. The next material instrument which they state is a proclamation under the Great Seal, bearing date the 7th of October, 1763, reciting thus: "Whereas it will greatly contribute to the settling of our said islands "of which Grenada is one, that they be informed of our love and pa- "ternal care for the liberties and rights of those who are, or shall be in- habitants thereof ; we have thought fit to publish and declare by this our "proclamation, that we have by our letters patent under our Great Seal of "Great Britain, whereby our said Governments are constituted, given ex- "press power and direction to our governors of our said colonies respec- tively, that so soon as the state and circumstances of the said colonies "will admit thereof, they shall, with the advice and consent of our said "council, call and summon general assemblies, in such manner and form "as is used in the other colonies under our immediate government. And "we have also given power to the said governors, with the advice and con- tent of our said council and assembly of representatives as aforesaid, to "make, constitute, and ordain laws, statutes, and ordinances for the public "peace, welfare and good government of our said colonies and the inhabi- "tants thereof, as near as may be agreeable to the laws of England, and "under such regulations and restrictions as are used in our other colonies." Then follow letters patent under the Great Seal, or rather a procla- mation of the 26th of March, 1764, whereby the King recites, that he had ordered a survey and division of the ceded islands, as an invitation to all purchasers to come and purchase upon certain terms and conditions speci- fied in that proclamation. The next instrument stated in the verdict is the letters patent bear- ing date the 9th of April, 1764. In these letters there is a commission ap- pointing General Melville Governor of the island of Grenada, with power to summon an assembly as soon as the situation and circumstances of the island would admit; and to make laws in all the usual forms with refer- ence to the manner of the other assemblies of the King's Provinces in America. The Governor arrived in Grenada on the 14th of December, 1764; be- fore the end of 1765, the particular day not stated, an assembly actually 1763-1774] Constitutional Documents of Canada. 81 met ; but before the arrival of the Governor at Grenada, indeed, before his Commission, and before his departure from London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters patent under the Great Seal, bearing date the 20th of July, 1764, and reciting that in Barbadoes, and in all the British Leeward islands, a duty of four and a half per cent, was paid upon goods exported; and reciting further: "Whereas it is reasonable and expedient, and of importance to our "other sugar islands, that the like duties should take place in our said "island of Grenada ; we have thought fit, and our royal will and pleasure "is, and we do hereby, by virtue of our prerogative Royal, order, direct, "and appoint that an impost or customs of four and a half per cent, in "species, shall, from and after the 29th day of September next ensuing ''the date of these presents be raised and paid to us, our heirs and suc- "cessors, for and upon all dead commodities of the growth or produce of "our said island of Grenada that shall be shipped off from the same, in "lieu of all customs and impost duties hitherto collected upon goods im- ported and exported into and out of the said island, .under the authority "of his Most Christian Majesty, and that the same shall be collected, &c."; The jury find that in fact such duty of four and a half per cent, is paid to his Majesty in all the British Leeward islands. And they find several Acts of Assembly which are relative to the several islands, and which I shall not state, as they are public, and every gentleman may have access to them. These letters patent of the 20th of July, 1764, with what I stated in the opening, are all that is material in this special verdict. Upon the whole of the case this general question arises, being the substance of what is submitted to the Court by the verdict: "Whether these letters patent of the 20th of July, 1764, are good and valid to abro- gate the French duties, and in lieu thereof to impose this duty of four and a half per cent., which is paid by all the Leeward islands subject to his Majesty." That the letters are void has been contended at the bar, upon two points: (1) That although they had been made before the Proclamation of the 7th of October, 1763, the King by his prerogative could not have imposed them ; and (2) that, although the King had sufficient authority before the 7th of October, 1763, he had divested himself of that authority by the Proclamation of that date. A great deal has been said, and authorities have been cited relative to propositions in which both sides exactly agree, or which are too clear to be denied. The stating of these will lead us to the solution of the first point. I will state the propositions at large : 1. A country conquered by the British arms becomes a dominion or the King in the right of his crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain. 2. The conquered inhabitants once received into the conqueror's pro- tection become subjects; and are universally to be considered in that light, not as enemies or aliens. 3. Articles of capitulation, upon which the country is surrendered and treaties of peace by which it is ceded, are sacred and inviolate, ac- cording to their true intent and meaning. 4. The law and legislation of every dominion equally affects all per- sons and property within the limits thereof, and is the true rule for the decision of all questions which arise there. Whoever purchases, sues, or lives there, puts himself under the laws of the place, and in the situation of its inhabitants. An Englishman in Ireland, Minorca, the Isle of Man or the Plantations, has no privilege distinct from the natives while he continues there. 5. The laws of a conquered country continue in force until they are altered by the conqueror. The justice and antiquity of this maxim are incontrovertible ; and the absurd exception as to pagans mentioned in F 82 Constitutional Documents of Canada. [1763-1774 Calvin's case, shows the universality and antiquity of the maxim. That exception could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Crusades. In the present case the capitulation expressly provides and agrees that they shall continue to be governed by their own laws, until his Majesty's pleasure be further known. 6. If the King has power (and when I say "the King," I mean in this case "the King without the concurrence of Parliament") to alter the old and to make new laws for a conquered country this being a power subor- dinate to his own authority as a part of the supreme legislature and par- liament he can make none which are contrary to fundamental principles he cannot exempt an inhabitant from the laws of trade, or the authority of Parliament, or give his privileges exclusive of his other subjects; and so in many other instances that might be put. The present Proclamation is an Act of this subordinate legislative power. If it had been made before the 7th of October, 1763, it would have been made on the most reasonable and equitable grounds, putting the island of Grenada as to duties on the same footing as the other islands. If Grenada paid more duties, the injury would have been to her; if less, it must have been detrimental to the other islands ; nay, it would have been carrying the capitulation into execution, which gave the people of Grenada hopes that if any new duties were laid on, their condition would be the same as that of the other Leeward islands. The only question which remains on this first point then is, whether the King of himself had power to make such a change between the 10th of February, 1763, the day the treaty was signed, and the 7th of October, 1763. Taking the above propositions to be granted, he has a legislative power over a conquered country, limited to him by the constitution, and subor- dinate to the constitution and parliament. It is left by the constitution to the King's authority to grant or refuse a capitulation. If he refuses, and puts the inhabitants to the sword, or exterminates them, all the lands belong to him; and if he plants a colony, the new settlers share the land between them, subject to the prerogative of the conqueror. If he receives the inhabitants under his protection and grants them their property, he has power to fix such terms and conditions as he thinks proper. He is en- trusted with making peace at his discretion ; and he may retain the con- quest, or yield it up, on such condition as he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of gov- ernment of a conquered nation. To go into the history of conquests made by the crown of England. The alteration of the laws of Ireland has been much discussed by lawyers and writers of great fame at different periods of time; but no man ever said the change was made by the parliament of England; no man, unless perhaps Mr. Molyneux, ever said the King could not do it. The fact, in truth, after all the researches that have been made, comes out clearly to be as laid down by Lord Chief Justice Vaughan, that Ireland received the laws of England by the charters and commands of Henry II., King John, Henry III., and he adds an ei cetera to take in Edward I., and the successors of the princes named. That the charter of 12 King John was by assent of a parliament of Ireland, he shows clearly to be a mis- take. Whenever the first parliament was called in Ireland, that change in their constitution was without an act of the parliament of England, and therefore must have been derived from the King. Mr. Barrington is well warranted in saying that the 12th of Edward I., called the "Statute of Wales," is certainly no more than a regulation made by the King as conqueror, for the government of the country, which, the preamble says, was then totally subdued ; and, however for purposes of policy he might think fit to claim it as a fief appertaining to the realm of England, he could never think himself entitled to make laws without assent of parliament to bind the subjects of any part of the realm. There- 1763-1774] Constitutional Documents of Canada. 83 fore as he did make laws for Wales without assent of parliament, the clear consequence is that he governed it as a conquest: which was his title in fact, and the feudal right was but a fiction. Berwick, after the conquest of it, was governed by charters from tht crown, till the reign of James I., without interposition of parliament. Whatever changes were made in the laws of Gascony, Guyenne, and Calais must have been under the King's authority; if by act of parliament, that act would be extant, for they were conquered in the reign of King Edward III. ; and all the acts from that reign to the present time are extant; and in some acts of parliament there are commercial regulations relative to each of the conquests which I have named; none making any change in their constitution and laws, and particularly with regard to Calais, which is alluded to as if its laws were considered as given by the Crown. Yet as to Calais, there was a great change made in the constitu- tion : for the inhabitants were summoned by writ to send burgesses to the English parliament; and, as this was not by act of parliament, it must have been by the sole act of the King. Besides the garrison there are inhabitants, property, and trade 31 Gibraltar; the King, ever since that conquest, has from time to time made orders and regulations suitable to the condition of those who live, trade, or enjoy property in a garrison town. Mr. Attorney-General has alluded to a variety of instances, several ^ ^ within these twenty years, in which the King has exercised legislation over Minorca. In Minorca, it has appeared lately, there are and have * been for years back a great many inhabitants of worth and a great trade ' carried on. If the King does it there as coming in the place of the King of Spain, because their old constitution continues (which by the by is another proof that the constitution of England does not necessarily follow a conquest by the King of England) the same argument applies here ; for before the 7th of October, 1763, the constitution of Grenada continued, and the King stood in the place of their former sovereign. After the conquest of New York, in which most of the old Dutch inhabitants, remained, King Charles II. changed its constitution and poli tical form of government, and granted it to the Duke of York, to hold from his crown under all the regulations contained in the letters patent. It is not to be wondered that an adjudged case in point is not to be found ; no dispute ever was started before upon the King's legislative right over a conquest; it never was denied in a court of law or equity in Westminster-hall, never was questioned in parliament. Lord Coke's re- port of the arguments and resolutions of the judges in Calvin's case lays it down as clear (and that strange extrajudicial opinion, as to a conquest from a pagan country, will not make reason not to be reason, and law not to be law as to the rest). The book says, that "if a King" I omit the distinction between a Christian and an infidel kingdom, which as to this purpose is wholly groundless, and most deservedly exploded "If a King comes to a kingdom by conquest, he may, at his pleasure, alter and change the laws of that kingdom; but, until he doth make an alteration of those laws the ancient laws of that kingdom remain ; but if a King hath a kingdom by title of descent, then, seeing that by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliament." It is plain that he speaks of his own country where there is a parliament. Also, "if a King hath a king- dom by conquest, as King Henry the Second had Ireland, after King John had given to them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without parliament." Which is very just, and it necessarily includes that King John himself could not alter the grant of the laws of England. Besides this, the authority of two great names has been cited, who took the proposition for granted. And though opinions of counsel, whether acting officially in a public charge or in private, are not properly authority on which to found a decision, yet I cite them ; not to estab- 84 Constitutional Documents of Canada. [1763-1774 lish so clear a point, but to shew that when it has been matter of legal enquiry, the answer it has received, by gentlemen of eminent character and abilities in the profession, has been immediate and without hesitation, and conformable to these principles. In 1722, the assembly of Jamaica refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir Clement Wearg, what was to be done if they should persist in this refusal. Their answer is "If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants ; but, if it sja"s to be considered in the same light as the other colonies, no tax could be imposed upon the inhabitants, but by an assembly of the island, or by an act of parliament." The distinction in law between a conquered country and a colony they held to be clear and indisputable ; whether, as to the case before them of Jamaica, that island remained a conquest or was made a colony, they had not examined. I have, upon former occasions, traced the constitution of Jamaica as far as there are books or papers in the offices ; I cannot find that any Spaniard remained upon the island so late as the Restoration ; if any, they were very few. A gentleman to whom I put the question on one of the arguments in this cause, said he knew of no Spanish names among the white inhabitants of Jamaica; but there were amongst the negroes. The King, I mean Charles the Second, after the Restoration invited settlers by proclamation, promising them his pro- tection. He made grants of land. He appointed at first a governor and council only ; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immediately under the King has arisen in the same manner; not by the grants, but by commis- sions, to call assemblies. And therefore, all the Spaniards having left the island, or having been killed or driven out of it, Jamaica from the firs* settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown ; like the cases of the islands of St. Helena and St. John, mentioned by Mr. At- torney-General. A maxim of constitutional law, as declared by all the judges in Cal- vin's case, and which two such men in modern times as Sir Philip Yorke and Sir Clement Wearg took for granted, will acquire some authority, even if there were anything which otherwise made it doubtful ; but on the contrary no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited ; no instance is to be found in any period of our history where it was ever questioned. The counsel for the plaintiff undoubtedly labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration, we are of opinion that be- fore the letters patent of the 20th of July, 1764, the King had precluded himself from an exercise of the legislative authority which he had before by virtue of his prerogative over the island of Grenada. The first and material instrument is the proclamation of the 7th of October, 1763. See what it is that the King there says, and with what view he says it; how and to what he engages himself and pledges his word: "Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our pa- ternal care for the security of the liberty and properties of those who are, and shall become, inhabitants thereof; we have thought fit to publish and declare by this our proclamation, that we have in the letters patent under our Great Seal of Great Britain, by which the said governments are constituted, given express power and direction to our governors of our said colonies respectively, that, so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and con- sent of the members of our council, summon and call general assemblies" ("and then follow the directions for that purpose). And to what end? "To make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies," of which this Grenada is one, "and of the people and inhabitants thereof, as near as may be agreeable to the laws of England." With what view is 1763-1774] Constitutional Documents of Canada. 85 the promise given? To invite settlers; to invite subjects. Why? The reason is given. They may think their liberties and properties more secure when they have a legislative assembly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution; but not so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and properties, and with a view to invite them to go and settle there after this proclamation that assurred them of the constitution under which they were to live. The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase, to live under the constitution. It states certain terms and conditions on which the allotments were to be taken, established with a view to permanent colonization and the increase and cultivation of the new settlement. For further confirmation of all this, on the 9th of April, 1764, three months before the impost in question was imposed, there is an actual commission to Governor Melville, to call an assembly as soon as the state and circumstances of the island should ad- mit. You will observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and council under his au- thority, or in any other method or manner, until the assembly should be called : the promise imports the contrary ; for whatever construction is to be put upon it, (which perhaps it may be somewhat difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of jus- tice; not an interposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called ; it must have been in about a year at farthest from the governor's arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly. We therefore think that, by the two proclamations and the commis- sion to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island of Grenada in general to all whom it might concern that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the King. Therefore, though the right of the King to have levied taxes on a conquered country, subject to him in right of his crown, was good, and the duty reasonable, equitable, and expedient, and, according to the find- ing of the verdict, paid in Barbadoes and all the other Leeward islands; yet by the inadvertency of the King's servants in the order in which the several instruments passed the office (for the patent of the 20th of July, 1764, for raising the impost stated, should have been first), the order is inverted, and the last we think contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the object of these letters patent of the 26th of July, 1764, it can only now be done, to use the words of Sir Philip Yorke and Sir Clement Wearg, "by the assembly of the island, or by an act of the Parliament of Great Britain." The consequence is, judgment must be given for the plaintiff. 86 Constitutional Documents of Canada. [1763-1774 XXIV DEBATES IN THE BRITISH PARLIAMENT ON THE QUEBEC ACT, 1774' [Trans.: Wright, Cavendish's Debates on the Canada Bill (London, 1839J. Lord North. The honourable gentleman next demands of us, will you extend into those countries the free exercise of the Romish religion? Upon my word, Sir, I do not see that this bill extends it further than the ancient limits of Canada; but if it should do so, the country to which it is extended is the habitation of bears and beavers; and all these regula- tions, which only tend to protect the trader, as far as they can protect him, undoubtedly cannot be considered oppressive to any of the inhabi- tants in that part of the world; who are very few, except about the coast, and at present in a very disorderly and ungovernable condition. The gen- eral purpose is undoubtedly to give a legislature to that country. It was very much, I believe, the desire of every person, if it were possible, to give it the best kind of legislature; but can a better legislature be given than that of a governor and council? The honourable gentleman dislikes the omitting the assembly ; but the assembly cannot be granted, seeing that it must be composed of Canadian Roman Catholic subjects, otherwise it would be oppressive. The bulk of the inhabitants are Roman Catholics, and to subject them to an assembly composed of a few British subjects would be a great hardship. Being, therefore, under the necessity of not appointing an assembly, this is the only legislature you can give the Cana- dians, and it is the one under which they live at present. The governor and council really have been the legislature there ever since our conquest of it, and it is now put under some regulation. Hitherto, France has con- ducted the business that is all the difference ; if we do nothing, it must remain in the hands of the governor and council. The question is, whether, so regulated, this is not better. All the other colonies have been governed by a governor and council ; it is not, therefore, so totally anomalous. The honourable gentleman objects to the want of a quorum. It is only giving full notice to all whose duty it is to attend, and when they do attend, things are to be decided by the majority, as in all other assemblies. Now, Sir, with regard to giving French law if gentlemen will re- member, the most material part of the criminal law is to be according to English law. The civil law 2 of Canada certainly is to be the French law ; but, Sir, I understand the establishing of these laws to be given as the basis upon which the governor and legislative council are to set out. Sir, you would not send the governor and council to choose their own con- stitution to choose their own laws entirely. You must tell them from what laws they are to take their departure. It has been thought better calculated to secure the happiness of Canadians, and more beneficial for all who live in the country, that they should have the civil law of Canada, and not that of England. If the Canadian civil law is incompatible with the present condition and wishes of the colony, the governor and council will have power to alter it. But there must be a general basis ; there must be a law established, ready to be amended and altered as occasions shall 1 The Quebec Act was introduced in the House of Lords on May 2, 1774, by Lord Dartmouth, President of the Board of Trade and Plantations. It passed without oppo- sition on May 17. In the House of Commons it was debated from May 26 to June 13. During these debates several witnesses were examined, including Carleton, Chief Jus- tice Hey and Maseres, and some minor amendments were made. The debate in the House of Commons was begun by Thomas Townshend (after- wards Viscount Sydney), who accused the Government of lukewartnness and delay in relation to Canadian affairs. Lord North defended the measure through all its stages until it passed the House of Commons on June 13 by a majority of twenty-six in a house of seventy-six. It was finally passed in the House of Lords on June 16, by a majority of nineteen in a house of thirty-three, and received the Royal assent on iune 22. Lord Chatham opposed the bill in a violent speech, of which only an outline as been preserved. (See Chatham's Correspondence, IV, pp. 351 ff.) 1 The Coutunic de Paris codified in 1510 and introduced into Canada in 1664. A detailed report on the civil law in force in French Canada was drawn up at Carleton's request and published in London in 1772. 1763-1774] Constitutional Documents of Canada. 87 arise, and as the circumstances of the colony shall require. It has been the opinion of very many able lawyers, that the best way to establish the happiness of the inhabitants is to give them their own laws, as far as re- lates to their own possessions. Their possessions were marked out to them at the time of the treaty; to give them those possessions without giving them laws to maintain those possessions, would not be very wise. The French law may be worse than the English, but the particular por- tions for which we have the highest value ourselves, are a part of our political law, and a part of pur criminal law. These may be acted on in Canada, seeing that the criminal law has been submitted to for nine years, and is, I dare say, approved of by the Canadians, because it is a more refined and a more merciful law than the law of France. As to the free exercise of their religion, it likewise is no more than what is confirmed to them by the treaty, as far as the laws of Great Britain can confirm it. Now, there is no doubt that the laws of Greaf Britain do permit the very full and free exercise of any religion, different from that of the church of England, in any of the colonies. OujLJ^enal laws do not extend to the colonies ; therefore, I apprehend, that we ought not to extend them to Canada. Whether it is convenient to continue or to abolish the bishop's jurisdiction, is another question. I cannot conceive that his presence is essential to the free exercise of religion ; but I am sure that no bishop will be there under papal authority, because he will see that Great Britain will not permit any papal authority whatever in the country. It is expressly forbidden in the Act of Supremacy. I dare say, Sir, I have not given an answer to many of the questions put to me by the honourable gentleman ; nor do I recollect whether I have explained what I take to be the purpose of the present bill. It certainly gives to the Canadians many of their laws and customs ; which laws and customs can be safely given to them. If alteration in those laws and cus- toms should be deemed necessary, there is a legislature established, which will be ready to make those alterations. In a general plan of government, it is not possible to enter into a detail of what is proper, or what is im- proper, in Canada: it must be left to the legislature on the spot to consider all their wants and difficulties. The present bill will give laws, the principal laws, from which the legislature ought to take their departure criminal law, civil law, political law. That is the purpose of the bill. It has appeared to be the best plan that could at present be devised ; and it requires and deserves the immediate attention of the House. The honourable gentleman asks, why, before it was introduced into the House of Lords immediately after Easter, full notice was not given, that it would come down here? Sir, we are not to blame for the omission: there is, however, abundance of time to go through the bill, to correct, to approve, or to amend it. His Majesty's message recommended Parliament to take up the subject: and as soon as it was in a fit state to be laid before the other House, I am con- fident the noble lord brought it forward. Sir, the honourable gentleman proposes to limit the bill in point of time. That will be a proposition for the committee to consider: it is not now proper to be entertained. If you mean to have the bill exist even but for a year, you will read it now a second time. The question of duration is a question that will come on hereafter; it is not a proper one for the present moment. I own I shall not be for a limitation, and I shall be ready to submit my reasons ; but if the committee should think proper to alter it, I must acquiesce, rather than leave the Canadians without any legislature at all. Better far to give them some legislature, than leave them for three or four years in their present situation. The honourable gentleman put a question to me concerning a revoca- tion of the judges' commissions. Certainly, there can be no intention to remove any of those officers who are now there. It is a happy circumstance for this country, that gentlemen of their merit should have been willing to go and establish themselves there. It is a happy circumstance for the Canadians, that they are there established: but as the form of the courts of justice is not agreeable to the practice in England, it must be altered; 88 Constitutional Documents of Canada. [1763-1774 which will make a revocation of their commissions necessary. I dare say. and I am sure I hope, they will be given to the same individuals, who have exercised their functions so honestly. Nothing, I am confident, will stand in the way of it, but the wishes of the gentlemen themselves. I have not heard that any of them desire to quit their situations ; and it most assuredly is neither the interest of his Majesty, nor that of his subjects, to desire them to quit the posts they so honourably hold Mr. Dunning Sir, the bill is as extensive as any bill that was ever offered to the consideration of Parliament Its direct object is to take from a large number of the King's subjects that constitution which was given to them ten years ago ; to take that constitution from them, and to give them another in the place of it. Have, Sir, those subjects expressed a wish to part with what has been given them? Have they expressed a wish to have the one which is to be given in the place of it? I apprehend no such wish has been communicated to this House; and if any servant of govern- ment in that country has sent home a representation to that effect, such representation is equally unknown to me, and I apprehend to the rest of the members of this House; but if any such representation is intended to be made, I should wish this House to be acquainted with it ... However, let us see, Sir, what is the form of government, for the sake of which this bill is to be supported. The form of government is this. The Roman Catholic religion is established by law. All the arguments urged by the noble lord, tending to shew that, de /imythe Roman Catholics are entitled to a full toleration, I admit to be well founded in law ; but does that imply, that the same toleration should be given to them every where? Upon the last part of the case, different gentlemen may entertain different opinions. My opinion of toleration is, that nothing can be more impolitic than to give establishment to that religion which is not the religion of our own country. Among the circumstances that unite countries, or divide countries, a difference in religion has ever been thought to be the principal and leading one. The Catholic religion unites France, but divides England. Without going further into the subject, it suffices for me to say, that the religion of England seems to be preferable to the religion of France, if your object is to make this an English colony. When one sees that the Roman Catholic religion is established by law, and that the same law does not establish the Protestant religion, the people are, of course, at liberty to choose which they like. Permission is given to the governor, to do what he will with the Protestant religion; and this, to those who are gone there in pursuance of the proclamation, may give encouragement ; but the bill gives them none. Are we, then to establish the Roman Catholic religion, and tolerate the Protestant religion? I conceive so; for this dis- tinction is founded in the terms of the bill. The noble lord says, the free exercise of religion was promised by the treaty of peace was promised by the proclamation. Does the noble lord say, that this bill gives them nothing more? If the noble lord will do me the favour of casting his eye a little down the same page, he will see that the clergy of the Roman Catholic religion are reinstated in all their accus- tomed rights and dues. What, Sir, are those accustomed rights and dues? j I wish some gentleman would do the House the favour to inform them, what is the extent of the rights and dues of the Roman Catholic clergy. I take leave to suppose that, under the denomination of Catholic clergy, the bishops' rights and dues are included. The noble lord says, there is no papal jurisdiction. I wish to be told, what is the authority by which he becomes a bishop? I know he becomes such by consecration in France; but, in order to qualify him for this present office, the noble lord will be so good as to tell us what the act appoints. We shall then be able to judge how far he considers himself of papal constitution, or instituted by govern- ment Sure I am, if he is allowed to exercise this right, he will be found to insist upon it But, Sir. the religion of the country is only one of. the various objects which this bill professes to regulate and establish, throughout this vast extent of territory. The bill provides, that the laws of Canada are to be 1763-1774] Constitutional Documents of Canada. 89 in future the laws of the country. As the bill first stood, in the other House of Parliament, it was not expressed whether the laws were to be those of Canada or England. The clause stood, with the omission of those words ; but Canada is now inserted, and all persons are henceforward to be subject to that law. As to all their civil rights, the noble lord has in- formed us, that the criminal law of England is to be preserved by this bill, agreeably to the proclamation. But, Sir, is the criminal law alone that on which we pride and value ourselves? Have we no civil law, on which we pride and value ourselves? Is there nothing at all in the constitution of England worth priding and valuing ourselves upon, but the mode of trying criminals? Is that the single circumstance that makes the Eng- lish constitution valuable? This is new language to me. If that is the idea of the noble lord, I wish him joy of it; but, to do him justice, I believe he did not mean to be so understood, in the largeness of the phrase. Who- ever may think the criminal laws are alone the valuable part of this con- stitution, I beg leave to say, that the civil distribution of justice in this country is, in my apprehension, its pride, its boast, and its glory; and that it is among the most valuable rights that any country can enjoy. To my apprehension, the trial by jury is the best adapted for the investigation of truth for the establishing of truth for the distributing equal justice of any measure of which the annals of history have furnished us with any intelligence. Young, Sir, as I am in my profession, I am old enough to remember, and it will for ever dwell in my recollection, unless driven out by the principle which the noble lord has endeavoured to establish I am old enough to remember to have heard, that the institution of juries began at a time, and was adapted to a state of things and persons, very different from the present. To find out the time, it is necessary to contrast it with the trial by ordeal and the trial by battle. Will this earlier principle be avowed now to be the principle of the King's lawyers in this House, or the other House, or in any house? .... This proposed constitution for Canada does this : it denies to English subjects the English birthright, trialbvjjjg, Sir, the most valu- able of their civil rights is taken from tfienT'oyTrltS" bill. The honourable gentleman near me observes, that the HabeasCorp_us is among those civil rights. Is that among the laws of CanadaT ::; nion6t know what they are. I cannot put questions. I cannot see any man here who would be war- ranted in giving me an answer, if I did ask questions about those unknown laws of Canada. We know, however, so much of them as to know that they are adopted from France. The Canadians brought them from France ; and is it not among those laws, that the governor may issue a lettre de cachet to send away whom he pleases, to shut up whom he pleases? I know lettres de cachet are issued against persons not charged of any crime; not even suspected of any: some reasons have, notwithstanding, operated to make a man invisible for a time. This law of France I take to be transplanted to Canada by this bill. By the laws of England, a man may find his remedy: the laws of Habeas Corpus are among the laws of England : they existed at common law : in some instances, they are made more beneficial by the statute law. But when the laws of Canada are looked to in order to furnish redress, the same laws will, of course, refuse any redress. Is this a trifle, to leave the people of Canada in a situation, which any man who hears me would shudder to be left in himself? Whether this legislative council has authority to add to the number of those laws whether those laws are the groundwork, as the noble lord says, in conformity with which, according to the plan sent to them, this legislative council is expected to make new laws, in the spirit and temper of the old ones I trust that those gentlemen who are now sending to Canada, to a district of this immense extent, a constitution of this nature, will not be found to furnish arguments in favour, either of abolishing the trial by jury, or of establishing the laws of France. ^ I see also, that this country is hence forward to be governed by a legislative council, consisting of seventeen at least, and not more than twenty-three. The governor may make and unmake his creatures, as they 90 Constitutional Documents of Canada. [1763-1774 become fit tools for his purpose. They will therefore at all times, while in their senses, be solicitous and anxious in endeavouring to guard against incurring his displeasure. The minister has nothing to do but issue his order: those individuals have nothing to do but obey. He will find the inhabitants at his disposal ; because the inhabitants who are at his disposal are creatures of the minister. In my apprehension, Sir, if the King remained the sole legislator of the country, the condition of it would be better than when the governor is put in his place to exercise that power. (Here Mr. Dunning paused a long time.) I should have been sorry to have forgotten the avowed purpose of bringing in this bill. It is no less than to exercise, by assuming, for the purpose of exercising it, the dispensing power which, hitherto, is claimed only by the great pontiff, the pope. We are to take his place ; we are to regulate, model, dispense with the King's conscience. The King, thirteen years ago, give a constitution. The King, upon that occasion, gave encour- agement to future settlers. Though the King is said to be the sole legis- lator, it is a strange inconsistency, that he should be hampered by his own legislation. Some doubts have arisen upon this part of the case, for want of looking forward; and the consequence is, when any temporary incon- venience arises, then a breach of the King's promise a breach of the King's compact, is talked of : but is it fit, is it decent, that the King's word should be brought into question? But somebody else should do it for him! The King would be thought to act an unbecoming part if, in violation of his promise, he were to take from them their former constitution, and give them a different one ; but it is proper enough for Parliament to do that ! Sir, how comes this to be so? Have gentlemen a precedent to produce, to prove that it is proper for Parliament to do it, and not proper for the King himself to do it? But is it not, at the same time, fit that the promise should be kept? Ought you not, upon the principle of strict justice, to make some provision for persons coming to the place upon promise that the English laws should be continued, who find out that they have got into a country governed by a despotism ; that they have got into a country where the religion they carried with them has no establishment? that they have got into a country where they are to wander throughout an immense extent of territory, or to find their way back again as they can ; which they will do, when they consider the treatment they are to meet with if they remain there? Sir, the bill professes ostensible good, but is pregnant with ostensible mischief. It is not adopted or avowed by anybody, abroad or at home. All the answer the honourable gentleman received to his question was, "this is a bill that came from the House of Lords." If that circumstance alone is sufficient reason for passing it, without any argument, to be sure the bill is so far entitled to the concurrence of this House; but if something more like a reason is thought necessary, I shall be glad to hear it; I shall be glad to have a ground to change my opinion. Until then, Sir, I shall certainly give this bill a decided negative. The Attorney-General [afterwards Lord Thurlow]. . . . .With regard, Sir, to the rest of the inconveniences: we have been told, that this bill proposes to take from our fellow-subjects of Canada a constitution, which has already been given, and to place them under a despotism, unfit t be established in any province belonging to Great Britain. The articles men- tioned in support of this assertion are, the religion and civil law of the Canadians being established at Quebec, and the political government for- in Canada being continued there. I will say one word, if the House indulge me, as to the taking away the right formerly given. Canada ja s a country that had been held by the French for above two hundred years before our conquest of it. It had been taken from the people of France by the King of France, and put under his immediate government, for above a hundred years before it was taken by our people. At the time of the conquest, with 120,000 souls, if I recollect right, there were about one hundred and fifty of those of the order of noblesse. The original form, not of the government, that is not said, but the original form of civil / _^j 1763-1774] Constitutional Documents of Canada. 91 justice, under which they lived (using the word "civil" in the largest sense, for it took in both civil and criminal law), was taken from them; but there was very little of the law contained in the Parisian book carried over to the country, ^h." -"-~~ '" ^~^^-'~^IY ^y:^.^ ti nrninr~in-1hih tftTihlilh ment of a country totally new. differing 1 in all nartimlars from the country 6f~oTd France, it. would have been the most enormous of all cruelties to have carried over a law, from the meridian of Paris, in order to put it into immediate execution in a raw, unformed province. So much as was carried over appears to have received very considerable alteration from the legislature which the King of France established there. The legislature consisted of the governor and of the council, which they called the superior council, and in which the intendant of police bore a principal part. Beyond the authority which he had as a magistrate, and as the president of the council, he had great independent authority in making laws of police ; he had great independent authority in being sole judge of all causes that related to the revenue ; and under that establishment the province remained for ninety or one hundred years, before it was taken by the English. When it was taken, gentlemen will be so good as to recollect upon what terms it was taken. Not only all the French who resided there had eighteen months to remove, with all their moveable effects, and such as they could not remove, they were enabled to sell ; but it was expressly stipulated, that every Canadian should have the full enjoyment of all his property, particu- larly the religious orders of the Canadians, and that the free exercise of the Roman Catholic religion should be continued. And the definitive treaty of peace, if you examine it as far as it relates to Canada, by the cession of the late King of France to the Crown of Great Britain, was made ip favour of property; made in favour of religion; made in favour of the several religious orders. In this situation it was, that the Crown of this country was called upon to form a constitution for Canada: yet, something has been thrown out, as if it was a favourite idea of certain men of this country, that the Crown should be considered as the legislator of a country newly conquered. I will not run through all the authorities, and all the arguments, which are common-place upon the subject; but I have always considered the English constitution, upon that point, to be this, that what was conquered by the arms of England acceded to the English sovereign, which is as much as to say, to the King, Lords, and Commons of England. , I have always understood, also, that it was under that authority, and in conformity with the rule 'and measure of law, "that in every instance, through every period of English history, the King has given to newly-conquered countries their constitution; subject to be cor- rected by the joint interposition of the King, Lords, and Commons of this country ; and that such constitution might be reformed, by correcting the ill advice, if any ill advice had been given, under which the King had acted, in giving them a constitution, upon the event, and at the moment, of the conquest. Then, Sir, the question occurs upon the conquest of this country, what was it incumbent to advise the King to do with respect to it? I have heard a great deal of the history of the famous proclamation of 1763 : which, though not an act of Parliament, fares pretty much as ill as this proposed act appears to do ; for I think it meets with nobody to avow it. The proclamation certainly gave no order whatever with respect to the constitution of Canada. It certainly, likewise, was not the finished compo- sition of a very considerable and respectable person, whom I will not name, but went unfinished from his hands, and remained a good while unfinished in the hands of those to whom it was consigned afterwards. It professed to take no care of the constitution of Canada ; it states all the acquisitions, both of the peopled countries and barren territories the latter being many hundred times larger than the former which were made in the course of the last war ; and, speaking of them all in general, it declares to mankind, that his Majesty thought proper to divide them into certain distinct and separate governments; that it was in his Majesty's contemplation to give them a constitution, like that which had been given to the other colonies, 92 Constitutional Documents of Canada. [1763-1774 as soon as the circumstances of the colony would admit of it; and it promised to settlers, expressly to invite them to settle, that, in the mean- time, they should have the benefit of the laws of England. So ran the proclamation. Now, Sir, a proclamation conceived in this general form and applied to countries the most distant, not in situation only, but in history, character, and constitution, from each other, will scarcely, I believe, be considered as a very well studied act of state, but as necessary imme- diately after the conquest. But, however proper that might be with respect to new parts of such acquisitions as were not peopled before, yet, if it is to be considered according to that perverse construction of the letter of it ; if it is to be considered as creating an English constitution ; if it is to be considered as importing English laws into a country already settled, and habitually governed by other laws, I take it to be an act of the grossest and absurdest and crudest tyranny, that a conquering nation ever practised over a conquered country. Look back, Sir, to every page of history, and I defy you to produce a single instance, in which a conqueror went to take away from a conquered province, by one rough stroke, the whole of their constitution, the whole of their laws under which they lived, and to impose a new idea of right and wrong, of which they could not discern the means or the end, but would find themselves at a loss, and be at an expense greater than individuals could afford, in order to inform themselves whether they were right or wrong 1 . This was a sort of cruelty, which, I believe, was never yet practised, and never ought to be. My notion, with regard to this matter, I will venture to throw out as crude and general. To enter into the subject fully, would require more discussion than the nature of such a debate as this will admit of. My notion is, that it is a change of sove- reignty. You acquired a new country; you acquired a new people; but you do not state the right of conquest, as giving you a right to goods and chattels. That would be slavery and extreme misery. In order to make the acquisition either available or secure, this seems to be the line that ought to be followed you ought to change those laws only which relate to the French sovereignty, and in their place substitute laws which should relate to the new sovereign ; but with respect to all other laws, all other customs and institutions whatever, which are indifferent to the state of subjects and 'sovereign, humanity, justice, and wisdom equally conspire to advise you to leave them to the people just as they were. Their happiness depends upon it; their allegiance to their new sovereign depends upon it. Sir, what happened at the conquest? This proclamation being sent out in the manner mentioned, was not addressed to the Canadians. If it be true, that his Majesty may, according to the principle of law, or pursuant to the history of the law, of this country, universally and uniformly (there is not an exception to the contrary) give new laws to the country, in what manner is that to be done? By an instrument not addressed to them? By an instrument, so far from adding anything to their laws, not mentioning them? But, it is said, they generally did understand, that such should be their constitution, without reference to them in particular. I wish gentle- men would go back to the proclamation in 1763, and I would ask them from what expression it is, that either the Canadians can discover or English lawyers advance, that the laws of Canada were all absolutely repealed, and that a new system of justice, as well as a new system of constitution, was by that instrument introduced. Sir, the consequence of that proclamation was, that commissions were granted to the governor, in the manner they were granted to the governor of New York on a former occasion. The difference between the establishment of New York and the establishment of Canada was, as the difference of 1,700 and 120,000. It is true, there was likewise a commission of admiralty given in the English form; and a variety of other articles, known to antiquarians, not known in Canada. There was also a commission of oyer and terminer. The honourable and learned gentleman who spoke last made an objection to repealing all the present existing commissions. I do not know whether it had occurred to 1 See No. XXIII. Lord Mansfield's Judgment. 1763-1774] Constitutional Documents of Canada. 93 him to read the present existing commissions. If it had, I think he would not hesitate much upon repealing them; because the general commissions of oyer and terminer, etc., are temporary. The other commissions are, one to the court of King's Bench, and another to the court of Common Pleas. The commission to the court of King's Bench is to inquire, by the oath of good and lawful men of the country, into all crimes, causes of actions, and upon issue; jumbling together the criminal and civil juris- diction of. the country. They were framed, I believe, in Canada. How they came to be so framed, I cannot imagine. The first thing discovered was, that they were impracticable; not only impracticable with respect to the people, but impracticable with respect to the commissions themselves. The people were so ignorant, not only of the form of our law, but with respect to personal actions, that it was totally impossible to execute them. If any dispute arose, there was no instance of the Canadians resorting to the English courts of justice; but they referred it among themselves, for among themselves only could they find any idea of what they had been used to. I would ask any gentleman, whether, if the thing had been done according to some men's opinions, they could have afflicted any country with a greater curse, than an intricate system of laws, which they could not understand the terms or meaning of? With regard to the criminal law of the country, in the first place, it is more simple, in the next place it is more compulsory; so they did, in point of fact, find their own way. The first thing that happened which I recollect in the history of Quebec, was, that the grand jury desired to have all the accounts of the province laid before them, and, in the next place, there were some very laudable, good Protestants among them, who desired that the Popery laws should be carried fully into execution. They lodged a general presentment against all the inhabitants of the colony for being Papists. With regard to the civil laws, the whole was overturned. In their tenures, when any man found himself wronged by the French laws, he went to an English attorney, to know how to get it righted. If wronged by the English laws, he was told, that a proclamation was no law. The consequence was, that the King lost all profit from tenures ; and in many other articles, such as transmutation of property, they were unwilling, because they had not the benefit of the English laws, to pay any thing to the King. The state of confusion the country was reduced to, and individuals were reduced to, was beyond all manner of description. In this situation they remained uncorrected during all this compass of time ; and now the present bill is upbraided, because it does not adopt a trial by jury, which necessarily includes the form of English actions, in a case where it would be destructive to the peace and happiness of the country. If it would make them happy, undoubtedly let us give them English laws. If the English laws would be a prejudice to them, it would be absurd tyranny and bar- barity to carry over all the laws of this country, by which they would lose the comfort of their property, and in some cases the possession of it. As far as that goes, I consider it merely as a gift of the conqueror to the con- quered people, whom he does not mean to treat cruelly. The criminal law stands as in England. I have observed many things exceedingly strong which have, in my poor opinion, prejudiced the Canadians against the bill; but as to the criminal law, it is certainly liable to none of the objections now urged. The next article is with regard to religion. To take away religion is what nobody wishes. What is to be substituted in the place of it? Why, a general toleration, says my learned friend, without any kind of establish ment; or if an establishment, that of the church of England; or that the church of England should at least go part passu with the church of Rome. Taking it in either of those views, I fairly own, I differ very much in opinion with regard to the law of this country. By the first of Elizabeth, I take it that there is no reason whatever, why the Roman Catholic religion should not have been exercised in this country as well as in that; confining 94 Constitutional Documents of Canada. [1763-1774 it entirely to that act, I know no reason to the contrary. The 37th article of our religion speaks in such language, that the poorest Roman Catholic, who had any sense, might use it just as much as the warmest Protestant; for the language by the act, and article, is only this, that no foreigner whatever should have any jurisdiction, power, or authority within the realm: but there is nothing in the act to prevent a man believing the in- fallibility of Popery, if he thinks proper to believe it. It may refer to any church in the known world. I take the act of parliament to be purely declaratory of that which is the law of that which must be the law, in every sovereign state under heaven. Then as to the right of the clergy to their dues ; the right of the bishop to his dues these rights do not extend to his ecclesiastical functions ; they extend only to that maintenance which he was possessed of before, and which was small enough before. In lieu of tithe, there was a thirteenth paid to the clergy. The bishop has always lived in a seminary; the see was not sufficient, in point of effects, to maintain him : but observe in what manner his rights are reserved. They are reserved to be exercised only with relation to such as choose to be Catholics. Nobody is compelled to be a Catholic : they are rather invited not to be Catholics, by having an exemption held out to them. If that be the sufficient performance of the stipulation in the treaty of peace, and if the country is ready to accept of it eo nomine, gentlemen should make no objection to it. It is the very least that could have been given either to humanity or justice; considering them as having stipulated for that religion at the time. If I had had to prescribe what was to be given them, I should, instead of stripping the Roman Catholics of their religion, which was the religion of all temporal and all judicial authority, have thought myself bound in conscience and humanity to have allowed the religion, with one degree more of establishment, if it must be called establishment; I mean with one degree more of maintenance than it had before. The next objection is that which relates to the governor and council. I could wish that those gentlemen who object to the legislature would be pleased to substitute something in the place of it. I have never yet heard the most sanguine of those who desire to assimilate the government of Canada to the constitution of Great Britain say, it is fit to give the Cana- dians a governor, council, and assembly; but if it is not fit, what kind of government would you reserve for them, preferable to the one chalked out by the bill before us? Do not let us amuse ourselves with aggravating the possible consequences which may befall the wisest constitution in the world. But how is it to be carried into execution? Why, by drawing as many of the Canadians as it is possible to do with safety to the sovereignty of Canada, into that assembly ; by making it a somewhat better thing than the form of their present constitution. At present, it consists of a governor and council, with authority to make laws, which do not affect the life or limbs of any person ; in which every law that has been thought necessary has been brought under a doubt, by the form in which the authority is conveyed ; for if they are enabled to make only such laws as do not affect the life or limbs of any person, what law does not come within one of those bounds? It is meant to give them a more active constitution. It is con- fessed, on all hands, that this is essentially necessary, and that it is imprac- ticable to put it in the form which other gentlemen seem to wish. With regard to the question asked by the honourable gentleman, whether this is to be a permanent constitution? whether it is wished there should be so rough a form of government established in any English province whatever? I can only say, that unless the present government be not only objected to, but the objection so stated as to point out some period of time in which it is fancied to be right to create the assembly which is now confessed to be wrong, I do not see how it would be possible, with the fullest purpose of doing it, to assimilate that constitution, in point of form ,to this. But it is to be assimilated by a new clause, to be added to the present bill! If you were to give them a very short duration of time, every body knows that the same argument against assemblies would go to the short time to be prefixed. If the idea were to make the law to last 1763-1774] Constitutional Documents of Canada. 95 from period to period, from three years to three years, is that the method of treating the country? giving them no hopes of permanence? But if you do not fix the, time, they will not look upon this to be the constitution, nor be anxious to assimilate with it ! When gentlemen apply the word "assimilation" to religion, to law, to civil laws, and to manners, I can easily conceive it is not an undesirable object in policy, that they should be so far assimilated. To a certain degree, I can conceive that the govern- ment of the country, under the present constitution, will look upon it to be their duty to assimilate the people in language, manners, and every other respect in which they can be expected to hold a more intimate connexion. But when that assimilation is proposed to be carried into the law-form of the constitution, I cannot conceive the form of the British constitution, as it stands at present, proper for them. Upon this main principle, you ought to make a repartition of the sovereignty of the country between the King and the people, of whom 558 are to be elected a parliament. On this principle, the sovereignty of this country was intended to reside, and does, in fact reside there. But do you mean to vest the sovereignty of the province, either by repartition or otherwise, in any other place than in the House of Lords and Commons of Great Britain? Yet, if you follow your assimilating idea, you must do that. I only know that none of the charters intended it. It is impossible for the King to have done it to have created the sovereign authority of governor, council, and assembly, in any one of the provinces. In point of fact, they have considered themselves, in more views than I wish to draw into debate, masters of the sovereign power. Is their money to be applied to support the British empire? Are their forces to be applied to the support of the British empire? Are they con- tent that the King, Lords, and Commons of Great Britain shall be the judges of the drawing forth of those forces, and the applying of that money to the protection of the British empire? I think I drew a degree of attention and conviction, when I stated it as an absurdity, that the sovereignty of the province should be divided between the governor, council, and assem- bly ; and to be sure it is a grossness, it is making two allied kingdoms, totally out of our power, to act as a federal union if they please, and if they do not please, to act as an independent country a federal condition pretty near the condition of the states of Germany. If you do not like that idea, in all the extent, in all the grossness of it, would you create a constitution in such a case which would make it, in fact, the very thing you deny in words? The next thing that has been said is, that Englishmen carry over their constitution along with them ; and in that respect it is a hard measure to take from them any of the English laws they carry over with them. I no more understand this proposition, especially as applied to the present sub- ject, than I do the former. When the Crown of Great Britain makes a conquest of any foreign established country, if it be true that it is an article of humanity and justice to leave the country in possession of their laws, then, I say, if any English resort to the country, they do not carry the several ideas of laws that are to prevail the moment they go there : it would be just as wise to say, if an Englishman goes to Guernsey, the laws of the city of London were carried over with him. To take the laws as they stand has been allowed ; to act according to those laws, and to be bound by their coercion, is a natural consequence. In this view, I think the bill has done nothing obnoxious. I have no speculative opinions. I would have consulted the French habit to a much greater extent, if it had been for me to have framed the law. Colonel Barre. . . . . Sir, the honourable and learned gentleman who spoke last has thought proper to give a short, but very imperfect, and for aught I know, a very incorrect, history of this proclamation. He says it was left in an office ; it was left a sketch, and that sketch was unfinished ; it was left by one noble lord, and take up by another, who thought proper to make considerable additions to it. The honourable and learned gentle- man seems to be very much displeased with this proclamation. He has reasoned against it in different parts, and stated divers inconveniences in it. 96 Constitutional Documents of Canada. [1763-1774 I cannot help observing, that the honourable and learned gentleman seems to be more solicitous upon this occasion than the conquered inhabitants of that country, and, in some measure, more than those who have been the conquerors of it. This proclamation, Sir, gave a certain form to the colony. It provided, that the inhabitants should have an assembly, as well as all the other royal governments, as soon as possible. The proclamation held out this language, that "until such assemblies could be called, all per- sons inhabiting in, or resorting to, the said colonies, might confide in the royal protection for the enjoyment of the benefit of the laws of England." Under this proclamation, thus held out as a solemn act to the people of that country, many Englishmen went, and settled in the heart of Canada : but their rights, their privileges, were not thought worthy of the honour- able and learned gentleman's consideration ; he stood up only in defence of the Canadians : but there is a very considerable number of men, no matter of what description they may have been poor bankrupts, but they are English subjects, who have settled there under the faith of this pro- clamation. The honourable and learned gentleman was not precise in stating the limits of our colonies. He seemed unwilling for the House to think that any one of the colonies, especially Pennsylvania and Virginia, had a right to settle beyond the Endless Mountains ; as if the honourable and learned gentleman could be ignorant of the fact that many thousands of English subjects are established some hundred miles beyond the Endless Mountains, upon the very spot which you are now going to make a part of this country of Canada. Sir, with respect to the Canadians themselves, the learned gentleman asks what would you do with them? Would you do the crudest tiling that ever was done to any conquered nation upon earth? Would you take away their laws, their customs? Now, Sir, I never yet knew it was found a grievance to any nation, to give them the English laws, the English con- stitution. So far from it, the Canadians admired and revered those laws, as tion. So far from it, the Canadians admired and revered those laws, as far as they could be made acquainted with them. If it is doubted, I have an evidence to produce the honourable and learned gentleman himself He says, "what did they do when their grand jury met? they called for their accounts, the public accounts. They likewise wished to put in execu- tion the Popery laws." Could there be any stronger proof in the world, that they knew the value of those laws? The criminal laws you have thought proper to give them ; but you have not given them all. To my certain knowledge, they wish to have the Habeas Corpus. You have retained the civil law. What you will afterwards do to get the law admin- istered, is to me incomprehensible. The civil law of the country stands founded upon what is called the custom of Paris. Thirty folio volumes of that custom those learned gentlemen are to make themselves masters of, and lay open to you, instead of making the English law the basis of their constitution. If any customs, or any particular laws, are applicable to the people of that country, take those customs and laws, and graft them upon the law you give them. Mr. Maseres has stated his opinion to you. It is in the hands of the public: but you have not followed his advice. My honourable friend wishes an establishment of a different kind : others think the establishing such a government as this is right. One law of inheritance the Canadians complain of: the court of France has complained of it, and once attempted to correct it. It is that which the learned gentle- man knows to be a custom with them ; namely, the quantum taken for the crown upon the alienation of any estate; they wish to get rid of that. In short, if you had led them with any address, by degrees they would have received great part of the English law : they would have hugged it to their bosoms ; they would, from time to time have abolished stated customs, and, by this time, you would have assimilated them to your constitution, and not left them standing single, as Catholics, under an arbitrary power. Another thing I wish to notice. Has there been any application from the country? any complaint of all this chaos which the honourable gentle- man has complained of ? No : there is no complaint. The principal people 1763-1774] Constitutional Documents of Canada. 97 of the country are of a very particular cast; they take a liking this I know to be the fact they take a liking to assemblies ; they think they have as good a right to have assemblies as any other colony on the contin- ent. It is strange, if they like this constitution, that you will not give them all the benefit and advantage of it. They ask for it; and when I say they ask for it, I do not mean to say that they have made any application in form to the court here, but they have stated their wishes to the governor there. Why not let them have assemblies? But it is said, they are not ripe for assemblies! Government has, to be sure, made use of the same argu- ment to induce them to drop that idea. It was said, "Don't you see very plainly, that the colonies upon the continent have all of them assemblies? Don't you see they are quarrelling with their King? If you have an assembly, you will probably be in the same situation. Now, a quarrel with their King, to the Canadians, is reckoned worse than any vengeance that can be poured upon them. They will not hear of any thing that would put them upon bad terms with their King. The method that I should have thought most natural, is the method recommended by Mr. Maseres, which was, by degrees to introduce what is proper in your laws, and to let what is proper in the French laws remain with them. You have determined to establish, by this bill, the Roman Catholic religion : by this bill the Roman Catholic religion has its establishment. Sir, it is very singular how this poor Roman Catholic religion has been treated : in Maryland it has been tolerated, in Ireland persecuted, in Canada you choose to give it an establishment. I do not mean to say you ought to strike at their religion. I think you ought to give it them within certain bounds The next thing I shall take the liberty to mention is, that this council, chosen by the governor, is to be suspended, and removable by him. It has been said, you have taken no measure to make a quorum, to say what is a board : but give me leave to tell you, from my friends, the Canadians, that the governor may summon every one of those persons, or seventeen of them ; and yet he may give them to understand he does not wish to see them. In that case, not a man to whom such a hint was given would dare to show himself : to be well at court, with them, is every thing, and the court is at present the governor. I do not mean to say, that such a thing is likely to arise from the conduct of the governor there ; but I have more apprehension from a wicked measure when I see an honest man is put at the head of it. I should be less alarmed at seeing this measure proposed, if he were recalled, and an unprincipled man placed at the head. This last proposition alarms me the more, because the noble lord declares, and some other gentlemen say the same, that this bill is to be perpetual. A learned gentleman near me wishes it to be temporary. Now, if there is any part of the bill that ought to be temporary, it is this ; and with respect to the law of Canada, with respect to the religion of Canada, they are two very important matters. It is not very easy to make a change in the estab- lishment of them. With respect to religion, it is impossible to do it ; but with respect to this arbitrary power it is possible, unless you mean to say, they shall be slaves to the end of time. Though you have taken great pains to defeat the purpose of settlers, yet if the Canadians should give up their conscience a little, and accept of your religion, which is possible as many English are settled there, and you should wish to give them a legislature, by making this bill perpetual you never can do it. I may be told that the committee is the properest stage in which to discuss the bill. Certainly, we are now not a full house ; but perhaps not half the present number of members may be here next day this bill is taken into considera- tion ; and for that reason I throw out these observations, I am afraid I have detained the House too long. I have stated, very loosely, the objec- tions I have to the bill. I have more to urge, but I do not choose to men- tion them in so thin a house. One thing I would say that I look upon this measure as bad in itself, and as leading to something worse; that I foresee it will not contribute to the peace of the country for which it is intended ; and that it carries in its breast something that squints and looks G 98 Constitutional Documents of Canada. [1763-1774 dangerous to the inhabitants of our other colonies in that country. Fore- seeing this, and looking upon the measure in itself as a very dangerous one, I shall give my hearty negative to it in this stage. The Solicitor-General [Alexander Wedderburn]. . . . . With regard, Sir, to the great point of religion, I believe I should do an injustice if I attributed to any gentleman a desire to convert the Canadians, by an act of force, to the Protestant faith. However desirable it may be, that there should be a conformity of opinion, I do not believe there are any gentle- men in this House who wish to effect the conversion of the Canadians, in any way but by the force of persuasion and conviction. Is the Roman Catholic religion made the essential article of this bill? I can see, by the article of this bill, no more than a toleration. The toleration, such as it is, is subject to the King's supremacy, as declared and established by the act of the first of Queen Elizabeth. Whatever necessity there may be for the establishment of ecclesiastical persons, it is certain they can derive no authority from the see of Rome, without directly offending against this act. That the bishop may ordain priests, and that he may dispense with marriages of cousins german, nobody will have the least objection. If the Catholic religion is to remain, the bishops must ordain priests : the worship cannot exist without priests ; and there cannot be priests without bishops ; unless you will permit missionaries to go from other countries to fill the cures in Canada. Of the alternative, which is the most politic? that the priests should be bred in the country, or that the Franciscans or Dominicans should go over, and you of necessity be obliged to connive at their so doing? But then it is complained, that these clergy are to be allowed to hold, receive, and enjoy their accustomed dues and rights. What, Sir, would you tolerate their religion, and tell them, at the same time, that they shall have no priests? or would you have these priests subsist upon the casual benefactions of individuals? Is it not better that they should subsist under the authority of the state, than that these priests, who so zealously endeavour to gain an empire over the minds of the people, should be placed in a state of dependence on them for their maintenance? And further, Sir, is not all this indulgence given subject to his Majesty's appro- bation, and not that of any Canadian authority? and is it not provided, that nothing contained in the act shall disable his Majesty from making a provision out of the rest of the accustomed dues and rights for the Protes- tant clergy, in such manner as he may from time to time think necessary and expedient? So that all their tithes are subject to be taken from them, as affirmed, for a Protestant clergy. I should suspect, that the Canadians' objection would be, that this provision defeats such a re-establishment ot priests as they expected from the former part of the bill ; and I am sure it would be perfectly ridiculous to make a fund for the establishing of the Protestant religion, especially as there is not any great number of Protes- tant clergy in the country. With regard to the civil and criminal law established by this bill, I have no difficulty to say, that the criminal law there established ought to be the law of England. I would not have compelled the Canadians to adopt the criminal law, if they had found it a hardship. I have not a doubt of the preference of either of the two codes of laws being in favour of the English. I should think it would be so in theory, and I am confirmed in my opinion by the testimony of those gentlemen who are best acquainted with the state of Canada. I speak from the best authority, from that of the chief justice. What does he say? That the Canadians are fully sen- sible of the benefit of the criminal law, and that they would prefer it to the returning to the criminal law under which they lived. If we change their laws, where it is clearly for their advantage, and they are sensible of that advantage, we repair, in some measure, the evil of conquest ; and this we have done, by the boon we have given them in this part of the bill. It is similar to that instance which Montesquieu quotes, of the demands of the conquering nation, that the vanquished should abolish the custom of exposing their children; which, he says, is one of the finest exercises of the power of the conquering over the conquered nation, that was ever 1763-1774] Constitutional Documents of Canada. 99 heard of. I have no doubt the Canadians will be fully sensible of the benefits of the proposed change, and will not complain that they are sub- ject to the English criminal law, which is mild in its punishment, and certain in its description of the offence. With regard, Sir, to the civil law, at present to effect a change in that law, would be to deprive the Canadians of that property which they are entitled to enjoy. In civil cases, until they shall have adopted ideas very different from those which they at present entertain, certainly the trial by jury would be no blessing to them. To alter long-established habits, to create a more manly course of thinking, to make the Canadians competent judges in civil matters, must be the work of time. Individuals bred up in a country where trial by jury does not prevail, would find it very difficult to exercise the office of a juryman. They would consider it a hardship, instead of accepting it as a benefit. The introduction of it must, I repeat, be the work of itme. I consider the assembly as sitting to make experi- ments, for the purpose of bringing the country as much as possible into that mode of living, and into those sentiments of cordiality with the Gov- ernment, which the nature and habits of the people will admit. I assuredly think it desirable that they should acquire the mode of thinking of British subjects, and be brought, as much as possible, to adopt British manners; but if you alter their laws, it will be difficult to produce this change; if you alter their manners, it will be still more difficult. You must not seek to attempt it by any violent or sudden alteration ; if you do,, you put off the wished-for event to a greater distance, than if you suffered things to take their own course. Another objection has been urged against the measure, which more properly belongs to the committee; namely, that there is no clause in the bill to make its operation temporary. Now, Sir, I consider this bill, in its nature, to be temporary. A bill of this kind cannot but be temporary, because it is a bill of experiment. As to how far it is*adapted to the wants of that country, gentlemen differ; but I think it will bring the Canadians much more to the resemblance of British subjects than they are at present. Gentlemen who oppose this measure have not attended to two points. In the first place, will it secure the law of Canada as to civil rights? With respect to this, it makes two material alterations ; one, that the property of the state may be devised by will, the other, that all land given by his Majesty may be held in free and common soccage. By these means, those lands will henceforward be held by the law of England ; and no doubt the people will avail themselves of the power of devising, which that law gives them ; which will bring the estate, of course, to the eldest son. This will bring them nearer to the general laws of England. But should the Cana- dians not be inclined to receive these alterations, they will have very little effect. I consider, therefore, this bill essentially a temporary one ; but I shall be against any clause to make it so. In the first place, for what period would you take it? If for any period, it would have this bad effect with regard to the Canadians ;it would hold out to them a period, when it would cease to operate, and it would induce them to be stirring up objec- tions against it during all the term that you permitted it to be in force. If you take a long period, the effect will be the same as if it were made perpetual ; if a short one, it is merely an experiment. And let me only remind gentlemen of the difficulty of fixing the period. I have hitherto, Sir, in all I have said, considered the Canadian inhab- itants as the objects of the legislature. A great deal has been said with regard to the British subjects settled in Canada. Now, I confess, that the situation of the British settler is not the principal object of my attention. I do not wish to see Canada draw from this country any considerable number of her inhabitants. I think there ought to be no temptation held out to the subjects of England to quit their native soil, to increase colonies at the expence of this country. If persons have gone thither in the course of trade, they have gone without any intention of making it their permanent residence; and, in that case, it is no more a hardship to tell them, "this is the law of the land", than it would be to say so to a man whose affairs 100 Constitutional Documents of Canada. [1763-1774 induced him to establish himself in Guernsey, or in any other part of North America. With regard to the English who have settled there, their number is very few. They are attached to the country either in point of commercial interest, or they are attached to it from the situations they hold under government. It is one object of this measure, that these per- sons should not settle in Canada. The subjects of this country, in Holland, in the Baltic, and in different parts of the world, where they may go to push their commercial views, look upon England as their home; and it should be our care to keep alive in their breasts this attachment to their native soil. With regard to the other portion of the inhabitants of North America, I think the consideration alters; if the geographical limits are rightly stated. I think one great advantage of the extension of territory is this, that they will have little temptation to stretch themselves northward. I would not say, "cross the Ohio, you will find the Utopia of some great and mighty empire." I would say, "this is the border, beyond which, for the advantage of the whole empire, you shall not extend yourselves." It is a regular government; and that government will have authority to make enquiry into the views of native adventurers. As to British subjects within the limits, I believe there are not five in the whole country. I think this limitation of the boundary will be a better mode, than any restriction laid upon government. In the grant of lands, we ought to confine the inhabit- ants to keep them, according to the ancient policy of the country, along the Une of the sea and river. Upon these grounds, Sir, I think this bill ought to go to the committee. I do trust that that committee will, at least, be as well attended as this House. The project is one that deserves most serious consideration ; and I am satisfied it will be the endeavour of gentle- men to make it as perfect as possible. Mr. Charles Fox. . . . . First of all, Sir, my learned friend has not sufficiently attended to what I said, that I objected as much to the levying of the tax by the House of Lords, as to the tax itself. You know how exceedingly nice we are on this point. My learned friend says, they have been in possession : now, I do not apprehend they could have any legal right, if the proclamation had any force; for that, by the laws of England, the Roman Catholic clergy should be entitled to tithes, is what I cannot comprehend. That the proclamation did not affect Canada, I have not heard my learned friend affirm. The question is, whether this be not liter- ally giving a right to the clergy of that country; whether it be not giving them a right to exact that, which they had not a legal right to exact before this act passed? If so, it is giving a power to raise money; and we never permit bills of this nature to originate in the House of Lords. I think this objection alone fatal to the bill, without going further; but with regard to the measure itself, I will say, that it is not right for this country to originate and establish a constitution, in which there is not a spark or semblance of liberty. A learned gentleman has said, that by this means we should deter our own countrymen from settling there. Now, Sir, as it is my notion, that it is the policy of this country to induce Englishmen to mix as much as possible with the Canadians, I certainly must come to a different conclusion. Everything that forwards the learned gentleman's end, defeats my view of the subject. The learned gentleman has, too with great ingenuity, stated the inconvenience in Canada, if we give them our laws with respect to real property. I do not suppose there is any gentle- man who would approve of those laws being forced upon them; but the learned eentleman spoke, as if all civil law were comprehended in this kind of relation, which affects the descent of property, the Habeas Corpus, and all other rights. He quoted Montesquieu with approbation, about ex- posing children, but he says, "I cannot give the Canadians trial by jury; I cannot give them the Habeas Corpus ;" which are laws of the same nature, and fully as commendable as those which prevented the exposing of children. I cannot conceive why we should not give them the law of this country. If we gave them that law, it would be easy to alter it in many respects, so as to make it agreeable to them. That, Sir, I conceive it to be the duty of this country to do; and it is very easy to do it: but 1763-1774] Constitutional Documents of Canada. 101 to go at once, and establish a perfectly despotic government, contrary to the genius and spirit of the British constitution, carries with it the appear- ance of a love of despotism, and a settled design to enslave the people of America, very unbecoming this country. My idea is, that America is not to be governed by force, but by affection and interest. But the Roman Catholic religion, the learned gentleman says, is not established. Accord- ing to my notion, the establishment of that religion consists in government paying its teachers; and when the professors of that religion receive tithes, that, I maintain, is establishing a tax. I profess I do not myself object so much to that portion of the bill; because I think the persecution of the Roman Catholics is much to be deprecated, and that the penal laws of this country are repugnant to every principle of toleration. I think there might be, in some part of his Majesty's dominions, an asylum, where Roman Catholics might go, if persecuted. I still, however, think that this provision has not yet been distinguished from a tax ; that we are now going, for the first time, to levy a tax, brought down from the House of Lords, for the support of a Roman Catholic establishment ; that we are about to levy a tax on the people of Canada, for the support of a religious establishment; and that we are taking this bill of the House of Lords, when it ought to have originated here. If the Roman Catholic clergy have been in posses- sion of a right to tithes, they must have been in possession of it from the good-will of the people of the country. If they should ever be disposed to sue for their dues, they are now to have a legal right to them, by a bill coming from the House of Lords. Mr. Edmund Burke. . . . . The learned gentleman observes, that it is a tyranny to place over a whole people a law they do not understand. But, Sir, is it not less a tyranny to place a law over them which they do not understand, than to impose upon them a law which we do not under- stand ourselves? Does this House know what that law and custom is which they are going to impose upon their fellow subjects? I do not condemn either the present law, or that which is proposed in its place. I will not approve the one or the other ; much less attempt to impose it either upon Frenchmen or Englishmen, until I know more of the nature of those laws than I do at present. The customary law of Canada may be a defect grown up from the time of barbarism, and corrected by despotism ; as in many parts of France, in many parts of Germany, and in many other parts of the world. Can we say, what is the customary law of Paris, which is going to be made law by this bill which is going to be made law in Canada? Do we know how to modify it by the practice and admission of the civil law, which has been admitted into almost all the provinces of France? For observe, that it is not the custom of Paris, which has been mitigated by ordinances and mitigated by the civil law, which is proposed to be established; but the custom of Paris, unmitigated, unqualified, is now proposed to be established for ever, as the law of the province of Canada. I should be glad to read the clause, to see if I am right in that expression ; for I could wish to be correct. In page 3, it says, that "all his Majesty's Canadian subjects shall hold and enjoy their property and possessions, etc.; and that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada." I see I was rather mis- taken, and am willing to correct myself. It is not the custom of Paris that is to be established in that extent, but the custom of Canada, of which we know little or nothing. But there is something worse in the wording of this clause ; for it is to be established, it is said, "in as large, ample, and beneficial manner, as if the said proclamation, commissions, ordinances, and other acts and instruments had not been made." The wording of this clause supposes, that the acts and ordinances, and law of England, had not been beneficial to the Canadians ; that the law of Canada is by the English government approved ; and the law of England stands condemned, as not being beneficial. Now, I should be glad to ascertain two facts ; first, whether the British government is odious to the Canadians ; and next, what are the excellences of that government to which we are reverting; what beneficial effects it has produced ; and whether the people of Canada 102 Constitutional Documents of Canada. [1763-1774 have flourished more under the French government, than under the Eng- lish government? These are matters of fact necessary to be known, to enable us to judge of these laws. I shall never be induced to consider government in the abstract. The government under which the people have flourished most, that is the best government. I should desire to see the present state of the country compared with its state for the twelve or fourteen years preceding the troubles that gave rise to the present measure. Perhaps the people have enjoyed great benefits. If they have I would inquire, whether this proposed change must not produce great incon- veniences? Until I have this light of facts, it will be impossible for me to give an honest vote, with a view to a change of the government of Canada. If you introduce laws that have lain dormant for twelve or fourteen years, it is as much an innovation, as if you had made the constitution new. I have no objection to make the constitution new, provided the necessity of so doing is set in a clear and satisfactory manner before me. I think Parliament can proceed upon no principles but two reason and authority. Reason we have none. The next question is, what is our authority? I believe the opinions of the learned gentlemen near me, will, must, and ought to have their due degree of weight with the House. They seldom give their authorities, without, at the same time, giving their reasons. It may be said, we have the gentlemen here, and therefore have no need for their written opinions. I should very readily agree to this, if gentlemen will tell me that these written opinions may not have been given with a greater or less degree of latitude in the council if gentlemen will tell me that I cannot, for the sake of the public good, have those facts brought before us, which those learned gentlemen made use of to justify their own opinions. The reasons of those great law authorities, combined with the authority of those facts, must have great weight with me. I have hitherto avoided offering a single word upon the general policy of this bill. It is said, the general provisions of the bill are to be considered in the committee, and the general argument on bringing up the report. I guard myself from this admission, upon this single question ought not such a ground of information to be first given, as will induce you to reject the law of England, and assume the law of Canada? that is, to reject the law which you do know, and the beneficial effects of which you have experienced, in order to impose another law upon the Canadians which you do not know, but the ill effects of which you have felt? Are you to proceed, in a manner so wild and at random, in condemning the British laws unheard, and establishing the French law in Canada? I may venture to say, "condemning" the law of England; because its condemnation is virtually made, the moment it is proved not to be beneficial to the people. I believe I am not so attached to words, as to put my own opinion in com- petition with that proof; but as yet I have no evidence that the people do not like our law. I do not know this to be the case. The presumption is, that the law under which they have long lived, is the law most agreeable to them. I will go upon presumption, when I have no other ground to judge upon. The law may have been more agreeable to them from their ignorance. They did not know of any better ; and the moment they know some other system more beneficial, they may wish to adopt it. Until I know that the people of Canada condemn the British law, I will not impose another, which their own enlightened judgment would have rejected. Has any petition appeared before the House, to tell us the law was a burthen to them? Is either the form of trial, or the laws by which they are tried, disagreeable? What evidence have we of all this? As a friend to the people of Canada, I ask these questions. The conquest of them should not make them less dear to me : I would even treat them with a milder hand. The treaty, too, has demanded it : but until I know that the English laws are not beneficial are not good for all men in all cases ; until I know this, until the people of Canada complain of them I will not presume that they are opposed to them. At present, there is an English complaint against the establishing of French laws. I should be glad to hear a French complaint against the establishing of English laws ; and whenever that 1763-1774] Constitutional Documents of Canada. 103 comes, I shall be ready to give it a fair hearing. But at present, the bill stands upon no complaint. There can be no mischief in postponing it; but there may be much mischief, if you give the people French despotic gov- ernment, and Canadian law, by act of parliament. By a delay of a year, they would be kept out of the advantage of having Canadian law univer- sally established, which Canadian law universally establishes a despotism ; and there is nothing left to complain of but the despotism established by necessity. At present, they bear that grievance; but a grievance by neces- sity, and a grievance established by law, are two very different things. Supposing the bill to be delayed for a whole year, the extent of the evil on our side will be, that we shall have more information; and as for the Canadians, they will remain a little longer in the same situation in which they are at present. If you were prepared to give them a free constitution, I should be in haste to go on ; but necessity "necessity, the tyrant's plea" is urged for proceeding immediately. Let us have evidence, then, of that necessity. I stand for the necessity of information ; without which without great, cogent, luminous informa- tion I, for one, will never give my vote for establishing the French law in that country. I should be sorry to see his Majesty a despotic governor. And am I sure that this despotism is not meant to lead to universal despot- ism? When that country cannot be governed as a free country, I question whether this can. No free country can keep another country in slavery. The price they pay for it will be their own servitude. The constitution proposed is one which men never will, and never ought to bear. When we are sowing the seeds of despotism in Canada, let us bear in mind, that it is a growth which may afterwards extend fo other countries. By being made perpetual, it is evident that this constitution is meant to be both an instrument of tyranny to the Canadians, and an example to others of what they have to expect; at some time or other it will come home to England. When it is proved that the laws of England could not govern Canada, it will be plain that some stronger power than the laws of England is neces- sary to govern this country. I shall give my first vote upon this bill, against the despotic government there ; whether it is to be established for any length of time, or to be established at all by Parliament. When you cannot make a free government, you ought to leave a country to be governed by the force of necessity. Government, and a free government, are two different things ; but with regard to those laws which are in use at present, I cannot form an opinion I know nothing of the custom of Canada. I should be glad to receive proper information. When I have received proper information, I will then endeavour to speak to the merits of the bill as far as I can : at present, I cannot form any opinion, I wish to have it understood, that what I have now said relates solely to the question of information EXAMINATION OF GENERAL CARLETON, GOVERNOR- GENERAL OF CANADA Will you give the committee an account of the commerce and govern- ment of Canada, when you first arrived in that country as governor? I am not prepared to give an account of the trade; it would extend very far, and require several papers which I have not here. I beg you to give an account of the state of the government at that time. In what respect? I understood when you went over as governor, that you established a form of government. In what manner was the civil government carried on in Canada? The civil government consisted of a governor and council. They were authorized to make laws and regulations in the province, under certain restrictions. Both the questions are extremely wide ; I do not know precisely what the gentleman's ideas are. If I had thought it essential, I would have procured papers from the Custom-House of the imports and exports. If I had lived in the country fifty years, I should not have been able to give a precise account, without having the papers in my hand. What was the mode of proceeding in the courts of justice when you arrived there? The justice of the province was distributed by two courts 104 Constitutional Documents of Canada. [1763-1774 the Supreme Court and the Court of Common Pleas, and likewise by other courts which had power more restrained and confined than the Court of Common Pleas. What was the form of trial in the Court of King's Bench? I hope the committee will not expect I should state that with accuracy. The chief justice should do it. I think the Supreme Court or Co.urt of King's Bench, was according to the English form. General Conway. I do not mean to object to the question of the honourable gentleman, but I submit to his consideration, whether as we are to hear the chief justice, and the attorney -general of jQuebec, it is not more proper to put the question to them. Mr. Mackworth. Were any objections made to that mode of trial? There are two sets of people in Canada: one, those who call themselves ^ the ancient subjects, the other the new subjects. The first are very well satis- fied with the form of justice administered in the Court of King's Bench; the other, the jiewly acquired subjects, are extremely satisfied with the integrity of the court, but extremely dissatisfied with the mode of trial. Their dis- satisfaction arises, first from the great expense that the court draws them into ; and in the next place, from all the proceedings being in a language they do not understand: they are likewise not satisfied with juries. They are extremely flattered and pleased that there are to be juries; that they are to be admitted to be of the number; but they think it very strange that the English residing in Canada should prefer to have matters of law decided by tailors and shoemakers, mixed up with respectable gentlemen in trade and commerce; that they should prefer their decision to that of the judge. Have they been dissatisfied with the judgments that have passed in the Court of King's Bench? I cannot say I ever heard a complaint of the kind. If juries were composed of the species of men such as they approved of, would they disapprove of the mode of trial by jury? The great object with the Canadians would be to procure justice; and to procure it at a reasonable and moderate expense : these are the essential points. As to the mode of trial, whether by jury or by the judge, they would prefer the / latter from custom, habit, and education. I am not authorized to speak for the Canadians, to assert that they absolutely pray against juries. They certainly are attached to their own customs and manners. I am willing to give as much information as is in my power, but the chief justice is much better qualified than I am. If the expense was moderate, and the jury composed of proper men, would they object to that mode of trial on account of thinking they should not have justice done them in the trial? I cannot say that the Canadians would wish to adopt it: on the contrary, I have heard them make objections to it. How far those objections will carry weight, I know not. Is not the trial by jury in the Court of Common Pleas optional? I understand so. Do you know that the Canadians of late, in the trials in that court, have chosen the trial by jury to decide their causes? In general, I under- stand not. Can you give any authentic account of the number of Protestant sub- jects now in the province of Quebec? I had the return of the province last April of the number of Protestants in the year 1770. By that return, I believe, every body who calls himself a Protestant is included. By that account they are under four hundred men, about three hundred and sixty, besides women and children, in the whole colony of Canada. I am afraid their numbers are diminished since. Do you think the diminution of the number of British subjects is an advantage or disadvantage to the province? That is a political question. I am afraid their circumstances have been so reduced, as to compel them to quit the province ; I speak from humanity. I do not mean to give any political opinion upon the subject. In general, are these three hundred and sixty persons composed of 1763-1774] Constitutional Documents of Canada. 105 men of substance and property in the province? There are some who have purchased lands officers, or reduced officers, some very respectable merchants ; there are other inferior officers in trade, and a good many dis- banded soldiers. In general, they are composed of people of small property. What do you think may be the number of the new subjects of Canada? About one hundred and fifty thousand souls; all Roman Catholics. In the conversation you have had with the Canadians in general, are they not very earnest for the restitution of the ancient Canadian laws? They were very much so, when I was in the province ; and by the accounts I have received since I came to England, they still continue very earnest indeed, and anxious about it. Have they expressed lately any apprehension on seeing plans of gov- ernment sent over, that those plans should take place, or any satisfaction or desire that they should? They have expressed great uneasiness at the apprehension, and more warmth than is usual for that people. They seem determined to form associations and compacts to resist the English law, if they should be compelled to do it, as far as they could do so with decency, and their duty to the government would permit. Have the clergy in Canada since the peace enjoyed and received the tithes and parochial dues? They have received the tithes and parochial dues as formerly ; there may be some who have not, but very few ; as few as those gentlemen who receive their rents; they are as well paid as the rents. . Mr. Charles Fox. Did they receive the tithes and dues only from the Roman Catholics, or from the Protestants likewise ? I really do not know ; there are so few Protestants that cultivate the land. Was there an idea that the Protestant landholders were exempt from paying tithe? I have heard some of the clergy say, that in the uncertain state of things, they would not ask the Protestants to pay unless they chose it: as there were opinions spread among them, that it was not agreeable to the English law to try the right, they would have to encounter the great expense of the law. I think it induced them to act with great moderation and discretion in the matter ; hoping in a short time, that the laws would be ascertained, that they might know what ought to be paid and what not. Did those few British subjects inhabit the towns of Quebec and Mont- real ? Chiefly ; there are very few in the country, so few, that they are scarcely to be seen in travelling through it, as there are but three hundred and sixty in a district of three hundred miles long, and very wide. Lord North. Is not the cultivation of the lands entirely in the hands of the Canadians? Almost entirely. What part of the trade~7s""m' the hands of the Canadians? I have heard about two-thirds. Is not the trade much increased? I understand the trade is increased very much. Do you attribute that increase to the trial by jury, or introducing so much of the English law as has been introduced? No; they have no dependence upon that at all. Can you assign any probable reason to what it is to be attributed? The colony of Quebec was in its state of infancy; it is so still, in some measure. They have been now fourteen years quiet. The country has peopled very fast; besides the natural increase of population, there have been a great many Acadians, who had come into the province ; people taken from America and Nova Scotia, that were scattered in the province during the course of the war. As the people multiply, they act as a sort of farmers ; they take possession of the lands behind their own, so that they go on cultivating the country very fast. Do you not think the old inhabitant in Canada is receiving considerable advantage from the change of the disposition of the inhabitants, from a military to a commercial life? No doubt he is. Under the French govern- ment, the spirit of the government was military, and conquest was the chief object; very large detachments were sent up every year to the Ohio, and other interior parts of the continent of North America. This drew 106 Constitutional Documents of Canada. [1763-1774 them from their land, prevented their marriages, and great numbers of them perished in those different services they were sent upon. Since the conquest, they have enjoyed peace and tranquility; they have had more time and leisure to cultivate their land, and have had more time to extend their settlements backwards; the natural consequence of which is, that wheat is grown in great abundance. I have been very well informed, that we have exported large quantities of wheat. Colonel Barre. I submit, whether it would not be better to go through one particular part first, without going into any other. Lord North. It is almost impossible. No man can know how many questions every particular member has to ask upon this point. Colonel Barre. I have only one question to ask upon that point, reserving myself to ask others; it follows from the noble lord's question. If by any means that same warlike spirit was introduced again, would it not introduce the like disagreeable and bad consequences? I take it, that a spirit of war in that, and in all countries, is very much against population and the cultivation of land. What measures in that country would put an end to this spirit? Their being subdued by the people they meant to conquer. Lord North. Has not the increase of the agriculture been the principal cause of the increase of the commerce? It is so understood. Do you not understand, that the great capitals of our merchants, their great knowledge, and their spirit in trade, have likewise contributed to the increase of it? I believe they may have been of advantage. Are the Canadian inhabitants desirous of having assemblies in the province? Certainly not. Have they not thought with horror of an assembly in the country, if it should be composed of the old British inhabitants now resident there? No doubt it would give them great offence. Would they not greatly prefer a government by the governor and legislative council to such an assembly? No doubt they would. Do you not think a free exportation of corn contributed to the encour- agement of population and agriculture, as much as any of the foregoing causes? The population was the first effect; the cultivation of the land was the consequence. Was it necessary to have any land to be qualified to serve on a jury in the country? I believe there is very little nicety in that matter; there is too great a scarcity of Protestants. I beg leave to add, in the list of jurors I mentioned, there were a great number of disbanded soldiers that kept tippling houses. Is that the only idea of the assembly, that you ever knew suggested to the Canadians, and to which they returned their answer? I put the ques- tion to several of the Canadians. They told me assemblies had drawn upon the other colonies so much distress, had occasioned such riots and con- fusion, that they wished never to have one of any kind whatever. Did not the Canadians likewise think, that assemblies would draw upon them expences as well as distress? By distress I meant the dis- pleasure of this country. No, they never stated that. Have you never heard, that they imagined they should be obliged to pay the expence of government as soon as they had assemblies, but that until they had them they were not to pay the expence? No, that was not the idea of the Canadians ; they dislike it as not being comformable to their ancient customs. Do you mean indiscriminately the whole law, civil and criminal? The civil law. Do you think, if all their customs of descent and heritage were pre- served, that they would be dissatisfied with the introduction of trial by jury? With regard to any portion of their law, one custom separate from another, I believe they would be extremely hurt to have any part of their customs taken from them, except where the commercial interest of the country may require a reasonable preference, and such commercial laws as can be especially mentioned to them. I believe they would make no 1763-1774] Constitutional Documents of Canada. 107 objection to any such commercial laws, if they may know what those laws are. But laws in the bulk, which nobody can explain to them, they think would be delivering them over a prey to every body that goes there as an j attorney or lawyer. Was the dissatisfaction expressed by the Canadians at large, or by the corps of noblesse? They were pretty unanimous in most points; as unani- mous as so large a body could be expected to be. Are the noblesse better pleased with a jury in criminal causes? I never heard objections made to the criminal law, except in one instance. Very soon after I went into the province, there were some Canadian gentlemen and some English gentlemen arrested for a very great crime indeed 1 . They were accused of a very great crime indeed. They were committed to gaol until the next trial. It was the unanimous sense of the province that they were innocent, and they were found innocent at their trial. Upon that occasion, I heard several of the Canadian noblesse complain of the English law ; but, upon my word, I recollect no complaint of the criminal law but upon that occasion. What was the nature of the complaint? They complained that upon the deposition of one man of very bad fame, gentlemen should be com- mitted to prison, and there remain a considerable time before they could come upon their trial. They said, that under the former law, more than one information would have been taken, and an inquiry made by the King's attorney-general, and that those gentlemen would not have been arrested if such information had been taken, as their innocence by that means would have appeared. Has there been any other trial by jury for a capital offence? I do not remember to have heard of any. Have there been any considerable number of trials for offences among the common people? Very few, to my knowledge. What number of these noblesse is there is this country? My memory will not suffer me to tell. Nearly? I suppose a hundred and fifty; I speak at random. What is the occupation of them; do any of them trade? I believe very few ; they are not fond of trade. They have been brought up in the troops ; they do not apparently trade; perhaps they may have connexions with some that do. Do you know from the Canadians themselves, what sort of adminis- tration of justice prevailed under the French government, whether pure or corrupt? Very pure in general; I never heard complaints of the admin- istration of justice under the French government. Was it so pure, that there was no room for favour from the judge? The intendant of the province was chief in matters of justice. What was his general character? With regard to his character as chief justice, I believe it was unexceptionable. It can never be the interest of a sensible man to connive at, or suffer, iniquity in courts of justice. The matters in dispute are very small between neighbour and neighbour, and he would only incense the people for very little purpose. Trfe French intendant had other methods of making large sums of money, and enrich- ing his favourites, if he had a mind to do it. Was the administration of justice, in the other branch, equally pure? He was at the head of all justice. He had his delegates, who presided in small matters in the other parts of the province. There was an appeal from the others to the intendant. Were the decisions of the court in the three districts always just? I believe so ; I never heard any complaints from the people, that the courts of justice were not properly administered. I have heard of great fortunes made in another manner. If their favourite laws and favourite customs were preserved to them, would they not, in every other case, take the law of England? They do not know what the law of England is; they call the law of England the J The Walker Case. See Kingsford, History of Canada, vol. V. 108 Constitutional Documents of Canada. [1763-1774 mode of administering justice. They do not know the difference between Canadian law and English, in the mode of administering it. The essential laws of England, in deciding matters of property, they have not the least idea of. The intelligent part of the Canadians think and hope, that their laws and customs may be continued, because they know what they are. Have the intelligent part of the Canadians any idea of the law of habeas corpus? I believe not the least. I do not say there are no gentle- men who have made it their particular study. Are there any number of the professors of the law, capable of instruct- ing them in the law there? There is a Mr. Taylor, attorney-general; there is a Mr. , secretary. I would not venture to say there is one lawyer in the whole province who has been at the bar in England ; I may be mistaken. I do not know one that ever was at the bar as a lawyer. Then I understand you do not imagine that any other person but those two are barristers? Not to my knowledge. In general, have not the British subjects in Canada and the old sub- jects intercourse with one another? They have very little society. Do the Canadians in general communicate their sentiments to the British subjects at all, or to the officers, etc.? They are very decent people, and communicate their sentiments only to those whom the King has ap- pointed to receive them. Has there been, by the supreme council established, any summary trial for small matters in the different parts of the province? Yes; the justices of the peace formerly had authority to try small causes. Were any of the Canadian gentlemen among those justices? Not one. Did there exist in the French government any summary mode of pro- ceeding in the country? Yes; some of the seigneurs had a right to hold courts of justice. They almost all had a right; but few exercised that right Has that been taken away under the English government, or more exercised? Entirely taken away; besides that right, which the seigneur of the original tenure has, there was what is called the right of proceeding as delegates to different parts of the province. Are those delegates resident inhabitants, who have a commission some- thing like justices of the peace in England? They were creditable people of good understanding. There was scarcely such a thing as a lawyer ad- mitted into the colony, under the French government, except the King's lawyers ; I mean regularly educated lawyers. There were attornies and notaries. Do you conceive the people of the country to be at all informed of the French law they lived under? They understand the French law from education, as the people of England 'understand the English law from edu- cation, from the customs and usages of the place. Do they understand more than the general custom of descent and neritage, and the mode of conveying property in that country? They understand in all respects whatever comes before them. All the French law was not introduced into Canada. They are acquainted with the laws of property generally, and the custom of Canada; but as to the other laws of Paris, they are not introduced : they are as much unknown to them as the law of England. Is there any code of Canadian law published? There are law books, and some that contain precisely the laws and customs of Paris, from whence the Canadian laws are derived. There are, besides these, a col- lection of the customs of Canada, as far as they are able to procure them, which I understand is published. Has there been any plan proposed since you have been governor, or any in your predecessor's time, to determine causes of small value? I do not know that there is any plan. They have no sort of intermeddling with the administration of justice, but in juries. Would not that have removed their objection to the English govern- ment, and given general satisfaction in the country? The administration of justice by the seigneurs was rather a tax upon them; there were very 1763-1774] Constitutional Documents of Canada. 109 few that exercised it. Since I have been there, they have applied to me to know whether they might not exercise it; or to know, whether it was taken from them. I said, I wished they would let the matter lie dormant till something was finally determined. What is the wish of the people who would be subject to this jurisdic- tion? Do they wish to be tried without expence, and upon the spot? They were under some check under the French government. They cer- tainly were not delivered up to their mercy : there was an immediate ap- peal to the King's courts of justice. They were under the check of the King's courts of justice, and the King's attorney-general brought every thing up immediately. Might not some alterations have made that very agreeable, such as might have enabled them to bring small suits to immediate issue? They are very much attached to their ancient customs. They were so much dissatisfied with the people to whom commissions of the peace were granted in different parts of the province, that I was obliged to take away their power. It never was much trusted into the hands of the French. Were all the judges in all the courts of justice in Canada bred to the law ? No. Were any more than the chief justice of the King's Bench? I believe not one. Were the Canadians made aware by those persons, that a jury in civil actions have nothing to do with the law? They have a very confused idea of the English law. What was the nature of those decent compacts and associations they were determined to enter into, to resist the laws of this country? To bind themselves in all marriage contracts, as strictly as it was in their power to do, that all their possessions should go according to the Cana- dian customs, and in general to adhere to that as closely and firmly as possible. Did the supreme legislative council ever make any laws to secure property, according to the Canadian customs? There were some ordi- nances made ; but I never could learn that anything was clear or certain in the law, nor did I understand clearly what was the law and custom ; nor does it seem to be a clear question in the country. I have heard the same man argue for the English law in one cause, because it suited his cause, and I have heard him argue for the French law in another cause. There is an ordinance for quieting the minds of the Canadian subjects, directing the court of common pleas to decide agreeably to the laws and customs of Canada, in adhering as much as possible to the laws of Eng- land. There is also an appeal to the supreme court of equity, which is directed by the common laws of England. Would two-thirds be satisfied to have their suits, relative to debts in the country, decided by the Canadian law? I believe not. Have they any regular method of conveying their sense at present? I understand they have conveyed it in petitions. When I was in the prov- ince, seeing great heats and animosities upon every occasion in various sorts of people, and that petitions of all kinds greatly incited these ani- mosities, I dissuaded them, as much as it was in my power, from meas- ures of that sort. Before my arrival they nacl expressed their desire in a petition to the King. They frequently repeated the substance of that petition, as their earnest desire and wish, and would have drawn up a fresh one, had I not dissuaded them from so doing. My reason was, that I wished them to wait till the King should think proper to reply to their petition. During my residence, upon all occasions, all sorts of people ex- pressed the same wish and desire as in the petition, which I understood to be the petition sent before my arrival. I understand that since I have been in England, they have expressed the same wish and desire by fresh petitions, for fear the former one should be forgot. I assured them that in due time proper attention would be paid to it and justice be done; and that in the mean time, they ought to rest satisfied with the good-will and intention of this country towards them. I saw a letter, or paper, asking 110 Constitutional Documents of Canada. [1763-1774 two Canadian gentlemen, in case I had not been here, to act for them as their agent, to present this petition. Are the Canadians aware that an assembly into which they were ad- mitted would be a legal and decent method of making the sense of the inhabitants known, or have they been led to look upon all representations of assemblies as factions, etc.? I believe they have no idea of assemblies, but what they receive from the newspapers, and the accounts that come from the other provinces. Have, or have not, any pains been taken to explain to such persons the excellence of such a constitution, and the advantages that would arise from it, or have they been left to conjecture? It is a difficult matter to instruct a whole people in lessons of politics, and I have never attempted it. At the time the apprehensions of the Canadians were signified to the officers of government, had there been no conference among the principal people in Canada? Had there been no conference with the governor, to hit upon the form of government most agreeable to the people? They had frequently expressed their desire and prayer to have their ancient usages restored to them; and stated that the form of government which came nearest their ancient usages would be most agreeable to them. Did they state what those usages and customs were, to the persons to whom they applied? They were in general words, and are expressed in the petition. All conversations upon the subject were to the same effect. Do you conceive it would be impracticable at this time, without giv- ing general lessons of politics to all the people, to explain the advantages they would derive from the English government, without the abolition of all their usages? They have very often told me, that during the military government, the English frequently expressed to them the happiness, and great advantages they would receive, by the introduction of the laws of the English government, and by the protection of the civil laws of the country ; that they were to become a happy people by the change. Several years after, when they had experienced what it was, and found that they were debarred of what they looked upon as the civil rights of subjects, and that they understood that, as Roman Catholics, they could not enjoy places of profit, or trust, or honour, they thought it was adding mockery and insult to severity; and were astonished that people could hold such language to them. Was it ever suggested to them, that the difficulty could be got over, and that the Roman Catholics might be admitted to some share in the government? I have often told them that I believed it would be the case in time. Did you ever hear of any of the principal Canadians expressing a wish that, until there was an assembly established, the council established by the King should be so modified, as to bear as near a relation as pos- sible to the moderate principles of the constitution of this country? I often heard them express a wish, that Canadians should be admitted into the council ; I never heard anything further. How was the legislative council composed in the French government? Had Canadians a share? It was more a council of justice than of state, and more a council to receive appeals than to make laws; they made certain small regulations. The governor was chief of the council: the intendant was president, and he collected the voices. There were a cer- tain number of the Canadian inhabitants that were of the council likewise. .... How long were you governor of Quebec, and resident? Are you not governor now? I am governor now. I was in the province as gov- ernor, or lieutenant-governor, commanding in the province, about four years. Did you not, during the time of your being governor, endeavour to learn the manners, temper, and genius of the people over whom you pre- sided? No doubt. From the knowledge and experience you have of those people, do you think they would choose to have the English law as a rule to govern them both in matters of property and matters of crime; or in either, and 1763-1774] Constitutional Documents of Canada. Ill which of them? The Canadians are very anxious to have Canadian law to decide in matters of property. I believe they are pretty indifferent in regard to criminal law. Is that your judgment, formed from your knowledge and experience of them? It is. Do you not imagine that the aversion they have expressed to the English law is because they think it is likely to interrupt the course of descent and inheritance, and to load them with incapacities as Roman Catholics? The partiality and attachment which they have to the laws and customs they possess is well known ; and they apprehend that laws unknown to them may introduce something terrible to them ; they know not what. Is there not a great difference between the criminal laws of the two countries? The criminal law they have experienced is, in fact, not so ex- tremely different. The mode of prosecution, the mode of deciding by the law, is very different; but tHe trial of great crimes, in nearly all civilized countries, is almost entirely the same. Are there not more punishments in the law of England than in the law of Canada? I believe there are: I cannot pronounce. Was their dislike to the English law uniform from the beginning? From the time they first experienced it, they very soon found a great dif- ference in the expense, which was very grievous and oppressive to them; not from any defect in the characters of the gentlemen; but the wealth of the country, compared to this, is extremely small. Fees of all sorts, though not unreasonable in this country, were considered extremely heavy in that. Did they not complain, that the proceedings were held in a language they did not understand ; and that no Canadian advocates were permitted to plead in the courts? That was a great complaint indeed, till it was remedied. When that was remedied, did they then express as great dislike as they did before? The expense continued pretty much the same; the sat- isfaction was greater, having then lawyers that could plead in the language they knew. I believe there has been very little of that in the supreme court. Have you seen an act passed in the other House relative to Canada? I have. Do you think that bill gives the freest form of government to Canada it is susceptible of? I should think it the best form advisable to give in the present state of the colony. During the time the English law was executed, had they any such thing as regular gaol deliveries? I understand the chief justice is to at- tend. It is a question much more applicable to him. Were not people apprehended by the power of the intendant and at- torney-general, and detained without any kind of assistance from any other place? I never heard a'ny complaint of the kind. Do you not know there was some officer that had that power? I do not know he had the power, but he may have acted from his own caprice or fancy. Where was that power vested? The power was in the intendant, likewise in the attorney-general. Was any person ever prosecuted? I really do not know that any one was. Did the mode of trial upon court-martials for military offences dur- ing the French government, give any offence? No. Were they not tried by some council of officers of the corps? I should imagine they were tried by the corps of military men. Had they any objection to that mode of trial? I never heard they had. Were the noblesse not very fond of military rank and distinction be- fore the conquest? They were almost all military men, and of course fond of rank and distinction. Do they enjoy such gratifications now? I do not know that any of 112 Constitutional Documents of Canada. [1763-1774 the Canadians in Canada enjoy any gratifications from the court of France. Do they enjoy any under English government? None. Would it not be flattering to them to enjoy some rank? Undoubtedly. Would it be more pleasing to have a share in the government? Un- doubtedly. If his Majesty did not choose to appoint any particular persons in the place to a share of government, would they not be glad of having other lawful and honourable means of providing for themselves? No doubt. Do not the gentlemen of Canada form some opinion relative to the welfare and prosperity of their own country? Is not that a matter of dis- cussion among them ? It has been a matter agitated very much ; but they seem to confine their ideas chiefly to the restoration of their laws and customs, and wish that all distinction should be taken away which separates them from the English subjects. By that I understand the ad- mission into places and offices of trust and honour, equally with the English. Would they be glad to be in such a situation as to make this idea of theirs prevalent? No doubt. Have they such objections to the form of an assembly, as to wish to make their ideas prevalent in such assembly? 'They do not wish for as- semblies ; but if assemblies must be, no doubt they would wish them to be a free representation of the people. If that should be the case, they would compose a great part of that assembly. Would they have an objection to a seat in such an assembly, in which they might have an opportunity of delivering their opinions? They have never had an assembly, or anything like an assembly, nor have they the least desire to have one ; but if there should be one they wish to have a share in it. Have they any particular objection to arbitration? Very far from an objection to it. In a great measure they have come into it, wishing to keep clear of the courts of justice. Could they, therefore, have any objection to have causes decided by gentlemen of the country? They would wish very much to have their causes decided by gentlemen bred up in the country ; acquainted with their laws, usages, and language. They would give the preference to judges; but I do not know whether they would make any violent opposition to juries, if this country should think them advantageous. They confined their petition mostly to general points. I do not know how far they would make juries an essential point. . . . EXAMINATION OF FRANCIS MASERES, ESQ., LATE ATTORNEY-GENERAL OF QUEBEC Mr. Maseres was then called in, and acquainted the committee, that he went to Canada in 1766, and resided there three years. He was then asked, What were the sentiments of the Canadian inhabitants, upon the sup- position that the laws of England would be of no more authority among them, by reason of the proclamation? A great many were very uneasy upon the apprehension of a sudden change of the laws respecting family descent; such as dower, and the like. What sentiments do they entertain of the form of judicature? I heard great complaints against the administration of justice. I en- deavoured to sift them to the bottom. I think the result was the expense principally; partly the delay according to the mode of English adminis- tration. The expense did not consist principally in the fees of attorneys, but the provost-marshal's fees, which were thought intolerable. At the same time, I doubt much whether the provost-marshal did exact unrea- sonable fees ; because, the two that acted there have assured me, they did not make fifty pounds a-year of their place. Whether they said true, I cannot tell. I have heard of the extravagance of the fees, and also of the great burthens of attorneys and advocates; but those fees are not now greater, but rather less. 1763-1774] Constitutional Documents of Canada. '113 Do you think the people have a strong attachment to our laws and customs? I believe that the great body of the Canadians, with the ex- ception, perhaps of an hundredth part of the whole, would be very well satisfied with the establishment of those laws. Were the people of Canada very apprehensive on account of the sup- posed danger to religion? I never heard them express much apprehen- sion with respect to any danger to their religion ; but they have at times expressed dissatisfaction at the disqualification and civil inconvenience attending the exercise of their religion; not any that the performance ot mass would ever be impeded. What do you understand to be the sentiments of the Canadians with regard to the form of government they would wish to live under? I have not heard many of the Canadians enter fully into the subject. I believe their opinion is that of our poet, "Whate'er is best administer'd is best." They have no predilection at present in favour of a legislative council, or in favour of an assembly: I speak of the generality of the people. There are a few persons who have thought more upon the subject than the rest: I believe they would incline to an assembly. What sort of an assembly do you suppose they would like : an as- sembly of which they might have a part, or one which consists of his Majesty's own subjects? I have heard some of them say, they would rather have an assembly consisting equally of Protestants and Catholics, or at least of such Catholics as would take the oath of abjuration of the pope's power, but not the declaration against transubstantiation, than be governed by the legislative council. I have heard so ; but in general those who express a wish for an assembly, wish for one without the exclusion of any Catholics on account of the oath: I mean the oath as it now stands : I mean that which is commonly called the oath of supremacy. I do not know any instance of a Canadian taking that oath ; but they have been under no temptation to do it. Hitherto they have had no assembly. As to being a part of the council, it would have been necessary to take the declaration against transubstantiation, as well as the oath of suprem- acy : therefore the distinction has not been tendered to them. Do you think the Canadians are desirous of serving upon juries in civil causes? I believe they would like to have the option of doing so continued to them. The ordinance that directed that court, directed the jury to be optional; and I know that many of the people do actually choose to have a jury, when their causes come to be decided there; which I look upon to be more conclusive than any testimony of opinions may be. Would they perform the office of jurymen? They sometimes com- plained of that as a burthen. Were not the forms of proceeding according to the French law, in matters of contract and recovery of debts, exceedingly different from those which prevail under our law? I believe they were. The mode of execution is different. They had not the law of imprisonment in execu- tion for a common debt: but it was introduced by the special description, by that original ordinance that set out the courts of justice. Since that time they have made very frequent use of it: full as much as the British subjects, or more so. Do they in civil causes look upon the difference as a hardship? I do not know that they do. I recollect a circumstance in the execution of a process in civil causes, in which the Canadians did complain of the Eng- lish law, until it was corrected : that was, there was too great haste made in selling their landed property in a hurrying secret manner, and at a small price, for less than it was worth, in order to pay their debts. That has been corrected by an ordinance of March, 1770; and care has been taken to correct the process of imprisonment, which made them liable to imprisonment for debt even for the sum of twelvepence currency, in that v part ninepence currency, by substituting the sum of forty shillings. The H 114 Constitutional Documents of Canada. [1763-1774 ordinance provides that an estate shall not be sold but after a proper time, and not at all for a debt less than twelve pounds. Would not the Canadians think themselves happy without the restora- tion of their laws and customs, and if none of their forms of government were retained? I think they would not be happy without the restoration of some of their family customs, as tenures of land, the mode of convey- ing, marriages, descent, and dower, and the rule in cases of persons dying intestate. Do not the Canadians at present esteem it a burthen to be drawn from their homes to serve upon juries? I have heard complaints of the kind. Are you not of opinion that, in order to make a trial by jury more beneficial, it would be right for a certain allowance to be made to persons called to serve on juries? I think it would. A small one would be suffi- cient: five shillings a man would make them wish to be called upon juries. I think that allowance should be paid by the party that requested the jury. In any and in what degree might it be expedient to establish the civil jurisdiction of England, in preference to that of the French, for trials of civil property? I received an answer from an able Canadian, M. Cugnet, to whom I have no reason to be partial, as he has written very spiritedly against my plan, that the conquest was in itself a misfortune; and that they must bear with a great deal, he was sensible, in consequence of it; that the criminal law must be that of the conqueror, that is, le loi du prince; but that they must submit to it. He has further said, as to civil matters, that in point of justice, his Majesty ought to keep up all the an- cient and civil laws of the Canadians ; but even there he admits, that the form of administering justice must in the great courts be changed. Would it be convenient, and for the interest of them as well as of us, that the trial by jury should be established? I think so; more espe- cially if optional, as it takes away all pretence of hardship. Is not the province of Canada, by the superior spirit and great capi- tals of the English merchants, very much improved? Very much. Have not those merchants, who have so improved the province, en- gaged in those concerns and embarked their property there under the sanction of the English government? Undoubtedly. Do you think the property so embarked would be equally secure, if the common law of England with respect to civil trials was entirely abol- ished? I rather think not equally secure. Certainly, they would not think it equally secure. What proportion of the trade of the province is in the hands of the English merchants?' I can only tell from information I have received here in England: I am told it is seven-eights. The increase of the trade is an undoubted certainty. I am inclined to think it is entirely owing to the industry of the English merchants. Did not the intendant make regulations? I have seen the commission of the intendant. I think there is a power given him singly, in certain cases, to make some regulations not of the highest magnitude, but under some limitations, I cannot very well tell what. Did not the intendant regulate the price of the corn of the country, when it exceeded the consumption of every family ; fixing his own price upon a certain quantity? I do not remember hearing that circumstance from any Canadian. Do you think the English merchant would continue to embark his property in that country, if he had not the sanction of English law? I believe it would be a great discouragement to him. Would the Canadians admit a part of the English law, rather than lose those benefits they find from the introduction of English merchants among them? I am persuaded they would. I apprehend, if the option was that the English merchants should cease to trade there, or that they 'should submit to have that part of the law, trial by jury, they would un- doubtedly choose the latter. Are not justices of the peace appointed to decide causes? Upon the 1763-1774] Constitutional Documents of Canada. 115 first establishment of the civil government, General Murray endeavoured to soften the change of conquest to the conquered people. The method of administering justice was as follows: he first established a supreme court of judicature, called the king's bench, in which the chief justice of the province singly was to preside, and which was directed to determine all matters criminal and civil according to the laws of England, taking him- self to be bound to give those directions in consequence of the King's proclamation. He also instituted, by the same ordinance, a court of com- mon pleas, in which he directed the judge to determine all matters accord- ing to equity, having regard nevertheless to the laws of England, as far as the circumstances of the province would permit ; and he gave an appeal from that court to the court of King's bench, which was directed to fol- low the laws of England strictly. He also instituted justices of the peace, and gave to each a power to determine civil matters, in a summary way, under five pounds of the currency of that province, about four pounds English. Was not the tyrannical behaviour of those magistrates, in their de- partment as judges, the cause of complaint among the Canadians? Some did behave tyrannically, and their conduct gave rise to great complaints ; others made use of their power so discreetly as to be a great blessing to the people. Of these, two were Frenchmen, Canadians, old subjects of old France before the conquest, both Protestants. Were any of those men suspended from their offices? None. The governor, instead of suspending them, made an ordinance, in March, 1770, whereby he took away the civil jurisdiction of all justices of the peace. It was governor Carleton's ordinance. From what cause was it taken away? I do not know. It was a less odious way, perhaps, of disqualifying. It was a little while after I left the province. I wish to know in general whether, if the English law was estab- lished in Canada, the civil law a few years' experience would not con- ciliate the Canadians in general to that form of judicature? I am per- suaded it would : and more especially if methods were taken to remove some of their objections. How far it may be expedient to take such measures the House will judge. One of their objections is to juries, from the necessity of being unanimous, which they sometimes ridicule, by calling it a method of trial by strength of body and power to fast longest. I conceive, therefore, that that trial would be more agreeable to them, if the majority of the jury were permitted to decide the verdict; but as it is, with all its inconveniences, I believe they would choose to have it in the manner it is, because I see they frequently make use of juries in causes of consequence. If that could be the case, would it not be a means of increasing their affection and attachment to the government of this country? In my opin- ion it would. Would it not more speedily alienate their affection from both the laws and the government of France? I should think it would have that effect. If that should be the case, would it not greatly promote the interest of the country and improve it? I should think it would. From your knowledge of the French laws, should you wish to see the property of English subjects decided by those laws, in preference to the Canadian? My opinion is otherwise; but I am not able to balance the merit of the two codes of laws: I do not know enough of either of them. If the French law should be established, do you apprehend there are judges sufficient in number, and of sufficient abilities to administer jus- tice properly to the English subjects? I doubt it; and besides, while I was there, the Canadians were must better satisfied with the integrity and abilities of the English lawyers in latter times than of their own; so as to employ the English lawyers in the court of common pleas in many causes, in preference to their own Canadian lawyers, who have always been per- mitted, from the origin of the civil government, to practice in court. 116 Constitutional Documents of Canada. [1763-1774 In your judgment, would not the good object proposed by the re- establishing of the French laws and customs, be as well or better answered by retaining a system of English laws, with such alterations as it may be necessary to introduce? I think that the best method of giving satis- faction. Are not those parts in which you conceive an alteration to be neces- sary, in order to gratify the prejudices of the Canadians, principally con- fined to the tenure of land, the mode of succession, and the descent of property? Yes; adding to it, conveying their lands, selling, marriages, tenures, etc. I believe I might add, they would be pleased with the con- tinuation of the law relative to intestate effects. It might be easily cured of its defects by the power of making wills : it differs little from ours. Are you possessed of knowledge enough of the French laws intended to be introduced by this bill to give judgment by them? I should not like to undertake the task. The difficulty may be measured by M. Cugnet's endeavouring to prove that the French law is a matter of easy attain- ment He tells us, in the manuscript I have seen, it may be learned by the perusal of only thirty volumes in folio and quarto. I beg to know your judgment upon the propriety of re-establishing the Catholic religion in Canada, and restoring to the clergy their ancient rights and dues, without a similar establishment for Protestants? It is a very doubtful thing; and, unaccompanied with restraints upon the bishop's great power, may be of dangerous consequence. It is certainly not neces- sary to the satisfaction of the Canadians; because the option of paying tithe, or letting it alone, can never be disagreeable to them. Do you understand that the Canadian subjects have at this time this option? They certainly have, and sometimes make use of it. They never presume to sue for tithe, either in the court of king's bench or common pleas, knowing there is no possibility of succeeding. The ground of that opinion of theirs and of mine is, the strong words of General Amherst's answer 1 to the demands on the part of the French general, for the con tinuation of the obligation of the people to pay their tithes and other dues : "Granted, as to the free exercise of their religion ; but as to the obligation of paying tithes, that will depend upon the king's pleasure." That has been universally understood, till now, to have been a positive dispensing with the obligation. It has often happened that they have not paid tithe ; much oftener that they did, from their regard to their religion. Do you consider this bill to be a granting and confirming of this tithe? The words of the bill are declaratory: the word "enacted" is not there. In my opinion, the right does exist at present. How far words de- claring that to be law, which till this time is clearly understood not to be law, will operate as enacting words, I do not pretend to say. Did you ever hear in Canada that the claim to tithe extended to Ro- man Catholic landholders, and not to Protestant landholders? Everybody paid tithe indiscriminately. Since that every body has been understood to be exempted from tithes indiscriminately. Can you help us to a ground of distinction, upon which we might be induced to believe, that the right is a necessary one with regard to Catholic subjects, and not so with regard to Protestant subjects? I cannot con- ceive any. From your experience of the inclinations and expectations of the Ca- nadians during your time, do you conceive their expectations went to the length of imagining they should have this re-establishment of the Catholic religion made effective, relative to what is meant to be jsriven them by this bill? I believe they have been flattered with hopes of that kind, and I have reason to think promises of endeavouring to procure it have been made to them. How far they thought they would be successful, I cannot tell. Would they have been induced to believe such would he the result if ro such promises had been made to them? I am of opinion with Sir See No. II. Article XXVII. 1763-1774] Constitutional Documents of Canada. 117 i Jeffery Amherst, that so far from it, if the priests had been permitted to remain in the possession of their livings, and their places had been sup- plied by Protestants, the Canadians would have been satisfied. They would have been satisfied, if that had been pursued from the beginning; but 1 do not mean to say, that so small a degree of indulgence, with respect to their religion, would be expedient now. In your judgment, would not a less degree of indulgence than what is given by this bill content them? I believe the hopes of the upper class of the people have been raised high. The others would be satisfied with less. Of one hundred and fifty, one hundred and forty-eight would be satisfied with little more than the security of their property, and those family laws I mentioned before. Very few that take the lead among them make a complaint against the English government. Of the set of people who call themselves noblesse, amounting to not more than one hundred and fifty out of one hundred and fifty thousand eight or ten, perhaps twelve, are noblesse according to the French ideas. Of which class there were fifty thousand families in France ; I mean of the hereditary noblesse : but there are others, who associate themselves with these, and consider themselves upon the same footing people who have held civil offices, noblesse for life, disbanded officers who had held commissions in the militia, or among regular troops those people are most apt to complain. They fear the change of government the most: they even are, in some degree, envious of the success and prosperity of inferior people. Do you not believe, that the most extravagant of the Canadian noblesse would think themselves perfectly well off, if the two religions were sent into the country part passul I believe no interruption to the peace of the country would happen. I believe more persons would be pleased than displeased. In your judgment, is the legislative council, which is to be appointed, and remoyeable at the pleasure of the governor, and to consist of twenty- three, a right sort of legislature for the province of Canada, either now, or ever? I apprehend not now: certainly, not for ever. Have you the same objection to a legislative council appointed, and to be removed, by the King? Not nearly so strong as against a legisla- tive council removeable by the governor. There is a wonderful difference ; the former would not make the counsellors contemptible in the eyes of the people : they would suppose the counsellors would not be wantonly re- moved. Whereas, if they were removeable by the governor, they would be considered as the mere tools and creatures of the governor, and no reverence would be paid to their acts and ordinances. How far they might meet with obedience, I will not say. Would that alteration, substituting the crown in the place of the gov- ernor, but leaving the council of twenty-three, form a legislature fit to be given to the province of Canada? I am inclined to believe that they keep in view an assembly, notwithstanding the ill conduct of certain assemblies in North America. But if it be thought that the Popish religion is so great an objection to the constitution of an assembly, partly because it is dangerous to trust Catholics with much power ; if it be thought, on the other hand, unjust to exclude them entirely; I have thought a legislative council for a few years, consisting of a certain definite number of Roman Catholics, with a large quorum consisting of Protestants only, might be a tolerable substitute for an assembly for seven years. My reason for say- ing Protestants only is, because I conceive, if the Popish religion is not a bar to admission into this council, it ought not to be a bar to admission into the assembly. For that occasion, recourse should be had to an as- sembly; which would be very agreeable to the Canadians, if Catholics were admitted into it. Are the provisions introduced by the proclamation such as deserve to be called inapplicable to the state of the province? I think not, in the general extent. They require correction, and a few alterations. With respect to the laws, I beg leave to state a distinction. The laws that I have mentioned, I can divide into three parts : laws of tenure, laws of 118 Constitutional Documents of Canada. [1763-1774 conveyancing, laws which I shall call a devolution of property. I con ceive the laws of tenure, by which I mean the laws relating to the mutual and reciprocal ties of landlord and tenant, all subsist, notwithstanding the proclamation, and do not need a revocation of it to revive them. These laws of tenure contain the laws that oblige the tenants to pay their quit rent and corn rent and their mutation fines, to their landlord, to grind their corn at his mill, and give him his meal-toll. If these laws were to be altered, it would be taking away the property of the seigneur; which cannot be done, because it is granted by the capitulation. In the next class, I place the laws of conveyancing, which, though not affecting the very property of the people, because a man may be made to alter the mode of conveying his property, without absolute violation of property, is yet a necessary branch of the law for the convenience of enjoying pro- perty. These laws I consider as having been changed precipitately, and that they ought to be restored. In the third class, I place the laws of devolution ; meaning by that the laws of inheritance and dower, and the right of the husband upon the death of the wife: the distribution also of the intestate's effects. Those laws may be changed by the legislature, with- out a breach of the capitulation. . . . EXAMINATION OF WILLIAM HEY, ESQ., CHIEF JUSTICE OF QUEBEC How long did you reside at Quebec as chief justice? Six years; from the beginning of September, 1766, to 1773. Have you found the Canadian inhabitants dissatisfied with the intro- duction of the English law, and exclusion of their own laws and customs? Do they generally approve of the trial by jury in criminal causes? I think they do. Are they not equally capable of deciding in civil as in criminal causes? I do not think the Canadians are in general called upon juries, so often as other inhabitants of Canada. Do you conceive they are less capable of distinguishing in causes of property, or manslaughter? It is nicer to determine questions of property, which depend upon cases of law, than criminal causes which depend upon fact. I always found them extremely attentive to my directions ; if I may say so. Were they not willing to receive the like assistance in civil causes? I think they were, in general, a very attentive and obedient people. Are not the laws of Canada respecting lands, dower, and gift by will, allowed by the court and juries at Canada, respecting the Canadian sub- jects only to be just as they were when they were in the possession of the French? I believe the court of King's bench did admit the Canadian laws and customs indiscriminately, in general. The ordinance directed them to do it. Then you believe the Canadians would be content to have the laws continued to them upon this subject? I believe they would. They have made objections to juries. The higher part of the Canadians object to the institution itself, as humiliating and degrading. They have no idea of submitting their conduct to a set of men, their inferiors; and the lower order look upon it (as in truth it is) a burthen to them. I apprehend the customs of Canada are as much considered by the juries of Canada, as the particular customs are here by the judge and jury? I believe, in the court of King's bench, they are. I have thought myself obliged, in my capacity of chief justice, in every case of appeal, to determine by the same rule ; because it seemed to me a gross absurdity, that I should sit to determine the merits of a cause, governed by one kind of law, which they had determined under the provisions of another. Is there any method so likely to reconcile the Canadians, in general, to our government, as the introduction of the English laws, by the inter- vention of a jury? There are two questions, rather. I believe they have great objections to the introduction of English laws. With regard to trial by jury, they certainly do not understand the benefits resulting from it as we do; but I do apprehend, under certain modifications, it would not be 1763-1774] Constitutional Documents of Canada. 119 disagreeable to them, both in civil and criminal causes. I think the trial by jury would not be disagreeable to them, if they were allowed compen- sation for their time and trouble ; and I think, further, if that unanimity which our law insists upon, was not to be insisted upon there, and that the jury were to be composed of an unequal number (suppose thirteen or fifteen) and that the majority of two-thirds were to determine the ques- tion, I do not, in my own mind, think there would be much objection in the main body of the Canadians. Do you mean this regulation to be in criminal as well as civil causes? No. All in criminal causes. Have you ever understood that the French suitors had ever been ac- customed to make presents? I have never heard of any instance. I have found a great alacrity among the Canadians to canvass for the vote of a judge. That is still remaining in the province. Have you heard any general complaint of juries deciding partially in causes of property, or by any improper influence? I cannot recollect any particular instance. Suitors have complained. I never heard any general complaint with regard to decisions. I have heard some with regard to their conduct in not deciding matters. Why did they hesitate? Perhaps it might be from difficulties arising from the question itself; perhaps it might be prejudice as to the party, as between one another; but they certainly have departed without giving verdicts; and, I am ashamed to say, I did not punish them for it. Then the Canadians do not think, under the proclamation, this country >s under an indispensible necessity to allow them juries? I cannot take upon me to say. They have an option. They have not frequently used the option. According to the best of my information, it never has been in the court. Would not the English be very much dissatisfied if juries were not to determine? Very much so. They are wonderfully zealous for the trial by jury; and, the misfortune is, they do not act up to it; for I can never get them to attend. They are not numerous. It certainly comes upon them at a very inconvenient time. They have, some part of the year, nothing to do ; the rest of the year they are exceedingly busy. Under the present bill, do you think you could administer justice equally to your own satisfaction, or to the Canadians in general, as you have done hitherto? The question is rather embarrassing for me to ans- wer. I hope I may answer for the integrity of my own conduct. Could you make yourself equally master of the Canadian law as of the English law? That must require a great deal of time and attention; and, I am afraid, more abilities than I am master of. If his Majesty thinks proper to continue me, I shall certainly try to make myself master of it. I am unequal to give any opinion upon this bill. It is not my province, before this House. I profess myself perfectly indifferent to the bill, and very unable to form an opinion. If the benefits of the Habeas Corpus were explained to the Canadians, would they not think themselves highly favoured by it? I should think it impossible but they must think themselves highly favoured by it ; but I do not pretend to answer for the opinions of the Canadians. They are, in general, a very ignorant people a very prejudiced people. Are they not capable of understanding the benefits of juries, as well as those of the Habeas Corpus? I cannot answer for their capacity. They are, at present, in a state of great ignorance with respect to it. If the Habeas Corpus is not allowed, is not arbitrary imprisonment in the power of the governor, without legal relief? I should apprehend there are abundance of restraints upon the governor, which will intimidate him; and that the courts of justice would relieve against such. It would not be so instantaneous, perhaps, as the case might require. What is the mode of relief that the courts would take, if it came to their knowledge, under the establishment of this bill? They would not ^ive instant relief : but I apprehend the party would be delivered at the commission of oyer and gaol delivery. If out of term time, not. 120 Constitutional Documents of Canada. [1763-1774 Suppose the imprisonment private, what remedy then? No remedy. Without the permission of juries,, may not money be levied upon any of the King's subjects, under this bill? I have had but one view of the bill. I did not know of my attendance here. It does not occur to me, the power of raising money it is so directly in the face of every law. I apprehend it might not be done readily. The application must depend upon the decision of the court; consequently, upon a jury. If the Papists were relieved from the oath of transubstantiation, would they not take the other? The clergy would not. Perhaps some of the other inhabitants would. The clergy might admit the King's suprem- acy with regard to temporals. I speak only my own opinion. There is no such thing as public chapels. Debts have been sued for goods supplied to the Canadians. Have the Canadians thought the decision fair? I never heard any particular objection to them. I believe the import and export have in- creased. What proportion is carried on by the English subjects residing there? The English subjects import more than the Canadians; but when im- ported, the Canadians take it up from them to the country. Have the profits of the possessions of the Canadians been increased since the conquest? They certainly grow more corn, are more populous, and likewise cultivate their land better. If this land had been now sold, no doubt it would have sold for more. The body of the people are not at all dissatisfied with the conquest. To be sure the higher part are. Have juries been considered as judges of law as well as fact? They have taken it upon themselves to judge of law as well as fact. They have laid it down as a certain principle, that they will never give a special ver- dict upon any occasion. Have you not paid attention to the Canadian law? I certainly have, whenever causes came up to the court of King's bench. Very few causes ever originated in my own court. Do you understand that, by this bill, all the law in civil causes is to be repealed, and the law of Canada take place entirely? I understand it so. What remedy is substituted in the place of the Habeas Corpus? I know of none. There is no long oppression ; they sit every week. Under the present constitution of the English criminal law and the French civil law, could a person, not imprisoned for a crime by the oper- ations of law, have relief by the gaol delivery under this present bill? My duty is to inquire into all prisoners, and to know for what they were confined. If I did not find a law for it, I should be tempted to make one myself. Would the French civil law give any reparation to the party for such confinement? I should apprehend it would, upon the common principle of justice. Is there any positive law in the Canadian code, that authorizes that idea, or is it what your humanity would make you infer? I apprehend, under every system of laws, there must be naturally a redress for an injury of that kind. What the particular mode of it is under the Canadian law, I cannot tell. Do you mean, that any chief justice, or judge, would be entitled to assess any particular sum of money to compensate? Undoubtedly, the court must sit and determine the quantity. I cannot speak to it I never studied the law of Canada as a system. I have endeavoured, in all cases of information, to collect the law. I apprehend the aggrieved party must bring an action ; and that, according to the evidence of the debt, the court would allow it him. I believe, where the matter has been doubtful, and has depended upon an intricate account, the court has ex officio awarded it to arbitrators to settle it I mean under the old Canadian system. Under the Canadian law, do you know of any power of imprisonment for debt? In particular cases there was a power; but, in general, they did not use the arrest for debt. For debts of a large nature, such as bills of exchange, I believe they did allow it; but, in general, not. 1763-1774] Constitutional Documents of Canada. 121 Do you conceive the recovery of the property of the English mer- chants, though in Canada, would be more or less easy, under this bill, than it was before? That will depend, in a great measure, upon the estab- lishment of the courts for the administration of justice. If they were well supplied with proper powers persons of discernment and integrity in- vested with proper powers I should apprehend that property might be more easily recovered. What do you understand, under the present form of the bill, would be the mode of administering justice in that country? Who would stand in the place of the Canadian intendant? I apprehend that would depend upon the execution of the authority which is given to the Crown, by virtue of that clause, which enables the King to appoint courts of justice. Do you apprehend the matter of courts of justice to be left at large? I do. I apprehend my present commission will be at an end. What kind of a commission can be given under the Canadian law? I see no necessity for altering the commissions. Will the establishment absolutely and unimlitedly of Canadian civil law, tend to encourage or discourage British subjects from purchasing land in that country? I believe the British subjects would have no objec- tion to the restitution of a part of the Canadian laws; but I think the restitution of the whole would very much disincline them to settle among the Canadians. Do you think it would be impracticable, or even very difficult to draw such a line of admission of Canadian laws, as would give satisfaction both to the new and old subjects? I myself have been unfortunate enough to differ with General Carleton in that respect. His Majesty was pleased to order the governor, the attorney-general, and myself, to make our report upon the state of the province, and particularly with regard to grievances which the Canadians either felt, or thought they felt, under the adminis- tration of justice, as it was then administered; together with the remedies that we thought most proper to be applied to those grievances. The Cana- dians conceived that the introduction of the English laws, and the exclu- sion of their own, at least their doubt and uncertainty how far that mat- ter went, was their greatest grievance; and the remedy proposed to be applied was the restoration of their own laws and customs in toto. I own, myself, I thought that went too far. I thought that such a mixture might be made, as would be agreeable both to the Canadians and British sub- jects, at least the reasonable part of both, and answer every purpose of state policy here at home. My idea was, that a country conquered from France, and retained by the treaty at the end of the war was, if possible, to be made a British province. I was, and still am, very sensible, that must be a work of time and difficulty; but, however, I thought it an object worth attending to. The first thing that suggested itself to me under that idea was, that the laws of this country should be considered as the leading system of judicature in a province that was to become British. I was will- ing, however, to allow large exceptions in favour of the prejudices, the very natural and reasonable prejudices, of the Canadians. I was willing to allow them the whole law with respect to their tenures, with respect to the alienation, descent, and mode of conveying or incumbering their real property, to the rights of dower and marriage, and the disposition of their personal estate in case of intestacy. This I thought was a very large field for them : quieting and securing their possessions according to their own notions of property, and not breaking in upon or disturbing their former settlements. The rest of the law, as the law respecting contracts, debts, disputes of a commercial nature, the law of evidence, and many other matters of that kind, I thought might safely stand upon English bottom. These, with the whole criminal law of England, with the trial by jury, the presentments by the grand inquest, together with the estab- lishment or at least, toleration of their religion, with some reformation in the proceedings of the courts of justice, to exclude our modes of pleading, which the legal pleaders of the province are very unequal to, and to intro- duce a more compendious and simple method of process, more comform- 122 Constitutional Documents of Canada. [1763-1774 able to what they had been used to under their own government, would, I had hoped, have made up a system that should not reasonably have been objected to by either British or Canadians. I am of opinion, that at the time I stated that as the ground of my difference from General Carleton's report it would have been satisfactory to the Canadians. I am in doubt now whether it will; but I still think it ought. Why do you think it would not now be satisfactory to the Cana- dians? I apprehend they have risen in their demands of late, and hope to be gratified to the utmost extent of their desires. Upon what are these very extensive opinions founded? I know of no particular ground for the extent of them. It appears to be a natural progressive state from the condition they were in, to that in which they now stand. They were terrified, and in a state almost of distraction. They neither expected to retain their religion or their laws, and looked upon themselves as a ruined and abandoned people ; but when they saw attention wisely and humanely paid to their situation, they were willing to improve their condition, as far as their ideas carried them, to the absolute restitution of their whole laws and customs. But I know of no particu- lar encouragement given them to ask anything. It was, I have no doubt, promised them, that their case should be fully and fairly represented, and that they might rely upon his Majesty's bounty and goodness for their relief. Do you suppose they included in that general wish for the restitution of their laws and customs, a wish for the restitution of the French criminal law? I do not apprehend they did. They seem perfectly satisfied with the English criminal law. I cannot conceive them so stupid as to wish for the French law. I speak of the great body of the people. There may be a few persons of a very peculiar nature, that may wish for it. Do you those persons you so properly describe as looking upon their situation with respect to their property and with regard to juries, desire the restitution of their criminal laws? I have no doubt they do. These are the noblesse. Does not the objection of the higher people to the trial by jury, in civil causes, in a great measure arise from their being deprived of that influence they used to have from their power over the judges? I cannot say it does. I never heard any complaints of their exercising any undue influence over the judges. Do you conceive that their readiness to have back the French laws did not arise from the expectation of success? Have you not heard that the more powerful were the most successful than the lower people? I never have heard any thing particular one way or the other; but one would be apt to imagine that such an influence might prevail. I am inclined to think, in general, that their courts of justice were pure, and justice fairly administered. There was a great control of the superior council over every judge's determination. As that council was composed of men of the first rank and character in the province, I cannot suppose they wer a under any undue influence, or that they would suffer any. Would not the lower and middle Canadians be flattered and pleased by the power given by a jury, in proportion as the higher were morti- fied? I am inclined to think not. They would "endure it," that is all: and, under the alterations I have mentioned before, it would be less disagree- able to them; but I fear it would take a long time to convince them of the use or advantage of it. Was an appeal to the superior council attended with no difficulty or expense? No difficulty, and very little expense. Where will the right of hearing appeals be lodged under this law? I apprehend that will depend upon the constitution of the courts ; as they will, and must be new modelled under that law. Do you think the former law of appeals will be inapplicable to the government of that country under its new law, without a special provision being made? There will be no court to appeal to. The present courts will be abolished; the present judges will be abolished. The authority 1763-1774] Constitutional Documents of Canada. 123 that constitutes these courts may, I presume, constitute the mode of pro- ceeding in them, and how and where to appeal from them. But this act only directs, in my apprehension, that the rules of law to be observed in these courts should be those of Canada, with regard to civil property. Can you suggest any body sufficiently qualified in the laws of Canada lo receive the appeal and do justice upon that appeal? I have no parti- cular person in my eye to mention. Do you understand the appeal would be according to the spirit of the French law? The ultimate appeal would always rest upon the King and council ; but the stages it would go through must depend upon the con- stitution of the courts. Do you conceive there would be no inconvenience arise to persons from having their property tried upon an appeal under such laws? I can- not give an opinion upon the competency of the privy council. Not with regard to the abilities of the privy council. But do you conceive that the education of a man for a privy councillor in this country will enable him to judge of the extent of these Canadian laws. Is the Canadian system of laws a short system, or is it contained in many books? It is much less complicated than the English, and contained in a much less number of books. The text of the Canadian law is contained in a very few articles ; but the commentaries may be very voluminous. Are there not many parts of the Canadian law immaterial to this point, but which might be attended with considerable inconvenience to the English subjects residing there? I must confess I am not able to answer that question. The Canadian laws were extracted those that were thought necessary and applicable to every purpose of securing their property by a set of gentlemen in Canada; who, I believe, were very unequal to the work. The compilation is published, and has been printed : it is generally thought to be a faithful one. In adopting that compilation, and establishing trial by jury in civil causes, might not such trial be obtained without any burthensome expense to the inhabitants? I do apprehend it might, if the courts of justice would regulate the fees. Would it not be difficult, in some cases, for the courts to regulate the expenses? I should think not, in material matters; but in the fees of counsel, for example, no court can, or perhaps ought, to interfere. Do you conceive that, at present, the Canadians are much attached to France, and would wish to be under that government again? I do not apprehend that the body of them would. No doubt the noblesse and the military have been great sufferers, from the loss of their employments and commissions ; and it is natural enough to suppose that they would in- cline to their old employments, under their own government. But I should hope that they, if proper indulgence were paid to them, might be made to withdraw from every idea of returning to their old government, and become good British subjects. Do you conceive the Canadians would have any great objection to a provincial assembly, into which Roman Catholics would be admitted, under certain restrictions, such as taking the oaths? I believe they ,have no idea of advantage from it. They look upon the house of assembly as a house of riot, calculated for nothing but to disturb the government, and obstruct public servants. Do they understand that there is a resemblance between the house ot assembly and the House of Commons in this country? They do not under- stand the principles of either. Have there not been conferences in that country, relative to the form of government, and arrangement of laws, that may best suit them? I know of no particular conferences in that country relative to a form of government and arrangement of laws. Has it never been agitated with them, what would make them happy? I know of no conference among them upon that subject. Their ideas are a perfect submission to the Crown, and to any authority the Crown chooses to erect. They have a high confidence in his Majesty. If he 124 Constitutional Documents of Canada. [1763-1774 chooses to call a house of assembly, I have no doubt they will compose it ; but they would not know what to do when they came there, nor have they any idea of the advantages of such an assembly. They never, then, have been made to understand by any of the King's servants, that it would be of advantage to them? No pains have been taken to tell them that, by means of an assembly, they would have a power of internal regulation ; but they have been taught to put the amplest con- fidence in the Crown? They require no instruction; it is their natural habit. I have harrangued the juries upon the advantages of the British constitution ; but, whether it was my fault in not delivering my ideas upon the subject clearly, or that they were not interpreted to them in the French language, I do not believe any Canadian took notice of what I said. I mean, my ideas with regard to trial by jury and the criminal law of Eng- land. I never mentioned any advantage of an assembly. Have you ever understood that there was an absolute dislike to as- semblies among the Canadians, or only a dislike in part? They do not understand them, and what they do not understand, they cannot be said to dislike. Were they ever informed that assemblies could be managed so as to be extremely obsequious to government? They dp not at all understand the method of making themselves so. To the English merchants, who are desirous of establishing the English laws, it would, of course, be an en- couragement. Mr. Edmund Burke. .... But before I proceed, allow me to state, in a few words, my opinion with regard to the principle of toleration. There is but one healing, Catholic principle of toleration which ought to find favour in this House. It is wanted not only in our colonies, but here. The thirsty earth of our own country is gasping and gaping, and crying out for that healing shower from heaven. The noble lord has told you of the right of those people by the treaty; but I consider the right oi conquest so little, and the right of human nature so much, that the former has very little consideration with me. I look upon the people of Canada as coming, by the dispensation of God, under the British government I would have us govern it, in the same manner as the all-wise disposition of Providence would govern it. We know He suffers the sun to shine upon the righteous and unrighteous ; and we ought to surfer all classes, without distinction, to enjoy equally the right of worshipping God, accord- ing the light He has been pleased to give them. The word "established" has been made use of: it is not only a crime, but something unnatural to establish a religion, the tenets of which you do not believe. Applying it to the ancient inhabitants of Canada, how does the question stand? It stands thus: you have got a people professing the Roman Catholic reli- gion, and in possession of a maintenance, legally appropriated to its clergy. Will you deprive them of that? Now, that is not a question of "establish- ment :" The establishment was not made by you ; it existed before the treaty ; it took nothing from the treaty ; no legislature has a right to take it away ; no governor has a right to suspend it. This principle is confirmed by the usage of every civilized nation of Europe. In all our conquered colonies, the established religion was confirmed to them ; by which I under- stand, that religion should receive the protection of the state in those colonies; and I should not consider that it had' received such protection, if their clergy were not protected. I do say, that a Protestant clergyman going into that country does not receive the protection of the laws, if he is not allowed to worship God according to his own creed. Is this remov- ing the sacred land-mark? What I desire, is, that every one should con- tribute towards the maintenance of the religion he professes; and if this is proper to be done, why not do it immediately? The religion to be estab- lished should be that approved religion which we call the religion of the church of England. With regard to the religion of our own country, there would be propriety in the use of the word "established ;" but I maintain, that every one ought to contribute to the support of some religion or 1763-1774] Constitutional Documents of Canada. 125 other? Does any gentlemen mean to say, that the impious profligate, the moment he chooses to avow himself an unbeliever, can appropriate to his own use the tithe he has been accustomed to pay for the support of any religious establishment? Suppose one of those persons should turn Jew I would give him complete toleration, but I say, let him support the syna- gogue. I will suppose this case: when a man is sued for his tithe, he will declare that he does not profess the Roman Catholic religion. He then walks directly into that mass-house, or church, for the support of which he has positively refused to engage himself: he says, he does not profess the Popish religion; and suppose he abstracts himself from all religion, he pays no tithe. If this be allowed, you are encouraging him to be an atheist. Therefore, this clause does not provide for the establishment of popery, but it does provide for the establishment of atheism. I have not yet heard a shadow of an answer to this charge; nor the slightest attempt made to remedy this evil. With a view of meeting it, I shall propose a clause, pro- viding that the tithe paid by persons not professing the Roman Catholic religion shall be handed over to the Society for the Propagation of the Gospel. What objection can be made to my proposition I cannot conjec- ture. Does it trench on the rights of Englishmen? Does it trench on the rights of the ancient inhabitants of Canada? By no means. When the people become divided in their religion, why not follow the generous example set by the treaty of Westphalia; by which the duties of two or three establishments were discharged in the same church on the same day; the Roman Catholic, the Lutheran, and the reformed religion? It sets an example worthy of a Christian church. It is a happy union, that has fixed peace for ever in those provinces. . . . Mr. Charles Fox-. I wish, Sir, to state, in two or three words, what I consider to be the principle of this clause. My objection to the bill con- sists mainly in my objection to this clause: it begins by stating, that "it is at present inexpedient to call an assembly." Now, that I can contra- dict this assertion, and say it is expedient to call an assembly, I will not assert; but, from all the information I have obtained in this House, I am inclined to think it is expedient. The principle laid down, in the course of these discussions, has been this, that the government of the colony ought to be assimilated, as much as possible, with that of the mother country. That the establishment of this legislative council is a step to- wards such assimilation, I hold to be impossible. I am free to say, that the Canadians are my first object; and I maintain, that their happiness and their liberties are the proper objects, and ought to be the leading prin- ciple, of this bill; but how these are to be secured to them without an assembly, I cannot see. It is not in nature for men to love laws, by which their rights and liberties are not protected. I must have more substantial evidence before I consent to establish arbitrary power in that country: before I consent to establish such a government upon the principle, that volenti non fit injuria, I must be exceedingly well assured of the volens. You say, that the measure may be corrected. But, is it likely that this legislative council would go on, from day to day, considering how they could abridge their own power? This, Sir, is what can be expected from no set of men whatever. I never wish to see the liberties of a country dependent on such extraordinary virtue. Hitherto, I have not heard a single argument against the establishment of an assembly. We have heard much of the danger of putting power into the hands of the Canadians; but as the persons of the greatest consequence in the colony are stated to be attached to French law and French customs, are we not, by preferring a legislative council to an assembly, putting power into the hands of those most partial to French government? No one has urged the circumstance of the people of Canada being Roman Catholics as an objection to an as- sembly; and I trust I shall never hear such an objection stated; for no one who has ever conversed with Roman Catholics can, I think, believe that there is anything repugnant, in their views, to the principles of poli- tical freedom. The principles of political freedom, though not practised in Roman Catholic countries, are as much cherished and revered by the 126 Constitutional Documents of Canada. [1763-1774 people, as in Protestant countries. If there was danger, I should look for it more from those of high rank, than those of low. Lord North. In the first place, Sir, I cannot admit, that the evidence taken at our bar has been in opposition to the principle of the bill ; on the contrary, I think it confirms the most material part of it. With regard to the particular clause before us, what have the witnesses at the bar said? The governor certainly is evidence against an assembly; the chief justice certainly is evidence against an assembly; Mr. Maseres is for an assembly. But, in point of fact, what came out in evidence? That there were in the province at present one hundred and fifty thousand Roman Catholic subjects, and about three hundred and sixty Protestant families, whose numbers we will suppose to be a thousand or twelve hun- dred persons; but very few of them are possessed of any property at all. The fair inference, therefore, is that the assembly would be composed of Roman Catholics. Now, I ask, is it safe for this country for we must consider this country to put the principal power into the hands of an assembly of Roman Catholic new subjects? I agree with the honourable gentleman, that the Roman Catholics may be honest, able, worthy, sen- sible men, entertaining very correct notions of political liberty ; but I must say, there is something in that religion, which makes it not prudent in a Protestant government, to establish an assembly consisting entirely of Ro- man Catholics. The honourable gentleman is of opinion, that more is to be dreaded from the seigneurs than from those in the lower ranks. Sure I am, that the seigneurs who are the great possessors of the lands, would be the persons who composed the assembly, and some of them will, I hope, be admitted to the legislative council ; but then, the governor will choose those on whose fidelity he has the greatest reason to rely. They will be removeable by the King in council, and will not depend wholly upon the Roman Catholic electors, or be removeable at their pleasure. It is not at present expedient to call an assembly. That is what the act says; though it would be convenient that the Canadian laws should be assimilated to those of this country, as far as the laws of Great Britain admit, and that British subjects should have something or other in their constitution pre- served for them, which they will probably lose when they ceased to be governed entirely by British laws. That it is desirable to give the Cana- dians a constitution in every respect like the constitution of Great Britain, I will not say; but I earnestly hope that they will, in the course of time, enjoy as much of our laws, and as much of our constitution, as may be beneficial for that country and safe for this. But that time is not yet come. . . . Lord North. In considering, Sir, the various interests involved in this regulation, many different parties present themselves, with whose in- clinations and desires the House must naturally be disposed to comply. The first great interest that calls for the consideration of the House is the interest of this country, in point of sovereignty and authority over that ; the second interest is, undoubtedly, that of his Majesty's Canadian sub jects at large, who. are, with the exception of a very small number, pro- fessors of the Roman Catholic religion ; a third interest is, the one to which the honourable member has directed the attention of the House that of the English merchants trading to the province, to whose capital and to whose skill much of the increase of commerce which has taken place in that colony is to be attributed. There is also another party, whose in- terests ought not to be left out of our consideration I mean the ancient noblesse. In the first place, Sir, with regard to this clause, which proposes to give optional juries in civil causes, I do not consider that it, in any de- gree, affects the right of this country over Canada in point of sovereignty. If the Crown is interested if the power and authority of this country is interested in any questions concerning a jury, it is in criminal matters; and such a jury the bill has already given to the Canadians. The British parliament, Sir, having duly considered the great protection afforded to the subject by juries, against the claim and authority of the Crown, have uni- 1763-1774] Constitutional Documents of Canada. 127 versally given them a jury in all criminal causes. Now, with regard to giving them also a jury in civil causes, as far as the King's authority is concerned, I do not conceive that any individual, standing in my situation, would object to it. In granting a jury in all civil causes, the only point to be considered is, the happiness of the parties concerned. The English merchants trading to Canada have an undoubted claim to the protection of parliament. They are a most respectable body, and much of the flourish- ing condition of the colony is owing to their exertions. In compliance with their interests and desires, I would go as far as the honourable gentle- man, in granting them every thing that can be granted, without producing inconvenience and embarrassment. If, Sir, I understand the evidence which has been given at pur bar, it certainly is not the desire of the Cana- dians to have the trial by jury in civil causes. General Carleton, if I remem- ber his evidence, informed the House that, though the mode of trial by juries had been introduced into the courts, the Canadians, in general, did not desire to be tried by them ; and it was his opinion, that to give them their old system of laws would be the only means of making them a happy people. With regard to the other evidence, Mr. Hey, the chief justice of Quebec, was of opinion, that the trial by jury is, at present, not preferred by the people ; that the noblesse and the superior class of the Canadians hold it to be humiliating ; and that the lower orders consider it, as in truth it is, a burthen. Mr. Hey told us, that he did not think the Cana- dians, in their present state of ignorance, were fit to be upon a jury; that he had endeavoured to explain to them the benefit of the English laws, particularly in point of trial ; but, whether what he said was not properly interpreted to them, or whether his reasons and not his argument had any effect upon them. He also said, that there had been cases of mis- behaviour in juries ; not of corruption or partiality, but several cases in which they had refused to decide at all. Mr. Maseres, it is true, told us that juries would, he believed, be liked under proper regulations; but that the people did not choose to give their time and attendance for nothing. Mr. Lotbiniere, on a question being put to him, whether he did not think the English laws the best for the Canadians in general, answered that he made no doubt our laws were good and wise, and made us a happy people, but that his countrymen preferred their old laws and customs. Now, Sir, this proposition requires that the jury shall be, in all cases, constituted ac- cording to the laws of England; and is consequently not such a jury as, from the evidence of the gentlemen you have heard at your bar, is the most proper and suitable for the people of Canada. It goes to submit every question of every sort, relative to property and civil rights ; all the questions of feudal right; all the questions of private tenures, and the per- sons holding under them, to trial by jury; and after what we have heard, I think it would be rather a hasty step to entrust all these things to the decision of an optional jury. The best way will be to leave the whole question in the hands of those to whom the administration of justice in Canada will be confided, and whose duty it will be to adopt, from time to time, such amendments as the actual state and condition of the colony may require. Upon these considerations, I submit, whether it will be proper to bind down the Crown by the clause now offered, or whether, in this case, the people of Canada may not safely repose in the confidence, that, in the forming of the courts of judicature, the interests of all persons concerned will be taken into consideration, and such a plan settled as, under the peculiar circumstances of the country, will be found most beneficial to the whole of the inhabitants. . . . Mr. Dunning. Sir, in entering upon the subject, there are three classes of individuals to be considered : the Canadians, who are the old inhabitants ; the English settlers in the colony ; and the merchants, inhabi- tants of this country, trading to that colony. The first class are repre- sented as being averse to trial by jury; the two last are stated to be de- sirous of the establishment of such a tribunal, but their desires, it seems, are not worth attending to. I cannot, by any means, assent to the opin- 128 Constitutional Documents of Canada. [1763-1774 ion of the learned gentleman, with regard to the first class, when he sup- poses that the evidence of the witnesses who have been examined at our bar tends to prove, that, in their judgment at least, trial by jury was no* desirable in the opinion of the old inhabitants of Canada, the King's new subjects. If I can hear aright, if I can understand rightly, all those wit- nesses agreed, and agreed so clearly, and expressed themselves so forcibly, that the most wilful misrepresentation cannot place them upon the other side of this question. Mr. Maseres, I am perfectly sure, was systematical in his evidence, in declaring, that the Canadians were ready to receive the trial by jury; that they desire it, and will not be content without it. It was presented to them in an optional form; and it was evident what their wish was, from the use they made of it: they claimed the benefit of it; they had the benefit of it; they were satisfied with the benefit of it. Mr. Hey, if I did not misunderstand him, said precisely the same thing. They therefore distinguished the line of difference, and stated where they were dissatisfied ; in what they wished to have some modification of the law ; what part of the old system they wished re-established; and what part of the new system they wished to be rectified. Every ear acquiesced in the voice that stated to them that, with reference to all commercial subjects, all matters of contract, all matters of debt, all matters of civil right, with the exception of those that had relation to matters of religious property, might safely stand upon English bottom. These, with the whole criminal law of England, and particularly the right of habeas corpus, made up together a system, with which, in the opinion of Mr. Hey, the old and the new subjects of Canada would, at that time, have been perfectly con- tent. But he went on to say, that he doubted whether such would be the case now ; though he still thought it ought to be. Such, Sir, is the result of the evidence before us: but at the time that I say this, I am ready to admit, that if, after more accurate experience, we are now ripe to say, that a trial by jury is not adapted to the circum- stances of the colony, we ought not to enforce it. Has any body made such discovery? Has any body found out, that though applicable in criminal matters, it is not so in those which relate to personal property? Indeed, every sort of right is capable of being stated, and of being discussed and decided upon by a jury. As to submitting questions of revenue to juries, God forbid that that idea should be understood in the full extent of it ! But sure I am, that if questions of revenue were not to be decided in this country by juries, no creature could endure to live in it for a single hour. That is the only check and it is a feeble one with regard to the claim of the Crown. Juries are not to make the law: they are not judges of the law: more especially are they not judges of such laws. The legislature may make those laws ; they are to administer ; they are to apply them. If the Crown, or the officers of the Crown, say such a law is imposed, it is not competent to a jury to question the validity of that law. If that be proved to their satisfaction they are bound to find it so ; they are bound to carry that law into execution. If they neglect that duty, it is obvious the same power exists to correct the misconduct of juries abroad as well as at home. If they persist in that sort of conduct, the law is not so weak, but that it can apply a proper coercion. I can hardly conceive a jury in a predicament of wilful determination to refuse to do their duty. In every point of view, I have always thought, that of all human institutions for the investigation of truth and the rejection of falsehood and error, they are by far the most competent judges imaginable. They are called upon to perform a duty : they return again into society, when that purpose is answered : they are liable to no temptation : they have the common interest of their fellow-subjects in view : they have every motive to induce them to do right : they have no possible temptation to do wrong. Is that, Sir, the case with judges? With regard to the clause now proposed to be added to the bill, I think it does not warrant our going into that consideration. Upon that point, I will only beg to ask, who those judges are to whom the explication of this law is meant to be entrusted? After the passing of this bill, the excellent judge who appeared at our bar 1763-1774] Constitutional Documents of Canada. 129 will be chief justice no longer, unless he should be again called to fill the same situation. The House, I trust, has not forgotten what he said with regard to himself upon that subject. A question having been put to him, whether he could make himself equally master of the Canadian laws as of the English law, he answered, that it would require a great deal of time and attention, and he was afraid more abilities than he was master of. I beg the learned gentleman will tell us, whether he knows any one who has more abilities. I do not know where such a man is to be found. I think it will be difficult to meet with a man of that description. The learned gentleman mistook when he spoke of a person thrusting himself into a place, for the purpose of getting what did not belong to him, and he affected to claim only three hundred and sixty men, as the whole amount of the number of Protestants in the colony; but, on this point, the witness afterwards explained himself to mean three hundred and sixty masters of families, making the number altogether about two thousand : but, whether three hundred and sixty, or two thousand, or twenty thousand, be their number, is no part of the present question These are men who did not thrust themselves into the place, for the pur- pose of getting what did not belong to them ; these are men invited thither ; these are men tempted thither. They thought they might trust the King's word ; they presumed that that word was sacred ; they did not foresee the time would come when any man would dare to violate it: it imported nothing of imposition to them. Those men, therefore, going thither upon a ground which they thought would not sink under them, now address themselves to you, and claim the protection of those laws, which are gener- ally understood to secure to them the due performance of all men's engage- ments. That it is the desire of these inhabitants to have the trial by jury in civil causes introduced into this bill, every witness at your bar has borne testimony. I apprehend that their situation and condition, and the means by which they have been brought into that situation and condition, give them a just claim to the protection of the legislature. And why, Sir, is the third class to which I have alluded supposed to be less entitled in this case to consideration? They are known to you as merchants trading to that part of the world : but how long has it been the case, that merchants trading to that part of the world have not been worthy of attention ; especially when they have this additional claim to urge that the difficulties to which they are exposed sprung from the same origin the King's pro- clamation? The same witness has told you, that they have formed connec- tions in that country; that they have become creditors upon the faith of having English laws; upon the faith of having English juries to administer those laws, if they should want them. The merchants are too contemp- tuously treated, if they are left to suppose, that this measure is not to be judged of at all by their inclination. But, if I were of opinion that it should solely depend upon the inclination of the Canadians, since it is not mentioned that it is desired by the Canadians, but only supposed that they are not averse to it, that they would not oppose it, and though only two classes would desire it, their right to it depending upon such grounds as it does, I should say, there is nothing clearer, than that if the measure is to depend upon the inclination of the inhabitants, this inclination points clearly in its favour. But that is not the point upon which the question rests; for though it would be improper and impolitic to do any thing dis- agreeable to certain classes of the people, yet if any doubt exists, that doubt ought to be decided by your own judgment. The House ought to decide, whether it be proper to adopt or to reject it. Sir, I have felt it to be my duty to detain the House thus long, in answer to the arguments which have been urged on the other side. I have not given myself this trouble, from any expectation that what I have said will produce any effect, but that I might reply to the only argument that has been urged, and to state, that what I have heard has not, in any degree, altered my opinion. One advantage, however, will result from this dis- cussion. The fact, that there was a division upon this proposition will get into the Journals of the House, and there stand a perpetual memento, that 130 Constitutional Documents of Canada. [1763-1774 a small minority were of opinion, that English trial by jury should not be abolished. . . . Mr. Edmund Burke. I will now pass to the other part of the question the alleged hatred of the Canadians to serve on juries; their inaptitude to the exercise of the functions. But a jury may be fit for them, though they may not be fit for jurymen. A love of justice must belong to the Canadians, as well as to other people ; and I cannot believe that trial by jury is an odious thing to men who are subject to no undue prepossession against it. In a question upon matter of fact, where evidence is taken upon oath, between parties who are flesh of our flesh, bone of our bone, is there any thing calculated so to prejudice mankind, as to make them look upon the question of trial by jury as an odious thing? What is the reason that you cannot repose confidence in the known reason of men, as well in that country as in this? But it is said, the people of Canada are averse to juries! Have they complained of a jury? We have not one single syllable of complaint, which has been taken at first hand. Opinions inferred from conversations may be very easily mistaken. They may have com- plained, very properly, that they found the laws of the land all shaken ; that they found a new rule given them, by which their family settlements were all deranged ; that they were deprived of all share in the govern- ment. But, Sir, as to the alleged dislike of these people to the trial by jury, what does the gentleman who filled the office of Attorney-General in that country with so much honour to himself tell you? Did he point out this fact? Did he ever give such evidence? He spoke flatly to the con- trary. He constantly spoke of it, not as a thing which they disliked, but as one of which they were ignorant. Now, dislike and ignorance are very different things. In their ignorance they confused the idea of a grand jury with that of a petty jury, and esteemed the law a tyranny. Even Mr. Key's evidence had only a dubious word or two in it. Having cleared my way thus far, there remains nothing but the evi- dence of a general officer. He, to be sure, spoke of the ignorance of the people of Canada: he told us of their having no wish to be tried by juries; that they preferred the mode of trial by a judge, from custom, habit and education ; and that they thought it strange that the English residents should prefer to have their lives and properties decided upon by barbers and shoemakers. You see, Sir, how much these people are to be pitied whose authority is thus quoted ; how ignorant, how much deceived, were those persons who conversed with this great officer ! how little they knew of the nature of that institution which they condemned ! Their objection was chiefly an objection of pride. Now, if that was a good reason to urge against the institution there, it is a good reason against it here. But the objections of the Canadians, so far as they are solid and substantial, are easily removeable, without injury to trial by jury. With regard to the objection, that it is humiliating to be tried by a jury, it can only come from those who are desirous of being above ld prejudices in favour of their former laws. A new establishment is proposed to them ; which throws them into some disorder, some confusion '/All the interim is like a phan- tasma and a hideous dream." The honourable gentlemen opposite, taking advantage of this confusion, say W v have got a basis; let us see how much French law we can introduce!" "With a French basis, there is not one good thing that you can introduce. With an English basis, there is not one bad filing that you can introduce. Take the rule of the law of Canada for 'lie rule of the constitution of 'your courts, and it will be the rule of all our proceedings: take it /or the rule of your judicature, and sooner or late, it will be the rule of your legislature. How often have we had occa- sion in tnis, Housfe 'to JJuote the practice of the courts below! how many 1 lights have we derive* from the learned gentlemen pleading there ! how mSny^ljghts have we derived from you. Sir! how many from the judicature qf the upper House! Where there is a basis of French judicature, of French law, the legislature will never think of grafting upon it an English constitution. - With .regard to state policy, which is the last point I shall touch upon the preservation pi their old prejudices, their old laws, their old customs, by "the" bill, turns/ the balance in favour of France. The only difference is, they will have George the Third for Lewis the Sixteenth. In order to make Canada a $eeure possession of the British government, you have only to bind the people to you, by giving them your laws. Give them English liberty give them an English constitution and then, whether they speak French or English, whether they go to mass or attend our own com munion, you will render them valuable and useful subjects of Great Britain. If you refuse to do this, the consequence will be most injurious: Canada will become a dangerous instrument in the hands of those who wish to destroy English liberty in every part of our possessions. XXV THE QUEBEC ACT (14 Geo. Ill, c. 83.) An act for making more effectual Provision for the Government of the Province of Quebec in North America. Whereas His Majesty, by His Royal Proclamation, bearing Date the Seventh Day of October, in the Third Year of His Reign, thought fit to declare the Provisions which had been made in respect to certain Countries, Territories, and Islands in America, ceded to His Majesty by the Definitive Treaty of Peace, concluded at Paris on the Tenth Day of February, One thousand seven hundred and sixty-three : And whereas, by the Arrange- ments .made by the said Royal Proclamation, a very large Extent of Coun- try, within which there were several Colonies and Settlements of the Subjects of France, who claimed to remain therein under the Faith of the said Treaty, was left, without any Provision being made for the Admin- istration of Civil Government therein; and certain Parts of the Territory of Canada, where sedentary Fisheries had been established and carried on by the Subjects of France, Inhabitants of the said Province of Canada, under Grants and Concessions from the Government thereof, were annexed to the Government of Newfoundland, and thereby subjected to Regulations inconsistent with the Nature of such Fisheries: May it therefore please Your most Excellent Majesty that it may be enacted ; and be it enacted by the King's most Excellent Majesty, by and with the advice and Consent 1763-1774] Constitutional Documents of Canada. 133 of the Lords Spiritual and Temporal, and Commons, in this present Parlia- The Terri- ment assembled, and by the Authority of the same, that all the Territories, anTc'ountrie Islands, and Countries in North America, belonging to the Crown of Great in North Britain, bounded on the South by a Line from the Bay of Chaleurs, along^mer ica - be - the High Lands which divide the Rivers that empty themselves into the ^^Britain River Saint Lawrence from those which fall into the Sea, to a Point in Forty-five Degrees of Northern Latitude on the Eastern Bank of the River Connecticut^ keeping the same Latitude directly West through the Lake Champlain until, in the same Latitude, it meets the River Saint Lawrence; from thence up the Eastern Bank of the said River to the Lake Ontario; thence through the Lake Ontario, and the River commonly called Niagara; and thence along by the Eastern and South-eastern Bank of Lake Erie, following the said Bank until the same shall be intersected by the Northern Boundary granted by the Charter of the Province of Pennsylvania, in case the same shall be so intersected ; and from thence along the said Northern and Western Boundaries of the said Province until the said Western Boundary strike the Ohio : But in case the said Bank of the said Lake shall not be found to be so intersected, then following the said Bank until it shall arrive at that Point of the said Bank which shall be nearest to the North-western Angle of the said Province of Pennsylvania, and thence, by a right Line, to the said North-western Angle of the said Province; and thence along the Western Boundary of the said Province, until it strike the River Ohio; and along the Bank of the said River Westward to the Banks of the River Mississippi, and Northward to the Southern Boundary of the Territory granted to the Merchants Adventurers of England, trading to Hudson's Bay; and also all such Territories, Islands, and Countries, Annexed to which have, since the Tenth of February, One thousand seven hundred and the Province sixty-three, been made part of the Government of Newfoundland be, and e they are hereby, during His Majesty's Pleasure, annexed to, and made Part and Parcel of, the Province of Quebec, as created and established by the said Royal Proclamation of the Seventh of October, One thousand seven hundred and sixty-three. II. Provided always, That nothing herein contained, relative to the Not to affect Boundary of the Province of Quebec, shall in anywise affect the Boundaries the Bound- of any other Colony. III. Provided always, and be it enacted, That nothing in this Act contained shall extend, or be construed to extend, to make void, or to vary Nor to make or alter any Right, Title, or Possession, derived under any grant, Convey- void other ance, or otherwise howsoever, of or to any Lands within the said Province, rights former- pr the Provinces thereto adjoining; but that the same shall remain, and be lygranted- in Force, and have Effect, as if this Act had never been made. IV. And whereas the Provisions, made by the said Proclamation, in respect to the Civil Government of the said Province of Quebec, and the Former pro- Powers and Authorities given to the Governor and other Civil Officers of 0"^ the said Province, by the Grants and Commissions issued in consequence Province to be thereof, have been found, upon Experience to be inapplicable to the State null and void and Circumstances of the said Province, the Inhabitants whereof amounted, 177*5" y *' at the Conquest, to above Sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an established Form of Constitution and System of Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada; be it therefore fur- ther enacted by the Authority aforesaid, That the said Proclamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province, and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void, from and after the First Day of May, One thousand seven hundred and seventy-five. t> 134 Constitutional Documents of Canada. [1763-1774 Inhabitants of , V. And, for the more perfect Security and Ease of the Minds of the profess the* Inhabitants of the said Province, it is hereby declared, That His Majesty's Romish Reli- Subjects, professing the Religion of the Church of Rome, of and in the 8 ion - s bject Sfl i sna M> w ' tn respect to such Property and Rights, be determined agree- the Decision, ably to the said Laws and Customs of Canada, until they shall be varied or altered by any Ordinances, that shall, from Time to Time, be passed in the said Province by the Governor, Lieutenant Governor, or Commander in Chief, for the Time being, by and with the Advice and Consent of the 1763-1774] Constitutional Documents of Canada. 135 Legislative Council of the same, to be appointed in the Manner hereinafter mentioned. IX. Provided always, That nothing in this Act contained shall extend, Not to extend or be construted to extend, to any Lands that have been granted by His the Lands Majesty, or shall hereafter be granted by His Majesty, His Heirs andfj. n j^ a j e ^ ty Successors, to be holden in free and common Soccage. in common X. Provided always, That it shall and may be lawful to and for Soccage. every Person that is Owner of any Lands, Goods, or Credits, in the said Province, and that has a Right to alienate the said Lands, Goods, or Credits, Owners of in his or her Life-time by Deed of Sale, Gift, or otherwise, to devise or^f^fate'tSe bequeath the same at his or her Death, by his or her last Will and Testa- 8ame t, y \vill, ment; any Law, Usage, or Custom, heretofore or now prevailing in the etc., if execut- Province, to the Contrary hereof in any-wise notwithstanding; such Will^^^mg being executed, either according to the Laws of Canad^, or according to f Canada. the Forms prescribed by the Laws of England. XI. And whereas the "Certainty and Lenity of the Criminal Law of Crimina } Law England, and the Benefits and Advantages resulting from the use of it, f England to have been sensibly felt by the Inhabitants, from an Experience of more be continued than Nine Years, during which it has been uniformly administered; be it]? r jjjf nce therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial ; and the Punishments and Forfeitures thereby inflicted to the Exclusion of every other Rule of Criminal Law, or mode of Proceeding thereon, which did or might prevail in the said Province before the Year of our Lord One thousand seven hundred and sixty-four; any Thing in this Act to the Contrary thereof in any Respect notwithstanding; subject nevertheless to such Alterations and Amend- ments as the Governor, Lieutenant Governor, or Commander in Chief for the Time being, by and with the Advice and Consent of the Legislative Council of the said Province, hereafter to be appointed, shall, from Time to Time, cause to be made therein, in Manner herein-after directed. XII. And whereas it may be necessary to ordain many Regulations for . the future Welfare and good Government of the Province of Quebec, the ma y a jfpoim a Occasions of which cannot now be foreseen, nor, without much Delay and Council for Inconvenience, be provided for, without intrusting that Authority, for a th .e Affairs certain Time, and under proper Restrictions, to Persons resident there : p rov f nc e. And whereas it is at present inexpedient to call an Assembly; be it there- fore enacted by the Authority aforesaid, That it shall and may be law- ful for His Majesty, His Heirs and Successors, by Warrant under His or Their Signet or Sign Manual, and with the Advice of the Privy Coun- cil to constitute and appoint a Council for the Affairs of the Province of Quebec, to consist of such Persons resident there, not exceeding Twenty-three, nor less than Seventeen, as His Majesty, His Heirs and Successors, shall be pleased to appoint; and, upon the Death, Removal, or ^ 1 maTmake Absence of any of the Members of the said Council, in like Manner to Ordinances constitute and appoint such and so many other Person or Persons as shall with the Con- be necessary to supply the Vacancy or Vacancies; which Council, so a P" pointed and nominated, or the major Part thereof, shall have Power and Authority to make Ordinances for the Peace, Welfare, and good Govern- ment, of the said Province, with the Consent of His Majesty's Governor, or, in his Absence, of the Lieutenant Governor, or the Commander in Chief for the Time Being. XIII. Provided always, That nothing in this Act contained shall The Council extend to authorize or impower the said Legislative Council to lay any are not im- Taxes or Duties within the said Province, such Rates and Taxes only ex-{^p a ^ g to cepted as the Inhabitants of any Town or District within the said Province Publick Roads may be authorized by the said Council to assess, levy, and apply, within the or Buildings said Town or District, for the Purpose of making Roads, erecting and excep repairing publick Buildings, or for any other Purpose respecting the local Convenience and CEconomy of such Town or District. 1 1 For the method of raising provincial revenue, see Nos. XXVI, XXVIII. 136 Constitutional Documents of Canada. [1763-1774 Ordinance* made to be laid before His Majesty for His Approbation. Ordinances touching Re- ligion not to be in Force without His Majesty's Approbation. When Ordinances are to be passed by a Majority. Nothing to hinder His Majesty to constitute Courts of Criminal, Civil and Ecclesiastical Jurisdiction. All Acts formerly made are hereby inforced within the Province. XIV. Provided also, and be it enacted by the Authority aforesaid, That every Ordinance so to be made, shall, within Six Months, be trans- mitted by the Governor, or, in his absence, by the Lieutenant Governor, or Commander in Chief for the Time being, and laid before His Majesty for His Royal Approbation; and if His Majesty shall think fit to disallow thereof, the same shall cease and be void from the Time that His Majesty's Order in Council thereupon shall be promulgated at Quebec. XV. Provided also, That no Ordinance touching Religion, or by which any Punishment may be inflicted greater than Fine, or Imprisonment for Three Months, shall be of any Force or Effect, until the same shall have received His Majesty's Approbation. XVI. Provided also, That no Ordinance shall be passed at any Meet- ing of the Council where less than a Majority of the whole Council is present, or at any Time except between the First Day of January and the First Day of May, unless upon some urgent Occasion, in which Case every Member thereof resident at Quebec, or within Fifty Miles thereof, shall be personally summoned by the Governor, or, in his Absence, by the Lieuten- ant Governor, or Commander in Chief for the Time being, to attend the same. XVII. And be it further enacted by the Authority aforesaid, That nothing herein contained shall extend, or be construed to extend, to pre- vent or hinder His Majesty, His Heirs and Successors, by His or Their Letters Patent under the Great Seal of Great Britain, from erecting, con- stituting, and appointing, such Courts of Criminal, Civil, and Ecclesiastical Jurisdiction within and for the said Province of Quebec, and appointing, from Time to Time, the Judges and Officers thereof, as His Majesty, His Heirs and Successors, shall think necessary and proper for the Circum- stances of the said Province. XVIII. Provided always, and it is hereby enacted, That nothing in this Act contained shall extend, or be construed to extend, to repeal or make void, within the said Province of Quebec, any Act or Acts of the Parliament of Great Britain heretofore made for prohibiting, restraining, or regulating, the Trade or Commerce of His Majesty's Colonies and Planta- tions in America; but that all and every the said Acts, and also all Acts of Parliament heretofore made concerning or respecting the said Colonies or Plantations, shall be, and are hereby declared to be, in Force, within the said Province of Quebec, and every Part thereof. XXVI THE QUEBEC REVENUE ACT, 1774 (14 George III, c. 88.) An Act to establish a fund towards further defraying the charges of the Administration of Justice, and support of the Civil Government within the Province of Quebec in America. Preamble. Whereas certain duties were imposed by the authority of his Most Christian Majesty upon wine, rum, brandy, eau de vie de liqueur, imported into the Province of Canada, now called the Province of Quebec, and also r a duty of three pounds per centum ad valorem upon all dry goods imported im'J.osed by his into and exported from the said Province, which duties subsisted at the most Christian time of the surrender of the said Province to your Majesty's forces in the Majesty upon late war: And whereas it is expedient that the said duties should cease etc 'imported and be discontinued, and that in lieu and instead thereof other duties should into Quebec, be raised by the authority of Parliament for making a more adequate pro- vision for defraying the charge of the administration of justice and the support of civil Government in the said Province; We, your Majesty's most dutiful and loyal subjects, the Commons of Great Britain in Parliament assembled, do most humbly beseech your Majesty that it may be enacted, and be it enacted by the King's most Excellent Majesty, by and with the 1763-1774] Constitutional Documents of Canada. 137 advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same: That from and after the fifth day of April, one thousand, seven hundred, Aft|t April 5, and seventy-five, all the duties which were imposed upon rum, brandy, discontinued eau de vie de liqueur, within the said Province, and also of three pounds within the per centum ad valorem on dried goods imported into or exported from the Province, said Province, under the authority of his most Christian Majesty, shall be and are hereby discontinued ; and that in lieu and instead thereof there shall from and after after the said fifth day of April, one thousand seven .hun- ^^msteadof dred and seventy-five be raised, levied, collected, and paid unto his Majesty, j w i ng duties his heirs and successors, for and upon the respective goods hereinafter to be paid to mentioned, which shall be imported or brought into any part of the said His Majesty. Province, over and above all other duties now payable in the said Province, by any Act or Acts of Parliament, the several rates and duties following : that is to say, For every gallon of brandy, or other spirits, of the manufacture o/ The rates. Great Britain, three-pence. For every gallon of rum, or other spirits, which shall be imported or brought from any of his Majesty's sugar colonies in the West Indies, six- pence. For every gallon of rum, or other spirits which shall be imported or brought from any other of his Majesty's colonies or dominions in America, nine-pence. For every gallon of foreign brandy, or other spirits of foreign manu- facture imported or brought from Great Britain, one shilling. For every gallon of rum or spirits of the produce or manufacture of any of the Colonies or Plantations in America, not in the possession or under the dominion of his Majesty, imported from any other place except Great Britain, one shilling. For every gallon of molasses and syrups which shall be imported or brought into the said Province in ships or vessels belonging to his Majesty's subjects in Great Britain or Ireland, or to his Majesty's subjects in the said Province, three-pence. For every gallon of molasses and syrups, which shall be imported 01 brought into the said Province in any other ships or vessels in which the same may be legally imported, six-pence; and after those rates for any greater or less quantity of such goods respectively. II. And it is hereby further enacted by the authority aforesaid, that ^|? n deemed the said rates and duties charged by this Act shall be deemed, and are O f Great hereby declared, to be sterling money of Great Britain, and shall be col- Britain, lected, recovered, and paid to the amount of the value of which such nominal sums bear in Great Britain ; and that such monies may be received and taken according to the proportion and value of five shillings and six- pence the ounce in silver; and that the said duties hereinbefore granted shall be raised, levied, collected, paid, and recovered, in the same manner How they are and form, and by such rules, ways, and means, and under such penalties * c v> and forfeitures, except in such cases where any alteration is made by this Act, as any other duties payable to his Majesty upon goods imported into any British Colony or Plantation in America are or shall be raised, levied, collected, paid, and recovered, by any Act or Acts of Parliament, as fully and effectually, to all intents and purposes, as if the several clauses, powers directions, penalties, and forfeitures relating thereto, were particularly repeated and again enacted in the body of this present Act: and that all the monies that shall arise by the said duties (except the necessary charges * w k they of raising, collecting, levying, recovering, answering, paying, and account- ar ing for the same), shall be paid by the Collector of his Majesty's Customs, into the hands of his Majesty's Receiver-General in the said Province for the time being, and shall be applied in the first place in making a more certain and adequate provision towards defraying the expences of the and how to administration of justice and of the support of Civil Government in the be applied- said Province; and that the Lord High Treasurer, or Commissioners of his Majesty's Treasury, or any three or more of them for the time being, 138 Constitutional Documents of Canada. [1763-1774 Regluations with respect to goods brought into the Province chargeable with the duties before mentioned. Penalties and forfeitures when to be prosecuted for, etc. Any person keeping a house of publick enter- tainment to ?ay 1 16s. or a license. Penalty of 10 for every offence. Not to make void French revenues, etc. reserved at the conquest shall be, and is, or are hereby impowered, from time to time, by any war- rant or warrants under his or their hand or hands, to cause such money to be applied out of the said produce of the said duties, towards defraying the said expences ; and that the residue of the said duties shall remain and be reserved in the hands of the said Receiver-General, for the future dis- position of Parliament. III. And it is hereby further enacted by the authority aforesaid that if any goods chargeable with any of the said duties herein-before mentioned shall be brought into the said Province by land carriage, the same shall pass and be carried through the port of St. John's, near the River Sorrel ; or if such goods' shall be brought into the said Province by any inland navigation other than upon the River St. Lawrence, the same shall pass and be carried upon the said River Sorrel by the said port, and shall be there entered with, and the said respective rates and duties paid for the same, to such officer or officers of his Majesty's Customs as shall be there appointed for that purpose ; and if any such goods coming by land carriage or inland navigation, as aforesaid, shall pass by or beyond the said place before named, without entry or payment of the said rates and duties, or shall be brought into any part of the said Province by or through any other place whatsoever, the said goods shall be forfeited ; and every person who shall be assisting, or otherwise concerned in the bringing or removing such goods, or to whose hands the same shall come, knowing that they were brought or removed contrary to this Act, shall forfeit treble the value of such goods, to be estimated and computed according to the best price that each respective commodity bears in the Town of Quebec, at the time such offence shall be committed; and all the horses, cattle, boats, vessels, and other carriages whatsoever, made use of in the removal, carriage, or con- veyance of such goods, shall also be forfeited and lost, and shall and may be seized by any officer of his Majesty's Customs, and prosecuted as herein- after mentioned. iy. And it is hereby further enacted by the authority aforesaid, that the said penalties and forfeitures by this Act inflicted, shall be sued for and prosecuted in any Court of Admiralty, or Vice-Admiralty, having juris- diction within the said Province, and the same shall and may be recovered and divided in the same manner and form, and by the same rules and regulations in all respects as other penalties and forfeitures for offences against the laws relating to the customs and trade of his Majesty's Colonies in America shall or may, by any Act or Acts of Parliament be sued for, prosecuted, recovered, and divided. V. And be it further enacted by the authority aforesaid, that there shall from and after the fifty day of April, one thousand seven hundred and seventy-five, be raised, levied, collected and paid unto his Majesty's Receiver-General of the said Province for the use of his Majesty, his heirs and successors, a duty of one pound sixteen shillings, sterling money of Great Britain, for every licence that shall be granted by the Governor, Lieutenant-Governor, or Commander in Chief of the said Province to any person or persons for keeping a house or any other place of publick enter- tainment, or for the retailing wine, brandy, rum, or any other spirituous liquors within the said Province; and any 'person keeping any such house or place of entertainment, or retailing any such liquors without such licence shall forfeit and pay the sum of ten pounds for every such offence, upon conviction thereof; one moiety to such person as shall inform or prosecute for the same, and the other moiety shall be paid into the hands of the Receiver-General of the Province for the use of his Majesty. VI. Provided always that nothing herein contained shall extend or be construed to extend to discontinue, determine, or make void any part of the territorial or casual revenues, fines, rents, or profits whatsoever, which were reserved to, and belonged to his Most Christian Majesty, before and at the time of the conquest and surrender thereof to his Majesty, the King of Great Britain; but that the same and every one of them, shall remain and be continued to be levied, collected, and paid in the 1763-1774] Constitutional Documents of Canada. 139 same manner as if this Act had never been made : anything therein con- tained to the contrary notwithstanding. VII. And be it further enacted by the authority aforesaid, that if In suits any action or suit shall be commenced against any person or persons f r guanfto?his anything done in pursuance of this Act, and if it shall appear to the Court ^ ct( defend- er Judge where or before whom the same shall be tried, that such action ants to have or suit is brought for anything that was done in pursuance of, and by the t reble costs- authority of this Act, the defendant or defendants shaft be indemnified and acquitted for the same; and if such defendant or defendants shall be so acquitted ; or if the plaintiff shall discontinue such action or suit, such Court or judge shall award to the defendant or defendants treble costs. XXVII ADDRESS OF THE GENERAL CONGRESS TO THE INHABIT- ANTS OF THE PROVINCE OF QUEBEC 1 October 26th, 1774. Friends and Fellow-Subjects, We, the delegates of the colonies df New-Hamshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New-Jersey, Pennsylvania, the counties of Newcastle, Kent and Sussex on the Delaware, Maryland, Virginia, North-Carolina, and South-Carolina, deputed by the inhabitants of the said Colonies, to represent them in a general congress at Philadelphia, in the province of Pennsylvania, to con- sult together of the best methods to obtain redress of our afflicting griev- ances, having accordingly assembled, and taken into our most serious con- sideration the state of public affairs on this continent, have thought proper to address your province, as a member therein deeply interested. When the fortune of war, after a gallant and glorious resistance, had incorporated you with the body of English subjects, we rejoiced in the truly valuable addition, both on our own and your account; expecting, as courage and generosity are naturally united, our brave enemies would become our hearty friends, and that the Divine Being would bless to you the dispensations of his over-ruling Providence, by securing to you and your posterity the inestimable advantages of a free English constitution of government, which it is the privilege of all English subjects to enjoy. These hopes were confirmed by the King's proclamation, issued in the year 1763, plighting the public faith for your full enjoyment of those advantages. Little did we imagine that any succeeding ministers would so auda- ciously and cruelly abuse the royal authority, as to withhold from you the fruition of the irrevocable rights, to which you were thus justly entitled. But since we have lived to see the unexpected time, when ministers of this flagitious temper have dared to violate the most sacred compacts and obligations, and as you, educated under another form of government, have artfully been kept from discovering the unspeakable worth of that form you are now undoubtedly entitled to, we esteem it our duty, for the weighty reasons hereinafter mentioned, to explain to you some of its most important branches. 'In every human society, (says the celebrated Marquis Beccaria) there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally.' Rules stimulated by this pernicious 'effort', and subjects, animated by the just 'intent of opposing good laws against it,' have occasioned that vast variety of events, that fill the histories of so many nations. All these 1 This document illustrates the attempt by the American Colonies to induce Canada to take part in the Continental Congress of 1775. See J. H. Smith, Our Struggle for the Fourteenth Colony. 140 Constitutional Documents of Canada. [1763-1774 histories demonstrate the truth of this simple position, that to live by the will of one man, or set of men, is the production of misery to all. On the solid foundation of this principle, Englishmen reared up the fabric of their constitution with such a strength, as for ages to defy time, tyranny, treachery, internal and foreign wars : and as an illustrious author of your nation, hereafter mentioned, observes, They gave the people of their colonies the form of their own government, and this government carrying prosperity along with it, they have grown great nations in the forests they were sent to inhabit.' In this form the first grand right is, that of the people having a share in their own government by their representatives, chosen by themselves, and in consequence of being ruled by laws which they themselves approve, not by edicts of men over whom they have no control. This is a bulwark surrounding and defending their property, which by their honest cares and labours they have acquired, so that no portions of it can legally be taken from them, but with their own full and free consent, when they in their judgment deem it just and necessary to give them for public services: and precisely direct the easiest, cheapest, and most equal methods, in which they shall be collected. The influence of this right extends still farther. If money is wanted by rulers, who have in any manner oppressed the people, they may retain it, until their grievances are redressed; and thus peaceably procure relief, without trusting to despised petitions, or disturbing the public tranquility. The next great right is that of trial by jury. This provides, that neither life, liberty, nor property can be taken from the possessor, until twelve of his unexceptionable countrymen and peers, of his vicinage, who from their neighbourhood may reasonably be supposed to be acquainted with his character, and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open court, before as many of the people as choose to attend, shall pass their sentence upon oath against him ; a sentence that cannot injure him, without injuring their own reputation, and probably their interest also ; as the question may turn on points that in some degree, concern the general welfare: and if it does not, their verdict may form a precedent, that, on a similar trial of their own, may militate against them. Another right relates merely to the liberty of the person. If a subject is seized and imprisoned, though by order of government, he may, by virtue of this right, immediate obtain a writ, termed a Habeas Corpus, from a judge, whose sworn duty it is to grant it, and thereupon procure any illegal restraint, to be quickly enquired into and redressed. A fourth right is, that of holding lands by the tenure of easy rents, and not by rigorous and appressive services, frequently forcing the pos- sessors from their families and their business, to perform what ought to be done, in all well regulates states, by men hired for the purpose. The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science and morality, and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honour- able and just modes of conducting affairs. These are the invaluable rights that form a considerable part of our mild system of government : that sending its equitable energy through all ranks and classes of men, defends the poor from the rich, the weak from the powerful, the industrious from the rapacious, the peaceable from the violent, the tenants from the lords, and all from their superiors. These are the rights, without which a people cannot be free and happy, and under the protection and encouraging influence of which, these colonies have hitherto so amazingly flourished and increased. These are the rights a profligate ministry are now striving, by force of arms, to ravish from us, and which we are, with one mind, resolved never to resign but with our lives. These are the rights you are entitled to, and ought at this moment in 1763-1774] Constitutional Documents of Canada. 141 perfection to exercise. And what is offered to you by the late act of parliament in their place? Liberty of conscience in your religion? No. God gave it to you ; and the temporal powers with which you have been and are connected firmly stipulated for your enjoyment of it. If laws divine and human, could secure it against the despotic capacities of wicked men, it was secured before. Are the French laws in civil cases restored? It seems so. But observe the cautious kindness of the ministers who pre- tend to be your benefactors. The words of the statute are, that those 'laws shall be the rule, until they shall be varied, or altered by any ordinances of the governor and council.' Is the 'certainty and lenity of the criminal law of England, and its benefits and advantages', commended in the said statute, and said to 'have been sensibly felt by you,' secured to you and your descendants? No. They too are subject to arbitrary 'alterations' by the governor and council ; and a power is expressly reserved of 'appoint- ing such courts of criminal, civil, and ecclesiastical jurisdiction, as shall be thought proper.' Such is the precarious tenure of mere will, by which you hold your lives and religion. The crown and its ministers are empowered, as far as they could be by parliament, to establish even the inquisition itself among you. Have you an assembly composed of worthy men elected by yourselves, and in whom you can confide, to make laws for you, to watch over your welfare, and to direct in what quantity, and in what manner your money shall be taken from you? No. The power of making laws for you is lodged in the governor and council, all of them dependent upon, and removeable at the pleasure of a minister. Besides, another late statute, made without your consent, has subjected you to the imposition of excise, the horror of all free states; they wresting your property from you by the most odious taxes, and laying open to insolent tax-gatherers, houses the scenes of domestic peace and comfort, and called the castles of English subjects in the books of their laws. And in the very act for altering your government, and intended to flatter you, you are not authorized to 'assess, levy, or apply any rates and taxes, but for the inferior purposes of making roads, and erecting and repairing public buildings, or for other local conveniences, within your respective towns and districts.' Why this degrading distinc- tion? Ought not the property honestly acquired by Canadians to be held as sacred as that of Englishmen 1 ? Have not Canadians sense enough to attend to any other public affairs, than gathering stones from one place and piling them up in another? Unhappy people! who are not only in- jured, but insulted. Nay more! With such a superlative contempt of your understanding and spirit has an insolent ministry presumed to think of you, our respectible fellow-subjects, according to the information we have received, as firmly to persuade themselves that your gratitude, for the injuries and insults they have recently offered to you, will engage you to take up arms, and render yourselves the ridicule and detestation of the world, by becoming tools, in their hands, to assist them in taking that freedom from us, which they have treacherously denied to you; the un- avoidable consequence of which attempt, if successful, would be the extinc- tion of all hopes of you or your posterity being ever restored to freedom: lor idiotcy itself cannot believe, that, when their drudgery is performed, they will treat you with less cruelty than they have us, who are of the same blood with themselves. What would your countryman, the immortal Montesquieu, have said to such a plan of domination, as has been framed for you? Hear his words, with an intenseness of thought suited to the importance of the subject. 'In a free state, every man, who is supposed a free agent, ought to be concerned in his own government; therefore the legislative should reside in the whole body of the people, or their representatives.' 'The political liberty of the subject is a tranquility of mind, arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted, that one man need not be afraid of another. When the power of making laws, and the power of executing them are united in the same person, or in the same body of 142 Constitutional Documents of Canada. [1763-1774 magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.' 'The power of judging should be exercised by persons taken from the body of the people, at certain times of the year, and pursuant to a form and manner prescribed by law. There is no liberty, if the power of judging be not separated from the legislative and executive powers.' 'Military men belong to a profession which may be useful, but is often dangerous. The enjoyment of liberty, and even its support and preserva- tion, consists in every man's being allowed to speak his thoughts, and lay open his sentiments.' Apply these decisive maxims, sanctioned by the authority of a name which all Europe reveres, to your own state. You have a governor, it may be urged, vested with the executive powers, or the powers of administra- tion. In him, and in your council, is lodged the power of making lait's. You have judges, who are to decide every cause affecting your lives, liberty or property. Here is, indeed, an appearance of the several powers being separated and distributed into different hands, for checks one upon another, the only effectual mode ever invented by the wit of men, to promote their freedom and prosperity. But scorning to be illuded by a tinselled outside, and exerting the natural sagacity of Frenchmen, examine the specious device, and you will find it, to use an expression of Holy Writ, 'a painted sepulchre,' for burying your lives, liberty and property. Your judges, and your legislative council, as it is called, are dependent on your Governor, and he is dependent on the servant of the Crown in Great Britain. The legislative, executive, and judging powers are all moved by the nods of a minister. Privileges and immunities last no longer than his smiles. When he frowns, their feeble forms dissolve. Such a treacherous ingenuity has been exerted in drawing up the code lately offered you, that every sentence beginning with a benevolent pretension, concludes with a destructive: and the substance of the whole, divested of its smooth words, is that the crown and its minister shall be as absolute throughout your extended province, as the despots of Asia and Africa. What can protect your property from taxing edicts, and the rapacity of necessitous and cruel masters? Your persons from lettres de cachet, gaols, dungeons, and oppressive service? your lives and general liberty from arbitrary and unfeeling rulers? We defy you, casting your view upon every side, to discover a single circumstance, promising from any quarter the faintest hope of liberty to you or your posterity, but from an entire adoption into the union of these colonies. What advice would the truly great man before mentioned, that advocate of freedom and humanity, give you, was he now living, and knew that we, your numerous and powerful neighbours, animated by a just love of our invaded rights, and united by the indissoluble bands of affection and inter- est, called upon you, by every obligation of regard for yourselves and your children, as we now do, to join us in our righteous contest, to make a com- mon cause with us therein, and to take a noble chance of emerging from a humiliating subjection under governors, intendants, and military tyrants, into the firm rank and condition of English freemen, whose custom it is, derived from their ancestors, to make those tremble who dare to think of making them miserable. Would not this be the purport of his address? 'Seize the opportunity presented to you by Providence itself. You have been conquered into liberty, if you act as you ought. This work is not of man. You are a small people, compared to those who with open arms invite you into fellowship. A moment's reflection should convince you which will be most for your interest and happiness, to have all the rest of North America your unalter- able friends, or your inveterate enemies. The injuries of Boston have roused and associated every colony, from Nova Scotia to Georgia. Your province is the only link that is wanting to complete the bright and strong chain of union. Nature has joined your country to theirs. Do you join your political interests. For their own sakes they never will desert or 1763-1774] Constitutional Documents of Canada. 143 betray you. Be assured that the happiness of a people inevitably depends on their liberty, and their spirit to assert it. The value and extent of the advantages tendered to you are immense. Heaven grant you may not dis- cover them to be blessings after they have bid you an eternal adieu.' We are too well acquainted with the liberality of sentiment distinguish- ing your nation, to imagine, that difference of religion will prejudice you against a hearty amity with us. You know, that the transcendant nature of freedom elevates those, who unite in the cause, above all such low- minded infirmities. The Swiss Cantons furnish a memorable proof of this truth. Their union is composed of Catholic and Protestant states, living in the utmost concord and peace with one another, and thereby enabled, ever since they bravely vindicated their freedom, to defy and defeat every tyrant that has invaded them. Should there be any among you, as there generally are in all societies, who prefer the favours of ministers, and their own interests, to the welfare of their country; the temper of such selfish persons will render them incred- ibly active in opposing all public-spirited measures, from an expectation of being well rewarded for their sordid industry by their superiors: but we doubt not you will be upon your guard against such men, and not sacrifice the liberty and happiness of the whole Canadian people and their posterity, to gratify the avarice and ambition of individuals. We do not ask you, by this address, to commence hostilities against the government of our common sovereign. We only invite you to consult your own glory and welfare, and not to suffer yourselves to be inveigled or intimidated by infamous ministers so far as to become the instruments of their cruelty and despotism, but to unite with us in one social compact, formed on the generous principles of equal liberty, and cemented by such an exchange of beneficial and endearing offices as to render it perpetual. In order to complete this highly desirable union, we submit it to your consideration, whether it may not be expedient for you. to meet together in your several towns and districts, and elect deputies who after meeting in a provincial congress, may chuse delegates, to represent your province in the continental congress, to be held at Philadelphia, on the tenth day of May, 1775. In this present congress, beginning on the fifth of last month, and continued to this day, it has been with universal pleasure, and an unani- mous vote, resolved, that we should consider the violation of your rights, by the act for altering the government of your province, as a violation of our own ; and that you should be invited to accede to our confederation, which has no other objects than the perfect security of the natural and civil rights of all the constituent members, according to their respective circumstances, and the preservation of a happy and lasting connection with Great Britain, on the salutary and constitutional principles herein before mentioned. For effecting these purposes, we have addressed an humble and loyal petition to his Majesty, praying relief of our grievances; and have associated to stop all importation from Great Britain and Ireland, after the first day of December, and all exportation to those kingdoms and the West Indies, after the tenth day of next September, unless the said grievances are redressed. That Almighty God may incline your minds to approve our equitable and necessary measures, to add yourselves to us, to put your fate, when- ever you suffer injuries which you are determined to oppose, not on the small influence of your single province, but on the consolidated powers of North America, and may grant to our joint exertions an event as happy as our cause is just, is the fervent prayer of us, your sincere and affection- ate friends and fellow-subjects. HENRY MIDDLETON, President. By order of the Congress, Oct. 26, 1774, THIRD PERIOD 1774-1791 THIRD PERIOD 1774-1791 The Quebec Act was almost still-born, owing to the breaking out of hostilities between England and the Thirteen Colonies. At any rate, according to the opinion of Governor Haldimand, its passing prevented Canada from becoming a thirteenth State of the Union (see No. XXXIV). The war, however, did not entirely suppress the demands of the British in Canada for a House of Assembly, and as soon as peace was declared in 1783, these de- mands were reinforced by the arrival in Canada of those colonial citizens known to history as the United Empire Loyalists who had remained loyal to the British connexion during the Revolu- tionary War. Carleton, now Lord Dorchester, returned to Canada for his second term of office as Governor in 1786, and there lay before him a complicated task. The "ancient subjects," that is, the British in Canada, persisted in their demand for a "new and free constitution," which now included, in addition to a House of Assembly, the right of taxation and some control over the Execu- tive (see Nos. XXXVIII ; XXXIX). The United Empire Loyal- ists, though loyal to the monarchical principle, were nothing behind the Fathers of American Confederation in their claim to representative institutions. Further advanced that contemporary Englishmen in political thought, it soon became evident to Dor- chester that they would not complacently endure the constitutional system erected by the Quebec Act. On the other hand, the French Canadians were still children in political experience, to whom representative institutions were only "une machine anglaise pour nous taxer" (see Nos. XL; XLI). Dorchester's problem was no easy one. Would it be possible out of such opposing forces to present an equitable solution? The "ancient subjects" began the struggle with numerous despatches and petitions, of which examples are given, and in 1788 they sent Adam Lymburner to London, who stated their case at the bar of the House of Commons (see No. XLVI). The way did not lie very clearly before the Government. However, as the United Empire Loyalists had to a large extent settled west of the French-Canadians in what is now the Province of Ontario, the Government decided, against Dorchester's wish, to divide the province (see No. XLVII), and they submitted a draft constitu- tion to the Governor in October, 1789. Grenville's covering des- patch (see No. L) is of interest, as it outlines a new departure in Canadian government. In addition, the heartsearchings over a new constitution gave rise to a famous suggestion contained in an opinion which Dorchester obtained from Chief Justice William Smith. The proposal was in reality one for the federation of British North America (see Nos. LIII ; LIV). However, the time was not ripe and the Constitutional Act was passed in 1791 (see No. LV), which provided for the division of the province by an Order-in-Council. This Order was duly issued on August 24, 1791. In September, Dorchester was appointed Captain-General and Governor-in-Chief of both provinces. Houses of Assembly were established in each new division. The documents given below illustrate the various difficulties which led to the drawing up of a new constitution. 1774-1791] Constitutional Documents of Canada. 149 XXVIII THE QUEBEC REVENUE ACT, 1775 (IS George III, c. 40.) An Act for amending and explaining an Act, passed in the fourteenth year of his Majesty's reign, intituled "An Act 1 to establish a Fund towards further defraying the charges of the Administration of Justice and support of the Civil Government within the Province of Quebec, in America." Whereas by an Act passed in the fourteenth year of his Majesty's Preamble, reign (intituled, "An Act to establish a fund towards further defraying the charges of the administration of justice and support of the Civil Gov- clause in Act ernment within the Province of Quebec in America"), it is amongst other 14 George III. things enacted, that if any goods, chargeable with any of the duties in the recited - said Act mentioned, shall be brought into the said Province by land car- riage, the same shall pass and be carried through the Port of Saint John's, near the River Sorrel ; or if such goods shall be brought into the said Province by any inland navigation other than that upon the River Saint Lawrence, the same shall pass and be carried upon the said River Sorrel by the said port, and shall be there entered with, and the said respective rates and duties paid for the same to such officer or officers of his Majesty's customs as shall there be appointed for that purpose; and if any such goods, coming by land carriage or inland navigation, as aforesaid, shall pass by or beyond the said place before named, without entry or pay- ment of the said rates and duties, or shall be brought into any part of the said Province by or through any other place whatsoever, the said goods shall be forfeited ; and every person who shall be assisting, or otherwise concerned in the bringing or removing such goods, or to whose hands the same shall come, knowing that they were brought or removed contrary to this Act, shall forfeit treble the value of such goods ; to be estimated and computed according to the best price that each respective commodity bears in the town of Quebec at the time such offence shall be committed ; and all the horses, cattle, boats, vessels, and other carriages whatsoever, made use of in the removal, carriage or conveyance of such goods, shall be forfeited and lost, and shall and may be seized by any officer of his Majesty's Cus- toms, and prosecuted as thereinafter mentioned : And whereas there is reason to apprehend that the regulations and restrictions contained in the said hereinbefore recited clause, so far as they relate to the bringing of rum, brandy, or other spirits into the Province of Quebec by land carriage, may, without further explanation, operate to the prejudice and disadvantage of the commerce carried on with the Indians in the upper or interior parts of the said Province: We, your Majesty's most dutiful and loyal subjects, the Commons of Great Britain in Parliament assembled, do most humbly beseech your Majesty that it may be enacted; and be it enacted by tne HisMa'est 's King's Most Excellent Majesty, by and with the advice and consent of the subjects ma^ S Lords Spiritual and Temporal, and Commons, in this present Parliament bring, by land assembled, and by the authority of the same, That it shall and may be law- ^"tf ^nto*^' ful to and for all his Majesty's subjects freely to bring, carry or convey, by any ports of land, carriage, or inland navigation, into any ports of the Province of Quebec not Quebec, not heretofore comprehended within the limits thereof by hiSconfpr'ehend d Majesty's Royal Proclamation of the seventh of October, one thousand i n the Royal 6 seven hundred and sixty-three, any quantity of rum, brandy, or other Proclamation spirits, anything contianed in the before-recited Act of Parliament to the 1753 a/' contrary thereof in any wise notwithstanding. quantity of 1 14 George III, C. 88. (See No. XXVI.) ete?' brandy ' 150 Constitutional Documents of Canada. [1774-1791 XXIX INSTRUCTIONS TO GOVERNOR CARLETON, 1775* [Trans.: Shortt and Doughty.] 4. And whereas by an Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual provision for the "Government of the Province of Quebec in North America," it is enacted and provided, that no person, professing the Religion of the Church of Rome, and residing in the said Province, shall be obliged to take the Oath of Supremacy required by an Act passed in the first year of the reign of Queen Elizabeth, or any other Oaths substituted by any other Act in the place thereof ; but that every such Person, who by the said Statute is required to take the oaths therein mentioned, shall be obliged, and is thereby required, under certain Penalties, to take and subscribe an Oath in the form and Words therein prescribed, and set down ; It is therefore Our Will and Pleasure, that you do administer to each and every Member of Our said Council, being a Canadian, and professing the Religion of the Church of Rome, and cause each of them severally to take and subscribe the Oath mentioned in the said Act passed in the fourteenth year of Our Reign, intituled; "An Act for making more effectual provision for the "Government of the Province of Quebec in North America ;" and also cause them severally to take an Oath for the due Execution of their places and Trusts, and for their equal and impartial administration of Justice. 5. And that We may be always informed of the Names and Characters of Persons fit to supply the Vacancies, which may happen in Our said Council, you are from time to time to transmit to Us, by one of Our Principal Secretaries of State, the names and Characters of such persons, Inhabitants of Our said Colony, whom you shall esteem the best qualified for that Trust ; And you are also to transmit a duplicate of the said Account to Our Commissioners for Trade and Plantations, for their Information. 6. And if it shall at any time happen, that by the death or departure out of Our said Province, of any of Our said Councillors, there shall be a Vacancy in Our said Council, Our Will and Pleasure is: that you signify the same to Us by one of Our Principal Secretaries of State, and to Our Commissioners for Trade and Plantations, by the first Opportunity, that We may by Warrant under Our Signet and Sign Manual, and with the Advice of Our Privy Council, constitute and appoint others in their stead. 7. You are forthwith to communicate such and so many of these Our Instructions to Our said Council, wherein their Advice and Consent are mentioned to be requisite, as likewise all such others from time to time, as you shall find convenient for Our Service to be imparted to them. 8. You are to permit the Members of Our said Council to have and/ Enjoy Freedom of Debate and vote in all Affairs of Public Concern, thaf may be debated in Council. 9. And Whereas by the aforesaid Act passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual provision for "the Government of the Province of Quebec in North America," It is fur- ther enacted and provided, that the Council for the Affairs of the said Province, to be constituted and appointed in Manner therein directed, or the Major Part thereof, shall have power and Authority to make Ordin- ances for the peace, Welfare, and good Government of the said Province with the Consent of Our Governor, or, in his absence, of the Lieutenant Governor, or Commander in Chief for the time being; provided, that no Ordinance shall be passed, unless upon some urgent Occasion at any Meet- ing of the Council, except between the first day of January and the first day of May. And Whereas the State and Condition of Our said Province 1 These Instructions were sent by Lord Dartmouth to Carleton on January 7th, 1775. They were rendered necessary by the passing of the Quebec Act, 14 George III, c. 83, to which reference is made throughout. Sections 1 to 4, 23 to 29 and 39 to 56 of these Instructions are omitted. 1774-1791] Constitutional Documents of Canada. 151 do require, that immediate provision should be made by Law for a Great Variety of Arrangements and Regulations essentially necessary to the Government thereof; It is therefore Our Will and Pleasure, that you do within a convenient time issue Summons for the Assembling of Our said Council in their Legislative Capacity either on the first day of April next, or as soon after as may be convenient, in Order to deliberate upon, and frame such Ordinances, as the Condition of Affairs within Our said Pro- vince shall require, and as shall, in your and their Judgement, be fit and necessary for the Welfare of Our said Province, and the Territories there- unto belonging. 10. You are nevertheless to take especial Care. That no Ordinance be passed at any Meeting of the Council, where 1 less than a Majority of the Council is present, or at any time, except be- tween the first day of January and the first day of May, as aforesaid, unless upon some urgent Occasion; in which Case every Member thereof resident at Quebec, or within fifty Miles thereof shall be personally sum- moned to attend the same. That no Ordinance be passed for laying any Taxes or Duties, such > Rates and Taxes only excepted, as the Inhabitants of any Town or District j may be authorized to assess, levy and apply within the said Town or Dis- ! trict, for the making Roads, erecting and repairing public Buildings, or for any other purpose respecting the Local Convenience and (Economy of such Town or District. That no Ordinance touching Religion, or by which any punishment i may be inflicted greater than Fine or Imprisonment for three Months be made to take effect, until the same shall have received Our Approbation. That no Ordinance be passed relative to the Trade, Commerce, or . Fisheries of the said Province, by which the Inhabitants thereof shall be put upon a more advantageous footing, than any other His Majesty's Sub- \ jects either of this Kingdom, or the Plantations. That no Ordinance respecting private property be passed without a Clause suspending its Execution, until Our Royal Will and Pleasure i's known; nor without a saving of the Right of Us, Our Heirs and Successors, and of all Bodies politic and corporate, and of all other persons, except such as are mentioned in the said Ordinance, and those claiming by, from, and under them; And before such Ordinance is passed, proof must be made before you in Council, and entered in the Council-Books, that public Notification was made of the Party's Intention to apply for such Ordinance in the several Parish Churches, where the Lands in Question lye, for three Sundays at least successively, before any such Ordinance shall be proposed ; and you are to transmit and annex to the said Ordinance a Certificate under ^your hand that the same passed through all the Forms above men- tioned. That no Ordinance shall be enacted for a less time than two years, ' except in Cases of imminent Necessity, or immediate temporary Expedi- ency; and you shall not reenact any Ordinance, to which Our Assent shall have been once refused, without express leave for that purpose first ob- I tained from Us, upon a full representation by you to be made to Us by " one of Our Principal Secretaries of State, and to Our Commissioners for ; Trade and Plantations, for their Information, of the Reasons and Neces- sity for passing such Ordinance ; nor give your Assent to any Ordinance for repealing any other Ordinance, which hath passed in your Government, and shall have received Our Royal Approbation, unless you take Care, that there be a Clause inserted therein suspending and deferring the Execution therof, until Our Pleasure shall be known, concerning the same. That in all Ordinances imposing Fines, Forfeitures or Penalties, ex- press Mention be made, that the same is granted, or reserved to Us, Our Heirs and Successors for the public Uses of the said Province, and the Support of the Government thereof, as by the said Ordinance shall be directed ; and that a Clause be inserted declaring, that the Money, arising by the Operation of the said Ordinance, shall be accounted for unto Us in this Kingdom, and to Our Commissioners of Our Treasury for the time 152 Constitutional Documents of Canada. [1774-1791 being; and audited by Our Auditor General of Our Plantations, or his Deputy. That all such Ordinances be transmitted by you within six Months after their passing, or sooner, if opportunity offers, to Us by One of Our Principal Secretaries of State, and Duplicates thereof to Our Commis- sioners for Trade and Plantations, for their Information ; that they be abstracted in the Margents, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is intro- ductive to a new Law, or does repeal a Law then before in being ; and you are also to transmit in the fullest manner the Reasons and Occasion for enacting such Ordinances, together with fair Copies of the Journals of the proceedings of the Council, which you are to require from the Clerk of the said Council. 11. In the Consideration of what may be necessary to be provided for by Law within Our said Province, as created and established by the aforesaid Act, Intituled, "an Act for making more affectual Provision for "the Government of the Province of Quebec in North America," a Great Variety of important Objects hold themselves forth to the Attention of the Legislative Council. 12. The Establishment of Courts, and a proper Mode of administering Civil and Criminal Justice throughout the whole Extent of Our Province, according to the Principles declared in the said Act "for making more effectual Provision for the Government thereof," demand the greatest Care and Circumspection ; for, as on the one hand it is Our Gracious purpose, conformable to the Spirit and Intention of the said Act of Parliament, that Our Canadian Subjects should have the benefit and use of their own Laws, Usages and Customs in all Controversies respecting Titles of Land, and the Tenure, descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of the personal property of Persons dying intestate ; so on the other hand, it will be the duty of the Legislative Coun- cil to consider well in framing such Ordinances, as may be necessary for the Establishment of Courts of Justice, and for the better Administration of Justice, whether the Laws of England may not be, if not altogether, at least in part the Rule for the decision in all Cases of personal Actions, grounded upon Debts, Promises, Contracts, and Agreements, whether of a Mercantile or other Nature; and also of Wrongs proper to be compen- sated in damages; and more especially where Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations residing at Quebec, or who may resort thither, or have Credits, or Property within the same, may happen to be either Plaintiff or defendant in any civil Suit of such a nature. 13. Security to personal Liberty is a fundamental Principle of Justice in all free Governments, and the making due provision for that purpose is an object the Legislature of Quebec ought never to lose Sight of; nor can they follow a better Example than that, which the Common Law of this Kingdom hath set in the provision made for a Writ of Habeas Corpus, which is the Right of every British Subject in this Kingdom. 14. With regard to the Nature and number of the Courts of Justice, which it may be proper to establish, either for the whole Province at large, or separately for its dependencies, and the times and places for holding the said Courts, no certain Rule can be laid down in a Case, in which the Judgement must in many Respects at least be altogether guided by Circum- stances of local Convenience and Consideration. 15. In General it may be proper, that there should be a Superior or Supreme Court of Criminal Justice and Jurisdiction for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatsoever, to be held before the Chief Justice for the time being at such times and places, as shall be most convenient for the due and speedy Administration of Justice, and the preventing long Imprisonments ; the said Court to be called and known by the name of the Court of King's Bench; That, for the more orderly establishment and Regulation of Courts ot Civil Jurisdiction, the Province of Quebec, as limited and bounded by the 1774-1791] Constitutional Documents of Canada. 153 aforesaid Act of Parliament "for making more effectual Provision for "the Government of the Province of Quebec in North America," be divided into two Districts by the names of Quebec and Montreal, each district to be limited and bounded in such manner, as shall be thought best adapted to the Object of the Jurisdiction to be established therein; That there be established in each of the said Districts a Court of Common Pleas to be held at such times and places, as shall be judged most convenient, and to have full power, Jurisdiction and Authority to hear and determine all Civil Suits and Actions cognizable by the Court of Common Pleas in West- minster Hall, according to the Rules prescribed by the said Act of Parlia- ment "for making more effectual Provision for the Government of the "Province of Quebec in North America," and according to such Laws and Ordinances, as shall from time to time be enacted by the Legislature of the said Province in manner therein directed ; That there be three Judges in each of the said Courts of Common Pleas, that is to say, two of Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations, and one Canadian ; and also one Sheriff appointed for each District ; That besides the foregoing Courts of Criminal and Civil Jurisdiction for the Province at large, there be also an Inferior Court of Criminal and Civil Jurisdiction in each of the Districts of the Illinois, St. Vincenne, Detroit, Missilimakinac and Gaspee, by the names of the Court of King's Bench for such district, to be held at such times, as shall be thought most convenient, with Authority to hear and determine in all Matters of Crim- inal Natur^ according to the Laws of England, and the Laws of the Province hereafter to be made and passed ; and in all Civil Matters accord- ing to the Rules prescribed by the aforesaid Act of Parliament "for making more effectual Provision for the Government of Quebec in North Amer- ica;" That each of the said Courts shall consist of one judge, being a natural-born Subject of Great Britain, Ireland, or Our other Plantations, and of one other Person, being a Canadian, by the name of Assistant or Assessor, to give advice to the Judge in any Matter, when it may be neces- sary, but to have no Authority or Power to attest or issue any Process, or to give any Vote in any order, Judgement, or decree ; That the said Judges so to be appointed, as aforesaid, for each District, shall have the same power and Authority in Criminal Cases, as is vested in the Chief Justice of Our said Province ; and also the same Power and Authority in Civil Cases, as any other Judge of Common Pleas within Our said Province, excepting only that, in Cases of Treason, Murder, or other Capital Felonies, the said Judges shall have no other Authority, than that of Arrest and Commitment to the Goals of Quebec, or of Montreal, where alone Offenders in such Cases shall be tried before Our Chief Justice; That a Sheriff be appointed in each of the said Districts for the Execution of Civil and Criminal Pro- cess; That the Governor and Council (of which in the absence of the Governor and Lieutenant Governor, the Chief Justice is to be President) shall be a Court of Civil Jurisdiction for the hearing and determining all Appeals from the Judgement of the other Courts, where the matter in dispute is above the value of Ten Pounds; That any Five of the said Council, with the Governor, Lieutenant Governor, or Chief Justice, shall constitute a Court for that purpose ; and that their Judgment shall be final in all Cases not exceeding the Value of 500 sterling, in which Cases an Appeal from their Judgement is to be admitted to Us in Our Privy Council. It is however Our Will and Pleasure, that no Appeal be allowed, unless security be first duly given by the Appellant, that he will effectually prose- cute the same, and answer the Condemnation, as also pay such Costs and Damages, as shall be awarded by Us, in case the Sentence be affirmed ; Provided nevertheless, where the matter in question relates to the taking, or demanding any Duty payable to us, or to any Fee of Office, or annual Rents, or other such like matter or thing, where the Rights in future may be bound, in all such Cases appeal to Us ,in Our Privy Council is to be admitted, tho' the immediate sum or value appealed for be of less value. And it is Our further Will and Pleasure, that in all Cases, where Appeals are admitted unto Us in Our Privy Council, execution be suspended until 154 Constitutional Documents of Canada. [1774-1791 the final determination of such Appeal, unless good and sufficient security be given by the Appellee to make ample restitution of all, that the Appellant shall have lost by means of such decree or judgement, in case, upon the determination of such Appeal, such decree or judgement should be re- versed, and restitution awarded to the Appellant. Appeals unto Us in Our Privy Council are also to be admitted in all cases of Fines imposed for misdemeanors ; Provided the Fines, so imposed, amount to, or exceed the sum of 100 sterling, the Appellant first giving good Security, that he will effectually prosecute the same and answer the Condemnation, if the sen- tence, by which such Fine was imposed in Quebec, be affirmed. 16. It is Our Will and Pleasure, that all Commissions to be granted by you to any person or persons to be judges or justices of the peace, or other necessary Officers, be granted during pleasure only. 17. You shall not displace any of the Judges, Justices of the peace or other Officers or Ministers without good and sufficient cause, which you shall signify in the fullest and most distinct manner to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations, for their Information. 18. And whereas frequent complaints have heretofore been made of great delays and undue proceedings in the Courts of Justice in several of Our Plantations, whereby many of Our good Subjects have very much suf- fered; and it being of the greatest importance to Our Service, and to the Welfare of Our Plantations, that Justice be every where speedily and duly administered ; and that all disorders, delays, and other undue Practises in the Administration thereof be effectually prevented ; We do particularly require you to take especial Care, that in all Courts, where you are or shall be authorized to preside, justice be impartially administered; and that in all other Courts established, or to be established within Our said Province, all Judges, and other persons therein concerned do likewise perform their several Duties without any delay or partiality. 19. You are to take care, that all Writs be issued in Our Name throughout the Province under your Government. 20. The establishment of proper regulations in matters of ecclesias- tical concern is an Object of very great importance, and it will be your indispensable duty to lose no time in making such arrangements in regard thereto, as may give full satisfaction to Our new Subjects in every point, in which they have a right to any indulgence on that head ; always re- membring, that it is a toleration of the free exercise of the religion of the Church of Rome only, to which they are entitled, but not to the powers and privileges of it, as an established Church, for that is a prefer- ence, which belongs only to the Protestant Church of England. 21. Upon these principles therefore, and to the end, that Our just Supremacy in all matters ecclesiastical, as well as civil, may have its due scope and influence, it is Our Will and Pleasure, First, that all appeals to, or correspondence with any foreign ecclesias- tical jurisdiction, of what nature or kind so ever, be absolutely forbidden under very severe Penalties. Secondly, That no Episcopal or Vicarial Powers be exercised within Our said Province by any Person professing the Religion of the Church of Rome, but such only, as are essentially and indispensably necessary to the free exercise of the Romish Religion ; and in those cases not without a Licence and Permission from you under the Seal of Our said Prov- ince, for, and during Our Will and Pleasure, and under such other limita- tions and restrictions, as may correspond with the spirit and provisions of the Act of Parliament, "for the making more effectual provision for the "Government of the Province of Quebec ;" And no person whatever is to have holy Orders conferred upon him, or to have the Cure of Souls with- out a Licence for that purpose first had or obtained from you. Thirdly, That no person professing the Religion of the Church of Rome be allowed to fill any ecclesiastical Benefice, or to have and enjoy any of the Rights or Profits belonging thereto, that is not a Canadian by birth, (such only excepted, as are now in possession of any such Bene- 1774-1791] Constitutional Documents of Canada. 155 fice,) and that is not appointed thereto by Us, or by, or under Our Au- thority, and that all Right, or claim of Right in any other Person what- ever to nominate, present, or appoint to any vacant Benefice, other than such as may lay claim to the patronage of Benefices, as a Civil Right, be absolutely abolished. No Person to hold more than one Benefice, or at least not more than can reasonably be served by one and the same In- cumbent. Fourthly, That no person whatever, professing the Religion of the Church of Rome, be appointed Incumbent of any Parish, in which the Majority of the Inhabitants shall solicit the appointment of a Protestant Minister; in such Case the Incumbent shall be a Protestant, and entitled to all Tythes payable within such Parish; But nevertheless the Roman Catholicks may have the use of the Church for the free exercise of their Religion at such time, as may not interefere with the Religious Worship of the Protestants : And in like manner the Protestant Inhabitants in every Parish, where the Majority of Parishioners are Roman Catholicks, shall notwithstanding have the use of the Church for the exercise of their Religion at such times, as may not interfere with the Religious Worship of the Roman Catholicks. Fifthly, That no Incumbent professing the Religion of the Church of Rome, appointed to any Parish, shall be entitled to receive any Tythes for Lands, or Possessions occupied by a Protestant ; but such Tythes shall be received by such Persons, as you shall appoint, and shall be reserved in the hands of Our Receiver General, as aforesaid, for the support of a Protestant Clergy in Our said Province to be actually resident within the same, and not otherwise, according to such directions as you shall receive from Us in that behalf. And in like manner all growing Rents and Profits of a vacant Benefice shall, during such vacancy, be reserved for, and ap- plied to the like uses. Sixthly, That all Persons professing the Religion of the Church of Rome, which are already possessed of, or may hereafter be appointed to any ecclesiastical Benefice, or who may be licensed to exercise any Power or Authority in respect thereto, do take and subscribe before you in Council, or before such Person as you shall appoint to administer the same, the Oath required to be taken and subscribed by the aforesaid Act of Parliament passed in the fourteenth year of Our Reign, intituled, "An Act for making more effectual Provision for the Government of the Prov- "ince of Quebec in North America." Seventhly, That all Incumbents of Parishes shall hold their respec- live Benefices during good behaviour, subject however, in cases of any Conviction for criminal Offences, or upon due proof of seditious At- tempts to disturb the Peace and Tranquillity of Our Government, to be deprived, or suspended by you with the Advice and Consent of a Major- ity of Our said Council. Eightly, That such Ecclesiasticks, as may think fit to enter into the x holy state of Matrimony, shall be released from all Penalties, to which I they may have been subjected in such Cases by any Authority of the See ; , of Rome. Ninthly, That freedom of Burial of the Dead in Churches and Church | yards be allowed indiscriminately to every Christian Persuasion. Tenthly, That the Royal Family be prayed for in all Churches and Places of Holy Worship, in such manner and form, as are used in this Kingdom ; and that Our Arms and Insignia be put up not only in all such Churches and Places of Holy Worship, but also in all Courts of Justice ; and that the Arms of France be taken down in every such Church or Court, where they may at present remain. Eleventhly, That the Society of Romish Priests, called the Semi- naries of Quebec and Montreal, shall continue to possess and occupy their Houses of Residence, and all other Houses and Lands, to which they were lawfully intitled on the 13th of September, 1759; and it shall be lawful for those Societies to fill up Vacancies, and admit new Members accord- ing to the Rules of their Foundations, and to educate Youth, in order to 156 Constitutional Documents of Canada. [1774-1791 qualify them for the Service of Parochial Cures; as they shall become vacant. It is nevertheless Our Will and Pleasure, that not only these Seminaries, but all other Religious Communities, so long as the same shall continue, be subject to visitation by You Our Governor, or such other Person, or Persons, as you shall appoint for that purpose, and also sub- ject to such Rules and Regulations, as you shall, with the Advice and Consent of Our Council, think fit to establish and appoint. Twelthly, It is also Our Will and Pleasure, that all other Religious Seminaries and Communities (that of the Jesuits only excepted) do for the present and until We can be more fully informed of the true State of them, and how far they are, or are not, essential to the free exercise of the Religion of the Church of Rome, as allowed within Our said Prov- ince, remain upon their present Establishment ; but you are not to allow the admission of any new Members into any of the said Societies or Com- munities, the Religious Communities of Women only exlepted, without our express orders for that purpose. That the Society of Jesuits be sup- pressed and dissolved, and no longer continued, as a Body corporate and politic, and all their Rights, Possessions and Property shall be vested in Us for such purposes, as We may hereafter think fit to direct and appoint ; but We think fit to declare Our Royal Intention to be, that the present Members of the said Society, as established in Quebec shall be allowed sufficient stipends and Provisions during their natural Lives ; That all Missionaries amongst the Indians, whether established under the Author- ity of, or appointed by the Jesuits, or by any other ecclesiastical Authority of the Romish Church, be withdrawn by degrees, and at such times and in such manner, as shall be satisfactory to the said Indians, and con- sistent with the Public Safety; and Protestant Missionaries appointed in their places; That all ecclesiastical Persons whatsoever, of the Church of Rome, be inhibited, upon the Pain of Deprivation, from influencing any Person in the making a Will, from inveigling Protestants to become Papists, or from tampering with them in matter of Religion, and that the Romish Priests be forbid to inveigh in their Sermons against the Reli- gion of the Church of England, or to marry, baptize, or visit the sick, or bury any of Our Protestant Subjects, if a Protestant Minister be upon the Spot. 22. You are at all times and upon all occasions to give every Counte- nance and Protection in your Power to such Protestant Ministers, and School Masters, as are already established within Our said Province, or may hereafter be sent thither, to take care, that such Stipends and Allow- ances, as We may think fit to appoint for them, be duly paid ; that the Churches already appropriated, or which may hereafter be appropriated to the use of Divine Worship according to the Rites of the Church of England, as by Law established, be well and orderly kept ; and, as the Number of Protestants shall, by God's blessing, increase, to lay out new Parishes in convenient Situations, and set apart and appropriate proper Districts of Land therein for the Scite of Churches, and Parsonage Houses, and for Glebes for the Ministers and Schoolmasters. 30. The Extension of the Limits of the Province of Quebec neces- sarily calls forth your Attention to a Variety of new Matter and new Objects of Consideration; The protection and control of the various Set- tlements of Canadian Subjects,- and the regulation of the Peltry Trade in the upper or interior Country on the one hand, and the protection of the Fisheries in the Gulph of St. Lawrence, and on the Labrador Coast on the other hand, point to Regulations, that require deliberation and de- spatch. 31. The institution of inferior Judicatures with limited Jurisdiction in Criminal and Civil Matters for the Illinois, Poste St. Vincenne, the Detroit, Missilimakinac, and Gaspee has been already pointed out, and the Appointment of a Superintendant at each of these Posts is all, that is further necessary for their Civil concerns ; But it will be highly proper that the Limits of each of those Posts, and of every other in the interior Country should be fixed and ascertained ; and that no Settlement be al- 1774-1791] Constitutional Documents of Canada. 157 lowed beyond those Limits ; seeing that such Settlements must have the consequence to disgust the Savages ; to excite their Enmity ; and at length totally destroy the Peltry Trade, which ought to be cherished and encour- aged by every means in your Power. 32. It is Our Royal Intention, that the Peltry Trade of the interior Country should be free and open to all Our Subjects, Inhabitants of any of Our Colonies, who shall, pursuant to what was directed by Our Royal Proclamation of 1763, obtain Licences from the Governors of any of Our said Colonies for that purpose, under Penalties to .observe such Regula- tions, as shall be made by Our Legislature of Quebec for that purpose; Those Regulations therefore, when established, must be made public throughout all Our American possessions, and they must have for their object the giving every possible facility to that Trade, which the nature of it will admit, and as may consist with fair and just dealing towards the Savages, with whom it is carried on. The fixing stated times and places for carrying on the Trade, and adjusting Modes of settling Tariffs of the prices of Goods and Furs, and, above all, the restraining the Sale of Spirituous Liquors to the Indians will be the most probable and effec- tual means of answering the ends proposed. These and a variety of other regulations, incident to the nature and purpose of the Peltry Trade in the interior Country, are fully stated in a Plan proposed by Our Com- missioners for Trade and Plantations in 1764, a Copy of which is here- unto annexed 1 , and which will serve as a Guide in a variety of cases, in which it may be necessary to make provision by Law for that important Branch of the American Commerce. 33. The Fisheries on the Coast of Labrador, and the Islands adjacent thereto are objects of the greatest Importance, not only on account of the Commodities they produce, but also as Nurseries of Seamen, upon whom the Strength and Security of Our Kingdoms depend. 34. Justice and Equity demand, that the real and actual property and possession of the Canadian Subjects on that Coast should be pre- served intirely; and that they should not be molested or hindered in the exercise on any Sedentary Fisheries they may have established there. 35. Their Claims however extend to but a small District of the Coast, on the greatest part of which District a Cod Fishery is stated to be impracticable. 36. On all such parts of the Coast, where there are no Canadian Possessions, and more especially where a valuable Cod Fishery may be carried on, it will be your Duty to make the Interests of Our British Subjects going out to fish there in Ships fitted out from Great Britain the first object of your care, and, as far as circumstances will admit, to establish on that Coast the Regulations in favour of British fishing Ships, which have been so wisely adopted by the Act of Parliament passed in the Reign of King William the Third, "for the Encouragement of the New Foundland Fishery," and you are on no account to allow any possession to be taken, or Sedentary Fisheries to be established upon any parts of the Coast, that are not already private Property, by any persons what- ever, except only such as shall produce annually a Certificate of their having fitted out from some Port in Great Britain. 37. We have mentioned to you the Fisheries upon the Coast of Labrador, as the main object of your attention; but the Commerce car- ried on with the Savages of that Coast, and the state and condition of those Savages deserve some regard; the Society of Unitas Fratrum, urged by a laudable Zeal for promoting Christianity, has already, under Our Protection, and with Our Permission, formed Establishments in the Northern parts of that Coast for the purposes of civilizing the Natives, and converting them to the Christian Religion. Their success has been answerable to their Zeal ; and it is Our express Will and Pleasure, that you do give them every countenance and Encouragement in your power 1 The plan is in Shortt and Doughty, p. 433. 158 Constitutional Documents of Canada. [1774-1791 and that you do not allow any Establishment to be made, but with their consent, within the limits of their possessions. 38. By Our Commission to you under Our Great Seal of Great Britain you are authorised and impowered, with the advice and consent of Our Council, to settle and agree with the Inhabitants of Our said Province of Quebec for such Lands, Tenements, and Hereditaments, as are now, or shall, hereafter be in Our Power to dispose of. It is there- fore Our Will and Pleasure that all Lands, which now are, or hereafter may be subject to Our Disposal, be granted in Fief or Seigneurie, in like manner as was practised antecedent to the Conquest of the said Province; omitting however in any Grant, that shall be passed of such Lands, the Reservation of any Judicial Powers, or privileges whatever. And it is Our further Will and Pleasure that all Grants in Fief or Seigneurie, so to be passed by you, as aforesaid, be made subject to Our Royal Ratifica- tion, or Disallowance, and to a due Registry thereof within a limited time, in like manner as was practised in regard to Grants and Concessions held in Fief and Seigneurie under the French Government. XXX AN ORDINANCE FOR ESTABLISHING COURTS OF CIVIL JUDICATURE IN THE PROVINCE OF QUEBEC 1 [Trans. : Shortt and Doughty.] February 25, 1777. Whereas it is necessary to establish Courts of Civil Judicature for the speedy Administration of Justice within this Province; It is therefore Ordained and Enacted by His Excellency the Captain General, and Gov- ernor in Chief of this Province, by and with the Advice and Consent of the Legislative Council of the same, That, Art. 1. For the Ease and Convenience of His Majesty's subjects re- siding in different Parts of this Province, the same shall be and hereby is divided into Two Districts, to be called and known by the names of Quebec and Montreal, which said Districts shall be divided and bounded by the River Godfroy on the South, and by the River St. Maurice on the North side of the River St. Lawrence. Art. 2. A Court of Civil Jurisdiction, to be called the Court of Common Pleas, shall be, and hereby is erected, constituted, and estab- lished for each of the said Districts, the one whereof shall sit at the City of Quebec, and the other at the City of Montreal, at least one Day in every week, for the decision of Causes in which the Value oF~The mat- ter in LMspute shall exceed Ten Pounds Sterling; and another Day in every week for the Decision of Causes in which the matter in Dispute shall be of or under the Value of Ten Pounds Sterling, and shall so con- tinue their Sittings throughout the whole Year, excepting Three Weeks at Seed Time, a Month at Harvest, and a Fortnight at Christmas and Easter, and except during such Vacations as shall be appointed by the Judges for making their Circuits twice every Year through their separ- ate Districts. The said Courts shall have full Powers, Jurisdiction, and Authority, to hear and determine all matters of Controversy relative to Property and Civil Rights, according to the Rules prescribed by an Act of Parliament made and passed in the Fourteenth Year of the Reign of His Present Majesty, intituled, "An Act for making more effectual Pro- "vision for the Government of the Province of Quebec, in North "America," and such Ordinances as may hereafter be passed by the Gov- ernor and Legislative Council of the said Province. Art. 3. In matters above the Value of Ten Pounds Sterling, the Presence of Two Judges shall be necessary to constitute a Court Q.. 1 This Ordinance and the two following are the outcome of sections 14 and 15 of Carleton's Instructions, 1775 (see No. XXIX). 1774-1791] Constitutional Documents of Canada. 159 Common Pleas ; the Decision of which Court shall be final in all cases where the matter in Dispute shall not exceed the Value of Ten Pounds Sterling, except in matters which may relate to taking or demanding any Duty payable to His Majesty, or to any Fee of Office, or Annual Rents, or other such like matter or Thing, where the Rights in future may be bound, in which Cases, and also in all Matters that exceed the said Value of Ten Pounds Sterling, an Appeal shall lie to the Governor and Council ; provided Security be duly given by the Appellant, that he will effectually prosecute the same, and answer the Condemnation ; as also pay such Costs and Damages as shall be awarded, in case the Judgement or Sentence of the Court of Common Please shall be affirmed. Art. 4. The Governor and Council are hereby erected and con- stituted a Superior Court of Civil Jurisdiction (whereof in the absence of the Governor and Lieutenant the Chief Justice shall be President) for hearing and determining all Appeals from the inferior Courts of Civil Jurisdiction within the Province, in all cases where the matter in Dispute shall exceed the Sum of Ten Pounds Sterling, or shall relate to the taking or demanding any Duty payable to His Majesty, or to any Fee of Office or Annual Rents, or other such like Matter or Thing, where the Rights in future may be bound, though the immediate Sum or Value appealed for be less then Ten Pounds Sterling. And any Five Members of the said Council (the Judges who shall have given the Judgment ap- pealed from excepted) with the Governor, Lieutenant Governor, or Chief Justice, shall constitute a Court for that Purpose, which shall sit the first Monday in every Month throughout the year, and continue sitting each Month as long as the Business before it may require : And the said Court of Appeals shall have Power to revise and examine all the Proceedings in the Court below, and to correct all errors both in Fact and in Law, and to give such Judgment as the Court below ought to have given, and on Judgment to award and issue such Execution as the Law shall direct. Art. 5. The Judgment of the said Court of Appeals shall be final in all cases where the matter in Dispute shall not exceed the Value of 500 Majesty in His Privy Council, provided security be first duly given by Sterling ; but in all cases exceeding that Value, an Appeal shall lie to His the Appellant, that he will effectually prosecute his Appeal, and answer the Condemnation, as also pay such Costs and Damages as shall be awarded by His Majesty in His Privy Council, in case the Sentence of the said Court of Appeals shall be affirmed. An Appeal shall likewise lie to His Majesty in His Privy Council from the Judgment of the said Court of Appeals in all cases where the matter in Question shall relate to the taking or demanding any Duty payable to His Majesty, or to any Fee of Office, or Annual Rents, or any such like matter or Thing, where the Rights in future may be bound, though the immediate Sum or Value ap- pealed for be less than 500 Sterling; and in all cases where Appeal shall be allowed to His Majesty in His Privy Council, Execution shall be suspended until the final determination of such Appeal, provided Security be given as aforesaid. Art. 6. All Judgments, Sentences and Executions of the Courts of Civil Jurisdiction, which it has been found necessary to establish since the 1st May, 1775, are hereby ratified and confirmed, subject nevertheless to an Appeal to the said Court of Appeals, in matters exceeding the value of Ten Pounds Sterling, and in cases where Rights in future may be bound. Art. 7. Any Party meaning to Appeal from any Judgment, either of the said last-mentioned Courts, or of the Courts of Civil Jurisdiction subsisting in the Province before the 1st of May. 1775, shall sue out the Writ of Appeal within Three Months after the Publication of this Ordi- nance, after which Period the same will not be allowed. Art. 8. All Actions instituted in any of the Courts of Civil Jurisdic- tion subsisting in the province before the 1st of May, 1775, or in those established since the 1st of May, 1775, and remaining undetermined therein, shall be transmitted to the Courts of Common Pleas hereby established 160 Constitutional Documents of Canada. [1774-1791 for the respective Districts, to be proceeded upon to Judgment, as if the same had been commenced therein ; and also all Matters remaining unde- termined in any Court of Appeals heretofore subsisting in this Province shall be forthwith transmitted to the Court of Appeals hereby established, to be proceeded upon therein to Judgment and Execution. February 25, 1777. GUY CARLETON. XXXI AN ORDINANCE TO REGULATE THE PROCEEDINGS IN THE COURTS OF CIVIL JUDICATURE IN THE PROVINCE OF QUEBEC. [Trans. : Shortt and Doughty.] February 25, 1777. Whereas it is necessary for the Ease and Convenience of His Ma- jesty's subjects who may have Actions to prosecute in the Courts of Civil Judicature established in this Province, that the mode of Administering Justice in the said Courts should be clearly ascertained, and rendered as plain as possible: It is therefore Ordained and Enacted by his Excellency the Captain General and Governor in Chief of this Province, by and with the Advice and Consent of the Legislative Council of the same, That, Art. 1. In all cases or Matters of Property, exceeding the Sum or Value of 10 Sterling, upon a Declaration presented to any one of the Judges of the Court of Common Pleas, by any Person, setting forth the Grounds of his Complaint against a Defendant, and praying an Order tc Compel him to appear and answer thereto, such Judge shall be, and hereby is empowered and required in his separate District to grant a Writ of Summons in the Language of the Defendant, issuing forth in His Majesty's Name, tested and signed by one of the Judges, and directed to the Sheriff of the District, to summon the Defendant to appear and answer the Plaintiffs Declaration on some certain future day, Regard being had to the Distance of the Defendant's Abode from the Plac$ where the Court sits; but if the Judges, or any Two of them are satis- fied, by the Affidavit of the Plaintiff, or otherwise, that the Defendant is indebted to him, and on the point of leaving the Province, whereby the Plaintiff might be deprived of his Remedy against him; it shall be lawful for the said Judges, or any Two of them, to grant an Attachment against the Body of such Defendant, and hold him to Bail, and for Want of Bail to commit him to Prison until the Determination of the Action against him: The Declaration shall in all cases accompany the Writ, and the Plaintiff shall not be permitted to amend it until the Defendant shall have answered the matter therein contained, nor afterwards, without pay- ing such reasonable Costs as the Court may ascertain. Art. 2. Copies both of the Writ of Summons, and the Declaration, shall be served on the Defendant personally, or left at his House with some grown Person there, otherwise the Service shall be deemed in- sufficint. Art 3. If on the Day of the Return of the Writ of Summons the Defendant does not appear in Person, or by Attorney (Proof of such Ser- vice being produced or made in Court) the Plaintiff shall obtain a Default against the Defendant, and if on calling over the Action in the next Weekly Court Day the Defendant should still neglect to appear, without any good Reason for such his Neglect, the Court after hearing and receiv- ing sufficient Proof of the Plaintiff's Demand, shall cause their final Judg- ment to be entered against the Defendant, and shall reward such Costs thereupon as they shall think reasonable, and issue such Execution as the Law, according to the nature of the case, may direct. Art. 4. If Defendant appears at the Return of the Writ of Sum- 1774-1791] Constitutional Documents of Canada. 161 mons, or, having made Default on that Day, pays such Costs as the Court may think reasonable, and appears on the next Weekly Court Day after such Return, he shall, either then, or on such other Day as he may obtain from the Court, make his Answer to the Declaration, either in Writing or Verbally as he thinks fit, provided that if his Answer is Verbal the Clerk of the Court shall take down the substance thereof in writing, and preserve the same amongst the Records of the Court. If the Plaintiff does not appear, or appearing does not prosecute his action, the same shall be dismissed with Costs. Art. 5. If upon the Declaration and Answer, or such further Plead- ings as the Court may, if it thinks proper, permit or direct, the Parties shall appear to differ essentially in their State of Facts, the Court shall ascertain and order the Clerk to take down in Writing, such Facts, ma- terial to the Decision of the Cause as it will proceed to receive Proof upon, and appoint a Day for hearing such Proofs as the Parties shall think proper to produce. Art. 6. In all Cases where Witnesses are produced they shall be ex- amined and Cross Examined, viva voce, in open Court, unless some good Reason is shewn to the Judges for departing from this Rule in particular Cases. The Examinations of the Witnesses shall be taken down in Writ- ing by the Clerk, and filed among the Records of the Court. Art. 7. In the Proof of all Facts concerning Commercial Matters Recourse shall be had in all the Courts of Civil Jurisdiction in the Prov- ince, to the Rules of Evidence laid down by the English Laws 1 . Art. 8. The Party meaning to Appeal from any Sentence or Judg- ment of any of the Courts of Common Pleas, shall sue out a Writ from the Court of Appeals, tested and signed by the Governor, Lieutenant Governor, or Chief Justice, stating that the Appellant complains of being aggrieved by the Judgment and therefore commanding the Judges of the Inferior Court, or any Two of them, to send up the Original Papers and Proceedings in the Cause, and Transcrips of all Rules, Orders and Pre- ceedings found in the Records or Registers of the Court concerning the same; such Writ, when presented to any of the Judges of the Court be- low, shall be allowed by him, if the Appellant has given the requisite Security, and when allowed, the Clerk of the Court shall proceed to com- ply with the Order of the Writ, and the Judges, or any Two of them, shall make their Return against the Return Day thereof. Art. 9. If the Appellant does not within Eight Days after the Return of the said Writ, and the Transmission of the proceedings, file his Rea- sons of Appeal, the Appellee shall obtain a Rule or Order, that unless the Appellant's Reasons of Appeal are filed in Four Days, the Appeal will be dismissed, and if the said Reasons of Appeal are not filed within Four Days after Service of the said Rule on the Appellant or his Agent, the Appeal shall accordingly be dismissed with Costs. Art. 10. Within Eight Days after the Reasons of Appeal are filed, the Appellee shall file his Answers thereto, or if he neglects so to do the Appellant shall obtain a Rule or Order, that unless the Appellee file his Answers within Four Days he will be precluded from filing them after that Period ; and if his Answers are not filed within Four Days after Service of such Rule on the Appellee or his Agent, he shall accordingly be precluded from filing them, and the Court will proceed to hear the Cause on the part of the Appellant, and proceed to Judgment therein without the Intervention of the Appellee. Art. 11. The said Court of Appeals nevertheless shall and may, upon Application made, and good Cause shewn by either of the Parties (Notice being given the other) prolong the Time allowed for filing either the Reasons of Appeal or Answers thereto, and in case the Court shall not be sitting, at the Time when such Reasons or Answers ought regularly to be filed, the Party neglecting shall apply to the Court, at the next sit- ting thereof, and shew his Reasons for such his Neglect : and if the Court 1 Compare for this policy Carleton's Instructions, 177S, Section 12 (No. XXIX). K 162 Constitutional Documents of Canada. [1774-1791 finds them insufficient, it will, as the case may be, either dismiss the Ap- peal, or proceed to hear it without the Intervention of the Appellee, as above directed. Art. 12. When the Reasons of Appeal, and Answers thereto, are filed, the Court shall on the Application of either of the Parties, fix on such convenient Day for the hearing of the Cause as to it may seem proper. Art. 13. If the Writ of Appeal is not allowed by one of the Judges of the Court below, and a Copy thereof served on the Appellee or his Agent within Fifteen days after any Judgment given in the Court of Common Pleas, Execution shall issue, and no Appeal shall be allowed or received from the Court of Common Pleas after the Expiration of one Year from the Date of the Judgment of such Court. Art. 14. The Execution sued out from any of the Courts of Civil Jurisdiction shall be a Writ issuing in the King's Name, tested and signed, when issuing from the Court of Appeals, either by the Governor, Lieu- tenant Governor, or Chief Justice, and when issuing from the Court of Common Pleas, by one of the Judges of the Court for the District in which it is given, directed to the Sheriff of the District, setting forth the Judgment of the Court between the Parties, and the kind of Execution which the Law, according as the case may be, shall direct, whether the same be to take the Body, or to levy a Sum of Money out of any One's Goods and Chattels, Lands and Tenements, or to do any Special matter or Thing whatever; the Date of the Judgment shall be indorsed on every Writ of Execution, and that Indorsement signed by the Judge. Art. 15. In all Cases where execution shall issue against Real and Personal Estates the Sheriff shall first dispose of the Personal Property, and if the Proceeds thereof fall short of the Amount of the Judgment the Real Estate or so much thereof, as will produce the Amount shall be sold for that purpose. Art 16. Where Moveables shall be seized by the Sheriff under an Execution, he shall cause the seizure to be published at the Church Door, of the Parish, immediately after Divine Service, on the first Sunday suc- ceeding such Seizure, and at the same time cause to be proclaimed the Day and Place when and where he intends to proceed to the sale thereof, provided that the Place of Sale shall be in the same Parish in which the Seizure is made. Art. 17. When Lands and Tenements shall be seized by the Sheriff under a Writ of Execution, he shall advertize the Sale thereof Three Several Times in the Quebec Gazette, to be on some certain Day aftei |he expiration of Four Months from the Date of the First Advertisement, and proclaim the said Sale at the Church Door of the Parish in which the Premises are situated, immediately after Divine Service, on the Three Sundays next preceeding the same and Cause a Copy of the said Advertise- ment to be fixed on the Door of the Parish Church. Art. 18. If Two or more Writs of Execution shall be issued upon Judgments given the same Day against the same Defendant or Defend- ants, and so marked on the Writs, such Executions shall have the same Privilege and be satisfied in the same Proportions, and the Sheriff, or other Person to whom such Writs of Execution shall be Awarded, re- ceiving the same, is hereby authorized and Commanded, after the sale of the whole of such Defendant's Real and Personal Estate, where the Writ shall be awarded against both, in case the same should not be sufficieiir to satisfy the whole of such Judgments, to pay over and divide the Nett Produce of such sale or Sales, after deducting his own Costs and Charge*, amongst the several Plaintiffs, in Proportion to the Amount of their re- spective Judgments. Art. 19. On every Execution the Sheriff shall be allowed all his Disbursements, and shall be authorized to charge over and above at the Rate of Two and an Half per centum, to be deducted out of the Money he Levies. Art. 20. Proceedings in Actions under 10 Sterling. In Matters either 1774-1791] Constitutional Documents of Canada. 163 not exceeding or under Ten Pounds Sterling, any Person having a Right of Action against another, shall prepare, or procure from the Clerk of the Court of Common Pleas, a Declaration ****** This Summons shall be signed by one of the Judges of the Court, and a Copy thereof, and of the Declaration, served on the Defendant Per- sonally, or left at his Dwelling House, or Ordinary Place of Residence, with some grown Person there ; and the Person serving the same shall inform the Defendant, or such grown Person, of the Contents thereof. If, at the Time mentioned in the Summons, the Defendant does not ap- pear (Proof of the Service thereof being produced in Court) the Judges, or any one of Them shall hear the Cause on the part of the Plaintiff, and make such order, Decree, or Judgment, and award such reasonable Costs of Suit, as to them or him shall appear agreeable to Equity and good Con- science ; but if the Defendant does not appear by himself, or his Agent, and the Plaintiff, or his Agent, does not appear, or appearing does not Prose- cute, or prosecuting, fails in his Action, the Judge or Judges shall dismiss the Defendant with Costs. If the Plaintiff makes good his Charge against the Defendant, the Judge or Judges shall give Judgment accordingly, and award Costs and Execution, but the Execution shall not issue till the next Court Day after Judgment given : the Execution shall go against the moveables only of the Defendant, which shall be seized by some Person to be for that Purpose appointed by the Court, and sold by him in the manner mentioned in the Sixteenth Article of this Ordinance. But the Execution shall contain an Exception of the Party's Beasts of the Plough, Implements of Husbandry, Tools of his Trade, and one Bed and Bedding, unless his other Goods and Chattels should prove insufficient, in which case such Beasts of the Plough, Implements of Husbandry and Tools of his Trade shall be sold, but not the Bed and Bedding. The judge or judges, may, if they think proper, order the Debt to be levied by Install- ments, provided the Time allowed shall not exceed the Space of Three Months from the Day of issuing the Execution. Art. 21. In Matters, as well above as of or under the Value of Ten Pounds Sterling, if the Defendant shall convey away or secrete his Effects, an Execution shall go against his Person, to be taken and detained in Prison until he satisfies the Judgment. Art. 22. For the Satisfaction of all Judgments given in Commercial Matters between Merchants, as well as of all Debts due to Merchants for Goods, Wares, and Merchandizes, by them sold, Execution shall issue not only against the Goods, Chattels, Lands and Tenements of the Defend- ant, but also, in case they shall not produce the Amount of the Plaintiff's Demand, against his Person, to be taken and conveyed into the Prison of the District, and there detained until he pays the Amount of the Judg- ment, or otherwise settles with and satisfies the Plaintiff: Provided, that if the Defendant after remaining one Month in Prison, shall make Ap- plication to the Court, and make an Affidavit that he is not worth Ten Pounds, the Plaintiff shall pay to the Defendant the Sum of Three Shil- lings and Six pence weekly for his Maintenance as long as he shall be detained in Prison at the Suit of the Plaintiff ; such Payment shall be made in Advance on Monday in every Week, in Failure of which the Court from whence the Execution issued shall order the Defendant to be re- leased: but the Plaintiff shall not be obliged to make such Payment if he can prove, to the Satisfaction of the Court by which the Defendant stands committed, that the Defendant has secreted or conveyed away his Effects to defraud his Creditors. Art. 23. When any Person against whom Judgment shall be given in any of the Courts of Common Pleas shall not have sufficient Goods Chattels, Lands or Tenements, to satisfy such Judgment within the Juris- diction of the Court wherein such Judgment shall have been obtained, but shall have Goods, Chattels, Lands or Tenements within the Jurisdiction of the other Court of Common Pleas, it shall be lawful for the Judge or 164 Constitutional Documents of Canada. [1774-1791 Judges of the Court wherein Judgment shall have been obtained to award Execution to the Sheriff of the other District, who, after getting the Writ indorsed by one of the Judges of the Court for the District in which the Goods, Chattels, Lands, or Tenements are situated, shall execute the same, and make return thereof to the Court from which it issued; and such Writ and Return shall be by him sent to the Sheriff of the District from whence the Writ was originally awarded, to be delivered into the Court that issued the same. The Sheriff executing such Writ shall be answerable for his Doings relative thereto before the Court from which it was origi- nally awarded ; and the Judges of the Court of Common Pleas for the one District may, in like manner, award Execution against the Body of a Per- son residing in the other in Cases where such Execution is by Law al- lowed ; and the Sheriff executing the Writ to him in such case directed shall convey the Body of such Person into the Prison of the District wherein such Person shall be arrested. Art. 24. This Ordinance, and the several Provisions and matters therein contained, shall remain in Force only during the Space of Two Years from the Publication thereof. GUY CARLETON. February 25, 1777. XXXII AN ORDINANCE FOR ESTABLISHING COURTS OF CRIMINAL JURISDICTION IN THE PROVINCE OF QUEBEC. [Trans. : Shortt and Doughty.] March 4, 1777. It is Ordained and Enacted by His Excellency the Captain General and Governor in Chief of this Province, by and with the advice and con sent of the Legislative Council of the Same, That, ART. I. There shall be, and hereby is erected, constituted and established for the Province at large, a Supreme Court of Criminal Justice and Jurisdic- tion, to be called and known by the name of the. Court of King's Bench, for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatsoever; the said Court shall be held before the Chief Justice of the Province, or Commissioners that may be appointed for executing the Office of Chief Justice for the Time being, who shall hear and determine the said Pleas of the Crown, and of all manner of Offences whatsoever, according to the Laws of England, and the Ordi- nances of the Government and Legislative Council of the Province. And for the Speedy Administration of Justice, and the preventing long Imprisonments, there shall be held in every Year, Four Sessions of the said Court of King's Bench, whereof Two Sessions shall be held at the City of Quebec, and the other Two at the City of Montreal, at the Times hereafter following, to wit, at the City of Quebec on the First Tuesday of May and the First Tuesday of November, and at the City of Montreal on the First Monday of March and the First Monday of Sep- tember in every year: but nothing herein contained shall extend to pre- vent the Governor, Lieutenant Governor, or Commander in Chief for the Time being, to issue Commission of Oyer and Terminer and Gaol delivery at any other Time or Times, when he may think it necessary and ex- pedient so to do. ART. II. In each of the Districts of Quebec and Montreal there shall be held and kept, Four Times in every Year, a Court of General Quarter Sessions of the Peace, by the Commissioners of the Peace of each respective Dis- trict, or so many of them as are or shall be limited in the Commission of 1774-1791] Constitutional Documents of Canada. 165 the Peace, who shall hear and determine all matters relative to the Con- servation of the Peace, and whatsoever is by them cognizable, according to the Laws of England, and the Ordinances of the Governor and Legis- lative Council of the Province. The said Sessions for the District of Quebec, shall be held at the City of Quebec, and the said Sessions for the District of Montreal shall be held at the City of Montreal, on the days hereafter following, to wit, on the second Tuesdays of the Months of January, April, July, and Octo- ber, in every year. And Two of the said Commissioners of the Peace shall sit weekly in Rotation, in the Cities of Quebec and Montreal, for the better Regu- lation of the Police, and other matters and Things belonging to their Office ; and the names of the Commissioners who are to sit in each Week shall be posted up on the door of the Sessions House, by the Clerk of the Peace, Two Days before their respective Sittings. ART. III. As the great extent of this Province may render it often impracticable for the Coroner of the District to give his Attendance at the different Places where it might be necessary, the Captains of Militia shall be and hereby are impowered, in their respective Parishes, when any marks of Violence appear on any dead Body, to summon together Six respectable Householders of his Parish, to inspect the same; and he shall according to their Opinion, report the manner and cause of such Death in writing, to the nearest Commissioner of the Peace, that a further examination may be made therein, if necessary. i ART. iv. And as great Inconveniences might arise from the want of Peace Officers in different parts of the Province, the said Captains of Militia shall be and hereby are impowered to arrest any Person guilty of any Breach of the Peace, or any Criminal Offence, within their respective Parishes, and to convey or cause to be conveyed, such Person before the nearest Commissioner of the Peace, to be dealt with according to Law. (Signed) GUY CARLETON. March 4, 1777. XXXIII THE COLONIAL TAX REPEAL ACT 1 , 1778 (18 George III, C. 12.) An Act for removing all doubts and apprehensions concerning taxation by the Parliament of Great Britain in any of the Colonies, Provinces, and Plantations in North America and the West Indies; and for repealing so much of an Act, made in the seventh year of the reign of his pres- ent Majesty, as imposes a duty on tea imported from Great Britain into any Colony or Plantation in America, or relates thereto. Whereas taxation by the Parliament of Great Britain, for the purpose Preamble of raising a revenue in his Majesty's Colonies, Provinces, and Plantations in North America, has been found by experience to occasion great uneasi- ness and disorders among his Majesty's faithful subject, who may never- theless be disposed to acknowledge the justice of contributing to the com- mon defence of the Empire, provided such contribution should be raised under the authority of the General Court, or General Assembly, of each respective Colony, Province, or Plantation : And whereas, in order as well to remove the said uneasiness, and to quiet the minds of his Majesty's subjects who may be disposed to return to their allegiance, as to restore 1 This Act is more particularly concerned with the American Colonies. It is included here because the title may include Canada, though it is obvious that it did not repeal No. XXVI. 166 Constitutional Documents of Canada. [1774-1791 the peace and welfare of all his Majesty's Dominions, it is expedient to declare that the King and Parliament of Great Britain will not impose posed'by^he" anv duty, tax, or assessment, for the purpose of raising a revenue in any King and of the Colonies, Provinces, or Plantations: May it please your Majesty Great Eritzin ^ at '* may k e declared and enacted, and it is hereby declared and en- ou any of the a cted by the King's Most Excellent Majesty, by and with the advice and Colonies in consent of the Lords Spiritual and Temporal, and Commons, in this pres- ca^r'the'w&st ent P ar ^ ament assembled, and by the authority of the same, that from Indies; except an .d after the passing of this Act the King and Parliament of Great Bri- etc. tain will not impose any duty, tax, or assessment whatever, payable in any of his Majesty's Colonies, Provinces, and Plantations in North America or the West Indies ; except only such duties as it may be expedient to impose for the regulation of commerce ; the net produce of such duties to be always paid and applied to and for the use of the Colony, Province, or Plantation, in which the same shall be respectively levied, in such man- ner as other duties collected by the authority of the respective General Courts, or General Assemblies, of such Colonies, Provinces, or Planta- tions, are ordinarily paid and applied. . , II. And be it further enacted by the authority aforesaid, that from an Act! 7 Geo. an< * a ^ ter t* 16 passing of this Act, so much of an Act made in the seventh III as imposes year of his present Majesty's reign, intituled "An Act for granting cer- a duty on tea tain duties in the British Colonies and Plantations in America ; for allow- GrearBritaTn 1 m & a drawback of the duties of Customs upon the exportation from this into America kingdom of coffee and cocoanuts of the produce of the said Colonies or repealed. Plantations; for discontinuing the drawbacks payable on China earthen- ware exported to America ; and for more effectually preventing the clan- destine running of goods in said Colonies or Plantations," as imposes a duty on tea imported from Great Britain into any Colony or Plantation in America, or has relation to the said duty, be, and the same is hereby repealed. XXXIV HALDIMAND TO GERMAIN 1 [Trans.: Shortt and Doughty.] Quebec, 25th October, 1780. My Lord, As it is my Duty, it has been my Business to inform myself of the State of the Country & I coincide with the Majority of the Legislative Council in Considering the Canadians as the People of the Country, and think that in making Laws and Regulations for the Administration of these Laws, Regard is to be paid to the Sentiments and Manner of think- ing of 60,000 rather than of 2,000 three fourths of whom are Traders & Cannot with propriety be Considered as Residents of the Province. In this point of view the Quebec act, was both just and Politic, tho' -in for- tunately for the British Empire, it was enacted Ten Years too late It requires but Little Penetration to Discover that had the System of Gov- ernment Sollicited by the Old Subjects been adopted in Canada, this Colony would in 1775 have become one of the United States of America Whoever Considers the Number of Old Subjects who in that Year corre- sponded with and Joined the Rebels, of those who abandoned the defence of Quebec in virtue of Sir Guy Carleton's Proclamation in the fall of the same Year, & of the many others who are now the avowed well wishers of the Revolted Colonies, must feel this Truth however national or Reli- gious Prejudices will not allow him to declare it. Your Lordships Most Obedient & Most humble Servant, (Signed) FRED HALDIMAND. 1 This letter throws contemporary light on the value of the Quebec Act. Lord George Germain became Colonial Secretary in July, 1776. 1774-1791] Constitutional Documents of Canada. 167 XXXV TREATY OF PARIS, 1783 [Trans. : Shortt and Doughty.] DEFINITIVE TREATY of Peace and Friendship between His Britannic Majesty and the United States of America. Signed at Paris, the 3rd of September, 1783. In the Name of the Most Holy and Undivided Trinty. It having pleased the Divine Providence to dispose the hearts of the Most Serene and most Potent Prince, George the Third, by the Grace of God, King of Great Britain, France and Ireland, Defender of the Faith, Duke of Brunswick and Lunenburg, Arch-Treasurer and Prince Elector of the Holy Roman Empire, &c., and of the United States of America, to forget all past misunderstandings and differences that have unhappily in- terrupted the good correspondence and friendship which they mutually wish to restore: and to establish such a beneficial and satisfactory inter- course between the 2 Countries, upon the ground of reciprocal advan- tages and mutual convenience, as may promote and secure to both perpe- tual Peace and Harmony; and having for this desirable end already laid the foundation of Peace and reconciliation, by the Provisional Articles signed at Paris, on the 30th of November, 1782, by the Commissioners empowered on each part ; which Articles were agreed to be inserted in, and to constitute, the Treaty of Peace proposed to be concluded between the Crown of Great Britain and the said United States, but which Treaty was not to be concluded until terms of Peace should be agreed upon be- tween Great Britain and France, and His Britannic Majesty should be ready to conclude such Treaty accordingly; and the Treaty between Great Britain and France having since been concluded, His Britannic Majesty and the United States of America, in order to carry into full effect the Provisional Articles above-mentioned according to the tenor thereof, have constituted and appointed, that is to say: His Britannic Majesty, on his part, David Hartley, Esq., Member of the Parliament of Great Britain; and the said United States, on their part, John Adams, Esq., late a Commissioner of the United States of America at the Court of Versailles, late Delegate in Congress from the State of Massachusetts, and Chief Justice of the said State, and Minister Plenipotentiary of the said United States to Their High Mightinesses the States General of the United Netherlands; Benjamin Franklin, Esq., late Delegate in Congress from the State of Pennsylvania, President of the Convention of the said State, and Minister Plenipotentiary from the United States of America at the Court of Versailles; John Jay, Esq., late President of Congress and Chief Justice of the State of New York, and Minister Plenipotentiary from the said United States at the Court of Madrid ; to be the Plenipotentiaries for the concluding and the signing the present Definitive Treaty : who, after having reciprocally communi- cated their respective Full Powers, have agreed upon and confirmed the following Articles : Art. I. His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Dela- ware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, Sovereign and Independent States ; that he treats with them as such and for himself, his Heirs and Successors, relinquishes all claims to the government, propriety and territorial rights of the same, and every part thereof. II. And that all disputes which might arise in future on the subject of the Boundaries of the said United States may be prevented, it is hereby agreed and declared, that the following are and shall be their Boundaries, viz., from the North-west Angle of Nova Scotia, viz., that Angle which is formed by a Jine drawn due North, from the source of the St. Croix River to the Highlands, along the said Highlands which divide those 168 Constitutional Documents of Canada. [1774-1791 Rivers that empty themselves into the River St. Lawrence from those which fall into the Atlantic Ocean, to the North-westernmost head of Connecticut River; thence down along the middle of that River to the 45th degree of North Latitude; from thence by a line due West on said latitude until it strikes the River Iroquois or Cataraquy 1 ; thence along the middle of the said River into Lake Ontario; through the mid- dle of the said Lake until it strikes the communication by water between that Lake and Lake Erie; thence along the middle of said communi- cation into Lake Erie : through the middle of said Lake until it ar- rives at the water communication between that Lake and Lake Huron ; thence along the middle of said water communication into the Lake Huron ; thence through the middle of said Lake to the water communication between that Lake and Lake Superior ; thence through Lake Superior, Northward of the Isles Royal and Phelipeaux, to the Long Lake 1 ; thence through the middle of said Long Lake, and the water communication between it and the Lake of the Woods, to the said Lake of the Woods ; thence through the said Lake to the most North-western point thereof, and from thence on a due West course to the River Mississippi ; thence by a line to be drawn along the middle of the said River Mississippi, until it shall intersect the Norther-most part of the 31st degree of North lati- tude: South by a line to be drawn due East from the determination of the line last mentioned, in the latitude of 31 degrees North of the Equa- tor, to the middle of the River Apalachicola or Catahouche ; thence along the middle thereof to its junction with the Flint River; thence straight to the head of St. Mary's River, and thence down along the middle of St. Mary's River to the Atlantic Ocean : East by a line to be drawn along the middle of the River St. Croix, from its mouth in the Bay of Fundy to its source; and from its source directly North to the aforesaid High- lands, which divide the Rivers that fall into the Atlantic Ocean from those which fall into the River St. Lawrence : comprehending all Islands within 20 leagues of any part of the shores of the United States, and lying be- tween lines to be drawn due East from the points where the aforesaid Boundaries between Nova Scotia on the one part, and East Florida on the other, shall respectively touch the Bay of Fundy, and the Atlantic Ocean ; excepting such Islands as now are, or heretofore have been, within the limits of the said Province of Nova Scotia. III. It is agreed, that the People of the United States shall continue to enjoy unmolested the right to take Fish of every kind on the Grand Bank and on all the other Banks of Newfoundland; also in the Gulph of St. Lawrence, and at all other places in the Sea, where the Inhabitants of both Countries used at any time heretofore to fish. And also that the Inhabitants of The United States shall have liberty to take fish of every kind on such part of the Coast of Newfoundland as British Fishermen shall use, (but not to dry or cure the same on that Island,) and also on the Coasts, Bays, and Creeks of all other of His Britannic Majesty's Do- minions in America ; and that the American Fishermen shall have liberty to dry and cure fish in any of the unsettled Bays, Harbours, and Creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled ; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such Settlement, without a previous agreement for that purpose with the Inhabitants, Proprietors, or Possessors of the ground. IV. It is agreed that Creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted. V. It is agreed that the Congress shall earnestly recommend it to the Legislatures of the respective States, to provide for the restitution of all estates, rights, and properties which have been confiscated, belonging to real British Subjects: and also of the estates, rights, and properties of 1 The older names for that part of the St. Lawrence between Lake Ontario an presume to Suggest, that Clauses of the following Import, may be inserted In the Act of Parliament, which shall be made to Confirm a free Constitu- tion to this Country. 1st. THAT the House of Representatives or Assembly, be chosen by the Parishes, Towns and Districts of the Province, to be Composed of Your Majesty's Old and New Subjects, in such manner as to Your Majesty's Wisdom may seem most proper, that the Assembly be triennial, and the Members elected every three Years. 2d. THAT the Council consist of not less than Thirty Members and in case of Division on any measure before them, that no Act shall be passed, unless at least Twelve Members agree to carry the Vote. That the appointment of the Members, may be during their residence in the Province, and for Life; yet subject to temporary leave of Absence, as mentioned in the llth Article; And that they serve as Councellors, without Fee or Reward. 3d. THAT the Criminal Laws of England be continued, as at present established by the Quebec Act. 4th. THAT the ancient Laws and Customs of this Country, respecting landed Estates, Marriage Settlements, Inheritances and Dowers, be con- tinued; yet subject to be altered by the Legislature of Quebec; And that Owners may alienate by Will, as provided by the 10th Section of the Quebec Bill. Sth. THAT the Commercial Laws of England, be declared to be the Laws of this Province, in all Matters of Trade and Commerce, subject to be Changed by the Legislature of Quebec, as in the preceeding Article. 6th. THAT the Habeas Corpus Act, the 31st Charles 2d be made part of the Constitution of this Country. 7th. THAT Optional" Juries be granted, on all Trials in Courts of Original Jurisdiction. That they be regularly Baloted for, and a Pannel formed as in England; either in the Case of an ordinary or a Special Jury, at the option of the Party applying for the same, And that Nine Members out of the Twelve, may in Civil Causes, be sufficient to Return Verdicts, subject to be Modified by the Legislature of Quebec, as in the 4th Article. Sth. THAT the Sheriffs be elected by the House of Assembly, and approved and Commissioned by the Governor, at the Annual Meeting of the Legislature. That they hold their Appointment during the period elected for, and their good Behaviour; and that they find reasonable Security, for a faithful discharge of their Duty. 9th. THAT no Officer of the Civil Government, Judge or Minister of Justice, be suspended by the Governor or Commander in Chief for the time; from the Honours, Duties, Salaries or Emoluments, of his Appoint- ment; but with the advice and Consent of Your Majesty's Council, for the 174 Constitutional Documents of Canada. [1774-1791 Affaires of the Province; which Suspension shall not Continue, after tht Annual Sitting of the Council; unless it be approved by the same. The cause of Complaint if approved, to be thereafter reported to Your Majesty, for Hearing and Judgement thereon. 10th. THAT no New Office be Created, by the Governor or Com- mander in Chief for the time ; but with the Advice and Consent of Your Majesty's said Council and be approved at their Annual Meeting, as in the preceeding Article. llth. THAT all Offices of Trust be executed, by the Principal in the Appointment; unless by leave of Absence from the Governor, with advice and Consent of his Council; which leave of Absence, shall not extend to more than Twelve Months, or be renewed by the Governor, but with the Approbation of the Council, at the Annual Session. 12th. THAT Judges be appointed to preside in the Courts of the Province; to hold their places during Life, or their good Behaviour, and that they be rewarded with Sufficient Salaries, so as to confine them to the functions of administering Justice, That every Cause of Accusation for a Removal, proceeding from the Governor, shall follow the Rule laid down in the 9th Article. And every Cause of Accusation for a Removal on the part of the Public, shall proceed from the House of Assembly, and be heard by the Council ; which, if well founded, shall operate a Suspension ; and in either Case, be decided in Appeal and Report to Your Majesty. 13th. THAT Appeals from the Courts of Justice in this Province to the Crown, be made to a Board of Council, or Court of Appeals, composed of the Right Honble The Lord Chancellor and the Judges of the Courts of Westminster Hall. 14. YOUR PETITIONERS beg leave, humbly to Represent to Your Majesty; that from their Proximity to the United States, who from Situa- tion and Climate, have many advantages over them, the Internal Regu- lations for promoting the Trade, Agriculture and Commerce, of this Province ; are now become more intricate and difficulty ; and will require great Care and Attention, on the part of the Legislature here; to watch over the Interests of this Country. They therefore request, that the Assembly may have the Power, of laying the Taxes and Duties, necessary for defraying the Expences of the Civil Government of the Province. And for that purpose, that the Laws now existing, laying Taxes and Duties to be levied in the Province, may be repealed. SUCH MAY IT PLEASE YOUR MAJESTY are the Intreaties and Prayers of Your loyal Subjects; and in full Confidence they trust, that Your Majesty will releive them from the Anarchy and Confusion, which at present prevail, in the Laws and Courts of Justice of the Province, by which, their Real Property is rendered insecure, Trade is clogged, and that good Faith, which ought, and would subsist among the People, and which is the Life and Support of Commerce, is totally destroyed. And be Gra- ciously pleased to Secure to them, a Constitution and Government, on such fixed, and liberal Principles, as may promote the desire Your Affectionate Subjects of this Province have, of rendering this Mutilated Colony, a bright Gem in the Imperial Crown of Great Britain. And that may call on the present Generation, for their unceasing Acknowledgements and Gratitude. And upon the future, to feel as the present, that the Security and Happiness of the People and Province of Quebec; depend on an Union with, and Submission to, the Crown and Government of Great Britain. In these pleasing hopes Your Petitioners as in Duty bound will ever pray, &c. &c. &c. Quebec, 24th November, 1784. (Signed by five hundred and one names.) 1774-1791] Constitutional Documents of Canada. 175 XXXIX PLAN FOR A HOUSE OF ASSEMBLY 1 [Trans. : Shortt and Doughty.] We conceive that the House of Assembly ought for the present, to consist of a Number not exceeding 70 Representatives, who ought all to profess the Christian Religion, And Speak and write the English or french languages. That, to procure that Number, the City of Quebec (being the Capital) and Parish, and the City of Montreal and Parish, between them, elect 13, Members. The city of three Rivers 2, Members. And as there are in the province 120 parishes, that they be divided into counties and districts according to the Number of Inhabitants, in such manner as each County or district may elect two or four Members. That the Legislature have the power, on application to them, to erect such parishes as may in future be settled, into Counties or districts, to elect and Send Members to the Assembly, as the province increases in population. That the qualification necessary to have a Vote at the Election of the representatives for the Cities shall be, a House, Shed or lot of Ground of the Value of forty Pounds Sterling; And, for the Counties or districts, a real Estate, Estate of Inheritance or Terre en roture, of at least, one and a half Acres in front by 20 Acres in Depth, or other Estate of higher denomination, And of which the Voter shall have the absolute property, lying within the district or County, or City and parish he votes for. That the qualification necessary for a person offering himself to serve as a representative shall be a real Estate of Inheritance or descent in Lands or Houses of the Value of thirty Pounds Sterling yearly Rent. That every person shall prove by Oath, (under the pains and penalties of perjury) his qualification to either Vote or represent, being of the age of twenty one years, And be absolute proprietor of the qualification. That none but Males shall either Vote or represent. That the Assembly have free liberty of debate, And the power of chusing a speaker. That all laws relating to taxation or raising monies on the Subject, originate in the House of Assembly. That the Assembly have the sole right to try and decide in all con- tested Elections. That all affairs be carryed in the Assembly by a Majority of Votes. That at every Meeting of the Assembly, the Speaker, And, at least one half of the representatives be necessary to form a house. That the Governor or Lieutenant Governor for the time being, shall be obliged to call together the representatives in assembly, once every year, between the first of January and the first of May of every year, And, at any other time the Urgency of Affairs may require. Endorsed: Plan for a House of Assembly drawn up by the Commit- tee's of Quebec and Montreal, in November 1784. In Mr. Lymburner's, 24th July, 1789. 1 Adam Lymburner, who represented in London those who signed the petition of Nov. 24, 1784 (No. XXXVIII), informed Grenville by letter on July 24^1789, that a Committee of the memorialists had drawn up a plan for a House of Assembly, which he enclosed and possibly endorsed, as follows: "When this plan was made out in the fall of 1784, the loyalists had not begun their new Settlements. As these new Settlements have been divided, and erected into five new districts, it may be proper that each district send a certain number of Repre- sentatives. And that the two districts of Quebec and Montreal, containing the old settled part of the Country, be divided into a certain number of districts (for the pur- pose of electing Representatives only) to choose Members for the House of Assembly." 176 Constitutional Documents of Canada. [1774-1791 XL OBJECTIONS TO THE REQUESTS MADE TO OUR AUGUST SOVEREIGN, DECEMBER, 1784 1 [Trans.: Shortt and Doughty.] In the Address read at an Assembly held at the house of the R.R.P.P. Recolets, the 30th of November, 1784. That, considering the burden of Great Britain, a House of Assembly should be granted us, to impose Taxes, &c. That we ought certainly to view with sorrow the burden of our Mother Country ; but alas ! it can only be a fruitless sorrow, for what remedy can we offer? We, whose wants increase day by day; we, who, every year despoil ourselves of our last farthing to pay for the supplies, which this Mother Country is compelled to furnish us, and which are already ex- hausted; we, who in spite of the enormous sums, which in consequence ot the war have been left in this country, are still in arrears with the parent state, for the balance of a considerable sum. What then are the resources on which taxes could be levied? Is it on the Towns? Who does not know the poverty of their Citizens. Is it on the Lands? Who does not know that the rural districts are in debt to the Towns, and have at present nothing with which to liquidate ; that misery is the lot of a very large portion of their Inhabitants? What will be the result then, if a portion of their labours must be applied to the support of the State? This representation, which is true in every point, ought to be convincing evidence that a House of Assembly for the imposition of Taxes is not only useless, but would be prejudicial to the interests of this Colony. That the Chamber be indifferently composed of the ancient and new Subjects, &c. This article requires more explanation : for, from this word indiffer- ently there might be as many and even more ancient than new Subjects in the House, which would be contrary to natural right, as there are twenty Canadians to one ancient Subject. What would become of our rights if they were entrusted to Strangers to our Laws. That the Council be composed of thirty members without salaries, &c. This might be satisfactory if there were enough disinterested rich men to take the part of the people, the honest poor man being unable to give his time for nothing. That the Criminal Laws of England be continued here. That the leniency of these laws would make their continuation desir- able; but the demand is unnecessary, since they are in force. That the Laws, Usages and Customs of this Country be continued ; subject nevertheless, to those changes that the Legislation may find neces- sary, &c. This article is contradictory; in that it affirms our Rights, and com- pletely destroys them. For as a matter of fact, is it not destroying them to subject them to any alterations which the Legislation may find it necessary to make? Would they not become arbitrary? What statutes could be based on Rights as changeable as the House to which they will be sub- mitted? That the Commercial Laws of England be declared those of this Province, subject to the same alterations as in Article IV, &c. That the reply to article IV will serve for this article. That the Act of Habeas Corpus shall be in force, &c. That our August Sovereign having granted it to us, it is unnecessary to trouble him further concerning it. 1 This is a translation of a reply drawn up on behalf of the French-Canadians to the petition of 24 Nov., 1784 (No. XXXVIII). Although printed in December, 1784, jt was not sent officially to England till January, 1789, when Dorchester forwarded it in a despatch to Sydney. 1774-1791] Constitutional Documents of Canada. 177 That in the Courts of Jurisdiction, Juries may be granted at the re- quest of the Parties concerned. That this article is entirely in favour of the Rich against the Poor. If they are the ordinary Juries; Ye poor men, what will become of your families, when you are forced to leave your work, for a part of the year, to go and decide causes which in no way concern you? You already com- plain at being compelled to interrupt your work when you are summoned for Criminal Affairs, which occurs six times in the year. What would be the result if you were obliged to take part in every sitting? Some one perhaps will say that this is done in London, and it can therefore be done in this country. But let such a one compare the number of citizens in London, amounting to about three hundred thousand men, with twelve hundred which, at the most is all that you are in this town and its suburbs. He will then see that you would be obliged to be present at the sittings, two hundred and fifty times for every time that a citizen of London need appear. Judge from this if you have any other trade to carry on, what would become of your families. If the Juries are special ones (and in consequence remunerated) what poor man is there who could contend against a rich oppressor who has unjustly seized his property; and who, to crush him, may demand a Jury (which could not be refused him) would not this force the poor man to the alternative of giving up his cause, or or being totally ruined if he loses. Complaints are now being made of the expense which Justice entails. Who will be able to afford it, when the payment of twelve Jurors is to be added? Would not this close the door of the Sanctuary of Justice to the poor. That the Sheriffs shall be elected by the House, approved and com- missioned by the Governor, &c. That if the Sheriff nominated by the House does not please the Gov- ernor, what will become of the administration of the Laws of Justice? Will not a time, of anarchy in consequence ensue, prejudicial to the public interests. That no civil Officer shall be suspended from his office by the Governor without the consent of the Council, &c. That no new civil Office shall be created by the Governor without the consent of the Council, &c. That all positions of trust shall be filled by the Persons themselves, &c. That the three preceding articles would be admissible, time and place considered. That Judges shall be appointed for the Courts of the Province, and that they shall have fixed and sufficient stipends. That it is right to have Judges to administer Justice, and that they ought to have stipends sufficient to live suitably to their station. For, without that, they will either neglect the duties of their office, to occupy themselves with the care of their own interests, or they will put Justice up to auction. That appeals from the Courts of Justice of this Province be made to the Lord Chancellor, at the Court of Westminster Hall. That up to the present time we have made appeals to the King and his Council, who have taken our Laws as the guide of their decisions. But what will become of our Rights when brought before a Court which will deviate in nothing from the British Laws & Constitution? And further if the Council of the Province changes your laws, and replaces them by the laws of England, in what confusion and difficulty shall we not be placed? If, on the contrary, they are allowed to remain in force what means of Appeal shall we have in a Court which entirely ignores them. That it may Please His Majesty in the interests of Commerce, and for the encouragement of Agriculture to invest the House of Assembly with power to impose Taxes, &c. That this article duly considered would give rise to many reflections. For what community is there between our requirements & the proximity, the climate, and the situation of the United States which give them the advantage in Trade over us? Would the imposition of Taxes add three L 178 Constitutional Documents of Canada. [1774-1791 months to our summer, and make pur river navigable for the whole year? No: then the advantage would still be on our neighbours' side. Would Taxes make our Agriculture flourish? No: for the Seigniors to encourage Agriculture give the lands for three years, exempt from all dues, and the lands often lie uncultivated for lack of means to work them. What is it then that compensates for the advantages they possess over us? It is the peace that our rural districts have hitherto enjoyed; free from Taxation, and in spite of the severity of the climate, they have seen the fruit of their labours, and have enjoyed it. To this it may be urged that the rural districts are harassed by the billeting of Troops and by corvees. This is true, but would the imposition of Taxes exempt them from this burden. Let us see. When the King considers it necessary to send Troops into this Colony for the safety of our possessions, would any one oppose it? No, this is a right which the King possesses in all his Dominions, without even being obliged to give account of his action. Have we Barracks in a condition for housing these Troops? No : can they live the whole year under canvas? no ; then we must either construct Barracks, or lodge them. Troops bring with them a considerable amount of ammunition, provisions, &c. Who is to transport these goods to their destination? willing men, it will be said, who will be well paid. You can get willing men, it is true, but at a rate so exorbitant that the Province would not have enough to pay for this one branch of defence. If you impose taxes upon them, you will no longer find them. So then, not to put a stop to works so indispensable, it will be necessary to commandeer; and in consequence we must have recourse to Corvees. But someone will perhaps say as has already been said, that what are called Volunteers will be raised in the country. Here then would be a band of Freemen condemned to Slavery. Is it not enough for fortune to have treated them so unkindly, without increasing their misery by slavery. This being inadmissible, taking everything into consideration it appears conclusive after mature deliberation that Taxation cannot exempt us from the billeting of Troops, or from corvees; and that consequently an Assem- bly for the imposing of Taxes would be contrary to the interests of this impoverished Colony. End. I certify that during the Course of the month of December of the year 1784, I have printed about two hundred copies of the Objections and about the same number of an Address to His Majesty in opposition to the House of Assembly, (in the same space of time) Montreal, 29th December, 1788. FL. MESPLET, printer. XLI THE VERY HUMBLE ADDRESS OF THE ROMAN CATHOLIC CITIZENS AND INHABITANTS OF DIFFERENT CONDITIONS IN THE PROVINCE OF QUEBEC IN CANADA 1 [Trans.: Shortt and Doughty.] TO THE KING Sire, The Favours which it has pleased Your Royal and Generous Heart to heap upon Your faithful and loyal Canadian Subjects, the present ill- considered Measures of Your Ancient Subjects resident in our Province and the small Number of New Subjects who have joined them, make us hope that Your Most Gracious Majesty will allow us to kneel down at the Foot of your Throne to implore Your Benevolence and Your Justice. In the Addresses which we have taken the Liberty of transmitting to Your Majesty, Two points have the unanimous Consent of our Fellow- 1 This address, which is here printed from a translation, is unsigned and undated. See, however, conclusion of previous document. 1774-1791] Constitutional Documents of Canada. 179 citizens. The Religion of our Forefathers was for Your new Subjects, as to every People in the World, the essential Point of our Petitions. Animated by that Confidence with which the Generosity of our Sovereign inspired us, we hoped, and still hope that Your Majesty will grant us the necessary Means for perpetuating it in our Colony. We are, Most Gracious Sovereign, in most urgent need of Priests to carry on the work of the Seminaries and Missions of our Province ; Directors and Professors of this Class, and indeed of any other are lacking. Our Colleges are deserted; from this want arises Ignorance, and from Ignorance Moral Depravity. Submissive and loyal, this People hope to receive from your Royal Clem- ency, Permission to bring from Europe, Persons of this Class. The second Object, Most Gracious Sovereign, was that under whatever Form of Government might seem best to Your Majesty to establish in this Province, Your Catholic Canadian Subjects, without distinction, might enjoy all the Privileges, Immunities, and Prerogatives, enjoyed by British Subjects in all those Parts of the Globe, which are under Your Sway. From this second Object follows our most earnest Desire to see in the Legislative Council of our Province a larger Number of Your New Cath- olic Subjects in proportion to their numbers; Persons experienced in our Customs, who being naturally better acquainted with our Municipal Laws, would more effectually impress on us the Advantages resulting from the Royal Instructions of Your Majesty, who has granted them to us. An Infant Colony, a People very imperfectly acquainted with the British Laws and Constitution does not feel that it ought, without due con- sideration, to ask for Laws and Customs as yet unknown to it; it ought, on the contrary, and such is the opinion of Your Petitioners, to cast itself entirely on the Goodness of its August Sovereign, who can best form the Government which is most suited to his Subjects, and employ the Measures most fitted to render them happy. May we be allowed to assure Your Majesty, that we in no wise concur in the Petitions 1 of Your Ancient Subjects, conjointly with some New Ones, whose Number compared with the total number comprised in our Province, can exercise but little Influence. That the Greater Number of the principal Proprietors of our Colony have not been consulted. May it please You, Most Gracious Sovereign, to consider, that the House of Assembly is not the unanimous Wish, nor the general Desire of Your Canadian People, who through Poverty and the Misfortunes of a recent War, of which this Colony has been the Theatre, are not in a Con dition to bear the Taxes which must necessarily ensue, and that in many respects to Petition for it appears contrary to, and inconsistent with the wellbeing of the New Catholic Subjects of Your Majesty. For this reason, Most Gracious Sovereign, we entreat You that in Consideration of the Fidelity and Loyalty of Your Canadian Subjects, to whose Behaviour in the most critical Circumstances, their former Gov- ernour Sir Guy Carleton has testified, our Diocesan Bishops may be allowed to bring over from Europe the Spiritual Help, which is so indis- pensably necessary for us, that the free Exercise of our Religion may be continued to us to the fullest Extent, without any Restriction, that our Municipal and Civil Laws may be preserved in their Entirety, and that with these two Points may be granted the same Privileges enjoyed by our Forefathers and ourselves, before the Conquest of this Country by the victorious Arms of Your Majesty; that Your new Catholic Subjects, who form nineteen twentieths of this Province, may in the future, proportion- ately to their Number, have a larger Share in the Distribution of Your Royal Favours. And that, in Case it should be Your Royal Will to agree to the Petitions of Your Ancient Subjects, and of some New Ones, it may please you to suspend Your Royal Judgment till all the Classes and Com- munities which compose our Colony shall have been universally and legally called together, which the Lateness of the Season, at present prevents us 1 See No. XXXVIII. 180 Constitutional Documents of Canada. [1774-1791 from doing; so that by these Means the unanimous Wish of our People may be transmitted to Your Majesty. This is what Your faithful and loyal Canadian Subjects, relying upon Natural Right, and still more, upon Your Paternal Affection, humbly hope to obtain from their Most Gracious Sovereign. They will never cease to pray for the Preservation of Your Sacred Person, for your August Family, and for the Prosperity of your Realm. Such are the feelings which lead us to subscribe ourselves, with the deepest Respect. Sire, Your Majesty's Most humble, most obedient, Faithful and loyal Subjects. XLII INSTRUCTIONS TO LORD DORCHESTER, 1786 1 [Trans. : Shortt and Doughty.] Instructions to Our Right Trusty and Welbeloved Guy Lord Dorchester, Knight of the Most Honourable Order of the Bath Our Captain General and Governor in Chief in and over Our Province of Quebec in America, and of all Our Territories dependent thereupon Given at Our Court at St. James's the 23d Day of August, 1786. In the Twenty Sixth year of Our Reign. 12 The Establishment of Courts and a proper Mode of administer- ing Civil and Criminal Justice throughout the whole Extent of Our Province according to the Principles declared in the said Act for making more effectual provision for the Government thereof demand the greatest Care and Circumspection, for as on the one Hand it is Our gracious pur- pose, conformable to the Spirit and Intention of the said Act of Parliament, that Our Canadian Subjects should have the Benefit and Use of their own Laws, Usages and Customs in all Controversies respecting Titles of Land, and the Tenure, Descent, Alienation, Incumbrances and Settlements of real Estates and the Distribution of personal property of Persons dying intes- tate, so on the other hand it will be the Duty of the Legislative Council to consider well in framing such Ordinances, as may be necessary for the Establishment of Courts of Justice, and for the better Administration of Justice, whether the Laws of England may not be, if not altogether, at least in part the Rule for the Decision in all Cases of personal Actions grounded upon Debts, Promises, Contracts and Agreements, whether of a Mercantile or other Nature, and also of Wrongs proper to be compen- sated in Damages, and more especially where Our Natural born Subjects of Great Britain, Ireland, or other Plantations residing at Quebec, or who may resort thither or have Credit or Property within the same, may happen to be either Plaintiff or Defendant in any Civil Suit of such a Nature. 14. .. .Whereas, in pursuance of Our former Instructions to Our Gov- ernors and Commanders in Chief, Courts of Justice have been established within Our province of Quebec, It is Our Will and Pleasure that you do take due care that in all Cases whatever the Powers and Authorities granted by Us, or by any Ordinance confirmed by Us, to the said several Courts be duly observed and enforced, and that the Proceedings therein be in all things conformable to the said Act of Parliament "for making 1 In 1786 Carleton was raised to the peerage as Baron Dorchester, on his reap pointment as Governor. These new instructions reflect new conditions. (Compare No. XLIII). Several Sections hare been omitted. 1774-1791] Constitutional Documents of Canada. 181 "more effectual provision for the Government of the Province of Quebec," and to such Ordinances as may have been or hereafter may be enacted by the Legislature for those purposes ; And that the Governor and Council (of which in the Absence of the Governor and Lieutenant Governor the Chief Justice is to be President) shall continue to be a Court of Civil Jurisdiction for the hearing and determining of all Appeals from the Judgment of the other Courts, where the Matter in dispute is above the Value of ten Pounds; That any five of the said Council (if no more shall upon Summons be present) with the Governor, Lieutenant Governor or Chief Justice shall constitute a Court for that purpose, and that their Judg- ment shall be final in all Cases not exceeding the Value of five hundred Pounds Sterling; In which Cases an Appeal from their Judgment is to be admitted to Us in Our Privy Council ; It is however Our Will and Pleasure that no Appeal be Allowed unless Security be first duly given by the Appel- lant that he will effectually prosecute the same, and answer the Condemna- tion, as also pay such Costs and Damages as shall be awarded by Us, in case the Sentence be affirmed ; Provided nevertheless, where the Matter in Question relates to the taking or demanding of any Duty payable to Us, or to any Fee of Office, or Annual Rents or other such like Matter or Thing, where the Right in future may be bound, in all such Cases Appeal to Us in Our Privy Council is to be admitted, though the immediate Sum or Value appealed for be of less Value; and it is Our further Will and Pleasure that in all Cases where Appeals are admitted unto Us in Our Privy Council Execution be suspended until the final Determination of such Appeal, Unless good and sufficient Security be given by the Appellee to make ample restitution of all that the Appellant shall have lost by means of such Decree or Judgment, in case upon the Determination of such Appeal such Decree or Judgment should be reserved, and restitution awarded to the Appellant : Appeals unto Us in Our Privy Council are also to be admitted in all Cases of Fines imposed for Mis-demeanours, Provided the Fines so imposed amount to or exceed the Sum of One hundred Pounds Sterling, the Appellant first giving good Security that he will effectually prosecute the same, & answer the Condemnation, if the Sentence by which such Fine was imposed in Quebec be affirmed. 16. . . .It is Our Will and Pleasure that all Commissions, to be granted by you to any person or persons to be Judges or Justices of the Peace or other necessary Officers, be granted during Pleasure only. 37 Whereas it will be for the general Benefit of Our Subjects carrying on the Fishery in the Bay of Chaleur in Our Province of Quebec that such Part of the Beach & Shore of the said Bay as is ungranted should be reserved to Us, Our Heirs & Successors, It is therefore Our Will and Pleasure that you do not in future direct any Survey to be made or Grant to be passed/ for any Part of the ungranted Beach or Shore of the said Bay of Chaleur, except such Parts thereof as by Our Orders in Council dated the 29th of June and 21st of July last are directed to be granted to John Shoolbred of London, Merchant, and to Messrs. Robin Pipon and Co. of the Island of Jersey, Merchants, but that the same be reserved to Us, Our Heirs and Successors together with a sufficient Quantity of Wood- Land adjoining thereto necessary for the purpose of carrying on the Fish- ery; The Limits of such Wood-Land so to be reserved, to be determined upon and ascertained by you and Our Council for Our said Province of Quebec in such manner as from the most authentick Information shall appear to you & them most convenient and proper for that purpose ; It is nevertheless Our Intention and We do hereby signify to you Our Will and Pleasure that the free Use of such Beach or Shore and of the Wood-Land so to be reserved shall be allowed by you or any Person authorized by you to such of Our subjects as shall resort thither for the Purpose of carrying on the Fishery in such proportions as the Number of Shallops, he or they 182 Constitutional Documents of Canada. [1774-1791 shall respectively employ, may require; provided that, if any Fisherman who shall have permission to occupy any Part of the said Beach or Shore and Wood-Land for the purpose of the said Fishery shall not during any one Season continue so to occupy & employ any Part of the said Beach or Shore and Wood Land so allotted to him, you or any Person authorized by you as above may & shall allow the Use of such Part to any other Fisherman who shall apply for the same for the purpose of carrying on the Fishery. And Whereas it may be necessary to establish local Regulations to prevent Abuses as well as Disputes and Misunderstanding between the Fishermen resorting to the said Beach or Shore; It is Our Will and Pleasure that you, by and with the Advice and Consent of Our said Coun- cil, do frame such Regulations from time to time as to you shall appear necessary to answer those salutary Purposes and that you transmit the same to Us thro' one of Our Principal Secretaries of State for Our Pleas- ure therein by the first Opportunity. 38 We have mentioned to you the Fisheries upon the Coast of Labrador as the Main Object of your Attention, but the Commerce carried on with the Savages of that Coast and the State and Condition of those Savages deserve some regard: The Society of Unitas Fratrum urged by a laudable Zeal for promoting Christianity have already under Our protection and with Our permission formed Establishments in the northern Parts of that Coast for the purpose of civilizing the Nations and converting them to the Christian Religion. Their Success has been answerable to their Zeal, and It is Our express Will and Pleasure that you do give them every Countenance & Encouragement in your Power, and that you do not allow any Establishment to be made but with their Consent within the Limits of their Possessions. 39.... By Our Commission to you under Our Great Seal of Great Britain you are authorized & impowered with the Advice and Consent of Our Council to settle and agree with the Inhabitants of Our said Province of Quebec for such Lands, Tenements and Hereditaments as now are or shall hereafter be in Our Power to dispose of, It is therfore Our Will and Pleasure that all Lands, which now are or hereafter may be subject to Our Disposal, be granted in Fief or Seigneurie, in like manner as was practised antecedent to the Conquest of the said Province, omitting how- ever in any Grant that shall be passed of such Lands the reservation of any judicial Powers or Privileges whatever; And It is Our further Will and Pleasure that all Grants in Fief or Seigneurie, so to be passed by you as aforesaid, be made subject to Our Royal ratification or Disallow- ance and a due Registry thereof within a limited time, in like manner as was practised in regard to Grants and Concessions held in Fief or Seig- neurie under the French Government. 40 Whereas many of Our Loyal Subjects, Inhabitants of the Colo- nies and Provinces now the United States of America, are desirous of retaining their Allegiance to Us and of living in Our Dominions, and for this purpose are disposed to take up and improve Lands in Our Province of Quebec, And We being desirous to encourage Our said Loyal Subjects in such their Intentions and to testify Our Approbation of their Lovalty to Us and Obedience to Our Government by allotting Lands for them in Our said Province, And Whereas We are also desirous of testifying Our Appro- bation of the Bravery and Loyalty of our Forces serving in Our said Province, and who may have been reduced there, by allowing a certain Quantity of Land to such of the Non-Commissioned Officers and Private Men of our said Forces who are inclined to become Settlers therein, It is Our Will and Pleasure that immediately after you shall receive these Our Instructions you do direct Our Surveyor General of Lands for Our said Province of Quebec to admeasure and lay out such a Quantity of Land as you, with the Advice of Our Council, shall deem necessary, and con- venient for the settlement of Our said Loyal Subjects, and the Non-Com- missioned Officers and Private Men of Our Forces which may have been reduced in Our said province, who shall be desirous of becoming Settlers therein; Such Lands to be divided into distinct Seigneuries or Fiefs to 1774-1791] Constitutional Documents of Canada. 183 extend from two to four Leagues in front and from three to five Leagues in Depth if situated upon a navigable River, otherwise to be run square or in such shape and in such Quantities as shall be convenient and prac- ticable, and in each Seigneurie a Glebe to be reserved & laid out in the most convenient Spot, to contain not less than 300, nor more than 500 Acres ; The Property of which Seigneuries or Fiefs shall be and remain vested in Us, Our Heirs & Successor, And you shall allot such Parts of the same as shall be applied for by any of Our said Loyal Subjects, Non- Commissioned Officers and Private Men of Our Forces reduced as afore- said, in the following Proportions, that is to say, To every Master of a Family One Hundred Acres and fifty Acres for each Person of which his Family shall consist; To every single Man fifty Acres ; To every Non-Commissioned Officer of Our Forces reduced in Quebec Two Hundred Acres ; To every private Man reduced as aforesaid One Hundred Acres, And for every Person in their Families fifty Acres. The said Lands to be held under Us, Our Heirs and Successors, Seigneurs of the Seigneurie or Fief in which the same shall be situated, upon the same Terms, Acknowledgements & Services as Lands are held in Our said Province under the respective Seigneurs holding and possess- ing Seigneuries or Fiefs therein, and reserving to Us, Our Heirs and Suc- cessors from and after the expiration of Ten Years from the admission of the respective Tenants a Quit Rent of one half penny per Acre. 41.... And whereas upon the raising and establishing the Corps late the 84th Regiment of Foot, We did promise and declare that the Officers and Privates of the said Corps should when reduced be intitled to and receive Grants for certain allotments of Lands in proportion to their icspective Ranks therein, It is Our Will and Pleasure that you do in man- ner as herein before directed Grant Warrants of Allotment and Survey to such of the Officers and privates of the said late Eighty fourth Regiment of Foot now reduced, who shall be willing to settle and become Inhabitants of Our said Province of Quebec, and shall apply for the same for such Quantities of Land as they shall be respectively intitled to, In consequence of our said promise and declaration contained in Our Instructions to Our Governors of New York and North Carolina dated the 3d April 1775, that is to say, To Field Officers 5000 Acres Captains 3000 Subalterns 2000 Non Commission Officer 200 Privates 50 and that the Surveys be made and Grants for the same delivered free of Expence as herein before directed, Provided nevertheless that every Com- missioned and Non Commissioned Officer or private belonging to the said late 84th Regiment of Foot, who shall claim and apply for Land in Our Pro- \ince of Quebec as aforesaid, shall declare upon Oath, that no Land has been obtained by him in any of our other Provinces in America under Our Royal declaration as aforesaid. 42.... It is Our further Will and Pleasure, that every Person within the meaning of these Our Instructions upon making application for Land shall take the Oaths directed by Law before you or our Commander in Chief for the time being, or some person by you or him authorized for tha* purpose and shall also at the same time make and subscribe the following Declaration (Viz.) "I, A B, do promise and declare that I will maintain "and defend to the utmost of my power the authority of the King in His "Parliament, as the supreme Legislature of this Province," which Oaths and declaration shall also be taken, made, and subscribed by every Future Tenant before his, her, or their admission upon Alienation, Descent, Mar- riage or otherwise howsoever, and upon refusal the Lands to become re- vested in us Our Heirs and Successors; And it is our further Will and 184 Constitutional Documents of Canada. [1774-1791 Pleasure that the expence of laying out and surveying as well the Seig- neuries or Fiefs aforesaid, as the several Allotments within the same and of the Deed of admission shall be paid by the Receiver General of Our Revenue in the said Province of Quebec; out of such Monies as shall be in his hands, upon a Certificate from you or Our Commander in Chief for the time being in Council, Oath being made by Our Surveyor General to the Account of such Expence; Provided however that only one half of the usual and accustomed Fees of Office shall be allowed to Our said Surveyor General or any other of Our Officers in the said Province entitled thereunto upon any Survey or Allotment made, or upon admission into any Lands by Virtue of these Our Instructions. 43 And whereas we have some time since purchased the Seigneurie of Sorel from the then Proprietors, the Lands of which are particularly well adapted for improvement and cultivation; and the local situation of the said Seigneurie makes it expedient that the same should be settled by as considerable a number of Inhabitants of approved Loyalty as can be accommodated therein, with all possible dispatch It is therefore Our will and Pleasure, that you do cause all such Lands within the same as are undisposed of, to be run into small Allotments, and that you do allot the same to such of the Non-Commissioned Officers and private Men of Our Forces who may have been reduced in Our said Province, or to such other of Our Loyal Subjects as may be inclined to settle and improve the same, in such Proportions as you may judge most conducive to their Interest and the more speedy Settlement of Our said Seigneurie. The Lands so allotted to be held by Us, Our Heirs, and Successors, Seigneurs of Sorel, upon the same Conditions and under the same reserved Rent at the Expiration of ten years, as the other Tenants of Seigneuries now hold their Lands and pay to Us, and also of taking the Oaths and making and subscribing the Declaration as herein before is mentioned and directed; The Expence of making the said Allotments and of Admission thereunto be also paid and defrayed in like manner as those in the Seigneuries directed to be laid out by these Our Instructions. It is nevertheless Our Will and Pleasure that the Allotments to be made to such of Our Loyal Subjects from the Provinces or Colonies now the United States of America, as may be dis- posed to settle and improve Lands in Our said Province of Quebec, shall be limited to those only who may have withdrawn themselves from the said Provinces or Colonies after the signing of the definitive Treaty of Peace with the said United States, & no other. ... And it is Our Will and Pleasure thaj' the Receiver General of Our Revenue ' well by Virtue of these Our Instructions jects retiring from the Provinces & America, and to Our Forces disbanded Admission by Alienation or otherwise, mitted yearly to Us, thro' one of Our prmcq: a Duplicate thereof to Our High Treasurer Treasury for the time being. ecor'd be kept in the Office of ry Admission into Lands as respect to Our Loving Sub- now the United States of esaid, as in Cases of future of which shall be trans- Secretaries of State, & also the Commissioners of Our 1774-1791] Constitutional Documents of Canada. 185 XLIII FINLAY TO NEPEAN [Trans.: Shortt and Doughty.] Quebec, 13th february, 1787 Dear Sir Tho' we have been a month in Council we have not as yet debated on any one Ordinance: the Chief Justice has proposed three; they lie on the table. The draught of a Militia Law is now before a committee; that, and the regulation of the Courts of Justice are objects of the first moment. A well establish'd Militia will secure the Province, and if the King's Ancient subjects (comprehending the Loyalists) can but have English Law 1 for the rule of decision of English causes, as laid down in his Majesty's 12th Instruction, they'll be contented and happy: but our Judges of the Common Pleas set their faces against the introduction of English law in all cases whatsoever ; They say that they are warranted by the Quebec Act to declare and to uphold, that the intention of the King and Parliament was, that no Law but French Law should subsist in Canada, the English Criminal Law excepted. Some people affect to call the King's Natural born subjects, new Cana- dians He who chose, say they, to make Canada his place of residence lost the name of Englishman. The Old Canadians are those we conquer'd in 1760 and their descendants, the new Canadians are composed of emigrants from England, Scotland, Ireland, and the Colonies now the United States: by the Act of the 14th 1 of his present Majesty they are converted into Canadians, and Canadians they must ever remain. This doctrine is pleasing to the Noblesse or gentry of the Country, who will not easily get rid of French prejudices; but to cherish a predilection for every thing that is french, is not, in my opinion, the most likely means to make Eng- lishmen of the Canadians. It is held here by some of His Majesty's natural born subjects, that the natives of this Province ought, as much as is pos- sible, to be kept unmixed and unconnected with the other Colonists, to serve as a strong barrier, between our Settlements and the United States, "Its inhabitants are numerous, and by Religion, Language, Laws & Customs "are the class of -men the least likely to coalesce or unite with the neigh- "bouring States of America." Unless the Canadians can be brought to perceive that it is their intrest to be attached to Great Britain, they will lean towards that Government which they may erroneously have conceived best calculated to promote their welfare; we ought not to forget their lukewarmness in 1775 the better sort of the people in general, and the Clergy, behaved well, but we had little or no assistance from the peasantry, and all this arose from the insinuations of the Colonists, touching the supposed intention of the King and Parliament in passing the Quebec bill : it seems at present the wish of those who prefer french Law, and french Customs, to inculcate, that if we introduce the English Commercial Law, the Estates and property of the Canadians will be annihilated, and this has had an effect, and has produced some applications to Lord Dorchester, praying him to prevent the introduc- tion of English Law in any case. These applications were founded on error. Your ever obedient and most humble servant, HUGH FINLAY. 1 See Dorchester's Instructions (1786), Art. 12 (No. XLII). * See No. XXV. 186 Constitutional Documents of Canada. [1774-1791 XLIV ORDINANCE RE PROCEEDINGS OF CIVIL COURTS, 30 APRIL, 1787 [Trans.: Shortt and Doughty.] An Ordinance to continue in Force for a limited Time an Ordinance made in the 25th Year of His Majesty's Reign, intituled, "An Ordinance to "regulate the Proceedings in the Courts of Civil Judicature ,and to "Establish Trials by Juries 1 in Actions of a Commercial Nature, and "Personal Wrongs, to be compensated in Damages," with such addi- tional Regulations as are expedient and necessary. Be it Enacted and Ordained by His Excellency the Governor, and the Legislative Council, and by the Authority of the same, it is hereby Enacted and Ordained, That an Ordinance made and passed the Twenty fifth of April, in the Twenty fifth year of His Majesty's Reign, intituled, "An "Ordinance to regulate the Proceedings in the Courts of Civil Judicature, "and to establish Trials by Juries in Actions of a Commercial Nature, and "Personal Wrongs, to be compensated in Damages," and every Clause and Article therein contained, be continued, and the same is hereby continued from the expiration thereof to the end of the Sessions of the Legislative Council which will be held in the Year of our Lord 1789. And whereas Additional Regulations are at this Time found to be expedient and useful; Be it further Enacted by the same Authority, That in every Instance where the Fact is not verified by a Verdict of the Jury, but by other Proof, or the Testimony of Witnesses, the same shall be inserted in the Record of the Cause, that in case of Appeal the whole pro- ceedings may go up to be adjudged in the Superior Tribunal, as regularly and as fully as the same was before the Court of Common Pleas. And wherever the Opinion or Judgment of the said Court of Common Pleas is pronounced upon any Law, Usage, or Custom of the Province, the same shall in like manner be stated upon the Minutes or Record of the Court, and referred to, and ascertained, that the real ground of the Opinion or Judgement may also appear to the Court of Appeals, and upon all Opinions conceived by any Party to be to his Injury, he shall be allowed his Exception, to be preserved in the Minutes ; all which Proceedings shall be transmitted under the Signature of the Judges, or any Two of them, and the Seal of the Court, that all His Majesty's Subjects, and especially His Canadian Subjects, by these means may be protected in the Enjoyment of all the Benefits secured to them for their Property and Civil Rights, by the Statute passed in the 14th year of His Majesty's Reign "intituled, "An "Act for making more effectual Provision for the Government of the ''Province of Quebec, in North America," and by the Ordinances above- mentioned. And be it further Enacted by the Authority aforesaid, That in all Cases adjudged in the Provincial Court of Appeals, where the same may be appealed to His Majesty in His Privy Council, and where their Opinion or Judgment is pronounced on any Law, Custom or Usage of the Province, the same shall in like manner, and for the same Reason as hereinbefore mentioned, be stated upon the Record, or referred to and ascertained. And, in all Causes of which the Common Pleas have Cognizance above Ten Pounds Sterling, the same shall be proceeded in, heard, and determined only in regular Terms, consisting of the First Fifteen Days (Sundays and Holidays excepted) in the Months of January and July, and the last Fifteen Days of March and September, Yearly, the First Return Days whereof shall always be the First Day of the Term, and the rest of the Return Days, and the General Rules of Practice, such as the respective Judges of the Common Pleas shall fix in a Formulary. 1 In 1785 provision for trial by jury in civil cases was introduced into "The ordi- nance regulating the Proceedings in Courts of Civil Judicature" (see Shortt and Doughty, p. 529). This Document expands the regulations. 1774-1791] Constitutional Documents of Canada. 187 And, to take away all Doubts and Scruples with respect to the Right of Appeal in any Cause before the said Courts of Common Pleas. Be it enacted and Declared by the same Authority, That the Court of Appeals shall be deemed and adjudged to have an Appellate Jurisdiction, with all the Power necessarily annexed to such Jurisdiction ; and that it shall hence- forth belong to the Provincial Court of Appeals to determine the Question when security shall be requisite, and the sufficiency thereof, and the Ad- mission, Dismission, or Remission of Appeals, and the supply of the Defects of the Record and of the Effect of the Appeal as a Supersedeas of all or any Proceedings in the Lower Courts for the stay of Execution on the Judgment of the same, or any Process of the nature of Execution, with Authority also to make Rules and Orders, to regulate, effectuate and accel- erate the Proceedings in all causes of Appeal, for the Advancement of justice, and to prevent unnecessary Delays and Expence in the same. And, where Appeals are brought by Executors, Administrators, Cura- tors, Tutors or Guardians, the Plaintiff shall not have Execution, nor any Process in the nature of Execution, without such security first given as the Court of Common Pleas in their Discretion shall direct, to refund the Damages and Costs, in case the Judgment shall be reversed, together with such Costs as the Court of Appeals may award. And, for the more convenient Dispensation of Justice in small Causes. It is enacted and Ordained by the same Authority, that it shall and may be lawful for his Excellency the Governor, or the Commander in Chief of the Province for the Time being, by and with the advice and consent of His Majesty's Council, to appoint by Commission such and so many Persons as he shall Judge fit, and for such Parts of the Province as he shall think proper, to hear summarily, and to determine finally, without Appeals, all Matters of Debt of Ten Pounds or under; and it shall likewise be lawful tor His Excellency the Governor, or the Commander in Chief for the Time being, by and with the Advice and Consent of His Majesty's Council, to regulate the Fees to be taken by the Persons so commissioned, and by their Subordinate Officers, and to direct a mode of proceeding for them, where- of, and the extent of their Jurisdiction respectively, a Notification shall be published in the Quebec Gazette, for the Information of all Persons whom it may concern. Whereas there are many Thousands of Loyalists and others settled in the Upper Countries above Montreal, and in the Bays of Gaspy and Cha- leur, below Quebec, whose ease and convenience may require that addi- tional Districts should be erected as soon as Circumstances will Permit ; It is Enacted and Ordained by the Authority aforesaid, That it may be lawful for the Governor or Commander in Chief for the Time being, with the Advice and Consent of the Council, to form, by Patent, under the Seal of the Province, one or more new Districts, as his Discretion shall direct, and to give Commission to such Officer or Officers therein as may be neces- sary or conducive to the ease and convenience of His Majesty's Subjects tesiding in the remote Parts of the Province. And be it further Enacted by the Authority aforesaid, That no Process of Attachment, except in the case of the Dernier Equippeur, according to the usage of the Country, shall hereafter be issued for Attaching the Estate, Debts and Effects of what Nature soever, of any Person or Persons whomsoever, whether in the Hands of the Owner, the Debtor, or a Third Person prior to Trial and Judgment, except where there be due Proof on Oath (to be indorsed on the Writ of Attachment) to the Satisfaction of one of the Judges of the Court issuing the same, that the Defendant, or Proprietor of the said Debts and Effects, is indebted to the Plaintiff in a Sum exceeding Ten Pounds, and is about to secrete the same, or doth abscond, or doth Suddenly intend to depart from the Province, with an Intent to Defraud his Creditor or Creditors, and that the Defendant is then indebted to the Plaintiff, and he doth verily believe that he shall lose his Debt, or sustain Damage, without the Benefit of such Attachment. Provided always, That nothing herein contained shall be construed to the Prejudice of the Rights of Landlords, in their legal Course, for the 188 Constitutional Documents of Canada. [1774-1791 Recovery of Rents, according to any former Mode of Proceeding by any Law, usage, or Custom whatsoever; and provided also, that whenever the Defendant or Debtor shall either pay the Debt and Costs, or give Security to the Sheriff or Officers for the goods so attached, as in Cases of Bail on Personal Arrests, subject to Justification in Court to answer the Value of the Goods, and abide the Judgment of the Court, the same shall be forth- with restored; and for that Purpose the Defendant or Debtor shall be allowed Forty Eight Hours, after which Period, if the Debt and Costs be not paid, nor Security given, the Goods so seized shall remain attached, and held by the Sheriff or Officer to answer the Judgment of Law. Be it further Enacted by the Authority aforesaid, That the additional Regulations hereby Enacted shall be in force until the end of the Sessions that shall be held in the Year of our Lord 1789, or as long as the Ordinance hereby renewed; and that the Ordinance passed in the Twenty-fifth year 01 the Reign of his present Majesty, intituled, "An Ordinance for granting a "limited Civil Power and Jurisdiction to His Majesty's Justices of the "Peace in the Remote Parts of the Province" be no longer in force than until Such Small Jurisdictions as by this Act are authorized shall be actu- ally erected. Enacted and Ordained by the Authority aforesaid, and passed in Council under the Public Seal of the Province, at the Council Chamber, in the Castle of St. Lewis, in the City of Quebec, the 30th of April, in the 27th Year of the Reign of our Sovereign Lord George the Third, &c &c &c, and in the Year of our Lord 1787. By His Excellency's Command. XLV ORDINANCE RE CRIMINAL COURTS, 30 APRIL, 1787' [Trans.: Shortt and Doughty.] An Ordinance to Explain and Amend an Ordinance for establishing Courts of Criminal Jurisdiction in the Province of Quebec. Whereas it is expedient that public Officers should be established in the several Parishes of this Province, under the Denomination of Peace Officers; It is Enacted and Ordained, by his Excellency the Governor and the Legislative Council, That all and every the Captains, and other Officers of Militia in the said several Parishes of this Province, duly commissioned by His Excellency the Governor, or the Commander in Chief for the Time being ,and likewise the Serjeants named and appointed by the said Captains and other Officers in the respective Parishes, be, and they are hereby declared to be Public and Peace Officers within their respective Parishes and authorized and enjoined to do and exercise all and singular the Duties and Services of Public and Peace Officers within their respective Parishes according to Law. And be it further Enacted by the same Authority, That it shall be Lawful for the Commissioners, or Justices of the Peace, assembled in Quarter Sessions, or by a Majority of the same, and they are hereby re- quired, as soon as conveniently may be ,to name and appoint such and so many Persons as they may think sufficient, within the Towns and Banlieus of Quebec and Montreal, for carrying into Execution the orders and De- crees of the several Courts, and to preserve the Public Peace therein, every of which Persons so appointed shall faithfully perform the Duties of the Offices for which he may be so appointed for the space of one year ; pre- vious to the expiration whereof it shall be the Duty of the said Commis- sioners or Justices of the Peace annually to appoint others to serve in their stead, and to increase or diminish the number first appointed, as to them shall appear to be most for the Public Weal and Safety ; and that no such 1 This is an amendment to the Ordinance of 4 March, 1777 (No. XXXII.) 1774-1791] Constitutional Documents of Canada. 189 appointment shall be valid in Quebec or Montreal, and their Banlieus respectively, in the Case of a Civil or Military Officer, or in any Person in Priest's Orders, or in the Profession or Practice of Physic or Surgery, or any Miller, Ferryman, Schoolmaster, or Student of any College or Seminary, or any Person not of full Age: or for neglecting or refusing to perform the said Office or Offices there shall be the Forfeiture of Twenty Pounds, to be recovered in any Court of Record, with Costs of Suit, by Bill, Plaint, or Information, in which no Essoign, Wager, of Law, or any more than One Imparlance, shall be allowed. (signed) DORCHESTER. 30 April, 1787. XLVI DEBATE ON LYMBURNER'S EVIDENCE [Trans. : Shortt and Doughty.] On May 16, 1788, Mr. Powys moved in the House of Commons, that Mr. Adam Lymburner, Agent of that section of the population in Canada, French and English, desirous of having a House of Assembly, &c., be heard at the Bar of the House in support of the petition from Quebec of 24th Nov., 1784 1 . Mr. Lymburner being admitted read a paper pointing out the defects of the system of laws then administered in the Province and the need for a remedy. This paper is given in Canadian Archives Q. 62A-1, pp. 1-101. After he had withdrawn, a debate followed which is quite fully reported in Hansard, Vol. 27, pp. 511-533. The substance of the debate, however, is given in the following summary from The London Chronicle (May 15-17, 1788). "Mr. Powys entered into a detail of circumstances and the allegations contained in the petitions. He stated it as the general wish of the Cana- dians, that some determinate code of laws should be established in that Province, and that they might not henceforward be subjected to the sole ordinance of a legislative Council, appointed by the Crown, and removable at the pleasure of the Crown. They wished to have a House of Assembly instituted in the province, and the English laws in general extended to them. He observed, that they had not the privilege of Habeas Corpus; at least it was not a part of their constitution, though it might be occasion- ally allowed them. They were deprived of the trial by Jury, except in a tew instances. As to the Council, above alluded to, it ought not to exist ; for, in the opinion of the best informed and most elegant historian of the present age (Mr. Gibbon), where the legislative power is appointed by the executive department, it is a sure criterion of a despotic government. The petitioners wished to be put on the same footing with the provinces of Nova Scotia and New Brunswick, which have a House of Assembly, and partake of the blessings of English laws 2 . He thought their request was just and reasonable, and merited the attention of the House. He concluded with moving, That it is the opinion of this Committee, that the petitions from Quebec merit the serious and immediate attention of the House. Sir Matthew White Ridley seconded the motion. The laws, he said, were in Canada vague and undefined ; and wherever this is the case, very great abuses are the consequence. He hoped, that if the House should not find time in the remainder of this session to come to any ultimate decision on the subject, they would at least adopt a resolution that might give the Canadians good reason to hope for a determination in their favour in the succeeding session. The Chancellor of the Exchequer agreed with the Hon. Mover, that the 1 See No. XXXVIII. 1 In Nova Scotia a House of Assembly was constituted in 1758 (see Selections from the Public Documents Relating to Nova Scotia, Halifax, 1869). A House of Assembly was provided for when New Brunswick was constituted a province in 1784 (see Dominion Sessional Papers XVI, No. 70). 190 Constitutional Documents of Canada. [1774-1791 petitions deserved the serious attention of the House; but nothing could be done immediately in the business. Parliament, he said, was not ripe for the discussion of an affair of such magnitude as the framing of a con- stitution for a large, flourishing and growing province. A sufficient body of information had not been transmitted from that colony, to enable the House to determine upon the merits, of the subject contained in the peti- tions. As to the appointment of a House of Assembly, though he was inclined to recommend that mode of legislation, he had strong doubt whether it would be proper at this time, when the province was -in a state of heat and fermentation. A popular Assembly would not tend to allay that heat. The privilege of Habeas Corpus was ordered by the Legislative Council of Quebec, to be granted to the inhabitants; so that they had no reason to complain in that particular. He was not pleased with the motion in its present form. Mr. Fox ridiculed the idea that Parliament was not ripe for the forma- tion of a constitution for Quebec. Could it be supposed that, after that province had been in our possession for the space of 25 years, sufficient information had not been procured to authorise a complete determination upon what laws were most expedient for the government of it? He charged His Majesty's Ministers with great neglect, and even with being unfit for the offices they held as they had not taken the proper steps to accelerate this business. The Chancellor of the Exchequer vindicated himself from the charge of neglect; and Mr. Fox rejoined. Mr. Marsham thought the House ought to pass a bill immediately for extending the Habeas Corpus Act to Quebec; that it might no longer be considered as a mere favour or indulgence to the inhabitants, but as a matter of right. He also proposed, that after the Chairman should have left the chair, the House should pledge itself to enter fully into this business early in the next session. Mr. Sheridan regarded the Ministry as culpable, for having so long neglected the proper adjustment of the laws for the province of Canada. Mr. Alderman Watson remarked, that great inconveniences arose in Canada from the bad administration of bad laws, and hoped that the British laws, in general would be extended to that province. Mr. Martin was convinced of the propriety of coming to a speedy determination on this head. Sir James Johnstone was friendly to the prayer of the petitions; but wished that the discussion might be postponed till next session. Mr. Burke agreed to the motion. Mr. C. L. Smith, Sir W. Dolben, Sir Herbert Mackworth, and Sir Watkin Lewes, also spoke on the occasion. The Chancellor of the Exchequer having moved, that the Chairman leave the Chair, instead of putting the question on Mr. Powys's motion, a division took place ; when the numbers were, for the Minister's motion 104, against it 39, majority 65. Mr. Poivys then moved, that this House will, early in the subsequent session, take into consideration the petitions from Quebec. 1774-1791] Constitutional Documents of Canada. 191 XLVII ' SYDNEY TO DORCHESTER 1 [Trans. : Shortt and Doughty.] Whitehall, 3d Sept., 1788. My Lord. Your Lordship will have seen, by the proceedings which took place in Parliament in the course of the last Session, the Arguments which were made use of on the Introduction of the Petition brought by Mr. Lymburner from Quebec, for a Change of the present Constitution of the Province, and the reasons which occurred to His Majesty's Ministers for avoiding any decision upon that very important Subject. It will, however, be absolutely necessary that it should be resumed very shortly after the next meeting, and it will, of course, be a matter of great importance to His Majesty's Servants, that they should be previously prepared to enter into a full discussion of the business, and to propose such arrangements as may be found to be expedient for removing every just and reasonable cause of complaint that may exist among His Majesty's Subjects, of any description whatsoever, who are Inhabitants of that Province. The variety of applications which have from time to time been trans- mitted from thence upon this business, of so opposite a tendency to each other, render it extremely difficult to fix upon any Arrangements calculated to satisfy all the Parties interested in, or connected with it; His Majesty's Servants however, are desirous to give the matter a full consideration and that they may be the better enabled to form a competent judgment of the steps adviseable to be taken, they are solicitous of obtaining from Your Lordship a full and impartial account of the different Classes of Persons who desire a Change of Government, as well as of those who are adverse to the Measure, specifying, as nearly as it can be ascertained, the Propor- tion of Numbers and Property on each side in the several Districts; and, That your Lordship at the same time should state in what manner, either the interests, or influence of the latter, might be affected by any alteration, and what is the Nature and grounds of their apprehensions from the Introduction of a greater Portion of English Law, of a System of Govern- ment more conformable to that established in other British Colonies. In particular, They wish to be informed from what Causes the objec- tion of the old Canadian Subjects to an House of Assembly chiefly arises: Whether, from its being foreign to the Habits and Notions of Government in which they have been educated, or, from an apprehension that it would be so formed as to give an additional Weight to the New Subjects, and lead to the introduction of Parts of the English Law which are obnoxious to them ; or, from an idea that being invested with a Power of Taxation, it would eventually subject their Property to Burthens from which they are at present exempted; In like manner, whether the Objections which appear to exist to a farther Introduction of Trial by Jury, arise either from Prejudices against the Nature and Mode of such a decision, or from the difficulty of finding Jurors properly qualified, and the inconvenience to Individuals of the necessary Attendance; or from the Notion of this species of Trial being necessarily coupled with Modes of Proof and Rules of Law, different from those to which they are accustomed. Though several of these points have already been noticed by Your Lordship in some of your Letters to me, and in the Papers which accom- panied them, yet His Majesty's Servants do not think that they are suffi- ciently explicit to enable them to form a decided opinion. The anxiety of His Majesty^s Servants to be perfectly informed with 1 This document illustrates the anxiety of the British Government to understand Canadian affairs as fully as possible before making any change in the Constitution. Thomas Townshend, Baron, afterwards Viscount Sydney, became Secretary of State for the Home Department December 23, 1783. 192 Constitutional Documents of Canada. [1774-1791 regard to all these matters as soon as possible, has induced them to send out an Extraordinary Packet Boat, and they are in hopes of receiving from Your Lordship upon her return, a full communication of the Sentiments entertained upon these several heads of enquiry, and which communication they wish to be made in a manner that may be proper to be laid before Parliament at the next meeting. I find, upon an examination of the Plans submitted by Your Lordship's predecessor 1 , that the most considerable part of the disbanded Troops and Loyalists who have become Settlers in the Province since the late War, have been placed upon Lands in that part of it which lie to the Westward of the Ceders", and beyond those Lands (excepting only Detroit and its Neighbourhood) which are granted in Seigneurie; as these People are said to be of the number desirous of the Establishment of the British Laws, It has been in Contemplation to propose to Parliament a division of the Province, to commence from the Boundary Line of the Seigneurie granted to Monsieur de Longueil, and to take in all the Country to the Southward and Westward in the manner described in the inclosed paper. But, before they take any step towards the execution of this measure, they are de- sirous of receiving the advantage of Your Lordships opinion how far it may be practicable or expedient; or, whether any other line or mode of separation would be preferable. Your Lordship will however understand, that it is The Kings intention that the New Settlers in that part of the Province who now hold their Lands upon Certificates of Occupation, shall, at all events, be placed upon the same footing in all respects, as their Brethren in Nova Scotia and New Brunswick, by having their Lands granted to them in free and Common Soccage, with a Remission of Quit Rents for the first Ten Years; and Instructions will be prepared accord- ingly, as soon as Your Lordship's opinion upon the plan abovementioned shall be obtained. With a view to the execution of the Plan in question, it will be neces- sary for you to consider, previously to your Report upon it, what sort of Civil Government ought to be formed for its internal arrangement, & whether the Number and description of the Inhabitants and other Cir- cumstances are such as do, or do not, make the immediate Establishment of an Assembly within this district, practicable and adviseable. At all events It will be natural, as the greatest Part of these New Settlers are attached to the English Laws, that that System should be introduced as the general Rule, with such Exceptions or Qualifications as particular and local Circumstances may appear to require ; At the same time Your Lord- ship will attend to the situation to which the Old Canadian Settlers at Detroit would be reduced, provided it may be found expedient, in conse- quence of the Information which the King's Servants expect to receive irom Your Lordship, (and by which you will understand they mean in a great degree to be guided) to resist the Application for any Change of the Constitution of the remaining part of the Province; and, Your Lord- ship will also consider, in case of such a determination, in what part of the Province within the reserved limits, the Settlers at Detroit, if they should desire to be removed, might be accommodated with Lands the best suited to their advantage. I am &c., SYDNEY. 1 General Haldimand. 1 The rapid* on the St. Lawrence below Lake St. Francis. 1774-1791] Constitutional Documents of Canada. 193 XLVIII DORCHESTER TO SYDNEY 1 [Trans. : Shortt and Doughty.] Quebec, 8th November, 1788. My Lord, The Province of Quebec consists at present of seven districts or counties ; Quebec and Montreal in the central parts, Gaspe at and near the mouth of the Saint Lawrence, and the country, west of Point au Boudet, divided into the four districts of Luneburg, Mecklenburg, Nassau, and Hesse. The Canadians, or new subjects, occupy the districts of Quebec and Montreal, and some are also to be found in the districts of Gaspe, and Hesse. The three districts 1 of Luneburg, Mecklenburg, and Nassau, are inhabited only by the loyalists, or old subjects of the Crown. The Commerce of the country being chiefly carried on by the English occasions a considerable mixture of inhabitants in the towns of Quebec and Montreal, nearly in the proportion of one British to two Canadians Some of the former are also settled at Three rivers, Terrebonne, Wil- liam Henry, Saint Johns, and the entrance of Lake Champlain, and a small number are dispersed among the Canadians in the country parishes ; the fur trade has collected some hundreds at Detroit, as the fisheries have at the bay of Chaleurs, and other parts of the district of Gaspe. The proportions of British and Canadians in the two districts of Quebec and Montreal, exclusive of the towns, may be about one to forty, in the same districts, inclusive of the towns, one to fifteen, in the district of Hesse one to three, in the district of Gaspe two to three, and in the whole prov- ince, taken together, about one to five. A change of the laws and form of government, by the introduction of an Assembly, is chiefly promoted by the commercial part of the com- munity, in the towns of Quebec and Montreal. The Canadian Habitans, or farmers, who may be stiled the main body of the freeholders of the country, having little or no education, are unacquainted with the nature of the question, and would, I think, be for, or against it, according to their confidence in the representations of others. The Clergy do not appear to have interfered. But the Canadian gentlemen in general are opposed to the measure; they object to the introduction of a body of new laws, to the extent and tendency of which they are strangers ; they ex- press apprehensions of much disquietude among the people from the introduction of an assembly, and conceive that the low state of learning and knowledge in the country would lay them open to the pursuit and adoption of wrong measures, and to dangers, which a more enlightened people would not be exposed to. The fear of taxation, I take for granted, is among the motives of those, who are adverse to the change, and would no doubt strongly influence the sentiments of the common people, if they should come to consider the merits of the question. The objections, which appear to exist to a farther introduction of the trial by jury, arise partly from prejudice, and partly from an idea, that the choice would be narrow, and render it difficult to find jurors, totally disinterested. In addition to these observations, it may be proper to mention, that the population of this country is chiefly confined to the margin of the waters from the western side of the gulph of Saint Lawrence in the dis- trict of Gaspe, to the settlements at and above Detroit, a chain of not less than eleven hundred miles; and that, though the ancient settled parts of the districts of Quebec and Montreal, from Kamaraska to Point au Boudet (comprehending about three hundred and seventy miles of the above line) may find no great burthen in the expence of a representation, it may be otherwise with the inhabitants newly set down in Gaspe, Lune- 1 Dorchester's reply to the despatch of 3 Sept., 1788 (No. XLVII). 2 The Districts of Lunenburg, Mecklenburg, Nassau and Hesse were erected and denned by Patent dated fuly 24, 1788. M 194 Constitutional Documents of Canada. [1774-1791 burg, Mecklenburg, Nassau, and Hesse, and that the inconveniencies and charges of assembling, from parts so distanct, would be increased by the nature of the climate, which renders the roads for several months in the year difficult, if not impracticable. A division of the province, I am of opinion, is by no means advise- able at present, either for the interests of the new, or the ancient districts, nor do I see an immediate call for other regulations, than such as are in- volved in the subject of the general jurisprudence of the country. Indeed it appears to me, that the western settlements are as yet unprepared for any organization, superior to that of a county. This has lately been given to them, and will, I trust, answer their present wants, if I except Hesse, whose commercial and complicated affairs call for a particular provision, now under the .consideration of a Committee of the Council. But though I hold a division of the province at present inexpedient, yet I am of opin- ion, that no time should be lost in appointing a person of fidelity and ability, in the confidence of the loyalists, to superintend, and lead them, and to bring their concerns with dispatch to the knowledge of govern- ment, under the title of Lieutenant Governor of the four western districts above named. Should a division of the province notwithstanding be determined by the wisdom of His Majesty's Councils, I see no reason, why the inhabi tants of those western districts should not have an Assembly, as soon as it may be organized without detriment to their private affairs, nor against their having so much of the English system of laws, as may suit their local situation, and condition. But in this case particular care should be taken to secure the property and civil rights of the Canadian settlers at Detroit, who, I am convinced, would not chuse to emigrate, though good lands might be given them in the lower parts of the province. But, should they chuse to move, it would be attended with much inconvenience, as would their being left insulated, and attached to the district of Montreal. With respect to proper limits for the new government, in the event of a separation, I would recommend those described in the annexed paper, which will comprehend all the settlements of the loyalists on the river Saint Lawrence above Point au Boudet, and those also lately laid out for them on the south side of the Uttawas river. I am with much respect and esteem Your Lordship's most obedient, and most humble servant, DORCHESTER. THE PROPOSED LINE OF DIVISION. To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of pointe au Bodet, in the limit between the township of Lancaster, and the seigneurie of New Longueuil, running along the said limit in the direction of North, thirty four degrees west, to the westernmost angle of the said seigneurie of New Longueuil, thence along the north western boundary of the seigneurie of Vaudreuil running north twenty five degrees east, until it strikes the Ottawas River, to ascend the said river in to the lake Temiscaming, and from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's bay, including all the territory to the westward and south- ward of the said line to the utmost extent of the country commonly called or known by the name of Canada. D. 1774-1791] Constitutional Documents of Canada. 195 XLIX FINLAY TO NEPEAN [Trans. : Shortt and Doughty.] Quebec, 9th february, 1789. Dear Sir The great question, whether a House of Assembly would contribute to the welfare of this Province in its present state? has been so fully dis- cussed that the subject is entirely exhausted both old and new subjects here, who have openly declared their sentiments, now composedly wait the decision of the British Parliament with respect to Canadian Affairs. It was, in my humble opinion, a wise measure to endeavour to draw from every quarter as much information as could possibly be had there has not been any restraint on the people they have said all they had to say. The petitions and counter petitions to His Majesty, (which have no doubt ere now reached the foot of the Throne) have been published in our Gazette. I am ignorant of Lord Dorchester's way of thinking relative to a house of the representatives of the people; I do no believe that he has confided his opinion on that head to any person on this side of the Atlantic. Every thing considered relative to the present situation of this Prov- ince, I confidently believe that a constitution founded on the 12th Article of His Majesty's instructions to the Governor General 1 , would be the fittest for this Country in its actual state. We might make the people entirely English by introducing the English language. This is to be done by free schools, and by ordaining that all suits in our Courts shall be carried on in English after,.a certain number of years. I have never been able to perceive why the Laws of England should not be the rule for the decision in all cases of personal actions grounded upon debts, promises contracts and agreements whether of a mercantile or other nature, and also of wrongs proper to be compensated in dammages. Nor have I been able to see that it would be expedient to alter the Laws Customs and usages that have hitherto in Canada governed in all contro- versies respecting Titles of lands, and the tenure, descent, alienation, in- cumbrances, and settlements of real Estates, and the distribution of per- sonal property of persons dying intestate. The advocates for a House of Assembly would say that this Plan stands on too narrow a bottom: nothing short (say they) of Power to Tax can ever give a spur to Trade, or rouse the indolent habitant to in- dustry and as England holds her Colonies for the sole purpose of ex- tending her Commerce, the power to raise money must be granted to the people in this Province to render it of real utility to the Parent State. Some people remark that the Canadians were not consulted before the Criminal Law of England was introduced into this Province it was given them for their good: it may therefore (they conclude) be well left to the wisdom of a British Parliament to make all the changes in the Constitution of this Country now become necessary from the acquisition of so many thousands of His Majesty's natural born subjects as settlers among us. The Mass of the Canadians are not yet qualified to Judge of the matter they could not reason on the proposed change : they'll be happy under any well regulated Government, and perfectly contented whilst they remain exempted from Taxes, provided no alarm shall be sounded to rouse apprehensions touching the safety of their religion. The Seigneurs, I presume, will ever oppose proposals tending to alter the present System, as I believe that they conceive their consequence de- pends on the support of that System : but of what consequence can a Canadian Seigneur be in an English commercial Province ! He enjoys no particular privileges in the Society He has no legal command over his 1 See No. XLII. 196 Constitutional Documents of Canada. [1774-1791 tenants, nor are they in general look'd up to for their superior knowledge. Their fortunes are for the most part but very slender : yet you may have seen by their late publications here that they pretend to a consequence which but few (not of that class) are willing to allow them. Among the number there's sensible well informed Gentlemen who are in estimation with all ranks of the people, but it would be as hard to root out the prejudices of an Englishman in favour of the British Constitu- tion, as it will be to undo the predilection that a Canadian gentleman has for that form of Government which we found established here at the con- quest of the Country. A Canadian Seigneur speaks thus : "The Laws, ancient usages, and "customs of our Province would soon be abolished if the King's natural "born subjects should succeed in their application for a House of Assem- "bly. We wish to preserve our Laws in full force to the end of time. We "have an undoubted claim to share all places of honor or profit in the "service of Government in proportion to our numbers. That we have uni- formly adhered to these demands, let our addresses 1 of 1784 and 1788 "bear testimony." On these remarks, I will Just observe, that as the house of Represen- tatives would be composed of a Majority of Canadian free-holders, they would not alter the Laws without being fully satisfied that they stood in need of alteration. The King makes no distinction between a man born in Canada and one born in middlesex we are all His Majesty's subjects He is the foun- tain of honor His Royal favor will extend to the worthy, be they new or be they natural born subjects. 1 have the honour to be, Dear Sir, Your obliged and very faithful servant. HUGH FINLAY. My Lord, L GRENVILLE TO DORCHESTER [Trans. : Shortt and Doughty.] Whitehall, 20th Octr., 1789. The public dispatches' of this date will inform your Lordship of the intention of His Majesty's Servants, with respect to the plan to be pro- posed in Parliament for altering the present Constitution of Canada. 1 feel that it is due to your Lordship, that I should inform you of the grounds on which this resolution has been adopted, in a more particular manner than the nature of a public dispatch appears to admit; and, for that purpose, I inclose to your Lordship in confidence, a paper containing the heads of those suggestions, on which the present measures are founded. I am persuaded that it is a point of true Policy to make these Conces- sions at a time when they may be received as matter of favour, and when it is in Our own power to regulate and direct the manner of applying them, rather than to wait 'till they shall be extorted from us by a neces- sity which shall neither leave us any discretion in the form, nor any merit in the substance of what We give. I am ignorant how far your Lordship's Opinion coincides with the ideas stated in the inclosed paper. One point I observe, and have alluded to in my public Letter, on which you have stated Objections; but I think they are such as apply to the present state of the Province, rather than to what it would be under a different form of Government With regard to the remainder, it would certainly give me great satis- Se No. XL and XLI. * See No. LI. William Wyndham Grenville, afterwards Lord Grenville, succeeded Sydney as Secretary for the Home Department in June, 1789. 1774-1791] Constitutional Documents of Canada. 197 faction if I could find the opinions which I entertain confirmed by your Lordship's experience and knowledge of the Subject. But, in all events, I have not the smallest doubt of your Lordship's wish to co-operate in carrying into execution, in the most advantageous manner, that Plan which Parliament shall ultimately adopt, on a subject which has been so long before them; and I trust you will see the im- portance in this point of view, of your delaying your visit to this Country, 'till after the new Government shall have been put in motion. There is one subject adverted to in the paper which I now enclose, of which no mention is made, either in the Bill 1 now transmitted to your Lordship, or in the dispatch which accompanies it. What I mean is, the suggestion relative to the possibility of making such reservations of Land adjacent to all future Grants, as may secure to the Crown a certain and improving Revenue. A Measure, which, if it had been adopted when the Old Colonies were first settled, would have retained them to this hour in obedience and Loyalty. I confess that I am very particularly anxious to find myself sufficiently informed to be able to recommend to His Majesty, the adoption of some system of this nature, in His remaining Colonies, and I should therefore feel myself obliged to your Lordship, if you would consider it with attention, and state to me your Sentiments, both as to the general principle, and as to the best mode of carrying it into effect, in the different Provinces under the King's Government in North America. Your Lordship will perceive, by the different accounts, which you will receive from Europe, that the state of France is such, as gives Us little to fear from that quarter in the present moment. The opportunity is therefore most favourable for the adoption of such measures as may tend to consolidate Our strength, and increase our resources, so as to enable Ourselves to meet any efforts that the most favorable event of the present troubles can ever enable her to make. I am, &c., W. W. GRENVILLE. LI GRENVILLE TO DORCHESTER / [Trans. : Shortt and Doughty.] Whitehall, 20th Octr., 1789. My Lord, It having been determined to bring under the consideration of Par- liament early in the next Session the propriety of making farther pro- vision for the good government of the Province of Quebec, I enclose to your Lordship the draught of a Bill 1 prepared for this purpose. His Majesty's Servants are desirous, before this Plan shall be pro- posed to Parliament, to avail themselves of such observations upon it as your Lordship's experience and local knowledge may suggest. It is prob- able that Parliament may not meet till towards the end of January next, and that there will therefore be full time for me to receive your Lord- ship's answer to this dispatch with such remarks as may occur to you on the proposed Bill, and with such information as may be necessary to enable me to supply those particulars of detail which are now left in blank. Your Lordship will observe that the general object of this plan is to assimilate the Constitution of that Province to that of Great Britain, as nearly as the difference arising from the manners of the People and from the present Situation of the Province will admit. In doing this a considerable degree of attention is due to the pre- judices and habits of the French Inhabitants who compose so large a proportion of the community, and every degree of caution should be 1 The first draft of the Constitutional Act of 1791. It is given in Shortt and Doughty, p. 667. 198 Constitutional Documents of Canada. [1774-1791 used to continue to them the enjoyment of those civil and religious Rights which were secured to them by the Capitulation of the Province, or have since been granted by the liberal and enlightened spirit of the British Government. This consideration has had a great degree of weight in the adoption of the plan of dividing the Province of Quebec into two Districts which are to remain as at present under the administration of a Governor General, but are each to have a Lieut. Governor and a separate Legislature. The King's Servants have not overlooked the reasons urged by your Lordship against such a separation 1 , and they feel that while Canada re- mained under its present form of Government great weight would have been due to those suggestions; but when the resolution was taken of establishing a Provincial Legislature, to be constituted in the manner now proposed, and to be chosen in part by the People every consideration of policy seemed to render it desirable that the great preponderance pos- sessed in the Upper Districts by the King's antient Subjects, and in the lower by the French Canadians should have their effect and operation in separate Legislatures ; rather than that these two bodies of People should be blended together in the first formation of the new Constitution, and before sufficient time has been allowed for the removal of antient pre- judices, by the habit of obedience to the same Government, and by the sense of a common interest. With respect to the intended Boundaries of these Provinces a blank is left in the Bill in order that your Lordship may, with the assistance of the Surveyor General, who is now in Quebec, consider of such a descrip- tion of those Boundaries as may be sufficiently intelligible and certain, so as to leave no room for future difficulties on that subject. The division between the two Provinces is meant to be the same as is mentioned to your Lordship in Lord Sydney's Letter of 3d Sept., 1788, with the alter- ation suggested by your Lordship in your Letter of the 8th November following*. There will however be a considerable difficulty in the mode of de- scribing the Boundary between the District of Upper Canada and the Territories of the United States. As the adhering to the Line mentioned in the Treaty with America would exclude the Posts which are still in His Majesty's Possession, and which the infraction of the Treaty on the part of America has induced His Majesty to retain, while on the other hand the including them by express words within the Limits to be estab- lished for the Province by an Act of the British Parliament would prob- ably excite a considerable degree of resentment among the Inhabitants of the United States, and might perhaps provoke them to measures detri- mental to Our Commercial Interests. Possibly the best solution for this difficulty might be to describe the Upper District by some general words such as "All the Territories, &c., &c., &c., possessed by and subject to His Majesty, and being to the West or South West of the Boundary Line of Lower Canada, except such as are included within the present Boundaries of the Government of New Brunswick. In settling this point of the Boundaries it will also be a question, whether the Fishing Settlement in Gaspe may not with advantage be an- nexed to the Government of New Brunswick rather than to be left as a part of that of Lower Canada under the system now proposed to be estab- lished particularly as the local Circumstances of that District might render a representation of it in an Assembly at Quebec extremely difficult if not impracticable. The Legislature in each of the Two Provinces is intended, as your Lordship will observe from the draught of the Bill, to consist of His Majesty represented by His Governor, or Lieutenant Governor, a Legis- lative Council, and a House of Assembly. It is intended to separate the Legislative from the Executive Council 1 See No. XLVIII. See Nos. XLVII and XLVIII. 1774-1791] Constitutional Documents of Canada. 199 and to give to the Members of the former a right to hold their Seats during their Life and good Behaviour, provided they do not reside out of the Province, or attach themselves to any Oath of allegiance or Obe- dience to the United States, or to any other Foreign Power. It is the King's farther intention to confer upon the Persons whom he shall distinguish by calling them to His Legislative Council some mark of Honour, such as a Provincial Baronetage either personal to themselves, or descendible to their Eldest Sons, in lineal Succession. A great accession of wealth to the Provinces might probably induce his Majesty at a future period to raise the most considerable of these Persons to a higher degree of Honour, but this could certainly not be done with propriety under the present Circumstances. The Object of these regulations is both to give to the Upper branch of the Legislature a greater degree of weight and consequence than was possssed by the Councils in the Old Colonial Governments, and to estab- lish in the Provinces a Body of Men having that motive of attachment to the existing form of Government, which arises from the possession of personal or hereditary distinction. It will be very necessary that great attention should be paid to the choice of those Persons who are to be placed in this situation in the first instance, and of those whom His Majesty may be advised from time to time to add to that number; and as your Lordship's long knowledge of the Province and of the Individuals who compose the higher classes of the Community, must render your Lordship more particularly competent to such a Selection, I must desire that your Lordship will consider this point with that degree of attention to which its importance entitles it, and that you will state to me the names of those Persons whom you may think fit objects of the King's favor in this respect, in each of the Two Provinces intended to be formed. In the draft of the Bill which I enclose, a blank is left for that which is to be fixed as the smallest number of which the Councils are respec- tively to be composed. It is certainly desireable that this number should not be made too large in the first instance, as it would be easy for His Majesty to add to it whenever it may be found expedient, while on the other hand the calling improper Persons to the Council, in order to make up the number required by the Bill would under the system now pro- posed be productive of permanent inconvenience and mischief to His Ma- jesty's Government. Of this point also your Lordship must unquestionably be the best Judge, and I shall be anxious to learn your Sentiments upon it. My present idea, founded, however, rather on conjecture than on any satis- factory information, would be that the Legislative Council in Upper Canada should not consist of less than six Members, and in lower Canada of not less than Twelve ; and that the selection of these Persons should be made with a view to encreasing the number by some addition at no very distant period, as a mark of His Majesty's favor to those Persons whose Conduct may be found to entitle them to it. Your Lordship will also state to me for His Majesty's information, the number and names of those Persons whom you may think proper to lecommend to His Majesty for Seats in the Executive Council. It is by no means intended that the Members of the Legislative Council should be excluded from this Body, or that it should on the other hand be wholly composed of Persons of this description. It may be ad- viseable that some of the Persons named to the Executive Council in one of the Districts, should also be admitted to the same distinction in the other. In providing for the establishment of a House of Assembly in each of the Two Provinces, the first question of detail which occurs is that of the Numbers of which these Bodies should consist, and of the manner in which they should be elected ; particularly with respect to the division of the Provinces into Counties or Districts, and to the relative proportior of Representation to be allowed to the Towns. 200 Constitutional Documents of Canada. [1774-1791 The decision of these points must necessarily depend on local knowl- edge: They are therefore left in blank in the Draft of the Bill, and 1 must desire your Lordship's opinion upon them. I am not sufficiently in- formed whether the present Division of the Counties would be well adapted to the Object in question, or whether a subdivision into Parishes or Districts would be more desireable. I enclose for your Lordship's information a Paper delivered to ma by Mr. Lymburner 1 , containing a Plan of Representation for the Prov- ince; but as far as I am at all enabled to form an Opinion on the Subject, that plan appears to me to be liable to great objection. I also transmit a plan for the same purpose framed by the Board of Trade in 1765*. The next point to be considered is the Qualifications of the Electors, and of the Persons to be elected in each of the Provinces. This is also in great measure a point of local detail, depending on the condition & circumstances of the different Classes of the Inhabitants of the Provinces ; and on which His Majesty's Servants are therefore desirous of receiving your Lordship's Opinion. In the margin of the Bill which I now trans- mit, I have marked the suggestions which have been made to me on this Subject; but I do not feel myself enabled, without farther information, to form any satisfactory Opinion upon them. The remaining Clauses of the Bill do not seem to require much par- ticular discussion in this Letter; Your Lordship will observe by the 27th Clause, that it is intended to continue all the existing Laws of the Prov- ince untill they shall be repealed or varied, by the Legislatures of the re- spective Provinces. An exception is however made and there is a Clause left in blank for the insertion of such Commercial Regulations, if any, which it may be thought expedient to introduce, as exceptions to the Ca- nadian Laws, respecting Property and Civil Rights, previous to investing the Assembly in Lower Canada with a right to negative all future changes which may be proposed. This is a point which is now under the consideration of His Majesty's Law Servants, but as it is probable that I shall receive your Lordship's answer to this dispatch before it may be necessary to come to a final de- cision on this Subject, I shall be glad to be furnished with any suggestions which may occur to your Lordship upon it, as likely to conduce to the ad- vancement and security of the Commercial Interest of this Kingdom, and that of the Province as connected with it The Clause enabling Persons to commute the holding of their Lands into free and comon Soccage is conformable to what your Lordship has lecommended with respect to the Upper Districts, and it seems a measure of good policy to extend the same principle to the lower parts of the Prov- ince, as far as the prejudices of the French Inhabitants will allow. 1^ should wish to know your Lordship's sentiments with respect to the time which might be most convenient for the commencement of this new System, supposing the Bill to be passed in the next Session of Par- liament. I am, &c., W. W. GRENVILLE. 1 See No. XXXIX. This date should be 1769. (See Shortt and Doughty, p. 666, note No. 2.) 1774-1791] Constitutional Documents of Canada, 201 LII DORCHESTER TO GRENVILLE [Trans. : Shortt and Doughty.] Quebec, 8th February, 1790. Sir, I received the triplicate of your dispatch 1 No. 2 on the 20th of last month, and avail myself of the first opportunity to submit to His Majesty's Ministers such observations on the proposed Bill, as occur to me in the moment. The inclosed Draught 3 comprehends the corresponding alterations, en- grafted upon the Bill, transmitted in your letter. The attainment of a free course of Justice throughout every part of His Majesty's possessions, in the way least likely to give umbrage to the United States, appears to me very desirable. For this reason the Boun- daries of the two proposed Provinces are described by a precise Partition line only of the Country of Canada, with the Addition of such general words, as I hoped might include the Territories subject to, or possessed by, His Majesty, to the southward of the forty fifth degree of North Lati- tude on the side of Lake Champlain, as well as on the side of Oswego, Niagara, Detroit, and Michilimakinac, corresponding as nearly as could be, with the idea expressed in your letter. But upon consulting the Chief Justice, relative to the operation of this description of the Boundary, I find, that he does not think it will answer the desired end. The district of Gaspe it seems best for the present to leave annexed to the Province of Lower Canada, on account of its commercial connection with this province, and because, notwithstanding its distance, the com- munication of it with Quebec by water, is easier than its access to the seat of the Government of New Brunswick, in the present condition of that province; the more so, as the difficulty of a representation from that District, in an Assembly at Quebec is greatly diminished, by the opening left in the Bill for non residents of any district being elected Represen- tatives thereof. But the Bay of Chaleurs being subject to different Governments, par- ticularly during the present uninhabited state of that part of New Bruns- wick, gives an opportunity to ill disposed persons to elude the controul of the law, to the detriment of the Fisheries, and good order; a clause to remedy this Evil is therefore inclosed, which, if approved of, may be introduced into the Bill, as an addition to the second clause. Many advantages might result from an hereditary Legislative Council, distinguished by some mark of honor, did the condition of the country concur in supporting this dignity; but the fluctuating state of Property in these Provinces would expose all hereditary honors to fall into dis- regard ; for the present therefore it would seem more advisable to ap- point the members during life, good behaviour, and residence in the prov- ince. The number for Upper Canada to be not less than seven, and for Lower Canada not less than fifteen, to be encreased by His Majesty, as the wealth and population of the Country may require. To give them as much consequence as possible, in the present condition of the Province, they should be selected from among the men of property, where talents, integrity, and a firm attachment to the Unity of the Empire may be found. I shall take the first opportunity of communicating the names of such per- sons, as appear to me the fittest objects of this description. The House of Assembly for Upper Canada might consist of not less than Sixteen, and that for Lower Canada of not less than thirty members, or nearly double in number to the Legislative Councils, to be augmented also in proportion to the Population of the Country. As far as I can judge at present it might be advisable to give the 1 See No. LI. * Printed in Shortt and Doughty, p. 677. 202 C6nstitutional Documents of Canada. [1774-1791 Towns of Quebec and Montreal in Lower Canada, a representation of four members each, and two to the Town of Three Rivers, dividing the Country Parishes thereof into twenty Circles, to send one member each. In Upper Canada the four districts of Luneburg, Mecklenburg, Nassau, and Hesse, to furnish four members each, and hereafter to be subdivided into as many Circles and Towns, as their condition may require. But the present time is too short to enter into a more minute detail, for which reason it is proposed to fix only the smallest number of Members in the Bill, and to leave the actual subdivision and apportionment, necessary for an equal representation, to be ascertained by the Lieutenant Governors, with the advice of the Executive Councils, of the respective Provinces, under authority for that purpose from His Majesty. The qualification of Electors, and persons to be Elected, as to birth, has been extended to inhabitants of the Provinces before and since the conquest, because they may be considered upon an equal footing with the natives, and to foreigners naturalized, because an accession to the Prov- ince of light and property from abroad is desirable, and not likely to injure the King's interest, under the guards proposed. The disqualifications of Persons, attainted for Treason, and Felony, Deserters from the Militia when called out into service, and Bankrupts, until the full payment of their debts, have been added to the fourteenth clause, as a check to these evils, and from a persuasion, that persons of that description are not entitled to any political honors or consequence. On the expediency of inserting any commercial regulations, as excep- tions to the Laws of Canada, previous to investing the Assembly in Lower Canada with a right to negative all future changes, I regret that the com- plicated and professional nature of the subject, prevents my forming any other than a general opinion, that whatever regulations of this sort shall be thought proper to be adopted, should be enacted Specially, unfolded to the people, and not introduced in bulk, and by general description. The introduction of a Soccage Tenure I think necessary in the upper country, and advisable in every part of the province, and this free of Quitrents from all, holding no more than one thousand acres, as recom- mended in my letter to Lord Sydney No. 18. And the Quitrent, which it may be judged proper to lay on large Tracts, should be given up to the Provincial Governments for their Support, that all seeds of discord be- tween Great Britain and her Colonies may be prevented. And independent of this important consideration perhaps the true principle of CEconomy is rather to obviate the necessity of sending money Abroad, than to bring home any from Quitrents or Duties of any Kind. I take for granted, that the benefits, arising to the subject, from a change of the tenure in Fief to that in Common Soccage, are meant to run throughout, as from the King to His Tenant, so from the latter to all his Under-tenants, at the time of change; Otherwise the advantages will be confined to a few, and an interest created unfriendly to the im- provement of the country. Some alterations have been made in the clause relative to this point, with a view of clearing doubt upon the subject. The commencement of the operation of the Act, as to every part, ex- cepting only the issuing the Writs of Election, and calling together the Houses of Assembly of the respective Provinces, has been fixed at such time, as may be declared by His Majesty, with the advice of His Privy Council, not later than Six months after the notification of the Act in this Country, which I think will allow time sufficient for all necessary arrangements, as to these points. But for the Convocation of the Assemblies a more distant period ap- pears to be necessary, for the reasons above stated. As soon as the proper plans for their organization shall have been prepared, His Majesty may order the Assemblies to be convened, as soon as convenient, previous to the first of January, 1792, as suggested in the thirty first clause of the Bill, to which is likewise added a proposal for the temporary Government of the two Provinces in the interval, by the Lieutenant Governors, and Legislative Councils thereof, According to the model of the Quebec Bill. 1774-1791] Constitutional Documents of Canada. 203 Should this be approved, the Royal indulgence of returning to Eng- land for a few months on my private Affairs, would give me an oppor- tunity to lay before His Majesty's Ministers all further explanations in my power on this subject. Before I conclude, I have to submit to the wisdom of His Majesty's Councils, whether it may not be advisable to establish a General Govern- ment for His Majesty's Dominions upon this Continent, as well as a Gov- ernor General, whereby the united exertions of His Majesty's North American Provinces may more effectually be directed to the genral in- terest, and to the preservation of the Unity of the Empire. I inclose a copy of a letter from the Chief Justice, with some addi- tional clauses, upon this subject 1 , prepared by him at my request, together with his draught of an other proposed addition to the Bill, to provide for the trial of foreign treason and murder, as also a copy of his letter re- specting the operation of the Boundary, as described in the Bill, with his idea of the Addition necessary to give free scope to our Courts of Justice. The clause above referred to under the letter B was also pre- pared by him at my request. I am with much respect and esteem, Sir, Your most obedient, and most humble servant. DORCHESTER. LIII CHIEF JUSTICE SMITH TO DORCHESTER [Trans. : Shortt and Doughty.] Quebec, 5th February, 1790. My Lord, The clause inclosed for the Trial of extraprovincial offences appears to me to be necessary to encourage that spirit of Enterprize, which leads our people in the Fur Trade to explore the Depths of this Continent, and has carried them almost over to the Eastern snores of the Pacific Ocean. This Commerce, elsewhere wearing out, by the encreased Population of the northeastern parts of the antient Continent, will soon become the monopoly of our nation. I have couched it in terms least likely of any that occur to me, to excite the Jealousy of our Neighbours. The Bill with the other additions for the intended Reforms in this Country left to be supplied by Your Lordship's local Experience, greatly improves the old model of our colonial Governments; for even those called the Royal Provinces, to distinguish them from the Proprietary and chartered Republics of the Stuart Kings had Essential Faults, and the same general tendency. Mr. Grenville's plan will most assuredly lay a foundation for two spacious populous and flourishing Provinces, and for more to grow out of them ; and compose, at no remote period, a mass of Power very worthy of immediate attention. I miss in it however, the expected Establishment to put what remains to Great Britain of Her Antient Dominions in North America, under one general direction, for the united interest and safety of every Branch of the Empire. The Colonies of England were flourishing Colonies. It was the na- tural effect of the connection, the Character of the People, and the Genius of the English Constitution. Our's will be so too. But that prosperity may be their ruin. And I trust in God that the wisdom, which is dictating the new Arrangements for us, will perfect its work, by a system to pre- vent our repeating the Folly, that has plunged the several parts of the Continent into poverty and distress. Native as I am of one of the old Provinces 2 , and early in the public 1 See Nos. LIU and LIV. 2 Chief Justice Smith was born in New York. He was a member of the Council of New York State before the American Revolution. 204 Constitutional Documents of Canada. [1774-1791 service and Councils, I trace the late Revolt and Rent to a remoter cause, than those to which it is ordinarily ascribed. The Truth is that the Coun- try had outgrown its Government, and wanted the true remedy for more than half a century before the Rupture commenced To what period it continued to be practicable is problematical, and need not now be assigned. To expect wisdom and moderation from near a score of Petty Par- liaments, consisting in effect of only one of the three necessary branches of a Parliament, must, after the light brought by experience, appear to have been a very extravagant Expectation. So it has been to my view above twenty years, and I did not conceal it. My Lord, an American Assembly, quiet in the weakness of their In- fancy could not but discover in their Elevation to Prosperity, that them- selves were the substance, and the Governor and Board of Council mere shadows in their political Frame. All America was thus, at the very out- set of the Plantations, abandoned to Democracy. And it belonged to the Administrations of the days of Our Fathers to have found the Cure, in the Erection of a Power upon the Continent itself, to controul all its own little Republics, and create a Partner in the Legislation of the Empire, Capable of consulting their own safety, and the common welfare. To be better understood by your Lordship I beg leave to put a paper under this cover 1 , in the form of additions to the present proposed Bill, partly suggested by the necessity of something to give a real and useful significancy to Your Lordship's nominal command of more Provinces than this 1 . As to the moment for commencing such an Establishment, that cer- tainly must be the worst, when it shall be most wanted. And since its Erection will speak Intentions, and may give Umbrage, that will be the best time, in which that Umbrage shall excite the least apprehension. The Debility of our Neighbours is notorious, nor can be succoured during the Distractions of France, and the consternation Spread by those Distractions through all Europe. Here in these provinces, where it is of much consequence, to set out with good habits, what juncture can be so favourable, as when the thou- sands thrown into them, under Your Patronage and Direction, have their Loyalty confirmed by Resentments for their Sufferings ; and so are dis- posed to take, and especially from Your hand, whatever the wisdom of Great Britain shall prescribe, as a Gift of her Benevolence. As to Canada, I mean that part of it to become Lower Canada, the Biasses in it, if there are any remaining, to the Stock, from which it was severed, are become perfectly harmless, by that Body of English Loyalty Your Lordship has planted in the West By their aversion to share in the Burdens and Miseries of the Revolted Colonies, and by the growing Dis- cernement, that our safety and Prosperity is only to be found in the Com- merce and Arms of Great Britain. I am old enough to remember, what we in the Maritime Provinces* dreaded from this French Colony in the North, and what it cost to take away that dread, which confined our Population to the Edges of the At- lantic; and my mind is therefore carried, under such an Administration as the present one, into a strong Persuasion, that nothing will be neglected to enable Great Britain, so to serve herself of that Power, she already possesses here, as to check any Councils to be meditated to her Detri- ment, by the new Nation she has consented to create. She may do more ; but this is out of my province. So much, my Lord, You'll forgive me. I could not repress what I owed to the vindication of my Zeal, in the sacrifice of my fortune for the British Interest, and as I think still for the best Interests too of the Country of my Birth. Most of all I owed it to my Sovereign, in whose Grace I found a Relief at the end of the Storm. 1 i.e., No. LIV. * See London Gasette, April 15, 1786, for Dorchester's Commission as Governor of all British North America. 1 i.e. The Maritime Provinces of the former British Colonies. 1774-1791] Constitutional Documents of Canada. 205 With a deep and grateful sense of all Your kindnesses and the honour of your request of my poor abilities, upon questions of so great magni- tude and consequence. I am, My Lord, with the highest respect and esteem, Your Lordship's most humble and most obedient Servant, (Signed) WM. SMITH. LIV PROPOSED ADDITIONS TO THE NEW CANADA BILL FOR A GENERAL GOVERNMENT [Trans. : Shortt and Doughty.] And to provide still more effectually for the Government safety and prosperity of all His Majesty's Dominions in North America, and firmly to unite the several branches of the Empire. (1) Be it also enacted by the same authority that there shall be (with a Governor General) a Legislative Council and a General Assembly for all His Majesty's Dominions and the Provinces whereof the same do now or may hereafter consist in the parts of America to the Southward of Hudson's Bay, and in those seas to the Northward of the Bermuda or Somers Islands; And that His Majesty, His Heirs and Successors shall have power by and with the advice and consent of the said Legislative Council and General Assembly to make laws for the peace, welfare and good Government of all or any of the said Provinces and Dominions: And that such Laws being passed by the said Legislative Council and General Assembly and being assented to by His Majesty, His Heirs and Succes- sors, or being assented to in His Majesty's name by the Person appointed or to be appointed Governor General of the Provinces and Dominions aforesaid, or such person as may be appointed by the Crown to exercise the powers of Governor General on the death or absence of such Governor General, shall be valid and binding on the inhabitants of the said Domin- ions or such part thereof as shall for that purpose be expressed. (2) And be it enacted by the same authority that such Legislative Council may be composed of at least Members from each of the said Provinces to be appointed as His Majesty by His Royal Instruc- tions to the Governor General for the time being shall authorize and direct, who shall hold their several places in the said Council for Life subject nevertheless to such terms and conditions as are herein before declared to be annexed to the trust and station of a member of the Legis- lative Council of either of the said Provinces of Upper & Lower Canada, and saving to His Majesty's Governor General or the Person upon whom that trust by His Majesty's appointment may devolve, power and author- ity from time to time by an instrument under the Great Seal to be cre- ated for the British Dominions in North America, to constitute, appoint and remove the Speaker of such Legislative Council. (3) And be it also enacted by the same Authority that such General Assembly may be composed of such persons as may be elected by the ma- jority of the House of Assembly of the Province for which they serve to be manifested by Triplicate Instruments under the hand and seal of the Speaker thereof to the Governor General, the Speaker of the Legis- lative Council, and the Speaker of the General Assembly. (4) And be it also enacted by the same authority that to give any Acts of the said Governor General, Legislative Council and General As- sembly, the force and authority of a Law, the same shall have been as- sented to in the said Legislative Council by the majority of the voices forming a house of Council, according to His Majesty's appointment thereof, and shall have been assented to in the said General Assembly by such and so many Voices as will make it the Act of the majority of the Provinces, having right to be represented in the said General Assembly, 206 Constitutional Documents of Canada. [1774-1791 and it shall be a house of General Assembly as often as there shall be assembled one or more members duly elected by each of the Assemblies of the said Provinces or of the greater number of such provinces. (5) And be it further enacted by the same authority that it shall be lawful for His Majesty, His Heirs and Successors to authorize and direct His Governor General for the time being or the Person upon whom that trust by His Majesty's Appointment may devolve, in His Majesty's name and by an instrument under the great seal of the British Dominions in North America to summon and call together such General Assemblies in such manner as His Majesty shall be pleased to signify and command by His Royal Instructions to such Governor General. (6) And be it also enacted by the same authority that the Governor General under such instructions as he may have received from His Ma- jesty may assemble the said Legislative Council and General Assembly where, and prorogue and dissolve them, when and as often as he shall judge it necessary, Provided always and be it enacted that they shall be called together one at least in every two years, and continue to have the right of sitting seven years from the Teste or day of the process or summons foi their election unless they shall be sooner dissolved by the Authority afore- mentioned. But no Member either of the said Legislative Council or Gen- eral Assembly shall be permitted to sit or vote in the General Legislature untill he shall have taken such Oath as hereinbefore directed to be taken by the Members of the Legislative Council and Assembly of Upper or Lower Canada, or not being an Inhabitant of either of the said Provinces last mentioned such other oaths and qualifications as are taken to become a Member of the Parliament of Great Britain as by His Majesty's In- structions shall be directed and required. (7) And be it also enacted by the same Authority that whenever any Bill which has been passed by the said Legislative Council and by the said General Assembly shall be presented for His Majesty's Assent to the Gov- ernor General for the time being or the Person exerising that trust under His Majesty's Authority, it shall and may be lawful for such Governor General or other person exercising the said trust, at his discretion, subject nevertheless to such Instructions as he may from time to time receive from His Majesty, His Heirs and Successors, either to declare His Ma- jesty's assent to such Bill, or to declare that he withholds such assent, or that he reserves the said bill untill His Majesty's Pleasure shall be sig nified thereon. And no Bill so to be presented and not assented to in man- ner aforesaid shall have the force of a Law. (8) And be it further Enacted by the same Authority that nothing in this Act contained shall be construed to prevent His Majesty from ap- pointing, erecting, and constituting such general and executive Council and Councils as he may judge proper for the said provinces and Domin- ions in general, and Any other Office, in His Royal Judgment and discre- tion requisite for the said general Government; or from nominating and appointing thereto from time to time, such persons as he shall think fit to compose the same Executive Council, or to execute such offices or from removing therefrom any person or Persons whom he may think fit to remove. (9) And be it also Enacted by the same Authority that it shall and may be lawful for His Majesty to give Authority to his said Governor General, or the person exercising that trust, on his arrival in either of the provinces within his commission, to assume the authority and to perform all the duties and functions which the Lieutenant Governor thereof, might exercise and perform; and the powers and authority of such Lieutenant Governor shall be suspended & so continue during the time of the Gov- ernor General's being within the same province; and that it shall also be lawful for His Majesty to give to the said Governor General for the time being, tho' absent in some other province of His General Government, au- thority respecting any act of any of the Provinces of such nature and tendency as His Majesty may see cause by His Royal Instruction to de- scribe, to suspend the execution of such Act until His Majesty's Pleas- 1774-1791] Constitutional Documents of Canada. 207 ure shall be signified respecting the same; to which end it shall be the duty of the person administering the Government in every Province sub- ject to the Governor General's Authority, to transmit to him a copy of every bill to which he has assented as soon as possible after the enacting of the same into a law ; and shall upon the suspension thereof by the Governor General immediately cause the same to be made known by proc- lamation under the great seal of his Province, in the manner most effec- tual for making the same universally known to the Inhabitants of the same Province, and all others whom the same may concern. (10) And be it further enacted by the Authority aforesaid, that noth- ing in this Act contained shall be interpreted to derogate from the rights and Prerogatives of the Crown for the due exercise of the Royal and executive authority over all or any of the said Provinces ; or to derogate from the Legislative Sovereignty and Supremacy of the Crown and Par- liament of Great Britain; but the Acts of Legislation of either of the said Provinces, as well as the Acts of the Governor General and the Legisla- tive Council and General Assembly so to be made, shall be subject to the Royal dis-allowance as exercised heretofore respecting the laws of any of the British Provinces, and the said Dominions and all the Provinces into which they may be hereafter divided shall continue and remain to be governed by the Crown and Parliament of Great Britain as the supreme Legislature of the whole British Empire. LV THE CONSTITUTIONAL ACT 1791 1 (31 George III., c. 31.) An Act to repeal certain parts of an Act, passed in the fourteenth year of His Majesty's reign, intituled "An Act for making more effectual pro- vision for the Government of the Province of Quebec, in North Amer- ica," and to make further provision for the Government of the said Province. Whereas an Act was passed in the fourteenth year of the reign of Preamble, his present Majesty, intituled "An Act for making more effectual P r " 14 GCO. Ill vision for the Government of the Province of Quebec, in North America": C ap. 83 And whereas it is expedient and necessary that further provision should recited, now be made for the good Government and prosperity thereof : May il therefore please your most Excellent Majesty that it may be enacted; and be it enacted by the King's Most Excellent Majesty, by and with the ad- vice and consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same, that so much of the said Act as in any manner relates to the appointment of So much of a Council for the affairs of the said Province of Quebec, or to the power recited Act .as given by the said Act to the said Council, or to the major part of them, ap^ofntmenf to make ordinances for the peace, welfare, and good Government of the of a Council said Province, with the consent of His Majesty's Governor, Lieutenant- for Quebec, Governor, or Commander in Chief for the time being, shall be, and the rlp'ealed^ same is hereby repealed. II. And whereas his Majesty has been pleased to signify, by his mes- sage to both Houses of Parliament, his Royal intention* to divide his Province of Quebec into two separate Provinces, to be called the Province Within each of Upper Canada and the Province of Lower Canada: Be it enacted by ^ ^^j^J^' the authority aforesaid, that there shall be within each of the said Prov- a Legislative inces respectively a Legislative Council and an Assembly, to be severally Council and 1 The events which led to the passing of this Act are outlined in the previous documents. The debates are in Hansard, Vols. XXVIII and XXIX. 2 This intention was carried out by an order-in-council dated 24 August, 1791. (See Doughty and McArthur, Documents relating to the Constitutional History f Canada, Canadian Archives 1914, p. 3). 208 Constitutional Documents of Canada. [1774-1791 Assembly to composed and constituted in the manner hereinafter described ; and that b^ wTo'se'ad- ' M 1 each of the said Provinces respectively, His Majesty, His Heirs, and vu;e Hie Successors, shall have power during the continuance of this Act, by and Majesty may w ith the advice and consent of the Legislative Council and Assembly of the Gover'n- suc ^ Provinces respectively, to make laws for the peace, welfare and good ment'of the Government thereof, such laws not being repugnant to this Act; and that Province. all such laws being passed by the Legislative Council and Assembly of either of the said Provinces respectively, and assented to by His Majesty, His Heirs or Successors, or assented to in His Majesty's name by such person as His Majesty, His Heirs or Successors, shall from time to time appoint to be the Governor or Lieutenant-Governor of such Province, or by such person as His Majesty, His Heirs or Successors, shall from time to time appoint to administer the Government within the same, shall be, and the same are hereby declared to be, by virtue of and under this Act, valid and binding, to all intents and purposes whatever, within the Prov- ince in which the same shall have been so passed. His Majesty III. And be it further enacted by the authority aforesaid, that for th^cfovernot- 6 l ^ e P ur P ose f constituting such Legislative Council, as aforesaid, in each o/Lieutenant- of the said Provinces respectively, it shall and may be lawful for his Governor of Majesty, his heirs, or successors, by an instrument under his or their sign each Province manua i ( to authorize and direct the Governor or Lieutenant-Governor, or me'mbers'to person administering the Government, in each of the said Provinces re- the Legislative spectively, within the time herein after mentioned, in His Majesty's name. Council. anc j by an instrument under the Great Seal of such Province, to summon to the said Legislative Council, to be established in each of the said Prov- inces respectively, a sufficient number of discreet and proper persons, be- ing not fewer than seven, to the Legislative Council for the Province of Upper Canada, and no fewer than fifteen to the Legislative Council for the Province of Lower Canada; and that it shall also be lawful for his Majesty, his heirs or successors, from time to time, by an instrument under his or their sign manual, to authorize and direct the Governor or Lieutenant-Governor, or person administering the Government in each of the said Provinces respectively, to summon to the Legislative Council of such Province in like manner such other persons as his Majesty, his heirs or successors, shall think fit ; and that every person who shall be so sum- moned to the Legislative Council of either of the said Provinces respec- tively, shall thereby become a member of such Legislative Council, to which he shall have been so summoned. No person IV. Provided always, and be it enacted by the authority aforesaid, oTa" 2 ctc C * r9 t ' iat no P erson sna ll be summoned to the Legislative Council, in either of tobfsum-' tn e said Provinces, who shall not be of the full age of twenty-one years, moned. and a natural born subject of his Majesty, or a subject of his Majesty naturalized by Act of the British Parliament, or a subject of his Majesty having become such by the conquest and cession of the Province of Canada. Members to V. And be it further enacted by the authority aforesaid, that every seats 'forHfe mem b er of each of the said Legislative Councils shall hold his seat therein for the term of his life, but subject nevertheless to the provisions here- inafter contained for vacating the same, in the cases hereinafter specified. VI. And be it further enacted by the authority aforesaid, that when- may annex to , . ,, . . . . . . ,, : . . . hereditary ever his Majesty, his heirs or successors, shall think proper to confer titles ot honor upon any subject of the Crown of Great Britain, by letters patent under being^u'in* the Great Seal of ei . ther of th e said Provinces, any hereditary title of moned to the honor, rank, or dignity of such Province, descendible according to any Legislative course of descent limited in such letters patent, it shall and may be law- ful for his Majesty, his heirs or successors, to annex thereto by the said letters patent, if his Majesty, his heirs or successors shall so think fit, an hereditary right of being summoned to the Legislative Council of such Province, descendible according to the course of descent so limited with respect to such title, rank, or dignity ; and that every person on whom such right shall be so conferred, or to whom such right shall severally so descend, shall thereupon be entitled to demand from the Governor, Lieu- tenant-Governor, or person administering the Government of such Prov- 1774-1791] Constitutional Documents of Canada. 209 ince, his writ of summons to such Legislative Council at any time after he shall have attained the age of twenty-one years, subject nevertheless to the provision hereinafter contained. VII. Provided always, and be it further enacted by the authority Such descend- aforesaid, that when and so often as any person to whom such hereditary f e it&dfand r right shall have descended shall, without the permission of his Majesty, his heirs or successors, signified to the Legislative Council of the Prov- ince by the Governor, Lieutenant-Governor or person administering the Government there, have been absent from the said Province for the space of four years continually, at any time between the date of his succeeding to such right and the time of his applying for such writ of summons, if he shall have been of the age of twenty-one years or upwards at the time of his so succeeding, or at any time between the date of his attaining the said age and the time of his so applying, if he shall not have been of the said age at the time of his so succeeding; and also when and so often as any such person shall, at any time before his applying for such writ of summons have taken any oath of allegiance or obedience to any foreign prince or power, in any such case such person shall not be entitled to receive any writ of summons to the Legislative Council by virtue of such hereditary right, unless his Majesty, his heirs or successors, shall at any time think fit, by instrument under his or their sign manual, to direct that such per- son should be summoned to the said Council ; and the Governor, Lieu- tenant-Governor, or person administering the Government in the said Provinces respectively, is hereby authorized and required, previous to granting such writ of summons to any person applying for the same, to interrogate such person upon oath, touching the said several particulars before such Executive Council as shall have been appointed by his Ma- jesty, his heirs or successors, within such Province for the affairs thereof. VIII. Provided also, and be it further enacted by the authority afore- Seats in Coun- said, that if any member of the Legislative Councils of either of the said cil vacated in Provinces respectively, shall leave such Province, and shall reside out of certain cases - the same for the space of four years continually, without the permission of his Majesty, his heirs or successors, signified to such Legislative Council by the Governor, or Lieutenant-Governor, or person administering his Majesty's Government there, or for the space of two years continually without the like permission, or the permission of the Governor, Lieutenant- Governor, or person administering the Government of such Province, sig- nified to such Legislative Council in the manner aforesaid ; or if any such member shall take any oath of allegiance or obedience to any foreign prince or power, his seat in such Council shall thereby become vacant. IX. Provided also, and be it further enacted by the authority afore- Hereditary said, that in every case where a writ of summons to such Legislative ijeats'so'for- Council shall have been lawfully withheld from any person to whom such f e ited, or hereditary right, as aforesaid, shall have descended, by reason of such vacated, to absence from the Province as aforesaid, or of his having taken an oath p||[ durinz of allegiance or obedience to any foreign prince or power, and also in t h e lives of every case where the seat in such Council of any member thereof, having the parties, such hereditary right as aforesaid, shall have been vacated by reason of Deaths tcT'o to any of the causes hereinbefore specified, such hereditary right shall re- t he person main suspended during the life of such person unless his Majesty, his next entitled heirs or successors, shall afterwards think fit to direct that he be sum- t ^ ieret0 ' moned to such Council ; but that on the death of such person such right, subject to the provisions herein contained, shall descend to the person who shall next be entitled thereto, according to the course of descent limited in the letters patent by which the same shall have been originally conferred. X. Provided also, and be it further enacted by the authority afore- Seats in said, that if any member of either of the said Legislative Councils shall f^fef/ed an( j be attainted for treason in any Court of law within any of his Majesty's hereditary dominions, his seat in such Council shall thereby become vacant, and any rights extin- such hereditary right as aforesaid then vested in such person, or to be derived to any other person through him, shall be utterly forfeited and extinguished. N 210 Constitutional Documents of Canada. [1774-1791 Questions XI. Provided also, and be it enacted by the authority aforesaid, that rfghTtobe * whenever any question shall arise respecting the right of any person to be summoned to summoned to either of the said Legislative Councils respectively, or re- P'be'd' 1 ' CtC> s P ectm & tne vacancy of the seat in such Legislative Council of any per- terrained son having been summoned thereto, every such question shall by the Gov- as herein ernor or Lieutenant-Governor of the Province, or by the person adminis- mentioned. tering the Government there, be referred to such Legislative Council to be by the said Council heard and determined ; and that it shall and may * be lawful, either for the person desiring such writ of summons, or re- specting whose seat such question shall have arisen, or for his Majesty's Attorney-General of such Province in his Majesty's name, to appeal from the determination of the said Council in such case to his Majesty in his Parliament of Great Britain; and that the judgment thereon of his Ma- jesty in his said Parliament shall be final and conclusive to all intents and purposes whatever. The Governor XII. And be it further enacted by the authority aforesaid, that the vincemay Governor or Lieutenant-Governor of the said Provinces respectively, or appoint and the person administering His Majesty's Government therein respectively, remove the shall have power and authority from time to time, by an instrument under the great Seal of such Province, to constitute, appoint and remove the Speakers of the Legislative Councils of such Provinces respectively. His Majesty XIII. And be it further enacted by the authority aforesaid, that for the'c^'vernor 6 ^ e purpose of constituting such Assembly as aforesaid in each of the to call to- said Provinces respectively, it shall and may be lawful for his Majesty, gether the his heirs or successors, by an instrument under his or their sign manual, y> to authorize and direct the Governor or Lieutenant-Governor, or person administering the Government in each of the said Provinces respectively, within the time hereinafter mentioned, and thereafter from time to time as occasion shall require, in his Majesty's name and by an instrument under the Great Seal of such Province, to summon and call together an and for th Assembly in and for such Province. purpose of XIV. And be it further enacted by the authority aforesaid, that for electing the the purpose of electing the member of such Assemblies respectively it issue'a'pro'c- ?hall an( ^ mav ^ e lawful for his Majesty, his heirs or successors, by an lamation instrument under his or their sign manual, to authorize the Governor or dividing the Lieutnant-Governor of each of the said Provinces respectively, or the Districts' etc P erson administering the Government therein, within the time hereinafter mentioned, to issue a proclamation 1 dividing such Province into districts, or counties, or circles, and towns or townships, and appointing the limits thereof, and declaring and appointing the number of representatives to be chosen by each of such districts, or counties, or circles, and towns or townships respectively; and that it shall also be lawful for his Majesty, his heirs or successors, to authorize such Governor or Lieutenant-Gover- nor, or person administering the Government, from time to time to nomi- nate and appoint proper persons to execute the office of returning-officer in each of the said districts, or counties, or circles, and towns or town- ships respectively; and that such division of the said Provinces into dis- tricts, or counties, or circles, and towns or townships, and such declara- tion and appointment of the number of representatives to be chosen by each of the said districts, or counties, or circles, and towns or townships, respectively, and also such nomination and appointment of returning- officers in the same, shall be valid and effectual to all the purposes of this Act, unless it shall at any time be otherwise provided by any Act of the Legislative Council and Assembly of the Province, assented to by his Ma- jesty, his heirs, or successors. Power of the XV. Provided nevertheless, and be it further enacted by the author- Governor to ity aforesaid, that the provision hereinbefore contained for empowering turning offi- l ^ e Governor, Lieutenant-Governor, or person administering the Govern- ors to con- ment of the said Provinces respectively, under such authority as aforesaid 1 The proclamations dividing Lower Canada and Upper Canada into electoral dis- tricts were issued on May 7, 1792, and July 16, 1792, respectively. (See Doughty and ' McArthur, pp. 72, 77.) 1774-1791] Constitutional Documents of Canada. 211 from his Majesty, his heirs or successors, from time to time to nominate tinuetwo and appoint proper persons to execute the office of returning-officer in the th*commence- said districts, counties, circles, and towns or townships, shall remain and ment of this continue in force in each of the said Provinces respectively for the term Act - of two years from and after the commencement of this Act within such Province, and no longer; but subject nevertheless to be sooner repealed or varied by any Act of the Legislative Council and Assembly of the Prov- ^.P 6 j s n /< , , ,. -.r- L u obliged to mce, assented to by his Majesty, his heirs or successors. serve as re- XVI. Provided always, and be it further enacted by the authority turning officer aforesaid, that no person shall be obliged to execute the said office of moreth ? n returning-officer for any longer time than one year, or oftener than once,herwise S pro- unless it shall at any time be otherwise provided by any Act of the Legis- vided by an lative Council and Assembly of the Province, assented to by his Maj esty, ct of the , . , . * j i j i p rovince . his heirs or successors. XVII. Provided also, and be it enacted by the authority aforesaid, that the whole number of members to be chosen in the Province of Upper Nber^of^ Canada shall not be less than sixteen, and the whole number of members eac jj p rov ince. to be chosen in Lower Canada shall not be less than fifty. XVIII. And be it further enacted by the authority aforesaid, that Regulations writs for the election of members to serve in the said Assemblies respec- ^i^"^^ tively shall be issued by the Governor, Lieutenant-Governor, or person election of administering his Majesty's Government within the said Provinces respec- members to tively, within fourteen days after the sealing of such instrument as afore-^ 6 6 '{V 1116 said for summoning and calling together such Assembly, and that such writs shall be directed to the respective returning-officers of the said dis- tricts, or counties, or circles, and towns or townships, and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall at any time be otherwise provided by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors; and that writs shall in like manner and form be issued for the election of mem- bers in the case of any vacancy which shall happen by the death of the person chosen, or by his being summoned to the Legislative Council of cither Province, and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall at any time be otherwise provided by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors ; and that in the case of any such vacancy which shall happen by the death of the person chosen, or by reason of his being so summoned as aforesaid, the writ for the election of a new member shall be issued within six days after the same shall be made known to the proper officer for issuing such writs of election. XIX. And be it further enacted by the authority aforesaid, that o all and every the returning-officers so appointed as aforesaid, to whom any cute writs, such writs as aforesaid shall be directed, shall, and they are hereby au- thorized and required duly to execute such writs. XX. And be it further enacted by the authority aforesaid, that the By whom the members for the several districts, or counties, or circles of the said Prov- inces respectively shall be chosen by the majority of votes of such per- sons as shall severally be possessed, for their own use and benefit, of lands or tenements within such district, or county, or circle, as the case shall be, such lands being by them held in freehold, or in fief, or in roture, or by certificate derived under the authority of the Governor and Council of the Province of Quebec, and being of the yearly value of forty shillings sterling or upwards, over and above all rents and charges payable out of or in respect of the same; and that the members for- the several towns or townships within the said Provinces respectively shall be chosen by the majority of votes of such persons as either shall be severally pos- sessed for their own use and benefit of a dwelling house and lot of ground in such town or township, such dwelling house and lot of ground being by them held in like manner as aforesaid, and being of the yearly value of five pounds sterling or upwards, or as, having been resident within 212 Constitutional Documents of Canada. [1774-1791 the said town or township for the space of twelve calendar months next before the date of the writ of summons fbr the election, shall bona fide have paid one year's rent for the dwelling house in which they shall have so resided, at the rate of ten pounds sterling per annum or upwards. Certain XXI. Provided always, and be it further enacted by the authority noVelH^ible aforesaid, that no person shall be capable of being elected a member to to the serve in either of the said Assemblies, or of sitting and voting therein, Assemblies, who shall be a member of either of the said Legislative Councils to be established as aforesaid in the said two Provinces, or who shall be a minister of the Church of England, or a minister, priest, ecclesiastic, or teacher, either according to the rites of the Church of Rome, or under any other form or profession of religious faith or worship. Noperson XXII. Provided also, and be it further enacted by the authority o"a?e 2 etJ ear8a ^ oresa '^' *^ at no P erson shall be capable of voting at any election of a capable of ' member to serve in such Assembly, in either of the said Provinces, or of voting or of being elected at any such election who shall not be of the full age of being elected; twenty-one years, and a natural born subject of his Majesty, or a subject of his Majesty naturalized by Act of the British Parliament, or a subject of his Majesty having become such by the conquest and cession of the Province of Canada. nor any per- XXIII. And be it also enacted by the authority aforesaid, that no f or treason 6 person shall be capable of voting at any election of a member to serve or felony. m such Assembly in either of the said Provinces, or of being elected at any such election, who shall have been attainted for treason or felony in any Court of law within any of his Majesty's dominions, or who shall be within any description of persons disqualified by any Act of the Legis- lative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors. V uire r dtotake XXIV. Provided also, and be it further enacted by the authority ?ake e thefol- aforesaid, that every voter before he is admitted to give his vote at any lowing oath, such election shall, if required by any of the candidates, or by the re- turning-officer, take the following oath, which shall be administered in the English or French language, as the case may require : I, A. B., do declare and testify, in the presence of Almighty God, that Oath. j am ^ to foe best of my knowledge and belief, of the full age of twenty- one years, and that I have not voted before at this election. oath to the* 6 ^nd tnat everv sucn person shall also, if so required as aforesaid, particulars make oath previous to his being admitted to vote that he is, to the best e -'fi A ^ ki s knowledge and belief, duly possessed of such lands and tenements, or of such a dwelling house and lot of ground, or that he has bona fide been so resident and paid such rent for his dwelling house as entitles him according to the provisions of this Act, to give his vote at such election for the county, or district, or circle, or for the town or township, for which he shall offer the same. ml* ^mhonze XXV. And be it further enacted by the authority aforesaid that it the'covernor* ''hall and may be lawful for his Majesty, his heirs, or successors, to author- to fix the ize the Governor or Lieutenant-Governor, or person administering the time and place Government within each of the said Provinces respectively, to fix the time elections, 118 a d place of holding such elections, giving not less than eight days' notice of such time, subject nevertheless to such provisions as may hereafter be made in these respects, by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs, or successors. t ? n n g the Se" XXVI. And be it further enacted by the authority aforesaid, that it shall sions of the and may be lawful for his Majesty, his heirs or successors, to authorize Council and the Governor or Lieutenant-Governor of each of the said Provinces respec- Assembly, etc. tively, or the person administering the Government therein, to fix the places and times of holding the first and every other session of the Legis- lative Council and Assembly of such Province, giving due and sufficient notice thereof, and to prorogue the same from time to time, and to dissolve the same by proclamation or otherwise, whenever he shall judge it neces- sary or expedient. 1174-1791] Constitutional Documents of Canada. 213 XXVII. Provided always, and be it further enacted by the authority Council and aforesaid, that the said Legislative Council and Assembly in each of the ca s ijg to . to said Provinces shall be called together once at the least in every twelve gether once in calendar months, and that every Assembly shall continue for four years twelve from the day of the return of the writs for choosing the same, and no m< 9> etc- longer, subject nevertheless to be sooner prorogued or dissolved by the Governor or Lieutenant-Governor of the Province, or person administering his Majesty's Government therein. XXVIII. And be it further enacted by the authority aforesaid, that A ,f e s t j" ns all questions which shall arise in the said Legislative Councils or Assem- therein"^ be blies respectively shall be decided by the majority of voices of such mem- decided by bers as shall be present; and that in all cases where the voices shall be ll i ema i orit y equal the Speaker of such Council or Assembly, as the case may be, shall have a casting voice. XXIX. Provided always, and be it enacted by the authority aforesaid, *[ o ^ e er to that no member either of the Legislative Council or Assembly, in either "ntifhe'has of the said Provinces, shall be permitted to sit or vote therein until he taken the shall have taken and subscribed the following oath, either before the Gov- * ollowing ernor or Lieutenant-Governor of such Province, or person administering the Government therein, or before some person or persons authorized by the said Governor or Lieutenant-Governor, or other person as aforesaid, to administer such oath, and that the same shall be administered in the English or French lanugage, as the case may require : I, A. B., do sincerely promise and swear that I will be faithful and Oath. bear true allegiance to his Majesty, King George, as lawful Sovereign of the Kingdom of Great Britain, and of these Provinces dependent on and belonging to the said Kingdom; and that I wiU defend him to the utmost of my power against all traitorous conspiracies and attempts whatever which shall be made again his person, crown, and dignity ; and that I will do my utmost endeavour to disclose and make known to his Majesty, his heirs or successors, all treasons and traitorous conspiracies and attempts which I shall know to be against him, or any of them; and all this I do swear without any equivocation, mental evasion, or secret reservation, and renouncing all pardons and dispensations from any person or power what- ever to the contrary So help me God. XXX. And be it further enacted by the authority aforesaid, that Governor whenever any bill, which has been passed by the Legislative Council and by m - a f ?if 1 T? ?/ .1 TT "TAII- -,i r .1 i T\ 1 i 11 witnliola His the House of Assembly in either of the said Provinces respectively, shall Majesty's be presented for his Majesty's assent to the Governor or Lieutenant-Gov assent to ernor of such Province, or person administering his Majesty's Government ills , pa |" 3ec J therein, such Governor or Lieutenant-Governor, or person administering i/tive^mfncil the Government shall, and he is hereby authorized and required to declare, and Assembly, according to his discretion, but subject nevertheless to the provisions con- h e m S for / His tained in this Act, and to such instructions as may from time to time be Majesty's given in that behalf by his Majesty, his heirs or successors, that he assents pleasure. to such bill in his Majesty's name, or that he withholds his Majesty's assent from such bill, or that he reserves such bill for the signification of his Majesty's pleasure thereon. XXXI. Provided always, and be it further enacted by the authority Governor to aforesaid, that whenever any bill which shall have been so presented f r ^"secretary his Majesty's assent to such Governor, Lieutenant-Governor, or person O f State administering the Government, shall by such Governor, Lieutenant-Gov- copies of such ernor, or person administering the Government, have been assented to in 136 d , , beenss d his Majesty's name, such Governor, Lieutenant-Governor, or person as to, which "HIS aforesaid shall, and he is hereby required, by the first convenient oppor- Majesty in tunity to transmit to one of his Majesty's principal Secretaries of State, declare 1 his^ an authentic copy of such bill so assented to; and that it shall and may be disallowance lawful, at any time within two years after such bill shall have been so of within two received by such Secretary of State for his Majesty, his heirs or succes- sors, by his or their Order-in-Council to declare his or their disallowance of such bill, and that such disallowance, together with a certificate under the hand and seal of such Secretary of State testifying the day on which 214 Constitutional Documents of Canada. [1774-1791 such bill was received as aforesaid, being signified by such Governor, Lieu- tenant-Governor, or person administering the Government, to the Legis- lative Council and Assembly of such Province ,or by proclamation, shall make void and annul the same, from and after the date of such signification. Bills reserved XXXII. And be it further enacted by the authority aforesaid, that no Majesty's suc ^ bill which shall be so reserved for the signification of his Majesty's pleasure not pleasure thereon, shall have any force or authority within either of the to have any sa j(j Provinces respectively until the Governor, or Lieutenant-Governor, or MajesVy's P erson administering the Government shall signify, either by speech or assent be com- message, to the Legislative Council and Assembly of such Province, or by municatedto proclamation, that such bill has been laid before his Majesty in Council, and Assembly. an( l &** ^is Majesty has been pleased to assent to the same; and that an entry shall be made in the journals of the said Legislative Council of every such speech, message, or proclamation ; and a duplicate thereof duly attested shall be delivered to the proper officer to be kept amongst the public records of the Province; and that no such bill, which shall be so reserved as aforesaid shall have any force or authority within either of the said Provinces respectively unless his Majesty's assent thereto shall have been so signified as aforesaid, within the space of two years from the day on which such bill shall have been presented for his Majesty's assent, to the Governor, Lieutenant-Governor, or person administering the Govern- ment of such Province. afthewm "* XXXIII. And be it further enacted by the authority aforesaid, that mencement of all laws, statutes, and ordinances which shall be in force on the day to be mis Act to fixed in the manner herein after directed for the commencement of this except":- 80 ' ^ ct> w i. tnm the said Provinces, or either or them, or in any part thereof pealed or respectively, shall remain and continue to be of the same force, authority, varied by and effect in each of the said Provinces respectively as if this Act had not it, etc. ^en made, anc j as j{ the sa jd Province of Quebec had not been divided; except in so far as the same are expressly repealed or varied by this Act, or in so far as the same shall or may hereafter by virtue of and under the authority of this Act be repealed or varied by his Majesty, his heirs, 01 successors by and with the consent of the Legislative Councils and Assem- blies of the said Provinces respectively, or in so far as the same may be repealed or varied by such temporary laws or ordinances as may be made in the manner hereinafter specified. Establishment XXXIV. And whereas by an ordinance 1 passed in the Province of civtfjuirisdic- Quebec the Governor and Council of the said Province were constituted a tion in each Court of civil jurisdiction for hearing and determining appeals in certain Province. cases therein specified, be it further enacted by the authority aforesaid, that the Governor, or Lieutenant-Governor, or person administering the Government of each of the said Provinces respectively, together with such Executive Council as shall be appointed by his Majesty for the affairs of such Province, shall be a Court of civil jurisdiction, within each of the said Provinces respectively, for hearing and determining appeals within the same, in the like cases, and in the like manner and form, and subject to such appeal therefrom as such appeals might, before the passing of this Act, have been heard and determined by the Governor and Council of the Province of Quebec; but subject nevertheless to such further or other pro- visions as may be made in this behalf by any Act of the Legislative Council and Assembly of either of the said Provinces respectively, assented to by his Majesty, his heirs, or successors. ca G 8' ami XXXV. And whereas by the above mentioned Act passed in the four- teenth year of the reign of his present Majesty it was declared that the clergy of the Church of Rome in the Province of Quebec might hold, receive, and enjoy their accustomed dues and rights 1 , with respect to such persons only as should profess the said religion ; provided nevertheless that it should be lawful for his Majesty, his heirs or successors, to make such provision out of the rest of the said accustomed dues and rights for the 1 See No. XXX. * See Quebec Act, V (No. XXV). 1774-1791] Constitutional Documents of Canada. 215 encouragement of the Protestant religion and for the maintenance and support of a Protestant clergy within the said Province as he or they should from time to time think necessary and expedient: And whereas by his Majesty's Royal instruction 1 , given under his Majesty's Royal sign Instructions manual on the third of January in the year of our Lord one thousand seven f J & i^\ hundred and seventy-five to Guy Carleton, Esquire, now Lord Dorchester, Q r U y carleton, at that time his Majesty's Captain-General and Governor in Chief in and Esq., etc., and over his Majesty's Province of Quebec, his Majesty was pleased amongst other things to direct that no incumbent professing the religion of the Church of Rome, appointed to any parish in the said Province, should be entitled to receive any tythes for lands or possessions occupied by a Protes- tant ,but that such tythes should be received by such persons as the said Guy Carleton, Esquire, his Majesty's Captain-General and Governor in Chief in and over his Majesty's said Province of Quebec, should appoint, and should be reserved in the hands of his Majesty's Receiver-General of the said Province for the support of a Protestant clergy in his Majesty's said Province, to be actually resident within the same, and not other- wise, according to such directions as the said Guy Carleton, Esquire, his Majesty's Captain-General and Governor in Chief in and over his Majesty's said Province, should receive from his Majesty in that behalf; and that in like manner all growing rents and profits of a vacant benefice should during such vacancy be reserved for and applied to the like uses ; and whereas his Majesty's pleasure has likewise been signified to the same effect in his Majesty's Royal instructions given in like manner to Sir Frederick Haldi- c" st F?ederick mand, Knight of the most honorable Order of the Bath, late his Majesty's Haldimand, Captain-General and Governor in Chief in and over his Majesty's said Province of Quebec; and also in his Majesty's Royal instructions given in like manner to the said Right Honorable Guy Lord Dorchester, now his Majesty's Captain-General and Governor in Chief in and over his Majesty's and to Lord said Province of Quebec; be it enacted by the authority aforesaid that the ^[ t ^ ester said declaration and provision contained in the said above mentioned Act, and also the said provision so made by his Majesty in consequence thereof and the dec- by his instructions above recited, shall remain and continue to be of full laration and force and effect in each of the said two Provinces of Upper Canada and fherefnrfr. Lower Canada respectively, except in so far as the said declaration or pro- spe cting the visions respectively, or any part thereof, shall be expressly varied or clergy of the repealed by any Act or Acts which may be passed by the Legislative Council RoU^ c 0n . and Assembly of the said Provinces respectively, and assented to by his tinue in force. Majesty, his heirs or successors, under the restriction hereinafter provided. XXXVI. And whereas his Majesty has been graciously pleased, by message < to ty ' 9 message 2 to both Houses of Parliament, to express his Royal desire to be Parliament enabled to make a permanent appropriation of land in the said Provinces for recited, the support and maintenance of a Protestant clergy within the same, in proportion to such lands as have been already granted within the same by his Majesty: And whereas his Majesty has been graciously pleased by his His Majesty said message further to signify his Royal desire that such provision may Se^overnor* be made with respect to all future grants of land within the said Provinces to make respectively as may best conduce to the due and sufficient support and allotments of maintenance of the Protestant clergy within the said Provinces, in propor- support of a tion to such increase as may happen in the population and cultivation there- Protestant of; therefore, for the purpose of more effectually fulfilling his Majesty's clergy in gracious intentions as aforesaid, and of providing for the due execution of c Province; the same in all time to come, be it enacted by the authority aforesaid that it shall and may be lawful for his Majesty, his heirs or successors, to authorize the Governor, or Lieutenant-Governor of each of the said Pro- vinces respectively, or the person administering the Government therein, to make from and out of the lands of the Crown within such Provinces such allotment and appropriation of lands for the support and maintenance of a Protestant clergy within the same as may bear a due proportion to 1 See Carleton's Instructions for 1775, Section 21, 5 (No. XXIX). * For George Ill's message to Parliament, 25 February, 1791, see Hansard. Vol. XXVIII. 216 Constitutional Documents of Canada. [1774-1791 the amount of such lands within the same as have at any time been granted by or under the authority of his Majesty: And that, whenever any grant of lands within either of the said Provinces shall hereafter be made by or under the authority of his Majesty, his heirs or successors, there shall at the same time be made, in respect of the same, a proportionable allotment and appropriation of lands for the above mentioned purpose, within the township or parish to which such lands so to be granted shall appertain or be annexed, or as nearly adjacent thereto as circumstances will admit; and that no such grant shall be valid or effectual unless the same shall contain a specification of the lands so allotted and appropriated, in respect of the lands to be thereby granted; and that such lands so allotted and appro- priated shall be, as nearly as the circumstances and nature of the case will admit, of the like quality as the lands in respect of which the same are so allotted and appropriated, and shall be, as nearly as the same can be estim- ated at the time of making such grant, equal in value to the seventh part of the lands so granted. and the rents XXXVII. And be it further enacted by the authority aforesaid that sudTailoTtnent a ^ a d every the rents, profits, or emoluments, which may at any time arise to be appli- from such lands so allotted and appropriated as aforesaid, shall be appli- cable to that cable solely to the maintenance and support of a Protestant clergy within soWy 86 tne Province in which the same shall be situated, and to no other purpose whatever. His Majesty XXXVIII. Aad be it further enacted by the authority aforesaid that the^overnor 6 lt shal ! and ma y be lawful for his Majesty, his heirs and successors, to with the ad- authorize the Governor or Lieutenant-Governor of each of the said Pro- vice of the vinces respectively, or the person administering the Government therein, Counciljto from time to time, with the advice of such Executive Council as shall have erect parson- have been appointed by his Majesty, his heirs or successors, within such and endow Province for the affairs thereof, to constitute and erect within every town- em ' ship or parish which is now or hereafter may be formed, constituted, or erected within such Province, one or more parsonage or rectory, or parson- ages or rectories, according to the establishment of the Church of England ; and from time to time by instrument under the great Seal of such Province to endow every such personage or rectory with so much or such a part of the lands so allotted and appropriated as aforesaid, in respect of any lands within such township or parish which shall have been granted subsequent to the commencement of this Act or of such lands as may have been allotted and appropriated for the same purpose, by or in virtue of any instruction which may be given by his Majesty in respect of any lands granted by his Majesty before the commencement of this Act, as such Governor, Lieuten- ant-Governor, or person administering the Government shall, with the advice of the said Executive Council, judge to be expedient under the then existing circumstances of such township or parish. ernor h t C o G re XXXIX. And be it further enacted by the authority aforesaid, that 8enincum- e ' l shall and may be lawful for his Majesty, his heirs or successors, to bents to them, authorize the Governor, Lieutenant-Governor, or person administering the wh a the Government of each of the said Provinces respectively, to present to every sairT/as fncum- sucn parsonage or rectory an incumbent or minister of the Church of Eng- bentsiniing- land, who shall have been duly ordained according to the rites of the said land - Church, and to supply from time to time such vacancies as may happen therein; and that every person so presented to any such parsonage or rectory shall hold and enjoy the same, and all rights, profits, and emolu- ments thereunto belonging or granted, as fully and amply, and in the same manner, and on the same terms and conditions, and liable to the perform- ance of the same duties, as the incumbent of a parsonage or rectory in England. Presentation* XL. Provided always, and be it further enacted by the authority anSVnj ? o^netit a ^ oresa ^- l ^ at everv suc ^ presentation of an incumbent or minister to any of them to be such parsonage or rectory, and also the enjoyment of any such parson- subject to the age or rectory, and of the rights, profits, and emoluments there- iranted^o'the * ^ v anv . su . c ^ incumbent or minister, shall be. subject and liable to all Bishop of rights of institution, and all other spiritual and ecclesiastical jurisdiction 1774-1791] Constitutional Documents of Canada. 217 and authority, which have been lawfully granted by his Majesty's Royal Nova Scotia, letters patent to the Bishop of Nova Scotia, or which may hereafter by e nis Majesty's Royal authority be lawfully granted or appointed to be ad- ministered and executed within the said Provinces, or either of them respectively, by the said Bishop of Nova Scotia, or by any other person or persons, according to the laws and canons of the Church of England which are lawfully made and received in England. Provisions XLI. Provided always, and be it further enacted by the au&orityjgjg^^f 6 aforesaid, that the several provisions hereinbefore contained, respecting the lands for the allotment and appropriation of lands for the support of a Protestant clergy support of a within the said Provinces, and also respecting the constituting, erecting, de^g'y^etc: and endowing parsonages or rectories within the said Provinces, and also may be varied respecting the presentation of incumbents or ministers to the same, and or repealed also respecting the manner in which such incumbents or ministers shall i^jy^Q^cil hold and enjoy the same shall be subject to be varied or repealed by any and Assembly, express provisions for that purose contained in any act or acts which may be passed by the Legislative Council and Assembly of the said Provinces respectively, and assented to by His Majesty, his heirs or successors under the restriction hereinafter provided. Acts of the XLII. Provided nevertheless, and be it further enacted by the author- Legislative ity aforesaid, that whenever any Act or Acts shall be passed by the Legis- Assembly'con- lative Council and Assembly of either of the said Provinces, containing taming provi- any provisions to vary or repeal the above recited declaration and provision sions to the contained in the said Act passed in the fourteenth year of the reign of his me'ntioned'to present Majesty; or to vary or repeal the above recited provision contained be laid before in his Majesty's Royal instructions given on the third day of January in parl i ament the year of our Lord one thousand, seven hundred and seventy-five to the receiving His said Guy Carleton, Esquire, now Lord Dorchester; or to vary or repeal the Majesty's provisions herein before contained for continuing the force and effect of assent > etc - the said declaration and provisions ; or to vary or repeal any of the several provisions herein before contained respecting the allotment and appropria- tion of lands for the support of aProtestant clergy within the said Provinces ; or respecting the constituting, erecting, or endowing parsonages or rec- tories within the said Provinces ; or respecting the presentations of incum- bents or ministers to the same ; or respecting the manner in which such incumbents or ministers shall hold and enjoy the same: And also that whenever any Act or Acts shall be so passed, containing any provisions which shall in any manner relate to or affect the enjoyment or exercise of any religious form or mode of worship ; or shall impose or create any penalties, burthens, disabilities, or disqualifications in respect of the same; or shall in any manner relate to or affect the payment, recovery, or enjoy- ment of any of the accustomed dues or rights herein before mentioned ; or shall in any manner relate to the granting, imposing or recovering any other dues or stipends, or emoluments whatever, to be paid to or for the use of any minister, priest, ecclesiastic, or teacher according to any religious form or mode of worship, in respect of his said office or function; or shall in any manner relate to or affect the establishment or discipline of the Church of England amongst the ministers and members thereof within the said Provinces or shall in any manner relate to or affect the King's pre- legative touching the granting of waste lands of the Crown within the said Provinces; every such Act or Acts shall, previous to any declaration or signification of the King's assent thereto, be laid before both Houses of Parliament in Great Britain ; and that it shall not be lawful for his Majesty, his heirs or successors, to signify his or their assent to any such Act or Acts, until thirty days after the same shall have been laid before the said houses, or to assent to any such Act or Acts in case either House of Parlia- ment shall within the said thirty days address his Majesty, his heirs or suc- cessors, to withhold his or their assent from such Act or Acts ; and that no such Act shall be valid or effectual to any of the said purposes within either of the said Provinces unless the Legislative Council and Assembly of such Province shall, in the session in which the same shall have been passed by them, have presented to the Governor, Lieutenant-Governor ,or person 218 Constitutional Documents of Canada. [1774-1791 Lands in Upper Canada to be granted in free and common soc- cage and also in Lower Canada, if desired. Persons hold- ing lands in Upper Canada may have fresh grants. Such fresh grants not to bar any right or title to the lands. 18 Geo. Ill, cap. 22, recited. administering the Government of such Province, an address or addresses specifying that such Act contains provisions for some of the said purposes herein before specially described, and desiring that, in order to give effect to the same, such Act should be transmitted to England without delay for the purpose of being laid before Parliament previous to the signification of his Majesty's assent thereto. XLIII. And be it further enacted by the authority aforesaid, that all lands which shall be hereafter granted within the said Province of Upper Canada shall be granted in free and common soccage, in like manner as lands are now holden in free and common soccage in that part of Great Britain called England; and that in every case where lands shall be here- after granted within the said Province of Lower Canada, and where the grantee thereof shall desire the same to be granted in free and common soccage, the same shall be so granted; but subject nevertheless to such alterations with respect to the nature and consequences of such tenure of free and common soccage, as may be established by any law or laws which may be made by his Majesty, his heirs or successors, by and with the ad- vice and consent of the Legislative Council and Assembly of the Province. XLIV. And be it further enacted by the authority aforesaid, that if any person or persons holding lands in the said Province of Upper Canada by virtue of any certificate of occupation derived under the authority of the Governor and Council of the Province of Quebec, and having power and authority to alienate the same, shall at any time from and after the commencement of this Act surrender the same into the hands of his Majesty, his heirs or successors, by petition to the Governor, or Lieutenant- Governor, or person administering the Government of the said Province, setting forth that he, she or they, is or are desirous of holding the same in free and common soccage, such Governor, or Lieutenant-Governor, or person administering the Government shall thereupon cause a fresh grant to be made to such person of such lands to be holden in free and common soccage. XLV. Provided nevertheless, and be it further enacted by the author- ity aforesaid, that such surrender and grant shall not avoid or bar any right or title to any such lands so surrendered, or any interest in the same, to which any person or persons other than the person or persons surren- dering the same shall have been entitled either in possession, remainder, or reversion, or otherwise, at the time of such surrender ; but that every such surrender and grant shall be made subject to such right, title, and interest, and that every such right, title, or interest shall be as valid and effectual as if such surrender and grant had never been made. XLVI. And whereas by an Act 1 passed in the eighteenth year of the reign of his present Majesty, intituled "An Act for removing all doubts and apprehensions concerning taxation by the Parliament of Great Britain in any of the Colonies, Provinces, and Plantations in North America and the West Indies; and for repealing so much of an Act made in the seventh year of his present Majesty as imposes a duty on tea imported from Great Britain into any Colony or Plantation in America, or relates thereto," it has been declared "that the King and Parliament of Great Britain will not impose any duty, tax, or assessment whatever, payable in any of his Majesty's Colonies, Provinces, and Plantations in North America, or the West Indies, except only such duties as it may be expedient to impose for the regulation of commerce, the net produce of such duties to be always paid ajid applied to and for the use of the Colony, Province, or Plantation, in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective General Courts or Gen- eral Assemblies of such Colonies, Provinces, or Plantations are ordinarily paid and applied": And whereas it is necessary for the general benefit of the British Empire, that such power of regulation of commerce should con- tinue to be exercised by his Majesty, his heirs or successors, and the Parliament of Great Britain, subject nevertheless to the conditions herein See No. XXXIII. 1774-1791] Constitutional Documents of Canada. 219 before recited with respect to the application of any duties which may be imposed for that purpose: Be it therefore enacted by the authority afore- This Act not said, that nothing in this Act contained shall extend, or be construed to to P re Y ent l f he extend, to prevent or affect the execution of any law which hath been or^y r Ac t of shall at any time be made by his Majesty, his heirs or successors, and the Parliament Parliament of Great Britain, for establishing regulations or prohibitions, est ^'? 1 | 1 ^ or for imposing, levying, or collecting duties for the regulation of naviga- "imposing tion, or for the regulation of the commerce to be carried on between the duties for the said two Provinces 1 , or between either of the said Provinces and any other regulation of part of his Majesty's dominions, or between either of the said Provinces com'merce! etc. and any foreign country or state, or for appointing and directing the pay- ment of drawbacks of such duties so imposed, or to give to his Majesty, his heirs or successors, any power or authority, by and with the advice and consent of such Legislative Councils and Assemblies respectively, to vary or repeal any such law or laws, or any part thereof, or in any manner to prevent or obstruct the execution thereof. XLVII. Provided always, and be it enacted by the authority aforesaid, the use of the that the net produce of all duties which shall be so imposed shall at all respective times hereafter be applied to and for the use of each of the said Provinces Provinces - respectively, and in such manner only as shall be directed by any law or laws which shall be made by his Majesty, his heirs or successors, by and with the advice and consent of the Legislative Council and Assembly of such Province. His Majesty XLVIII. And whereas, by reason of the distance of the said Provinces ^oun^Ho^ from this country, and of the change to be made by this Act in the Gov-thecommence- ernment thereof, it may be necessary that there should be some interval of ment of the time between the notification of this Act to the said Provinces respectively ' etc ' and the day of its commencement within the said Provinces respectively , be it therefore enacted by the authority aforsaid, that it shall and may be lawful for his Majesty, with the advice of the Privy Council, to fix and declare, or to authorize the Governor or Lieutenant-Governor of the Province of Quebec, or the person administering the Government there, to fix and declare the day of the commencement of this Act within the said Provinces respectively, provided that such day shall not be later than the thirty-first day of December, in the year of our Lord one thousand seven hundred and ninety-one. Times for XLIX. And be it further enacted by the authority aforesaid, that &e*^jtof* f time to be fixed by his Majesty, his heirs or successors, or under his or summons and their authority by the Governor, Lieutenant-Governor, or person adminis- election . etc -. tering the Government in each of the said Provinces respectively, f or zn3 IstDe^ issuing the writs of summons and election, and calling together the Legis- cember, 1792. lative Councils and Assemblies of each of the said Provinces respectively, shall not be later than the thirty-first day of December, in the year of our Lord one thousand seven hundred and ninety-two. Between the L. Provided always, and be it further enacted by the authority afore-^ 1 ^;"^';,, said, that during such interval as may happen between the commencement Act and the of this Act within the said Provinces respectively, and the first meeting first meeting of the Legislative Council and Assembly of each of the said Provinces aveComfcfl respectively, it shall and may be lawful for the Governor or Lieutenant- and Assembly, Governor of such Province, or for the person administering the Govern- temporary ment therein, with the consent of the major part of such Executive Council made may as shall be appointed by his Majesty for the affairs of such Province, to make temporary laws and ordinances for the good government, peace, and welfare of such Province, in the same manner and under the same restric- tions as such laws or ordinances might have been made by the Council for the affairs of the Province of Quebec constituted by virtue of the above mentioned Act of the fourteenth year of the reign of his present Majesty; and that such temporary laws shall be valid and binding within such 1 Grave disputes arose between the two Provinces over duties on goods imported via the St. Lawrence. These disputes led to the passing of the Canada Trade Act by the British Parliament (3 George IV, c. 119). See Bradshaw, Self Government in Canada. 220 Constitutional Documents of Canada. [1774-1791 Province until the expiration of six months after the Legislative Council and Assembly of such Province shall have been first assembled by virtue of and under the authority of this Act; subject nevertheless to be sooner repealed or varied by any law or laws which may be made by his Majesty, his heirs or successors, by and with the advice and consent of the said Legislative Council and Assembly. FOURTH PERIOD 1791-1840 FOURTH PERIOD 1791-1840 The period of Canadian constitutional history after the passing of the Constitutional Act, which divided the Province of Quebec into two Provinces, up to the Act of Union of 1840 which re-united them, is one of the most complicated. The documents are almost endless and the movement of events with the causes behind them is so full of minute detail that it is difficult to trace the issues at stake and to select documents. As a consequence it has been found impossible in this introductory note to refer to the exact points which the documents selected illustrate. The broad facts of the history, almost in the form of a chronicle, can be read in F. Brad- shaw, Self Government in Canada, and how it was achieved, pp. 46-117 (London, 1903). On the other hand, there are certain generalizations which it is possible to make. These will illustrate the difficulties of the period and the story of constitutional devel- opment. Firstly, difficulties arose early over the question of supply and continued to disturb each Province. The Governor had control over certain crown-revenues, and he could always draw on the military chest, which was regularly replenished by the British Government. The Assembly had control only over such monies as were raised by provincial legislation. Thus the Crown in Canada was able at any time to carry on the administration with- out a vote of supply. The history of the period is full of illustra- tions of this constitutional difficulty, and as long as the Crown was able to carry on the government in such a way there was a farcical element in representative institutions. This then was one of the broad issues. It is true, as a study of the documents will show, that the protagonists of popular control were often unbalanced extremists ; yet behind the almost wearisome iteration of their de- mands there lay the vital constitutional principle that control over appropriation is essential to any real form of self-government and of representative institutions. Secondly, there was in the Constitutional Act no statement of the respective legislative spheres which belonged to the British and Provincial Parliaments. A superficial reading of the Act is sufficient to prove that there were bound to be clashes. In Lower Canada, the Assembly began with petitions for the redress of grievances ; but -when the British Government turned a deaf ear to these petitions, which apparently it alone could effectively answer, the Assembly passed from point to point until it claimed the power of altering the Constitution. This difficulty erected a second barrier between the Crown and the popular house. Thirdly, the Executive had no responsibility to the Houses of Assembly. The difficulty was one of linking up the executive authority with the elected chambers. As a matter of fact no solution to that difficulty was found within these years. The executive was financially and, worse still, constitutionally independent. That there was a malignant disease, every one seemed to know, but no one diagnosed it properly, least of all the Houses of Assembly ; and the various cures suggested during the period, such as reuniting the Provinces, or a federation of British North America, or an elective Legislative Council, contained in reality no true cure. The Houses of Assembly talked violently and grandiloquently of "responsible government," and in trying to get it, without in the least understanding what it implied, they frequently overstepped constitutional limits and were dissolved time after time. Constitutionally, of course, the Governor was as much within his rights in dissolving them as the King would be in England in dissolving Parliament. There was, however, a vital point of difference. The King would act on the advice of responsi- ble ministers, and his act would be of nebulous, if regal, neutrality. In Canada, on the other hand, the Governor had no responsible ministers, and he was driven to act in the spirit of a political party leader. Frequently the Executive and Legislative Councils were used by the Crown as bulwarks against the popular Assemblies, and almost generally appointments to them were confined to those who supported the Governor's administration. The vitiating prin- ciple constitutionally was that of an irresponsible executive. Reference has already been made to various proposed reme- dies. A perusal of the petitions against union in 1822 will show how difficult it would have been to balance the centrifugal and centripedal forces which during this period rendered any larger scheme outside practical politics. It is, of course, quite easy for us to see where the Constitution of 1791 was weak, but at the time no one could see how it was possible to reconcile cabinet and responsible government in Canada with the sovereignty of the Crown. Not a few, however, saw that the agitation in Canada implied responsible government, and faced it at the moment with a non possumus. It was only after the futile rebellions in both provinces that any broader vision came. Two quotations 1 from Ix)rd Durham's Report form the best commentory on the period : "Representative Government coupled with an irresponsible Execu- tive .... constant collision between the branches of the Govern- ment ; the same abuse of the powers of the representative bodies, owing to the anomaly of their position ; aided by the want of good municipal institutions, and the same constant interference of the imperial administration in matters which should be left wholly to the Provincial Governments." "I know not how it is possible to secure harmony in any other way than by administring the Government on those principles which have been found perfectly efficacious in Great Britain. I would not impair a single prerogative of the Crown ; on the con- *Lord Durham't Report (Edited Lucas, 1912), Vol. II, pp. 194, 278. trary, I believe that the interests of the people of these Colonies require the protection of prerogatives, which have not hitherto been exercised. But the Crown must, on the other hand, submit to the necessary consequences of representative institutions; and if it has to carry on the government in unison with a representative body, it must consent to carry it on by means of those in whom that representative body has confidence." The period closes with Lord Sydenham's work. Liberal selec- tions are made from his despatches. He began the new era, and if he only succeeded in stamping his own strong personality on the Government, yet he made possible the successful rule of Lord Elgin, under whom full responsible government was set up in Canada. 1791-1840] Constitutional Documents of Canada. 227 LVI AN ACT INTRODUCING ENGLISH CIVIL LAW INTO UPPER CANADA, IN THE THIRTY-SECOND YEAR OF GEORGE THE THIRD. 1792. [Trans.: Doughty and McArthur, Constitutional Documents (Canadian Public Archives, 1914)] An ACT to repeal certain parts of an Act passed in the -fourteenth year of His Majesty's Reign, intituled, "An Act 1 for making more effectual Provision for the Government of the Province of Quebec, in NORTH AMERICA," and to introduce the English law, as the Rule of Decision in all matters of Controversy, relative to Property and Civil Rights. Whereas, by an Act passed in the fourteenth year of his present Majesty, intituled, "An Act for making more effectual provision for the Government of the Provincet of Quebec, in North America," it was, among other things provided, "That in all matters of controversy relative to property and civil rights, resort should be had to the Laws of Canada as the rule for the decision of the same ;" such provision being manifestly and avowedly intended for the accommodation of His Majesty's Canadian subjects: and whereas, since the passing of the Act aforesaid, that part of the late Province of Quebec, now comprehended within the Province of Upper Canada, having become inhabited principally by British subjects, born and educated in countries where the English Laws were established, and who are unaccustomed to the Laws of Canada, it is inexpedient that the provision aforesaid contained in the said Act of the fourteenth year of His present Majesty, should be "continued in this Province Be it en- acted, by the King's most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act 2 passed in the Parliament of Great Britain, intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Ma- jesty's Reign intituled, 'An Act for making more effectual provision for the Government of the Province of Quebec, in North America' and to make further provision for the Government of the said Province," and by the authority of the same, "That from and after the passing of this Act, the said provision contained in the said Act of the fourteenth year of his present Majesty, be, and the same is hereby repealed; and the authority of the said Laws of Canada, and every part thereof, as forming a rule of decision in all matters of controversy relative to property and civil rights, shall be annulled, made void and abolished, throughout this Province, and that the said Laws, nor any part thereof as such, shall be of any force or authority within the said Province nor binding on any of the inhabitants thereof." II. Provided always, and be it Enacted by the Authority aforesaid, That nothing in this Act shall extend to extinguish, release or discharge, or otherwise to effect any existing right, lawful claim or incumbrance ,to and upon any lands, tenements or hereditaments within the said Province, or to rescind or vacate, or otherwise to affect any contract or security already made and executed conformably to the usages prescribed by the said Laws of Canada. III. And be it further enacted by the authority aforesaid, That from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort shall be had to the Laws of England as the rule for the decision of the same. 1 The Quebec Act of 1774 (see No. XXV). J See No. LV. 228 Constitutional Documents of Canada. [1791-1840 IV. Provided ahvays, and be it Enacted by the Authority aforesaid, That nothing in this Act shall extend, or be construed to extend, to repeal or vary any of the ordinances made and passed by the Governor and Legislative Council of the Province of Quebec, previous to the division ot the same into the Provinces of Upper and Lower Canada, otherwise than as they are necessarily varied by the provisions herein mentioned. V. And be it further Enacted by the Authority aforesaid, That all matters relative to testimony and legal proof in the investigation of fact, and the forms thereof, in the several Courts of Law and Equity within this Province, be regulated by the rules of evidence established in England. VI. Provided always, and be it Enacted by the Authority aforesaid, That nothing in this Act contained, shall vary, or interfere, or be construed to vary or interfere with any of the subsisting provisions respecting eccle- siastical rights and dues within this Province or with the forms of proceed- ing in civil actions, or the jurisdiction of the Courts already established, or to introduce any of the Laws of England respecting the maintenance of the poor, or respecting bankrupts. LVII AN ACT ESTABLISHING TRIAL BY JURY IN UPPER CANADA, IN THE THIRTY-SECOND YEAR OF GEORGE THE THIRD, 1792. [Trans. : Doughty and McArthur.] An Act to Establish Trials by Jury. WHEREAS, the Trial by Jury has been long established and approved in our mother country, and is one of the chief benefits to be obtained by a free Constitution Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act 1 passed in the Parliament of Great Britain, intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign intituled 'An Act for making more effectual provision for the Government of the Province of Quebec, in North America,' and to make further provision for the Government of the said Province," and by the authority of the same, That from and after the first day of December, in this present year of our Lord, One Thousand Seven Hundred and Ninety-Two, all and every issue and issues of fact, which shall be joined in any action, real, personal or mixed, and brought in any of His Majesty's Courts of Justice within the Province aforesaid, shall be tried and determined by the unanimous verdict of twelve Jurors, duly sworn for the trial of such issue or issues, which Jurors shall be sum- moned and taken conformably to the Law and custom of England. II. Provided always, and be it further Enacted by the Authority aforesaid, That nothing herein contained shall prevent, or be construed to prevent the said Jurors, in all cases where they shall be so minded, from bringing in a special verdict. 1 See No. LV. 1791-1840] Constitutional Documents of Canada. 229 LVIII AN ACT FOR THE APPOINTMENT OF TOWN OFFICERS, UPPER CANADA, IN THE THIRTY-THIRD YEAR OF GEORGE THE THIRD, 1793 1 [Trans. : Doughty and McArthur.] An ACT to provide for the Nomination and Appointment of Parish and Town Officers within this Province. WHEREAS, it is requisite for the maintenance of good order and the regular execution of the laws, that proper officers should be appointed to superintend the observance thereof ; Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the legislative council and assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the parliament of Great Britain, intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's reign, intituled, "An Act for making more effectual provision for the Government of the Province of Quebec, in North America, and to make further provision for the government of the said Province," and by the authority of the same, That it shall and may be lawful, as soon as conveniently may be, after the passing of this Act, for any two of His Majesty's justices of the peace, acting within the division in which any parish, township, reputed township or place may be, to issue their warrant giving eight days previous notice to the constable of such parish, township, reputed township, or place, authorizing him on a day to be fixed by the said justices in the present year, and on the first Monday in the month of March in every ensuing year, to assemble the inhabitant householders, paying or liable to pay, to any public assessment or rate of such parish, township, reputed township, or place, in the parish church or chapel, or in some convenient place within the said parish, township, reputed township, or place, for the purpose of choosing and nominating the parish or town officers herein after mentioned, to serve in their respective offices for the year next ensuing, at which meeting the said constable shall preside. II. And be it Enacted by the Authority aforesaid, That it shall and may be lawful for the said inhabitant householders, or the greater part of them so assembled, to choose one fit and proper person from among the inhabitants to be clerk of the said parish, town, or township, who shall and is hereby required to make a true and complete list of every male and female inhabitant within the limits of his parish, town or township, and return the same to the justices acting as aforesaid, so as they may produce the said list at the general quarter sessions in the month of April to be holden, and the said clerk shall and is hereby required, to enter and record all such matters, as shall relate to the said parish, town or township, and shall appertain to his office, which records shall be faithfully and carefully kept and preserved by such clerk, and by him delivered to his successor duly nominated and appointed. III. And be it further Enacted by the authority aforesaid, That it shall and may be lawful for the said inhabitant householders, in manner aforesaid, to choose two fit and proper persons, from among the said inhabitants, to serve the office of assessors for the said parish, township, reputed township or place, who shall assess all such rates and taxes, as shall be imposed by any Act or Acts of the Legislature of this Province, and be made payable by the inhabitants thereof. IV. And also to choose and nominate in manner aforesaid, one fit and proper person to serve the office of collector for such parish, township, reputed township, or place, who shall and may, and is hereby authorized, from time to time, to demand and receive from the inhabitant householders, 1 This _ Act is the beginning of representative local government in Upper Canada. The ecclesiastical parish was accepted as the local unit. 230 Constitutional Documents of Canada. [1791-1840 under the said assessment, such monies as may be due and payable from the said inhabitants, in respect of the matters aforesaid, which collector shall account for and pay over the monies so received by him, in such manner as shall be directed by any Act or Acts of the said Legislature, that may authorize the imposing and levying such rates and taxes respectively. V. And also to choose and nominate in manner aforesaid, not less than two or more than six persons, as shall be specified in the warrant to be issued by the said justices, to serve the office of overseers of highways and roads, to oversee and perform such things as shall be directed by any ' Act to be passed, touching or concerning the highways and roads in this Province, which said overseers shall also serve the office of fence-viewers, and are hereby authorized and required, upon receiving proper notice, to view and determine upon the heighth and sufficiency of any fence or fences within their respective parish, township, reputed township, or place, con- formably to any resolutions, that may be agreed upon by the said inhabit- ants at such meeting to be holden, under and by virtue of such warrant as aforesaid. VI. And also to choose and nominate in manner aforesaid, a person or persons to serve the office of poundkeeper, who is hereby authorized to impound all cattle, and each and every horse, sheep and hog that shall trespass on the lands of any person, having inclosed the same by such high and sufficient fence, as shall have been agreed on in manner aforesaid, and also to impound any stoned horse, more than one year old, that shall be running at large upon the high-ways or commons, and to detain such horse until the owner thereof shall have paid the sum of twenty shillings, one half to be paid to the person taking such horse, the other half thereof to the collector, towards the public stock of the district. VII. And also to choose and nominate in manner aforesaid, two fit and discreet persons to serve the office of town wardens for such parish, township, reputed township or place ; but as soon as there shall be any church built for the performance of divine service, according to the use of the church of England, with a parson or minister duly appointed thereto, then the said inhabitant householders shall choose and nominate one per- son, and the said parson or minister shall nominate one other person, which persons shall jointly serve the office of church warden, and that such town wardens or church wardens, and their successors duly appointed, shall be as a corporation, to represent the whole inhabitants of the township or parish, and as such may have a property in goods or chattels of or belong- ing to the said parish, and shall and may sue, prosecute or defend in all presentments, indictments or actions, for, and on the behalf of the inhabit- ants of the said parish. VIII. And be it further Enacted by the Authority aforesaid, That the constable presiding at such meeting, shall and is hereby required, to cause a list to be made out, containing the names of the persons chosen and nominated to serve and execute the several offices herein before mentioned in manner aforesaid, which list shall be signed by the said constable, who shall forthwith communicate the same to either of the justices, having signed the warrant by virtue of which such meeting was holden, and it shall and may be lawful for either of the said justices, or for any justice of the peace, acting within the division, and he is hereby authorized and empowered to administer an oath of office, to each and every person or persons so chosen and nominated as aforesaid, with seven days after such meeting as aforesaid, in the following form : "You, A. B., do promise and swear, that you will faithfully, diligently "and justly serve and perform the office and duties of "for according to the best of your abilties "So help you God." And that every person having taken such oath, shall be held to be lawfully appointed to such office, for which he shall have been chosen and nominated as aforesaid. IX. Provided always, that any person so chosen and nominated to 1791-1840] Constitutional Documents of Canada. 231 serve any of the offices herein before mentioned in manner aforesaid, who shall refuse 01* neglect to signify his consent to enter upon such service, and to take the oath herein before set forth by the space of seven days after such nomination as aforesaid, shall forfeit and pay the sum of forty shillings for every such neglect or refusal, to be recovered upon proof thereof on confession, or by the oath of^one credible witness, before an> one justice of the peace, acting within the said division, to be levied by warrant of distress, and sale of the goods and chattels of the party so neglecting or refusing, and to be paid into the hands of the treasurer, towards the public stock of the district, except in the case of forfeiture ot any person or persons nominated to be overseers of the highways and roads, and refusing to act, whose penalties shall be paid into the hands of the commissioners of the highways and roads, and that it shall and may be lawful, in case of refusal as aforesaid, for any two of his Majesty's jus- tices, acting within the said division, to hold a special session for the pur- pose of naming one or more person or persons to serve the office, that may have been refused by the party chosen to serve the same, and fined in manner aforesaid, and if the person or persons so named by the said justices, upon being served with due notice thereof, which notice the constable is hereby required to serve upon the person, or leave the same at his usual place of abode, shall neglect or refuse by the space of seven days, after the service of such notice, to accept the said office, and take the oath herein before prescribed, he shall for every such neglect or refusal, forfeit the sum of forty shillings, to be levied by distress and sale, and paid over in manner herein before mentioned. X. And be it further Enacted by the authority aforesaid, That it shall and may be lawful for the justices of the peace, within the respective limits of their commissions at their general quarter sessions in the month of April assembled, or the greater part of them, to nominate and appoint yearly and every year, a sufficiently discreet and proper person, to serve the office of high constable in each and every district, and also to nominate and appoint, such a sufficient number of persons, as in their discretion will be necessary, to serve the office of constable in each and every parish, town- ship, reputed township, or place, and the said constable and constables, before they enter upon their office, shall severally take the following oath, which it shall and may be lawful for any justice of the peace to admin- ister "YOU shall well and truly serve our Sovereign Lord the King, in the "Office of for the of "for the year ensuing, according to the best of your skill and knowledge ''So help you God." XL Provided always, and be it further Enacted by the Authority aforesaid, That no person having been appointed and served any of the offices mentioned in this Act, shall be liable to be appointed, or serve the same office, within three years from such appointment, and service, unless he shall consent thereto. XII. Provided also, That when any township, or reputed township, shall not contain thirty inhabitant householders, it shall not be lawful 'for the said justices to issue their warrant for calling a meeting therein, but the said inhabitant householders shall be joined to and be reputed and taken as inhabitants of the township adjacent thereto, which shall contain the smallest number of inhabitants. XIII. And be it enacted, That it shall and may be lawful for the justices of the Peace within the respective limits of their commissions, at the General Quarter Sessions in the month of April to be holden, assembled, or the greater part of them, to limit and appoint such fees and perquisites as to them shall appear reasonable to be demanded and taken by every town clerk and pound keeper of the several parishes or townships within their respective districts. 232 Constitutional Documents of Canada. [1791-1840 SCHEDULE. JUSTICE'S WARRANT TO ASSEMBLE THE INHABITANTS. Home District. To the Constable for the Township of in the said District. By virtue of a power for such purpose granted by a certain Act of the Legislature of this Province, made and passed in the thirty-third year of his present Majesty's reign, to us A. B., Esquire, and C. D., Esquire, two of his Majesty's justices of the peace in and for the said district, these are to authorize and require you, giving eight days previous notice, to assemble the inhabitant householders, paying or liable to pay to any public assessment or rate living within your parish or township, to meet at on for the purpose of choosing and nominating certain fit and proper persons to serve the offices herein specified for the ensuing year, that is to say, one town clerk, two assessors, one collector, two or more overseers of the highways and roads, one or two pound-keepers, and two town wardens, according to the direc- tions in the said Act contained, and for so doing this shall be a sufficient warrant. Given under our hands and seals at on the day of in the year of the reign of CONSTABLE'S NOTICE TO BE GIVEN ON A NOMINATION TO AN OFFICE BY THE JUSTICES Home District, Township of Whereas at a special session for that purpose holden on the day of by A. B., Esquire, and C. D., Esquire, two of His Majesty's justices of the peace for the said district, you were by the said justices nominated and appointed to serve the office of for the township of for the year next ensuing, by virtue of a power to them for that purpose granted by a certain Act of the Legis- lature of this Province. These are therefore to notify unto you, that unless you accept the said office, and take the oath prescribed, within seven days from the receipt of this notice, you shall for such neglect or refusal, forfeit and pay the sum of forty shillings, as by the said Act is directed. Dated this day of in the year, G. H. Constable. To Mr. L. M. . LIX EXTRACTS FROM THE RULES AND REGULATIONS OF THE HOUSE OF ASSEMBLY, LOWER CANADA, 1793 [Trans. ; Doughty and McArthur.] BILLS Resolved : III. That Bills relative to the criminal laws of England in force in this province, and to the rights of the Protestant clergy, as specified in the Act of the 31st year of his Majesty, chap. 31 1 , shall be introduced in the English language ; and the Bills relative to the Laws, customs, usages and civil rights of this Province, shall be introduced in the French language, in order to preserve the unity of the texts. IV. That such Bills as are presented shall be put into both languages, that those in English be put into French, and those presented in French be put into English by the clerk of the House or his Assistants, according to the directions they may receive, before they be read the first time and 1 See No. LV. 1791-1840] Constitutional Documents of Canada. 233 when so put shall also be read each time in both languages well under- stood that each Member has a right to bring in any Bill in his own language, but that after the same shall be translated, the text shall be considered to be that of the language of the law to which said Bill hath reference. RULES RELATIVE TO THE INTRODUCTION OF PRIVATE BILLS, PASSED IN THE HOUSE THE 19rn APRIL, 1793 VIII. That all aids and supplies granted to his Majesty by the Legis- lation of Lower Canada are the sole gift of the Assembly of this Province, and all Bills for granting such aids and supplies, ought to begin with the Assembly, as it is the undoubted right of the Assembly to direct, limit, and appoint in all such Bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Legislative Council. 1 LX SUGGESTIONS REGARDING THE GOVERNMENT OF CANADA SUBMITTED BY LORD DORCHESTER TO MR. SECRETARY DUNDAS 2 , FEBRUARY 19, 1793 [Trans. : Doughty and McArthur.J 1st. The Establishment of a general Government for all the King's Provinces in North America. To consist of a Governor General, a general Legislative Council, and a House of General Representatives to be chosen by the Assemblies of the different Provinces, with a General Executive Council, and such other Officers as the King may see fit. The necessity of a General Government for the Colonies was urged from New York in 1783 and again in 1790 in the letter No. 15 to Lord Grenville of the 8th February from Quebec, particularly the inclosures C and D. 3 Without a measure of this kind, the general interest of the Empire, as well as the true interest of the Colonies themselves will suffer, and at a future day of their Prosperity, the Unity of the Empire will be Endangered. With the introduction of a General Government, the Colonies of Nova Scotia and New Brunswick should at the same time be put on a footing with the two Canadas by giving them Quadrenial Elections, Seats in the Legislative Councils for Life and their Lands free from Quit Rent. 2nd. The Establishment of a free course of Justice throughout every part of His Majesty's North American Dominions. In the present unsettled State of the Boundary between the Colonies and the United States, neither our Courts of Justice nor our Legislatures can operate coextensively with the King's Dominions and Possessions. ****** 4th. A' more perfect organization of the Courts of Justice in Lower and Upper Canada. One supreme court of Common Pleas for each Province will give uniformity, energy and dispatch to the Administration of Justice. ****** 15th. An alteration of the new Canada Act, in respect to the dis- qualification of those Canadians, who, though absent at the Cession, have been residents of the Province for more than seven years. 1 This is one of the earliest attempts to draw up a method of parliamentary pro- cedure, and to assert the sole right of the Assembly to vote money. 2 Henry Dundas, afterwards Viscount Melville, was appointed Secretary of State for the Home Department, July 8, 1791. 3 See Nos. LIII and LIV. 234 Constitutional Documents of Canada. [1791-1840 Several Members of the Upper and Lower House are supposed to be actually under this disqualification. 1 LXI [Trans. : Doughty and McArthur.] Whitehall, 17th July, 1793. From Mr. Secretary Dundas My Lord Having maturely considered the Suggestions* submitted to me by your Lordship relative to His Majesty's North American Governments, I take this opportunity previous to your Lordship's departure for Quebec of conveying to you, my sentiments upon each of them separately, and in the order in which they stand in a Copy of them hereto subjoined. The first suggestion cannot be carried into execution without an Act of Parliament; but I have great doubts as to the measure itself, and it requires reasons more forcible than any which have yet occurred to me, to convince me that such a confederacy amongst the distant dependencies of the Empire, can either add to its own strength or the real happiness of the different Provinces. ****** I am, my Lord, Your L's M. O., H. S., (Signed) HENRY DUNDAS. LXII SIMCOE TO PORTLAND 5 [Trans. : Doughty and McArthur.] Kingston, Upper Canada, December 21st, 1794. My Lord Duke, In the present situation of Affairs in this Country, I beg to offer for Your Grace's immediate Consideration some important Objects which will be affected by the Arrangement now under Contemplation between His Majesty and The United States; these Objects relate entirely to the civil Government. A Principle on which I have considered this Government as most wisely established, and which I have never lost sight of in its Administra- tion, has been to render the Province as nearly as may be a perfect image and transcript of the British Government and Constitution. In the pursu- ance of this Object and in order to give weight and respectability to the Legislative Council, which his Majesty and the Parliament had constituted as a Branch of Government, I thought it proper, having divided the districts into Counties to create Lieutenants, selecting them where practicable from the Legislative Counsellors and giving to the Lieutenants as nearly as circumstances would admit, the appointments or recommendation of the Magistrates, and the nomination of the Officers of the Militia, as stated See Constitutional Act 1791, IS 20-24 (No. LV) for the qualifications for fran- chise and membership of the House of Assembly. For the whole question of naturali- zation, see Doughty and McArthur, p. 107, note. 1 See No. LX. 1 This despatch and the following document throw an interesting light on some of Simcoe's characteristic enthusiasms in Upper Canada. (See Duncan Campbell Scott, John Graves Simcoe, 1905.) Portland was appointed Secretary of State for the Home Department in July, 1794. 1791-1840] Constitutional Documents of Canada. 235 in the Circular Letter 1 , I beg to enclose to Your Grace I have reason to believe this arrangement will in due Progress answer the intention. The Towns of Kingston and that on the River Niagara from their situation must be places of great resort. I therefore beg to submit to Your Grace, That I think, It would be for the public Interest and the King's benefit, that These places should be incorporated and named the Cities of Kingston and Niagara ; I should propose that the Corporation should consist of a Mayor and six Aldermen, Justices of the Peace ex officip, and a competent number of Common Council-, to be originally appointed by the Crown, and that the succession to vacant seats might be made in such a manner as to render the Elections as little popular as pos- sible ; meaning such Corporations to tend to the support of the Aristocracy of the Country. I should propose that these Corporations should have maritime Juris- diction, if such shall either at present or in future be necessary to take place on the Lakes and River St. Lawrence The whole Jurisdiction of Lake Ontario might well be divided between Niagara and Kingston and the intermediate Port of York. The St. Lawrence might be divided between Kingston and Cornwall or New Johnstown Erie might be divided between Niagara and the Post to be taken near to Long Point. From thence the Jurisdiction of Long Point, might extend to the Isle Bois blanc, and from thence, that of Chatham might begin and terminate at Cabots Head (Pennatangushene) or Gloucester should comprehend all the Maritime Jurisdiction beyond that on Lake Huron and Superior and the North Western territory. It also appears, and possibly more eminently necessary, that I should observe to Your Grace, the propriety of establishing, probably by Treaty with the United States, some law to prevent Criminals of a certain descrip- tion finding refuge in His Majesty's dominions and those of the States, respectively. It appears to me that a vigilant Police is most necessary on the limits of the two Countries for that express purpose; and perhaps, It may be proper to enact stricter Laws on this Subject, and applicable to Particular Spots, that rryght not be justifiable or necessary to be extended over the other parts of the Province. The straits of Niagara and the Port of Kingston are the general places at which strangers enter the Province, and where People leave it, It seems therefore, that establishing a Corpora- tion at these places with adequate jurisdiction may be of public Service in these respects. Great Britain from its insular situation (as far as I recollect) affords no examples of English laws being applicable to boundaries respecting a foreign Neighbour; and in particular, of communications by water; a division on which must form such a boundary. The term debateable land, when England and Scotland were separate Kingdoms seems to support the propriety of my wish that so soon as possible the Laws may define and comprehend for the purposes of internal Government both the land and water under certain Jurisdictions. I have to observe to Your Grace these proposed Corporations, should have the right of "suing and being sued and sufficient powers for giving efficacy to all internal regulations and by these means of promoting the welfare of the Community, without any of those monopolies which exist in European Corporations The Basis adopted for an equal Representation of the People of the Province was Its population, ascertained by the Militia Rolls This Prin- ciple, liable from its own nature, and the situation of the Country to fluctuate, will in a more particular manner become unequal, should Detroit be relinquished to the United States It therefore appears to me, season- able that I should request Your Grace's directions on what established Principle the Extension of the number of Representatives should hereafter take place? and It may be worthy of your consideration whether in the present peculiar Instance It may or may not be proper to give the Right l See No. LXIII. 236 Constitutional Documents of Canada. [1791-1840 of electing Members to the Inhabitants of the proposed cities of Niagara and Kingston ; which certainly will add to their respectability both, should include a competent tract of Ground, and for all purposes, the former should include Queenstown, where some Proprietors mean to build largely the ensuing Year, and the present town of Newark. In respect to existing circumstances, It appears to me of consequence, That Niagara should be incorporated so soon as possible, were it only to preserve its name in the King's Dominions. It is the policy of the United States to call themselves solely Americans, not only with the view to melt down in that general name every part of their Confederation, but to en- force when time shall suit, their principle, "that all Colonies connected with European Governments, or depending upon them are foreign, and invaders, and that They themselves only are the Natives." Having no Chief Justice, and being at a distance from the Attorney General I have thought proper at the present Crisis to offer These ideas to Your Grace In Hopes that should they be deemed worthy of attention, Charters of incorporation with such powers may be forwarded to me from England, before the meeting of the next Session ; and I am to observe to Your Grace, That as by Act of Parliament 1 the ensuing Session will be the last of the present House of Assembly, It will be provident, to pass every Bill, that may be necessary before it be dissolved, as it not be probable that a more loyal or better disposed set of men will be again reassembled. It has been represented to me, that the Act of Parliament 3 which established the Constitution of this Country, specifying that the Lands should be granted in free and common soccage, is at variance with His Majesty's Instructions which preclude my granting Lands without The reservation of Mines which may be discovered; and It is stated to me that a Grant in free and common Soccage reserves only to the Crown, Mines of Silver and Gold. I shall be glad of Your Grace's immediate directions on this Point ; in particular as I meant to submit to you whether the grant of Iron Mines might not be made by the Government of this Country, there is every probability that They may be usefully worked And I presume that His Majesty's Ministers do not mean to follow any system which may preclude such rude Manufactures as may be necessary for the benefit of the Country. ****** I have the honour to be with great Respect and Deference. My Lord Duke Your Grace's most Obedient and most humble Servant. J. G. SIMCOE. LXIII SIMCOE TO LIEUTENANTS OF COUNTIES, 1794 Sir Having thought it necessary for the public benefit to create Lieutenants of those Counties within the Province which are sufficiently populous to require such a Superintendency, I enclose to you a Commission under the Great Seal of Upper Canada appointing you Lieutenant of the County of It may not be improper to observe that this high office under the Constitution of Great Britain is generally conferred upon the Persons who seem most respectable to His Majesty's Government for their property, Loyalty, Abilities and Discretion in their several Counties, and who from a combination of such Possessions and Qualities acquire that weight, 1 See Constitutional Act, f 27 (No. LV). 'Ibid, f 43. 1791-1840] Constitutional Documents of Canada. 237 respect and public confidence which renders them the natural support of Constitutional Authority. If 'on the one hand this Office has been at all times bestowed by the Sovereign with the Circumspection and Caution due to the Important Trusts which it involves; on the other; it has been a principal object of honourable Ambition which the British Constitution approves in the first Men of any State making a due provision of Power for that legal Aristo- cracy which the Experience of Ages has proved necessary to the Ballance and Permanency of her inestimable form of Government. In Naming You, Sir, to this office on the first establishment of the true British Constitution in her Colony of Upper Canada, I am influenced by the Consideration of finding you already at the Head of the Civil Juris- diction of the County in which you reside, and having the same Opinion of Your Loyalty, and Character which occasioned Your Original Appoint- ment, I am happy in adding my public Testimony to that of Lord Dor- chester. It is my wish, that the Magistrates whom you are now to superintend may appear to you to be worthy to be continued in Office, but should there be Improper persons in that Station, You will be pleased without hesitation to give me the necessary Information. A Commission will probably be issued soon after the meeting of the Legislature, agreeably to the British Custom including Such persons in each County as shall appear proper to be continued, or added, if any Addi- tion shall seem necessary to the Several Lieutenants as Justices of the Peace. In regard to the Militia of your County, as it is to be supposed that the Legislature will shortly frame a General Act for the Province, I should not wish at present to make any Alterations in its Officers ; You will be pleased however to be prepared with such lists as may be necessary to fill up any vacancies or to supply any Augmentation, should such appear requisite All Commissions are to be recommended by you, and if then they shall be approved by me, they are to be signed as in the British Act by you as Lieutenant I beg to observe that I consider all those who keep Taverns, however respectable in their private Character ; as not admissable either as Officers of the Militia or Justices of the Peace. You will be pleased to take the customary Oaths with as much Publicity and Solemnity as possible. I am Sir etc. (Signed) J. GRAVES SIMCOE. LXIV PORTLAND TO SIMCOE [Trans.: Doughty and McArthur.] Whitehall, 20th May, 1795. Lieut. Governor Simcoe, Sir, ****** Both the Measures 1 seem very unfit to be encouraged by the Parent State in a dependent Colony The Legislative Power being given up to an Assembly of their own, it is only thro' the executive Power, vested in the Person having the Government of the Province, that the Sway of this Country can be exercised Every kind of Authority that is not incon- sistent with the Constitution given to the Province, ought, therefore, to be concentered in his hands Whereas the evident tendency of both these measures, is to fritter down his direct Power, and to portion it out among Corporations and Lieutenants, who, on many occasions, may be disposed 1 i.e. The plans of creating Corporations and of establishing Lieutenants of Coun- ties (see Nos. LXII and LXIII). This despatch illustrates contemporary ideas of colonial government. 238 Constitutional Documents of Canada. [1791-1840 to use it in obstructing the Measures of Government, and, in all events, will require to be courted and managed, in order to secure the right direc- tion of the Influence thus unnecessarily given them. I have entered pur- posely more at large into these proposed Measures, because I observe that your adoption of them arises from an idea, that by assimilating the modes of the Government of the Province, to the modes of the ^Government of England, you will obtain all the beneficial effects which we receive from them Whereas to assimilate a Colony in all respects to its Mother Country, is not possible, and if possible, would not be prudent. The one may have many Institutions which are wholly inapplicable to the situation of the other Some there may be, which we permit to continue here only, because they already exist, and are interwoven with other parts of the Government, but which, perhaps, if we had a choice, we should not now be disposed originally to introduce Such, in the Opinion of many, are Corporations, and separate Jurisdictions of all sorts. Others there are which may be objectionable in a Colony, as tending to lessen the Authority which the Parent State ought to possess over it, as long as that relation subsists between them Of this description I conceive to be all subordinate Powers created in the Colony, beyond those which are absolutely necessary for its internal Police The Power of the Person having the Government, is the Power of this Country; but such subordinate Powers as are proposed, are not ours. We have no connection with, or direct Influence over, those who exercise them They are rather means and instruments of Independ- ence. Having said thus much, it must depend on local circumstances and further consideration, how far it may be expedient to attempt to undo anything that has been already done; but I can see no ground that will authorize me to encourage the further prosecution of either of the Meas- ures in question. ****** I am, &c. PORTLAND. LXV MILNES TO PORTLAND 1 [Trans. : Doughty and McArthur.] Quebec, 1 November, 1800. MY LORD On my first taking upon myself the administration of the Affairs of this Province I was extremely struck with the wavering state in which I found the Interests of Government. I have since been at much pains to discover the real Causes of this situation of things which I plainly saw lay deeper than, I believe, is generally supposed by His Majesty's Ministers; and I am so forcibly impressed with a persuasion that this Subject ought to be attended to, that I feel it my Duty to lay before Your Grace, such Remarks as have occurred to me respecting it, in order that Your Grace may be fully apprized of the real State of the Country, and take such Measures as you may think fit to strengthen the Executive Power in Lower Canada. However excellent in itself the new Constitution may be which His Majesty has graciously been pleased to grant to the Province, I conceive the Foundation of it must rest upon a due proportion being maintained between the Aristocracy and the lower Orders of the People, without which it will become a dangerous Weapon in the hands of the latter. Several Causes at present unite in daily lessening the Power and Influence of the aristocratical Body in Lower Canada : I cannot however but think that 1 This despatch illustrates the workings of the Constitutional Act of 1791. It is also valuable, as it throws light on the position of the Executive Government and the House of Assembly in Lower Canada before the racial struggle began to complicate the issues. 1791-1840] Constitutional Documents of Canada. 239 Measures might be adopted to counterbalance in some degree this Tend- ency, and I shall hereafter have the Honor to point them out to your Grace : but in order to make myself clearly understood I must first explain what I consider to be the principal Causes by which the Influence of the Aristo- cracy in this Country has gradually been reduced to it's present State. The first and most important of these I am of opinion arises from the manner in which the Province was originally settled; that is, from the independent Tenure by which the Cultivators (who form the great Body of the People and are distinguished by the appellation of Habitants) hold their Lands ; and on the other hand from the inconsiderable Power retained by those called the Seigneurs, and the little disposition they feel to encrease their Influence, or improve their Fortunes by Trade. Hence by degrees the Canadian Gentry have nearly become extinct, and few of them on their own Territory have the Means of living in a more affluent and imposing Style than the simple Habitants who feel themselves in every respect as independent as the Seigneur himself with whom they have no further Con- nexion than merely the obligation of having their Corn ground at his Mills, paying the Toll of a Fourteenth Bushel, which they consider more as a burthensome Tax than as a Return to him for the Lands conceded by his Family to their Ancestors for ever upon no harder Conditions than the obligation above mentioned, a trifling Rent, and that of paying a Twelfth to the Seigneur upon any transfer of the Lands. The Second Cause which I apprehend tends to lessen the Influence of Government in this Province is, the prevalence of the Roman Catholic Religion and the Independence of the Priesthood 1 : this Independence I find goes considerably further than what was intended by the Royal Instructions wherein it is particularly declared to be His Majesty's Pleasure "that no Person whatsoever is to have Holy Orders conferred upon him, or to have the Cure of Souls without a License for that purpose first had and obtained from the Governor," etc. etc. But this Instruction has hitherto never been enforced, by which means the whole Patronage of the Church has been thrown into the hands of the Roman Catholic Bishop, and all connexion between the Government and the People through that Channel is cut off, as the Priests do not consider themselves as at all amenable to any other Power than the Catholic Bishop. A singular Instance lately occurred of this Independence: A Priest at Terrebonne near Montreal interfered in the most indecent manner in the late Election for the County of Effingham ; he exerted all his Influence to prevent the Solicitor General from being chosen, and violently supported a Man who had been expelled from the last House of Assembly on account of his having been convicted of a Conspiracy, and who was consequently considered as a dishonored Person. 2 . Upon this man's being chosen the Priest actually went so far as to perform High Mass in the Parish Church, to return Thanks as he termed it, "for the reelection of this Martyr." In justice to the Canadian Bishop I must add, that upon my Representation he did every thing which was proper to be done on the occasion. Another Circumstance which has greatly tended to lessen the Influence of Government since the Conquest has arisen from the necessity which then existed of disembodying the Militia: but as I am by no means of Opinion, considering the Circumstances which took place a few years since, that it would be either practicable or prudent to call out the Militia at this particu- lar moment. I shall not enter further into this Subject at present, though I shall hereafter revert to the Militia even in its present State as a Means by which a certain degree of Influence might still perhaps be established in the several Parishes. It may be unnecessary to observe to your Grace how much more important the above Facts are become since the establishment of the new 1 For a further discussion of this point see Sir James Craig's despatch to Lord Liverpool, 1 May, 1810 (No. LXXIII). 3 i.e. Charles B. Bouc, who, after being expelled from the House of Assembly, successfully ran for the County of Effiingham against Solicitor-General Foucher in 1800. He was disqualified by Act of Parliament in 1802. 240 Constitutional Documents of Canada. [1791-1840 Constitution. In the time of the French Government an Ordinance, issued in the name of the King, was sufficient to enforce the execution of any Measure that was deemed expedient without any discussion taking place upon the subject, or its entering into the Minds of the unlettered Habitants to doubt for a moment the propriety of the Measure. But since the establishment of the present Constitution in the year 1792, the Case is very different every thing being previously discussed in the House of Assembly ; and unless a certain preponderance can be maintained in that House (which at present is by no means as firmly established as I could wish) the Power of the Executive Government will insensibly become nothing. Very few of the Seigneurs, as I have already hinted, have sufficient Interest to insure their own election or the election of any one to whom they give their Support in the House of Assembly, and the uneducated Habitant has even a better chance of being nominated (though he cannot perhaps sign his name) than the first Officer under the Crown : There was a moment when I even despaired of getting the Attorney General 1 into the present Assembly ; and though it is undoubtedly better composed than the last, it is far from being so respectable a Body as Government might wish. The Canadian Habitants are I really believe an industrious, peaceable and well disposed People; but they are, from their want of Education and extreme simplicity liable to be misled by designing and artful Men, and were they once made fully sensible of their own Independence, the worst Consequences might ensue. They are in fact sole Proprietors of nearly all the cultivated Lands in Lower Canada. The Seigneurs and Ecclesiastical Bodies to whom the Lands were originally granted having conceded the greater part of their Lands for ever, with little or no reserve, to the Cultivator in small Parcels of from One to Two Hundred acres retaining only as I have already observed the Property and Profits of the Mills, a certain Proportion of their Produce which is sometimes paid in kind and in various ways, and the Lods et Ventes ; and this Species of Property attached to the Seignorial Rights is by the ancient French Laws of Inheritance, which occasion frequent subdivisions of Prop- erty, in a few Generations become quite inconsiderable, whereby the Situa- tion of the Seigneur has in many instances been reduced below that of the Vassel. Each Habitant cultivates as much Land as he can manage with the Assistance of his own family, and as is necessary for its support ; and having thus within themselves from year to year all the Necessaries of Life, there cannot be a more independent Race of People, nor do I believe there is in any part of the World a Country in which Equality of Situation is so nearly established. Except in the Towns of Quebec, Montreal and Three Rivers, little or no difference is observable in the affluence of the Canadians but what may in some Measure arise from the local Circum- stances of more or less favorable Situation, a richer Soil, or a greater or less degree of exertion. The Counties are divided into Parishes each Parish chiefly extending about Three Leagues along the Rivers St. Lawrence and Chambly, and to each of which there is a Parochial Church ; the principal Person in every Parish is in general the Priest, and the next the Captain of Militia, and it is through the latter that any Business is transacted for Government. Having endeavoured to give your Grace some insight into the actual State of this Country, which I could more fully enlarge upon if I was not apprehensive of intruding too much upon your time till I have received your permission so to do, I shall proceed to point out the means by which I imagine the Influence of Government might be immediately extended to the distant Parts of the Province, and though I am conscious this cannot be effected without a certain expence to the Mother Country, I consider that expence as inconsiderable when compared to the Sums it would require to quell any disturbance that might for want of timely precaution take place in the Province: the apprehension of such an Event though not 1 Jonathan Sewell. 1791-1840] Constitutional Documents of Canada. 241 immediate is strongly impressed on the Minds of some of the best Friends of Government. I am well aware the chief Object to be depended upon to encrease the Influence of the Crown, will be by means of the Waste Lands ; and in that point of view the delay that has taken place in the Land Business is greatly to be regretted and it becomes an Object of peculiar importance to Govern- ment that no further delay may occur to prevent the clearing and settling of the immense Tracts that are now in the hands of the Crown undisposed of, as their being granted in free and common Soccage will in time (if judiciously granted) form in this Province a Body of People of the Protes- ant Religion that will naturally feel themselves more immediately connected with the english Government; but as this cannot be expected to have any immediate Effect, I am inclined to think that in the mean time much may be done first through the catholic Priests, and secondly by means of the Militia. The present Catholic Bishop 1 is extremely well disposed to Government ; he is allowed by His Majesty Two Hundred Pounds per annum as Super- intendent of the Romish Church; in addition to which he receives from Government a Rent of 150 per annum for the use of the Bishop's Palace at Quebec which is occupied by Public Offices ; He has lately applied to me for an encrease of this Rent, signifying at the same time that his Income is very inadequate to his Situation and the Calls which are made upon it, which I have reason to believe is a just Statement. This Application offers an occasion of attaching the Canadian Bishop more particularly to Govern- ment, if by such an encrease of his appointments as His Majesty shall graciously be pleased to allow his Situation was made easy, at the same time requiring of him a strict attention to that part of His Majesty's Instructions to the Governor which I have before mentioned 2 . This I am of opinion would tend very much to increase that Consid- eration which the Priests themselves ought to feel, and to encourage in their Parishioners for the Executive Government, at the same time that it would ensure the cooperation of the Canadian Bishop : But in order to carry this point particular care must be taken to chuse a proper moment, and if the Bishop should be found decidedly averse to make the Sacrifice required of him, it ought perhaps to be defered till the Peace. The Priests have a 26th of all the Grain, which may be valued at Twenty Five, or Twenty Six Thousand Pounds a year, which alone must make their Influence very considerable, and especially as the Religious Bodies are in possesison of nearly One Fourth of all the Seignorial Rights granted before the Conquest (excepting those of the Jesuits Estates latterly taken into the possession of the Crown) as will appear by the Inclosure. With regard to the Militia it will be more difficult to give Your Grace a clear and distinct Idea of the Mode in which I am inclined to think use may be made of this Body to support the Interests of Government through- out the Province, and to disseminate Principles of loyalty amongst the Canadians in opposition to that spirit of democracy which has lately gained so much ground in many Parts of the World, but fortunately has not at present made any material progress in Canada. The Population of Lower Canada is computed as about One Hundred and Sixty Thousand Souls, Nine Tenths of whom reside in the Parishes before described, distinct from the Towns, and from these are drawn the Canadian Militia which amount to 37.904 between the ages of 16 and 60. In the Parishes here aluded to, there are 292 Captains of Militia who are chosen from among the most respectable of the Canadian Habitants (the Etat Major amounting to 16 being in general chosen from among the Seigneurs) and here it is necessary to inform your Grace how far under the dominion of France the Body of the People were regulated in all public Matters by the Officers of Militia; the Captains of Militia being the Persons 1 Bishop Denaut. The Bishop's palace was used by the Legislative Council for its meetings till 1838. 2 For a similar scheme in 1810, see No. LXXIII, p. 266. Milnes" suggestion doubt- less owed its origin to H. W. Ryland (see note on No. LXVIII). P 242 Constitutional Documents of Canada. [1791-1840 employed to issue and enforce the public ordinances and the Corvees, and who through the Authority thus delegated to them by Government pos- sessed considerable Influence in their respective Parishes. Although under His Majesty's Government these Powers have in a great Measure been withdrawn, especially since the establishment of the new Constitution, there still remains in the minds of the Canadians a certain Consequence attached to the Character of Captain of Militia; and as I have before observed to your Grace, it is still customary on all public occasions to employ this useful Class of People to perform many Services for Government which they have hitherto done without other reward than merely that arising in their own Minds from the Honor and respectability of the Appointment; but this though sufficient to render it desirable is, as they feel, by no means an equal return for the considerable Portion of their time so employed: If then by means of an honorary and pecuniary reward, or by any Plan that may be approved of by the Executive Council, this Class of the Canadians could be brought to consider themselves as the immediate Officers of the Crown, and peculiarly attached to the Interest of Government, there is no doubt that such an Influence from the Circum- stance of being equally diffused over the whole Province would effectually tend to keep alive among the great Body of the People that Spirit of Zeal and Loyalty for monarchical Government which I believe to be natural to the Canadians, but which for the want of an intermediate Class to whom they can look up, and from their having no immediate Connexion with the Executive Power is in danger of becoming extinct. That Loyalty is a lively principle in the Breasts of the Canadians I have no doubt, if I may judge from the expressions of satisfaction which are shown by all Ranks whenever the Representative of His Majesty only passes through the Country: this I myself experienced (though at that time personally unknown) in the Tour I lately made through the Province. There are several other Means besides those I have already stated by which I am convinced, a proper Bias may be maintained in the Minds of the Canadians, so as I should hope would secure the Province against any internal Commotion or Disaffection, the Details of which I shall reserve until I shall receive your Grace's Sanction to trouble you further on this head, particularly as in order to give your Grace a complete Idea of this Subject and the extent of my Plan it will be necessary to solicit your attention while I lay before you a Sketch of the relative Expences of the Civil Department of Lower Canada, and the Military Expenditure of the Canadas, by which it will appear how little Proportion exists in the Ex- pences of those Departments, and what a considerable saving may hereafter accrue to Government if according to the Plan proposed, and by a more liberal allotment to the Civil Expenditure such an Influence could be attained over the Minds of the Canadians as might in the course of time not only secure the Province from any interior Commotion or disaffection, but likewise insure the cooperation of the Inhabitants in the Defence of the Province against the Attempts of a foreign Enemy without the aid of such a considerable military Establishment as the Mother Country has hitherto maintained in this part of His Majesty's Dominions. The Deficiency of the Revenue, upon an average of the last Five years of the Civil Expenditure, amounts as will appear in the Paper I have the honor to transmit, to 12,000 per annum, and the yearly Military expenses of the two Canadas, according to the best Information I can collect, to about 260,000. This Expence would in the case of any Tumult or Insur- rection in the Country, or of a War with the neighbouring States, most probably be doubled its present amount ; and this Consideration alone shews how infinitely important it is to the Mother Country that your Grace should be made acquainted, while there is yet time, with every means by which the Influence of the Crown may be encreased, and the hands of the Executive Power strengthened. But there is another Consideration of perhaps greater importance than any above mentioned ; could such an Influ- ence be obtained throughout the Province by means of the Priests and the Captains of Militia as I have ventured to look forward to, that Influence 1791-1840] Constitutional Documents of Canada. 243 when fully established might also be employed so as at all times to ensure a Majority in favor of Government in the House of Assembly, and to secure the election in that House of such Men as from their Education and Knowledge of Business are most likely to see the real Interests of the Province in their true light, and not to be deluded by the falacious Argu- ments of any popular Speaker from giving their entire Support to the Executive Government. The defect of such an Influence over the Elections lessens the respectability of that Assembly in a very great degree, and particularly as from the absolute Want which has so long existed of the Means of Education and the inability of the Canadians to support the Expence that would attend sending their Sons to the Mother Country for that purpose, there are at present scarcely any rising Men, and but few Men of talents among the Canadian Gentry. From this and other Causes the Business of the House of Assembly is transacted with so little System or regularity that the oldest Members are some times unable to form a judgment of what is likely to be the result of their deliberations on the most common Subjects. While a due preponderance on the side of Government is so manifestly wanting in the Assembly it is considered by the Well wishers of Govern- ment as a fortunate Circumstance that the Revenue is not at present equal to the Expenditure, & your Grace will immediately see the necssity on this account of preserving, in appearance at least, that disposition in a greater or less degree, as there is reason to apprehend that in case the Province could be induced to Tax itself in a degree equal to the Calls of the Execu- tive Government, the Right of regulation and control over the whole would probably be aspired to by the Assembly, which could not fail of producing the most injurious Consequences to the Colonial Government, rendering it from that moment dependent on the Will of a popular Assembly. The Burthen which is at present thrown upon the Mother Country will be fully compensated for whenever the Sums that shall arise from the Sale of the Waste Lands begin to come in, and particularly if (as appears by the Dispatch of the 13th of July 1797 to Gen. Prescott to have been in contemplation) it should be determined to appropriate the Monies arising from those Sales to the purchase of Stock in the English Funds, and the Interest of this Stock to go in aid of the Civil Expenditures of the Province in such manner as the Lords Commissioners of His Majesty's Treasury may direct. The Quantity of Land which from first to last will have have been at the disposal of Government is computed at about ISO Townships equal to Ten Million of Acres which have actually been applied for, including as is supposed the principal part of the ungranted Lands in Lower Canada that are deemed convenient for settlement and fit for cultivation. Of the above about 35 Townships only are in contemplation to be granted on the original Terms proposed in the year 1792 consequently 115 Townships will remain for the future disposition of the Crown exclusive of the Church and Crown Reserves consisting of Two Sevenths set a part in the Townships already granted. The Wealth, Power and Influence that must accrue to the Mother Country when those Lands become settled is an object of self evident magnitude, and must in time make a full return for whatever will be found necessary in the mean while to support and secure so valuable a Colony. I flatter myself there can be no doubt that the liberality with which His Majesty has lately been pleased to provide the Means of Education in the Province will go a great way to secure the affection and loyalty of the rising Generation who would otherwise be in danger of imbibing Principles inimical to His Majesty's mild and paternal Government by the necessity which has hitherto existed of their being sent to the neighbouring States for education. The respectable footing upon which the Protestant Church is about to be put in Quebec will likewise tend to encrease that Considera- tion which ought to prevail for the Established Church. When I began this Despatch I did not foresee the length into which I have been inevitably drawn, but I trust I shall stand excused in the 244 Constitutional Documents of Canada. [1791-1840 opinion of your Grace by the motives that have actuated me in this research, and I may truly say I have no other view than a full and conscientious discharge of all the Duties that belong to the Situation which His Majesty has been pleased to entrust to me. I have the Honor to be My Lord, Your Grace's Most obedient and Most humble Servant ROBT. S. MILNES. LXVI PORTLAND TO MILNES [Trans. : Doughty and McArthur.] Whitehall, 6 January, 1801. Sir, The matters stated in Your Letter to me separate and secret of the 1st November 1 are so highly important to the King's Canadian Government that I shall make them the subject of the separate Dispatch. The prevalence of the popular influence in Lower Canada seems to be attributed by you to three principal causes, viz. first, the separate and unconnected Interests of the Seigneurs and the Habitans, by which the latter are become totally independent of the former, and are not likely to be influenced by them in any respect secondly the Independence of the whole body of the Roman Catholick Clergy, who are accountable to no other authority than that of their own Bishop; and thirdly the necessity there has been of disembodying the Canadian Militia, in consequence of that Country's having been conquered by His Majesty's Arms, and the inexpediency of their being called out under the present circumstances. As the separate and unconnected situation of the Seigneurs and Habi- tans arises from the Established Laws and Usages of the Province in regard to the property held in these two descriptions of Persons, it is an evil certainly to be regretted, but I fear it will be very difficult, if not impossible, to remedy; and as the Canadian Gentlemen can derive no influ- ence from the Landed possessions, it must necessarily be left to the particu- lar exertions, ability and ambition of the Individual Seigneurs to emerge from their present State of insignificance all that can be done in this respect, is to hold out motives for execution, and to give all possible encouragement in those instances where any disposition of the kind is found to exist but before I proceed further I can not help expressing to you my surprise that the establishment of the Canadian Battalion in Lower Canada, the principal object of which was to draw the Canadian Gentle- men from their Indolent and inactive habits and to attach them to the King's service, should have met with no greater success had any eager- ness been manifested in completing this Battalion, it might have been judged advisable to form a second and third of the same sort in case the spirit and inclination of the King's Canadian Subjects appeared to call for it. With respect to the Roman Catholick Clergy being totally independent of the Governor, I must first observe that I am not aware of the causes that have led to a disregard of that part of the King's Instructions, which require "That no person whatever is to have Holy Orders conferred upon him or to have the care of Souls, without Licence first had and obtained from the Governor." The resumption and exercise of that power by the Governor and the producing such a Licence requisite for admission to Holy Orders, I hold not only to be of the first importance, but so indispen- sably necessary, that I must call upon you to endeavour to effect it by every possible means which prudence can suggest you will therefore 'No. LXV. 1791-1840] Constitutional Documents of Canada. 245 readily conclude that I must see with pleasure your proposal for encreasing the Allowance to the Catholic Bishop adopted almost to any extent, if it can prove the means of restoring to the King's Representative in Canada that power and controul which are essentially necessary to his authority, and which is expressly laid down by the 44th Article of your Instructions above alluded to. The third and last cause of the preponderance of the popular influence, viz., the situation of the Canadian Government with regard to its Militia appears to me to carry with it, its own Remedy ; inasmuch as the Establish- ment itself is capable of being converted into an Instrument of considerable Weight and authority in the hands of the Executive Power, provided the measure I have to suggest should meet the opinions and sentiments of the Canadians themselves according to your statement what seems to be wanting is to put the Militia upon such a footing that its being called out shall be so much for the Interest and advantage of those that compose it as to render it favorable to the measure. With this view I have examined your Militia Acts of May 1794 and May 1796, and the particular in which they strike me as being defective is that they contain no Provision for the Annual Meeting of the Militia or even any part of it, except for two days in the year for the purpose of being mustered; what I would propose there- fore is (in case of its meeting with the approbation of the Legislature) that a certain proportion of the Militia to be chosen by Ballot should be called put to be exercised for 3 weeks or a month in each year during which time the Officers and men who shall be called out should be allowed the same pay and subsistence as His Majesty's Regular Troops. It would of course be provided that the men who should be chosen by Ballot in any one year, should not be ballotted for again until the residue of the militia should have been called out ; by which means all the Officers and men would take their regular tour of duty & partake of the advantages arising from their being called out. The adoption of this part of our Militia Law (with such variations as local circumstances may call for) will necessarily require that another part of it should be adopted, viz., the permanent pay of an Adjutant to each Regiment and of a certain number of non-commissioned officers, fifes, Drums as in the militia of this Kingdom. In amending the Canadian Militia Bill in the manner I have suggested, Provision might also be made for such other Appointments as would be necessary during the time of the annual exercise of that portion of the Militia which may be called out. What the number and description of those appointments should be, must depend upon the number of militia men to be called out and must therefore be regulated on the spot. You will understand that I am only stating the outline of such amend- ments to your Militia Laws, as I conceive to be most likely to secure the objects you have in view, and to create and establish that interest and connection which should subsist between the Militia and the Executive Authority of the Province. Should you be of opinion that these amendments will meet with the concurrence of the Legislature, the sooner they are digested and put into proper form with the Assistance of the Executive Council and the Law Officers of the Crown, the better; and you will as immediately as possible transmit to me an Estimate of the additional expence which will be created by them, in forming which Estimate I am confident you will take care to keep it as Low as the object to be attained by the adoption of the proposed amendments will allow of. These leading points relative to the Roman Catholick Clergy and the Militia being carried, every future step which is made in the settlement of the Province must, by making Grants of the Waste Lands of the Crown to Protestants upon the conditions, and subject to the Regulations now finally established and acted upon in the Land Granting Department neces- sarily tend to lessen the degree of popular influence which is at present pos- sessed by that description of His Majesty's Canadian subjects which con- stitutes so great a proportion of the inhabitants of the Province at large. 246 Constitutional Documents of Canada. [1791-1840 I need not add that I shall be anxious to receive your answer to this letter, as well as the further details which you promise to communicate to me. I am, etc. PORTLAND. LXVII OBSERVATIONS ON THE GOVERNMENT OF CANADA BY JOHN BLACK 1 [Trans. : Doughty and McArthur.) 9 Oct., 1806. To Field Marshall His Royal Highness Duke of Kent. The following observations are humbly submitted to your Royal Highness for the information of His Majesty's Ministers which I trust will show that the existing laws and Constitution of His Majesty's two Provinces of Upper & Lower Canada are unequal to the promoting oi those subjects so necessary for the good of this Kingdom to which the Canadians are so well calculated essentially to contribute. By the Legis- lature of Lower Canada, the goods bound through that Province to Upper Canada are subjected to a Duty, notwithstanding they have each a separate Government, an Upper and a Lower House of Parliament to Legislate for themselves this will ultimately lead to mischief although Lower Canada accounts to Upper Canada for their proportion*. The House of Assembly of Lower Canada is composed of Fifty Members, and notwithstanding the Government and Commerce of the Colony are in the hands of the English, still at the General Elections British Influence can never get more than Twelve Members returned who have to contend with the passions and prejudices of Thirty eight French; the majority of whom are by no means the most respectable of the King's Canadian Subjects; the cause of this is the British Act of Parliament which gives to the Provinces their present Constitution by that Act* the following qualifications are required of the Electors (vizt.) in the Cities of Quebec and Montreal, Rent to the Amount of ten pounds p. annum or real property to the Amount of five Pounds p. annum, and in all the Counties two Pounds property entitles them to a vote, but no qualification is required by the Said Act for the Candidate, by which means immediately preceding all General Elections not only the nefarious & the Political Bankrupt, the Demagogue and the insidious and Ambitious title of Friend of the People are all united in the Same Person, which makes the Country ring through- out into the word "dont vote for an "English-Man, dont vote for a "Seig- nior, a "Merchant, a "Judge or a "Lawyer, all of whom are represented to have an interest in Taxing and oppressing the poor, in consequence of which, a number of the representatives are contracted in their ideas & Education, and of course inadequate to judge of the propriety of enacting Laws which in critical Times prudence and foresight would dictate, such as the Alien Act, the suspension of the Habeas Corpus, or any other tending to strengthen His Majesty's Government. Another existing evil which I humbly submit to your Royal Highness is regarding the Government of the Militia in Lower Canada, the English and French Militia being kept in two distinct bodies, the one with the English, the other with the French word of Command, is as impolitic as absurd ; for instance in Case of Insurrection Rebellion or Invasion by a Foreign Enemy, the Officer commanding His Majesty's Forces would of course give the word of Command and in the English Tongue, a great 1 Black was an Englishman who had resided in Canada for many years and was a member of the Legislative Assembly of Lower Canada from 1796-1800. His "Observa- tions" supplement Milnes' report (see No. LXV). * See p. 219. See Constitutional Act, { XX. (No. LV.) 1791-1840] Constitutional Documents of Canada. 247 proportion, however, of the aid in which under such circumstances the Country reposes speaks the same language and receives the same word of Command as the assailants, the consequences of such a system are not so difficult to forsee as they are to contemplate with Horror. ****** His Majesty's Dominions in America in their present disjointed state are dangerously weak from the following reasons (vizt) one province is not bound by Law to assist the other if attacked by an Enemy in case of Treason raising her standard in the Country, or if attacked from without by a Foreign Enemy, might not a misunderstanding take place between the General commanding the Kings Forces and the General commanding the Militia arising solely from this cause, similar to the differences which occurred in Sepr., 1759, amongst the French Officers, who were jealous of the Fame of General Montcalm and which contributed so much to the ultimate subjugation of the Province. Your Royal Highness will perceive that one Colony in the event of an attack, as things are at present, not only receives no aid from the others, but by the misunderstanding which it is possible might arise be- tween the General and Governor, they might even become hostile to each other at the moment of danger. The Remedies which I would suggest for the Evils classed under the different Heads is to unite the Provinces of Upper and Lower Canada if it conveniently can be done, if not erect eight new Counties on the three Million acres of Land recently granted who would return two Members each to make the Parliament sit for seven years in lieu of four years, and render a qualification necessary for every Member to the extent of at least one hundred and fifty pounds p Annum in landed property, or a permanent Salary to that amount I should here wish to observe to your Royal Highness, the impossibility the Country can prosper under the present constitution which draws forth a majority of the most inflamed of the wprser order, whilst the qualification proposed would draw forth the Sense and Education of the Country. The uniting the Provinces or erecting eight new Counties would bring the English considerably nearer the French in point of Number, and as it is but too evident in all Countries the Head of a Party will prostitu- tionally oppose His Majesty's Government untill they are called into power or obtained some situation equal to their views. By having a seven years Parliament Your Highness will perceive that the evil of being obliged to provide for such scrambling Demagogues will more seldom occur; either uniting the two Provinces or erecting new Counties will add eight Members to the Legislative Council. The Remedy for the evil complained of under the paragraph No. 6 with humble duty and submission to Your Royal Highness seems to re- quire a measure calculated to unite the interests of the different Provinces, which I conceive cannot be effected in any other way so well as by His Majesty's Government appointing a Governor General and a Commander in Chief invested in the same person for the four Provinces with a Lieu- tenant Governor in each Province to give or withold the Royal assent to the Laws, and Patronage would in that case be equal to keeping the Parlia- ment in order, by which means Laws would be soon made for the Prov- inces reciprocally to aid each other in time of danger, the Governor Gen- eral and Commander in Chief I should conceive would be the proper per- son to receive all communications, Civil and Military Post Master Gen- eral, Etc., Etc., and should be Master of the Geography of the County, the English, French and German Languages, it is also necessary he should be well acquainted with the four Provinces and the Characters of those in power at present, with the Manners and Customs of the French and Germans also, if possible, as there are a considerable number of both in british America. All of which is humbly submitted to Your Royal Highness who I hope will have the gracious and condescending Goodness to put a favor- 248 Constitutional Documents of Canada. [1791-1840 able construction on the humble efforts thus made for the good of my Country, for whose welfare Your Royal Highness is well acquainted how much 1 have suffered during these last twelve years and upwards and if I am so happy to give one single new idea, I shall consider it the hap- piest moment in the Life of Your Royal Highness's, most devoted humble, and most obedient Servant, JOHN BLACK, Paul Street, Finsbury Sqre. 9 Octr., 1806. LXVIII OBSERVATIONS RELATIVE TO THE POLITICAL STATE OF LOWER CANADA, BY MR. RYLAND 1 [Trans.: Doughty and McArthur.] May, 1808 (?). There is reason to apprehend that the time is fast approaching when the House of Assembly of Lower Canada will become the centre of sedi- tion, and a receptacle for the most desperate demagogues in the Province ; nor does there at this moment appear to be any existing means, (except such as arise from the known vigour and ability of the Governor in Chief,) to counteract the projects which such a House of Assembly may form. To remedy the evil it will require much wisdom, joined to a prepon- derating English influence, both in the Legislative and Executive Councils. It will equally require intelligence, firmness and capacity on the part of His Majesty's Justices of the Provincial Courts of King's Bench, who may eventually have to decide on points of the highest importance arising out of the wild, disorganizing pretensions of the Assembly. It must be evident to every person who is acquainted with the actual state of things here, that neither the Bench nor the Councils, as they are at present composed, would be able to afford an adequate check to a bold, systematical attempt on the part of the Assembly to obtain a mischievous preponderance in the Provincial Legislature ; much less could those bodies be expected to co-operate in a general plan for assimilating the Colony in its religion, laws and manners, with the Parent State. It is humbly suggested that, preparatory to measures of a more par- ticular nature, it would be advisable to add eight or ten members to the Legislative Council, three or four of whom might be Canadians of the most respectable character and families, and the remainder Englishmen o; the best stamp and abilities, that are to be found in the Province, and whose attendance might at all times be depended on. It may be well de- serving the attention of Government to consider whether it would not be advisable to give a seat in the Council to two or more Military Officers of the higher ranks holding staff appointments in the Province, that may be regarded as permanent. It is suggested that the two senior Judges at Quebec, (who are both of them upwards of seventy-three years of age,) should be permitted to retire on pensions ; that, in appointing their successors, the utmost care should be taken to select men of capacity and firmness; Englishmen whose natural ties and habits attach them' to the laws and religion of the Parent State* By English in here meant persons born and educated in any part of His Majesty's European Dominions. 1 Herman Witsius Ryland (1760-1838) was an Englishman who held several official appointments in Canada. He was strongly anti-French and represented Sir James Craig in England on an unsuccessful political mission. He had considerable influence over Milnes (see No. LXV). His writings and letters are the best contemporary com- ment on the ideals of the extreme British party. 1791-1840] Constitutional Documents of Canada. 249 *Mem. Subsequent experience hath deeply convinced me, that in- finite advantage to the King's interests would be obtained by choosing from among the practitioners at the bar at home, (and upon the recom- mendation of the Lord Chief Justice), not only the Provincial Attorney and Solicitor General, but the two Chief Justices (if two be necessary), and at least one-third of the Provincial Puisne Judges, the latter of whom should have seats in the Legislative (but not the Executive) Council. By this means the Crown might secure to itself the support of firm, able, upright and dignified characters, men attached by birth and education to the Parent State and to Monarchical principles, and there is no doubt but it would in the end be found infinitely less expensive to secure the services of such men by competent and liberal salaries than to incur the risk of having the Province revolutionized through the want of them. Above all things, however, care should be taken that these appointments may not degenerate into a job, and that the places be not chosen for the men, instead of the men being chosen for the places. Such a system of patronage would only render matters worse. With a view to the furtherance of the objects contemplated, it would be advisable to establish a corporation for the advancement of learning, agreeably to the Provisions of the Provincial Statute, 41 Geo. Ill, cap. 17, and to solicit His Majesty's decision with respect to the Jesuits and the St. Sulpician Estates 1 . It will be seen on a perusal of the Act above mentioned, that a most powerful means is thereby afforded for encreasing the influence of the Executive Government, and for gradually improving the political and reli- gious sentiments of the Canadians. Connected with the above objects, the settlement of the waste lands of the Crown becomes a matter of the utmost consequence. The system of associated companies, which was adopted for this purpose in the year 1793, may now be considered as abandoned ; but the Royal Instructions of August, 1807, to the present Governor in Chief, shew that it is not His Majesty's intention to restrict or regulate the granting of the waste lands in any other way than that which was prescribed by the Instructions of 1791 to Lord Dorchester. This being the case, and the project afterwards brought forward of selling the waste lands for the purpose of raising a revenue, having failed, it is to be presumed that the Governor and Executive Council are left at liberty to adopt such a system as they shall think proper, under the pres- ent Instructions, for encouraging the settlement of the country; and noth- ing would so effectually contribute to this end as an Act of the Imperial Parliament, empowering the Governor with the advice of the Executive Council, in cases where the inhabitants of any township, (or several town- ships collectively, to be formed into counties or districts,) shall amount to a certain number of freeholders, (say one or two thousand, and up- wards,) to issue a write authorizing the election of a member to repre- sent such township, county or district, in the Assembly. Such an Act would not only encourage the settlement of the waste lands, and attach the inhabitants of the townships to His Majesty's Government, by enabling them to participate in the legislation of the Province, but it would provide an effectual check upon the French or Roman Catholic party, which has at this time an alarming preponderance. It may be here remarked that the English settlers in the townships are estimated at upwards of fourteen thousand, and that the division of the Province, pursuant to Lieutenant Governor Clark's proclamation, (under the Canada Act of the year 1791,) for the purpose of regulating (he election of members to serve in the Assembly, was made prior to the erection and settlement of the townships, and secure the election of two 1 See correspondence in Christie, History of Lower Canada, Vol. VT, 250 Constitutional Documents of Canada. [1791-1840 English members only throughout the Province, namely, one for the in- ferior District of Gaspe, and one for the Borough of William Henry, where the English inhabitants happen to have a majority of votes. 1 It is hardly possible to attach too much importance to this subject, or to place it in too prominent a point of view, as it shews the absolute necessity of an Act of the Imperial Parliament, if it is intended that there ever should be any thing like an English influence in the inferior branch of the Provincial Legislature, for it is not to be expected that a House of Assembly, made up as the present, will ever suffer a Bill to pass for the encouragement of English settlers, and much less one which would afford such settlers the means of representation in that House. H. W. R. LXIX CRAIG TO CASTLEREAGH* [Trans. : Canadian Archives, Mss., Q. 107, pp. 306 ff.] Quebec, 5th August, 1808. My Lord, ****** The Canadian Party, hang so compleately together, and these People have so much Influence among them, that it is to be expected ; while their ignorance or their Presumption, for I know not to which to attribute it, is such, that I shall not be surprized if they adopt some resolution which may put me under the necessity of dissolving them ; they either believe, or affect to believe that there exists a Ministry here, and that in imitation of the Constitution of Britain that Ministry is responsible to them for the conduct of Government. It is not necessary that I should point out to your Lordship the steps to which such an Idea may lead them." I have the Honor to be My Lord Your Lordship's Most obedient humble servant, J. H. CRAIG. LXX CRAIG TO CASTLEREAGH [Trans.: Doughty and McArthur.] Quebec, 5th June, 1809. My Lord, Inclosed your Lordship will receive the Speeches which I thought proper to address to the Provincial Parliament both on the opening and closing of that Assembly and it is my duty now to lay before your Lord- ship the grounds upon which it was judge expedient that they, particu- larly the latter, should bear the Complexion which will not escape your Lordship's observation. In my dispatch No. 29\ I gave your Lordship an Account of a party which exists here and which is far from inconsiderable in strength. It 1 An error, however, as to Gaspe, where the majority of voters have always been, and are of French origin. [R. Christie.] * Robert Stewart, viscount Castlereagh, was appointed Secretary of State for War and the Colonial Department in July, 1805. * For a contemporary account of Craig's rule in Canada, see R. Christie, Memoirs of the Administration. . .of Lower Canada by Sir James Henry Craig (Quebec. 1818). The eroWing strength of racial strife characterized Craig's regime. Chaig shrewdly saw the logical issue to Canadian claims. This despatch is the earliest mention of "a ministry" in Canada in the constitutional sense of the term. See No. LXIX. 1791-1840] Constitutional Documents of Canada. 251 was with concern that I saw the number of Persons returned to the House of Assembly who might upon good grounds be looked upon as their ad- herents ; and it was very early understood that they were preparing for the adoption of every Measure which they considered as likely to Em- barrass Government and shew their own power & importance. Their first step was to elect Monsr. Panet for their Speaker. This I have rea- son to believe was intended as a sort of experiment upon my temper & firmness; if I had rejected Mr. Panet, they would have chosen another instrument equally adapted to their views while it would have served as a fair pretext for the ill humour that might be apparent in their further proceedings ; and on the other hand if I admitted Mr. Panet they sup- posed I could only do so under the influence of intimidation, and they should then consider themselves at liberty to go any lengths they pleas'd. Upon a little reflection I chose the latter alternative, I thought the refusal of Mons. Panet would be making him individually of more consequence that I wish'd to have the appearance of attaching to the whole of the As- sembly, & I thought what I proposed to say to them in my Speech would do away the idea of my acting under the impression which they supposed, at the same time that under the conviction of the Spirit by which they were actuated, I was willing that, whatever took place, should arise solely from themselves, I therefore approved of Mr. Panet on the principle of the choice being a matter which concerned themselves more than me. As I was well aware that great activity had been exerted by the leaders of this Party in dissiminating their principles over the Province, in which they had so far succeeded, that a Spirit of jealousy and Suspicion had shewn itself in several parts, insomuch, that a Person elected a Mem- ber, after using very unwarrantable Language with respect to the Views of the Government and of the English, did not scruple to say, that if an Englishman was elected for his Colleague, he would not attend the Par- liament: I thought it right in my Speech upon opening the Session, to advert to the dangers and disadvantages to the Colony, that might arise from the prevalence of that Spirit, if permitted to gain ground; and this is the part to which I alluded, as supposing it would do away the Idea of my being any way apprehensive of their opposition, as it was a reflection, which however general it was made in the wording of it, was obviously levelled at them, and was generally so understood. This however, altho' it was taken up by them & produced some warm debates, had not the effect that I thought it would, & it very soon ap- peared that they conceived themselves above all control, & were deter- mined that their proceedings should be guided by their pleasure only set- ting aside even all consideration for the Act of the Imperial Parliament under which they hold their Constitution & every power with which they are vested. My Speech upon closing them contains, almost, as complete a history of their proceedings, as I could give to your Lordship, were I to detain you by a more detailed Account, except that I did not think it necessary to allude to the indecent lengths to which their personal abuse of each other was carried neither did I advert to their treatment of their own Speaker to whom, the most violent and unbecoming Language was used, altho' he on every occasion showed the most decided partiality to- wards them, and this altercation was carried so far, that on the very day, on which I so unexpectedly prorogued them they were prepared to have voted him out of the Chair. Upon the same principle of these matters concerning themselves only, and not being regularly before me, I ab- stained from adverting to the extraordinary Circumstance, of a Member having attempted to continue sitting, and having declared that he saw no occasion for getting up, while a Message was delivering from me, altho', such had been the invariable usage, and tho' such was one of their own regulations. He was indeed over ruled, but the Circumstance did not meet the reprehension that ought to have attended it. Among their own violent and unjustifiable proceedings, they seemed resolutely bent upon carrying their favorite points of expelling His Majesty's Judges from the 252 Constitutional Documents of Canada. [1791-1840 House 1 , and having failed last Session in carrying thro' an Act for ren- dering them ineligible, which was thrown out in the Legislative Council by this time resolved to effect their purpose by a simple vote of their own, this motion, however, after a full fortnight's altercation, was negatived by a small Majority: this favourite measure of theirs was founded entirely & solely, on the determined animosity that they bear to Mr. De Bonne, the only Judge who is in the House. I mean, however, this motive as only applying to the avowed Leaders of the party in the House, for I am aware that very many of the best meaning Men in the Province are of opinion that it would be better if the Judges were not under the necessity of counting the people, as they are obliged to on the occasion of their Elections. Upon the failure of this attempt to expel the Judges by vote, they brought in a bill again to render them ineligible, but they had not made any progress in it. The next point which occupied their attention was the expulsion of a Mr. Hart, a Jew 2 , this they disposed of by a Vote "that Ezekiel Hart professing the Jewish Religion cannot sit or vote in this House." On both these occasions they proceeded with the utmost violence, refusing to listen to any argument founded upon the Act of the 31st of His Majesty, & altho' they did not, as far as I can learn, explicitly deny the Supremacy of the British Parliament or the force of that Act, yet they openly declared that they were the sole & only Judges of their own proceedings, not to be controuled, or bound, by any other power. In the case of Mr. Hart they called only for evidence of the mode in which he had taken the Oath, which was proved to have been, precisely in the same manner, as every other Member had taken it. They did not call upon him to avow or deny his religion ; they called for no evidence on the Subject, and for any thing that appears on the face of their minutes Mr. Hart may be a Christian ; nay indeed his having taken the Oaths on the New Testament would, prima facie, carry the evidence that he is so ; but even as a Jew, we are here decidedly, and the Executive Council to whom I submitted the Subject, was unanimously of opinion that He is eligible, provided he takes the Oaths as required by the Acts of Par- liament.* In pursuing their plan of hostility towards the Judges, they appointed a Committee, to enquire if any, & what inconveniences, had resulted to the Public, on occasions where the Judges had been Candidates at Elec- tions for Members of that House. This Committee was formed entirely of the most violent of the party and accordingly nothing could exceed the marked irregularity, partiality and injustice of their proceedings; these were carried on in Secret, altho' they had not been appointed with that intent; the testimony laid before them was entered very differently from the way in which it was given, every circumstance that had the slightest tendency to prove, that the Judges had not made use of the influence that might be supposed to arise from their Situation, was carefully suppressed, when it was possible to do so, but testimony of a contrary tendency, tho' grounded upon hearsay, twice & thrice removed, was eagerly inserted with every exaggeration that it would admit of, and individual opinion at great length, without containing one particle of evidence, or one single fact that could come under that description, was a prominent feature in their report. This was such as was calculated and evidently intended to inflame the public Mind and excite discontent at the administration of Justice so far as it is connected with the Object under review, and it was smuggled into the House in direct Violation of their own regulations, without being previously read by the Chairman in his place, so that no opportunity was afforded to oppose its being received, while to complete 1 In 1808 the Legislative Assembly of Lower Canada passed a bill excluding judges from sitting as members of the House of Assembly, following a resolution to that effect passed by a Committee of the Whole House. (Journals of Assembly of Lower Canada, 1808). The Legislative Council threw out the bill. In the following year, dissolution disposed of a similar measure. For the Act of 1811, excluding judges, tee No. LXXX. 1 See Journals, op. cit. 1808, 1809. 1 See Doughty and HcArthur, p. 357. 1791-1840] Constitutional Documents of Canada. 253 the Climax of the irregularity & disregard to common decency, with which this whole Matter was conducted, they entered upon their Journals, the direct falsehood that the Report had been read by the Chairman in his place, when he presented it. I have entered more particularly into detail upon these Circumstances My Lord because they so strongly mark the Complexion of the House, otherwise I might, as I have already observed, have confined myself to the contents of my Speech as conveying all the Information that I dare say Your Lordship will think necessary. All this while publick business was completely at a stand, whilst Messages from me, on objects of importance to the publick Welfare, and Bills sent down to them from the Legislative Council for their Concurrence, lay on their table for Weeks equally disregarded & unattended to. In the five weeks which they had sat, they had in fact passed one Bill, for of the five that were presented to me, three were the mere renewal of annual Acts, to which they stood pledged by their address, and the fourth being only to correct an error in a former Act, came equally under the descrip- tion of requiring no discussion. Altho' there was nothing in their proceedings, so far as they had hitherto gone, that bore any appearance of particular opposition to His Majesty's Government, or of personal hostility to myself yet it was im- possible that I could view them with indifference. The Public Mind began to be much agitated, by far the greater part, were laughing at, or calling out shame upon them, but their partizans were busily employed in repre- senting them as supporting the authority and importance of that part of the Legislature, on which the happiness and prosperity of the Colony must depend. I have no reason to believe that these were very successful in their labours, but it became necessary to show their futility. It was greatly expedient to prevent the House from falling into the Comtempt, to which, it was fast verging altho' it was not less so, to give a check to the ideas of omnipotence, by which they themselves appeared to be inspired. The Speaker, speaking in a Committee of the whole House, had said that I dare not dissolve them. Add to these considerations, that the expulsion of Mr. Hart appeared to me to be in direct violation of An Act of the British Parliament, which I could not countenance, and on maturely re- flecting on the whole, I determined not only to prorogue but to dissolve them also. Having come to this determination I thought it might be as well to prevent their coming to some violent or absurd resolution, which was to be expected, if they had had any intimation of my intentions, and I took my measures so, that they had not the slighest suspicion of them, till the Salute was firing on my entrance into the House. I am assured on all hands, and I have every reason to believe, that this measure has given very general satisfaction, the English part of the Community all view it as having become highly expedient not only from the conduct of the House that was Dissolved, but from the general ten- dency of all their proceedings for some time past, and even the thinking part of the Canadians, allow it to have been called for by the circum- stances. Mr. Panet has I believe said it is no more than they deserve. I am even taught to expect that the effect will most probably be that few or none of those who were at the head of the Party, will get in again, certain it is, at any rate, that it will be impossible to collect a house that can be worse composed, either as to good will or the information neces- sary for carrying on the Public Business. I have the Honor to be My Lord Your Lordship's Most obedient Humble Servant, J. H. CRAIG. 254 Constitutional Documents of Canada. [1791-1840 LXXI CASTLEREAGH TO CRAIG / [Trans. : Doughty and McArthur.] Downing Street, 7th Sept., 1809. Sir, I received & laid before the King your letter of the 5fh of June last detailing an account of the Causes which had led you to dissolve the Legis- lative Assembly of Lower Canada after a severe censure of their Conduct. I have no doubt that in the Measure you have taken you have been solely influenced by a Sense of your Duty to His Majesty & as you repre- sent that it is approved by the English Part of the Community & the sen- sible Part of the Canadians I shall entertain a hope that it may not be attended with any prejudicial effect. I am at the same time to impress on you this Counsel 2 , that if any unfortunate difference shall arise here- after between you & the Legislative Assembly which may render it neces- sary for you to advert to their Proceedings (which should always be done cautiously) & in consequence thereof to prorogue & dissolve them you will take care to use all such temperate & chosen Language as may not leave it in the Power of the Legislative Assembly which may afterwards be chosen to question the Propriety of your sentiments as affecting their Privileges or the Constitution. I am to express to you His Majesty's Approbation of your removing Mr. Stuart from his office of Solicitor General and of your appointing Mr. Bowen to succeed him: As Mr. Uniacke the Attorney General will have arrived in the Province long before this letter reaches you, I shall trust you will receive every necessary assistance from his zeal and abilities. I have the honor, etc., CASTLEREAGH. LXXII CASTLEREAGH TO CRAIG [Trans. : Doughty and McArthur.] Downing Street, 7th Sept., 1809. Sir, Having written to you officially upon the Subject of your letter re- lating to the Dissolution of the Legislative Assembly, I think it at the same time right to express to you my private sentiments. Nothing appears to me more difficult or delicate to manage than a Provincial Assembly constituted like that of Lower Canada, wherein al- most all the Privileges of the House of Commons of Great Britain are claimed or exercised, where there exist little Means of influencing the Members and inducing them to coalesce with the Government, and wherein from the example of the American States, and the very nature of a popular Assembly, strong, active & turbulent Minds have great incite- ments and opportunities to raise themselves into imaginary or real Im- portance by opposing the Administration. And the Difficulty becomes thus great from another peculiar circumstance that there is no means whatever of punishing an Assembly but by Dissolution, & that this Method when the conduct of the Assembly is popular, is sure to fail of success, and to increase the Evil it is intended to cure. It is therefore of the utmost consequence to take care that in any difference which may arise between a Governor & a Provincial Assembly he should not advert to any particular proceeding of the Assembly, that 1 See No. LXX. 1 An interesting lesson from the Colonial Office on how to manage a Colonial House of Assembly). See also the following document. 1791-1840] Constitutional Documents of Canada. 255 is not clearly unconstitutional and illegal : And that, when the improper opposition arises from Discussions of a mixed nature, where they can plausibly plead their Privileges and Rights in favor of their Conduct, however improper ; no future allusion to such Conduct should be made by the Governor on which the Assembly might fasten a Complaint. The two Grounds of Complaint 1 against the Assembly which you specify are their Proceedings for preventing Judges sitting in the As- sembly, & for endeavoring to expel a Member on the allegation of his being a Jew, altho' he had taken the regular Qualification Oath on the Gospels. The first of these objects can never, as you admit, be considered in itself as an improper or illegitimate one to pursue, however the Motive giving rise to Discussion may be factious; nor am I by any means per- suaded that the Regulation would be an unfit one in itself: And further when the Bill which they had passed, had been thrown out by the Legisla- tive Council, the Assembly had a right, if they thought fit to appoint a Committee to examine the inconveniences which arose from Judges can- vassing at Elections. So again with regard to the Endeavours to expel Mr. Hart for being a Jew, it was obvious that a real Jew could not sit in the Assembly, as he could not take an oath upon the Gospels it was therefore competent to the Assembly to inquire whether Mr. Hart had complied with all such Requisitions as might be legally necessary to prove his bona fide conver- sion to Christianity, and that he took the Oath without mental Reservation. I state these Points, not from any doubt of the Assembly acting in the spirit you represent, but to shew, that supposing the next Assembly may meet with a similar Disposition & Temper to that for which you dissolved the last: It is probable they will renew the discussion of measures against which your Censure was pronounced & will make such assertions of theii Rights of free Discussion and Debate as may lead to more Embarrass- ments than have yet arisen. When you advert to the expressions in which you have conveyed your Sentiments of the Proceedings of the Assembly you may naturally sup- pose they have created some Sensation here, & that an anxiety has been expressed as to the particulars of the Conduct which could require such severe animadversion. I shall hope however that there will not be any public Discussion on the subject, as the Topics are of such a nature as might give the efforts of a Party hostile to you or to Government some advantage. What I would therefore recommend is, in Case, on the Meeting of the New Assembly animadversions should be made on your Speech on the close of the last, that as you will not be wanting in that firmness Your Situation & character demand, so you will avoid any Expression, which can be construed as touching in any degree, upon their supposed Privileges & the general Freedom of Inquiry & Debate. In regard to the Measure of excluding Judges from a Seat in the Legislature there is no Repugnance felt here to the Measure, should you at any time see it right to acquiesce in it The Principle of exclusion here extends to what are called the 12 Judges & to them only ; for the Welsh Judges, the Judere of the Admiralty & Prerogative & the Master of the Rolls all sit in Parliament. I have the honor, etc., CASTLEREAGH. 1 See No. LXX. 256 Constitutional Documents of Canada. [1791-1840 LXXIII CRAIG TO LIVERPOOL 1 [Trans. : Doughty and McArthur.] Quebec, 1st May, 1810. My Lord, If my short dispatch No. 2 which I transmitted by way of New York has reached Your Lordship, you will be in some degree prepared to re- ceive the Report on the State of this Province, which I conceive it to be my particular duty, under the events that have lately taken place and the impression to which these have given rise in my mind, and in that of very many of the best informed persons here, to lay before His Majesty's Government. ****** In the consideration which may be given to the various objects, which I may feel myself called on to submit to your Lordship, I must request that the particular situation in which this Province , stands, as being a conquered Country, may never be put out of view, and I claim that it may always be recollected that I speak of a Colony, the population of which, is usually estimated at 300,000 souls, and which, calculating upon the best data in our possession, I myself believe to exceed 250000. Of these 250,000 souls about 20,000 or 25,000 may be English or Americans, the remainder are French. I use the term designedly My Lord, because I mean to say, that they are in Language, in religion, in manner and in attachment com- pletely French bound to us by no one tie, but that of a Common Gov- ernment, and on the contrary viewing us with sentiments of mistrust & jealousy, with envy, and I believe I should not go too far, were I to say with hatred. ****** So compleat do I consider this alienation to be, that on the most careful review of all that I know in the Province, there are very few whom I could venture to point out as (not) being tainted with it; the line of distinction between us is completely drawn. Friendship (and) Cordiality are not to be found even common intercourse scarcely exists the lower class of people to strengthen a term of contempt add Anglois and the better sort with whom there formerly did exist some interchange of the common civilities of Society have of late entirely withdrawn them- selvesthe alledged reason is that their circumstances have gradually de- clined in proportion as ours have increased in affluence ; this may have had some effect, but the observation has been made also, that this abstraction has taken place exactly in proportion as the power of the French in Eng- land has become more firmly established. ****** Among the objects which I deem it necessary to bring to your Lord- ship's view, it is impossible for me to overlook the Clergy^ and the Reli- gious establishments of the Country, the Act 3 of the 14th of His present Majesty by which the free exercise of the Roman Catholic religion is granted to the Canadians, expressly adds the condition that it shall be subject to the King's Supremacy as established by the Act of the first of Elizabeth but neither has this, or one Article of His Majesty's Instruc- tions to the Governors ever been attended to, the Appointment of the Bishop seems to have been conducted loosely, and with very little cere- mony, the Council Books offer no other Document on the occasion, than that the person has taken the Oath pointed out by the Act of the 14th Geo. Ill in lieu of the Oath required by the Statute of the first year of the Reign of Queen Elizabeth, but without mentioning on what account 1 Robert Jenkinson, Earl of Liverpool, succeeded Castlereagh as Secretary for War and the Colonies in December, 1809. 1 Cf. Milnes' despatch, 1 Nov. 1800. (No. LXV.) * See Quebec Act, 1774, { V. (No. XXV.) 1791-1840] Constitutional Documents of Canada. 257 he takes it; of late he has been designated on that occasion as Roman Catholic Bishop of Quebec, formerly he was only called Superintendant of the Romish Church. Altho' it does not appear upon the Records of the Council Board or by any other Document, His Majesty does however nominate the Coad- jutor, but this nomination appears to have been verbal. I observe in the Return of the offices of emolument of this Colony lately made to your Lordship's Office, the Bishop says it is cum futura successione, how that can be, when it does not appear to be under any written document of any sort, I do not know, unless it be in the Pope's subsequent confirmation, which always takes place, it is however of such weight, that the succession of the coadjutor to the Bishopric seems to be considered as a matter of course, at least there is no appearance of there ever having been any inter- ference on the part of His Majesty's Government. This Bishop tho' unknown to our Constitution and confirmed, if not appointed by a Foreign Power, has been suffered to exercise every Juris- diction incident to the episcopal functions, he nominates to all the benefices of the Province, and removes at his pleasure from one living, to another, and it is not an unfrequent circumstance, for an offence, or a supposed offence, to be punished by a degradation from a good Cure to one of lesser emolument. His Patronage is at least equal to that of the Gov- ernment, & it is so perfectly at his pleasure, that Government has no other notice of it, than that he usually once a year delivers to the Governor a list of such changes as have taken place during the preceding twelve months ; so complete does the Bishop consider his independance, & so cautions is he not to perform any act which might be construed into ^n acknowledgement of His Majesty's Rights that if a Proclamation is issued for a Fast, or thanksgiving or any other object which involves it in an Act of the Church, He will not obey it as an emanation from the King, but He issues a mandate of his own to the same purpose, indeed, but without the least allusion to His Majesty's authority, or the Proclamation which the Government has issued, In truth the Catholic Bishop tho' un- acknowledged as such, exercises now a much greater degree of authority than he did in the time of the French Government, because he has arro- gated to himself every power which was then possessed by the Crown ; The Arms of England are nowhere put up in the Churches. With the Cures themselves, no direct communication from the Gov- ernment exists in any shape, a numerous and powerfull body, dispersed in every corner of the Country, and certainly possessing a very consider- able weight, and influence with the people, scarcely know, and are hardly known to the Government, no one Act of Government since it has been under my direction, has ever been addressed to a Cure, nor has any one instance of communication from a Cure ever reached me, perhaps an ex- ception to the first part of this observation might be brought in my having in the desire of circulating the Speech I made to the Parliament when I dissolved it, directed a Copy to be sent to each of the Cures, the circum- stance however will furnish no exception to the second part, for there did not occur a single instance of a Cure even acknowledging the receipt of it. ****** Their attachment to France is equally undoubted, and it is now even supposed to be not a little directed to the Person of Bonaparte, who since the concordat, is considered among them as the Restorer of the Roman Catholic Religion. Of the Legislative Council it is not necessary to say much, it is cer- tainly composed of every thing that is respectable in the Province, and I believe the Members to be on all occasions animated by the best inten- tions towards His Majesty's Service, & the public good; It is an Object of great jealousy to the Lower House, who seem anxious to seize every op- portunity of showing the little respect in which they hold it, It is thought that an increase of numbers would add to their weight, at present they seldom exceed five or six in the House. Q 258 Constitutional Documents of Canada. [1791-1840 To a People circumstanced as I have described these to be, ignorant and credulous in the extreme, having no one common tie of affection, or union, viewing us with Jealousy, mistrust, and hatred, having separate & distinct Interests, It has been thought proper to give a share in the Gov- ernment of the Country, by a House of Representatives, in which they must ever have the Majority; It is very far from my intention to ques- tion the liberal views on which the measure was originally founded, but it is my business to point out the consequences that have ensued from it. Your Lordship is aware that tho' the Constitutional Act has estab- lished a qualification for the Electors, there is none required in the Repre- sentation, I mean with respect to Property. The Numbers of English in the House has never exceeded 14 or 15, in the two last Parliaments there have been 12, in the presen^ there are ten, some of these have of late come from a pretty low step in the scale of society, t>ut in general they are com- posed of two, or three Avocats, about the same number of Gentlemen possessing Landed property, and the remainder of Merchants of Charac- ter & estimation; Upon the first establishment of the House, the few Canadian Gentlemen that existed in the Country stepped forward, and some were elected, but they soon found that nothing was to be gained by it. on the contrary, that their absence from home and their attendance at Quebec, during three months of the year, was given at an expence that very few of them could afford, and they gradually withdrew: now that some of them have attempted to resume the stations they abandoned, they have found it impossible; but at all times, their numbers were inconsider- able : the House has ever been as it is now, in great proportion as to the Canadian part, filled up with Avocats, and Notaries, shop-keepers, and with the Common Habitants, as they are called, that is, the most ignorant of Labouring farmers, some of these, can neither read nor write. In the last parliament there were two who actually signed the Roll by marks, and their were five more, whose signatures were scarcely legible, and were such as to shew that to be the extent of their ability in writing. I know not whether the excessive ignorance of these people, be not more prejudicial than even any malevolence could be with which they could be supposed to be actuated, In the latter case one might at least ex- pect, that there would sometimes be division among them, but at present they are compleatly in the hands of the party which leads the House, De- bate is out of question, they do not understand it, they openly avow that the matter has been explained to them the night before, by such & such persons, and they invariably vote accordingly; It is in this manner at their nightly meetings which are held for the purpose, that every ques- tion is previously decided, and it is impossible that these people can ever be set right, for those who judge right, never meet them out of the House, they do not associate with them ; There was lately in the House a Habitant, who uniformly voted on every occasion against the prevailing party, but with this single exception, I do not believe that during the three Sessions that have been held, since I came here, there has been an instance of one of the Members of that Class voting otherwise than with the general Mass, that is, as directed: I mention this in order to point out, the Compleat subjection in which these people are held, for if they made use of their own Judgment, it is impossible, but that during so long a period, some question must have arisen, on which there must have been a difference of opinion. In such a House of Assembly as I have described, Your Lordship will easily perceive that it is impossible that Government can possess any in- fluence, they are certainly the most independant Assembly that exists, in any known Government in the world, for a Governor cannot obtain among them even that sort of influence that might arise from personal intercourse, I can have none with Blacksmiths, Millers, & Shopkeepers, even the Avocats & Notaries, who compose so considerable a portion of the House, are generally speaking, such as I can nowhere meet, except during the actual sitting of Parliament, when I have a day of the week expressly appropriated t the receiving a large portion of them at dinner. 1791-1840] Constitutional Documents of Canada. 259 Of the Party who had the House, I have already had occasion to speak in a former dispatch, and have been induced to enter into the Char- acters of a few of them; They consist mostly of a set of unprincipled Avocats, and Notaries, totally uninformed as to the Principles of the British Constitution or parliamentary proceedings, which they profess to take for their Model, with no property of any sort, having everything to gain, and nothing to lose by any change they can bring about, only any state of Confusion into which they may throw the Province: That these people have gradually advanced in audacity, in proportion as they have considered the power of France as more firmly established by the Suc- cesses of Bonaparte in Europe is obvious to every one, and that they are using every endeavour tc pave the way for a change of Dominion, and a Return under that Government, is the general opinion of all ranks with whom it is possible to converse on the Subject; Even the very few of the better sort of Canadians themselves who have sufficient information to be aware of the misery that would ensue on such an event, while the pres- ent Government exists in that Country, and who notwithstanding their natural affection towards what they still consider as their Mother Country, would shrink from a Return under its rule at the moment, nevertheless confess the obvious tendency of the proceedings that are going on here; Unfortunately the great Mass of the people are completely infected, they look forward to the event, they whisper it among themselves, an I arn assured that they have even a song among them, which points out Napo- leon as the person who is to expel the English: with them the expectation is checked by no sort of apprehension, They are completely ignorant of the nature of the French System, they have not an idea that a change of Rulers would produce any alteration in their situation, and tho' if you argue with them they are ready to admit that they are happy, and in a State of prosperity as they are, they do not conceive that they would not have been equally so had they remained Subjects of France. It is scarcely possible to conceive the influence that the Ruling Party in the House has acquired among the people, or the lengths to which those have been carried by that influence, without the possibility of pointing out one act, by which they have been either injured, or oppressed, they have been taught however to look to His Maj sty's Government with the utmost Jealousy, and distrust, they avow it, and they publickly declare, that no officer of the Crown is to be trusted, or to be Elected into the House, These, together with all English in general, and their own Seig- neurs, are entirely proscribed ; It is only in the Cities, and Boroughs, that they have any chance, there are only two instances, where long possession of every extensive property has enabled the holders to retain their seats, tho' it has been in both Cases with the utmost difficulty. It is now to La Chambre, which is the usual expression, for they never even mention the Council, that the people look up (on) as the Governors of the Country, and yet such is the extraordinary effect of old impressions, that "de par le Roi," at this moment would I believe be followed by immediate com- pliance, without once reflecting whether the order were warranted by Act of Parliament or contrary to it. The great vehicle of communication between the leaders & the people has been a paper called the Canadian 1 , which has been published & indus- triously circulated in the Country for these three or four years past; the avowed object of this paper has been to vilify and degrate the officers of Government under the title of Gens en place, and to bring into contempt His Majesty's Government itself, under the affectation of the supposed existence of a Ministere; The conduct of which was as much open to their animadversions as is that of His Majesty's Ministers at Home. Every topick that is calculated to mislead & inflame the people has at times occupied the pages of this paper, nothing has been omitted. The 1 Le Canadien (see No. LXXIX) was founded as a weekly newspaper in Novem- ber, 1806, its purpose being to defend the French element in the Province against the attacks of the English-speaking commercial community which appeared in The Mercury. Craig seized the press and arrested the proprietors of Le Canadien in March, 1810. 260 Constitutional Documents of Canada. [1791-1840 various circumstances that brought on the abdication of James the 2d have been pointed out with allusions as applicable to the Government here, inferring a similarity in the occurrences of the present day; and as if to inspire them with that confidence that might be necessary in assert- ing their rights when the occasion should call for it, several Members were employed in narrating the actions of the wars of 47 & 56 in which Canadian prowess was held up in a very conspicuous point of view and their advantages & victories dwelt upon in an emphatic manner, It need scarcely be added that the History was derived from a very partial & exagger- ated source. In considering the probability of these people having in view their return to their own Government, it may be urged that they have been hitherto quiet & faithful subjects, during the long lapse of 50 years, in which it would rather be to be supposed that their old attachment should have gradually decreased, so that there should be the less likelihood of their assuming now a disposition, of which they have hitherto shown no indication ; to all this however it may be replied, that no circumstance whatever has occurred to awaken their attachment to their Mother Coun- try, nor have any pains ever been taken to produce such a change, their habits, language and religion, have remained as distinct from ours as they were before the Conquest. Indeed it seems to be a favourite object with them to be considered as (a) separate Nation ; La Nation Canadienne is their constant expression, and with regard to their having been hitherto quiet & faithful subjects, it need only be observed that no opportunity has presented them an encouragement to shew themselves otherwise. From 1764 to 75 the Country was in a state of poverty and Misery, that would not for a moment admit of a thought of revolt in which they could expect no assistance, but even during that period there was a constant intercourse with France ; Young Men who sought to advance themselves went to France, not to England, and some are now in the Province who during that period served in the French Army: during the American Rebellion it was a contest whether they should remain attached to the Crown of England, or become a part of the American Republic, and to say the best for them, their conduct did not manifest a very strong affec- tion for the former, tho' the force the Americans had in the Province was never such as to encourage them in an open display of any predilic- tion for the latter, which however, I do not believe they entertained : their object was to remain quiet; The French never turned their views this way; In 1794 a strong Jacobin party 1 shewed itself, and was with diffi- culty kept under, but during all this period to which I have hitherto alluded they had no foreign assistance to look to, nor any head to direct them, to France they now direct their view for the former, and I am pointing out those who I tear are preparing to offer themselves for the latter, and certainly under the most formidable shape under which a head could be found. But independant of every view which may exist as to a change in their political relation with, as a dependant on, the British Empire, the composition of the House of Assembly as it now stands is to be con- sidered as it affects the public good, and the general prosperity of the Prov- ince, and these my Lord, I fear can never be promoted to any extent by it; Religious prejudices, Jealousy, and extreme ignorance all forbid the expectation, and these I am afraid must prevail among the Canadian part of it for a long period to come. Questions directly of a nature to affect either the protestant, or the Roman Catholic Religion, have indeed never been brought before the House ; but there are many that appear to be perfectly unconnected with the Subject, but which are nevertheless view'd by them either as affecting some temporal right of their Clergy or as having some remote tendency 1 This reference is to the political mission of Genet, the agent of the French Republic in the United States. He made efforts to withdraw the French-Canadians from their allegiance to Great Britain. 1791-1840] Constitutional Documents of Canada. 261 to promote the Establishment of the protestant interest, and to such it is vain to expect that they should for a moment listen ; this has been ex- emplified in some remarkable instances, and that even in the Legislative Council, where in the case of a Bill brought into that House, which did not seem to have the slightest relation to Religion, Canadian Gentlemen otherwise I am sure most perfectly disposed to promote the Public wel- fare, & who admitted the beneficial tendency of the proposed Act, never- theless acknowledged they were withheld from giving their concurrence by what they conceived a paramount duty, and it is to be remarked that this question could by no construction whatever be supposed to affect any right of the Catholic Bishop, or of the Clergy. How the Act for the Establishment of Public schools was permitted to pass has always been matter of surprise indeed the present Bishop once observed in a very serious, and official conversation, "You say that our Church never sleeps, you will allow however that we were asleep and very profoundly too, when we suffered that Act to pass." It is observ- able that the carrying the Act into effect, has very generally met with the opposition of the Cure of the Parish in which it has been proposed to establish a school. The great object of their jealousy at this moment is, the progress of the Townships that is, in fact the introduction of Settlers of any denomi- nation but Canadians, as having a tendency, which of all others, they are most anxious to assert, to impede the complete Establishment of a Cana- dian Nation ; These Townships are generally settled by Americans, a proportion of whom are Loyalists who were under the necessity of quit- ting their Country on the peace of 1784, but by far the greater Number are of Americans who have come in and settled upon those lands since that event, How far it may be good policy to admit of settlers of this description is another question, the Canadians however are loud in their Clamours against it; The circumstance of their being Americans, and the principles generally attributed to these, afford them the pretext, while the truth is, it would be equally repugnant to the idea they entertain of their own Interests, and they would just have the same feelings upon it, were the tract in question in a progress of settlement from Britain and Ire- land ; tho' in the latter case, it is probable they would not venture openly to complain, as it is, the subject has been mentioned in the House of As- sembly once, under the Idea of introducing an Act relative to it, and at another time, under that of addressing the King upon it. This jealousy has increased much since they are become more systematic in their oper- ations, and will now totally prevent any measure that may be proposed for the benefit of that part of the Country; two years ago they passed An Act for the Establishment of a Turnpike road through a part of it, at present, no hopes are entertained of getting them to consent to an- other, tho' it would be highly beneficial to the City of Quebec, & en- deavours are using to carry it into effect by other means. The common people as may be supposed understand nothing of the nature of the constitution that has been given them, or of that, of the House of Assembly for which they elect Members, except inasmuch as they begin to look up to them as the Governors of the Country; It is a fact, that in one part of the Province whole Parishes have hitherto con- stantly declined giving any votes at all, they say, they do not understand it, but they suppose it is to tax them in the End; the cry of many of them now is, they wish La Chambre (the usual expression) at the Devil, they were very well before, and they have never had a moment's peace since that took place. ****** It may not be useless in order to bring the whole under one view, that I should now present a summary of the various objects which it has been my intention to submit to the consideration of His Majesty's Minis- ters, and to the support of which, the argument and detail to which I have alluded are meant to lead. They are 1st. That this is already a powerful Province in so far as 262 Constitutional Documents of Canada. [1791-1840 depends upon numbers of Inhabitants, and that in the short period of 20 or 25 years these will probably exceed half a million. 2d. That the great Mass of this population, indeed that proportion that admits of no balance from the other part, so far from being united to us by any bond of affection, views us with mistrust, jealousy and hatred. 3d. That they are, and consider themselves as french, attached to that nation from identity of Religion, laws, language, and manners, This is general, and runs thro' all Ranks and descriptions, the exceptions as I believe being very few. 4th. That this people immersed in a degree of ignorance that is scarcely to be exceeded, and credulous in the extreme are particularly open to the arts and delusions that may be practiced on them by factious, and designing Men. 5th. That they are at this moment compleatly in the hands of a party of such factious and designing Men. 6th. That the whole Proceedings of this Party are calculated to alien- ate the people from any attachment they might be supposed to entertain for a Government under which they cannot but confess they have enjoyed the most perfect security, liberty and prosperity, and to pave the way for their return to their ancient connection with that which they esteem thei-- Mother Country. 7th. That there is reason to fear that they have been successful in their attempts, and that the People do look forward to a change in their Government. 8th. That the Clergy under the general influence of attachment to France are further from religious motives decidedly our Enemies. 9th. That the Party who have the lead in the Country have also the compleat command of the House of Assembly, and are therefore placed in a situation particularly favourable to their views, and of consequence in the same proportion dangerous to His Majesty's Interests. 10th. That from the composition of the House of Assembly, it is likely that it will ever be in the hands of any party who may have a view in taking the direction of it; and that Government possesses no influence by which such view, whatever it may be, can be counteracted. llth. That from prejudice, jealousy and ignorance, it is little to be expected that the House as at present constituted will accede to measures that may advance the real prosperity of the Colony. 12th. That the Government is equally destitute of all influence over the Clergy with whom it has scarcely a connection, and that this influence is entirely in the hands of an individual who holds his power under the confirmation at least of a foreign authority, which authority is now under the compleat direction of our inveterate Enemy. ****** The first and most obvious remedy that presents itself, is to deprive them of the constitution, as they term it, that is of that representative part of the Government which was unquestionably prematurely given them neither from habits, information or assimilation, with the Govern- ment of England, were they prepared for it, nor was this circumstance of their unprepared state unforeseen by many of the best informed of the Canadians themselves, who opposed its being granted to them. It was in fact brought about by the English part of the Inhabitants, who in their Enthusiasm for the Constitution which they so justly Esteemed as it exists in their own Country, could not conceive that any inconvenience, or any thing but happiness, and prosperity, could result from its establish- ment elsewhere. The since Catholic Bishop Denaud a very worthy Man, observed at the time to an English Gentleman who was very warm on the subject, (tho* now quite the reverse) "You do not know my Country- men, they are not at all prepared for the Constitution you wish to give them, once let the rein loose, and be assured they will never know when to stop." I am perfectly aware my Lord of the delicacy of such a measure as 1791-1840] Constitutional Documents of Canada. 263 is here alluded to, and of the possible difficulty that might attend it; It is not however I assure your Lordship without giving the subject the ut- most consideration in my power, or without giving due weight to the Im- portance of such an opinion, that I venture to say, that nothing short of that measure will afford just grounds of hope of retaining the province under the subjection of Britain, or of the preservation of its tranquility, and the furtherance of its prosperity; The first object will always be to a certain degree precarious, 250,000 people decidedly animated by a foreign attachment, must always be subjects of doubtful continuance. Time may possibly alienate that foreign attachment, but religion is one great bar to the hope, and no one step has ever yet been pursued that could foster the expectation : but however precarious our hold may be, is it not incum- bent on us to do away a measure, of which the consequence was certainly not foreseen, but from which every facility, and every advantage is given to the attempt to deprive us of that hold; that Spirit of independence, that total insubordination among them, that freedom of conversation by which they communicate their Ideas of Government as they imbibe them from their Leaders, all which have increased wonderfully within these last five or Six Years, owe their origin entirely to the House of Assembly, and to the intrigues incident to Elections. They were never thought of before; In the Assembly too, the leaders of any party who may have a revolution in view will always be found, and from them faction will ever spread ; The People are always taught to look up to the House on every occasion, and to consider it as the tutelary Genius that watches over the welfare of the Country, they will very soon consider obedience as a duty, and will be lead to Mutiny before they are aware that they are committing a Crime. Having already observed to your Lordship, that I am aware of the delicacy, and difficulty of the measures alluded to, I have only on that head to add that here I do not think it would meet with much of the lat- ter; The English are decidedly for it, among the Canadians themselves it is considered as far from improbable, nor is it without its partisans. That it would however occasion considerable clamour, and that attempts might be made to create disturbances upon the occasion, I have no doubt but for the latter, the people are at this moment unprepared, and a very little previous precaution would be sufficient to prevent serious danger. Next to this great measure, that which is most generally looked up to, is the Reunion of the Two Provinces, so as to Balance the Canadian Party in the House. Of the success of this measure I confess I have doubts. It would produce a heterogeneous mixture of opposite principles and different interests, from which no good could be expected, and if it did not avert, I should apprehend it might accelerate the evil. I am more inclined to keep the Province of Upper Canada as a foreign, and distinct population, which may be produced as a resource against that of this Country in case of necessity, It must always be interested in opposing revolution of every sort here, the great distance and general poverty of the people, appear to me, further obstacles to such a measure scarcely to be overcome. It has been suggested that by a new Division of the Province new Counties might be formed in that part now distinguished by the gen- eral name of the Townships, from whence Members might be furnished with the same view of Balancing the Canadian Party; this seems to me more practicable, at least than the proposed re-union of the Provinces, besides being in itself a measure that is in some sort required in Justice to the Inhabitants, who begin to complain of not being represented: the Canadian part of the Electors so infinitely outnumber them tho' confined to a much less extent of Country that they can never succeed, the only exception is the County of Bedford which is almost entirely composed of Townships, and from this County till the present election an English Member, has usually been sent, on this occasion it is a Canadian Member, with this exception not one Member has ever been returned from this very large tract. 264 Constitutional Documents of Canada. [1791-1840 But without the intervention of the Imperial Parliament, conferring on the Governor, and Council the Powers of altering the existing division of the Counties, and making a fresh one in proportion to the increasing numbers of Inhabitants, it will be impossible to effect even this measure ; no consideration could I am convinced be offered to induce the present House, or any House that can be formed, to entertain, the proposal for a moment. Short of the decisive step of taking away the House altogether, one or other of these two measures either of reuniting the Provinces, or of forming a new division of the Counties seems to offer the only option, from which a hope can be entertained of rendering that House less cap- able of doing mischief; when I say this, I mean as offering the only ex- pectation of ever effecting a Balance, to the Canadian Party, but under any shape in which it may be thought proper to continue the House, the enact- ment of a qualification with respect to the Representatives seems to be indispensably necessary, It really My Lord appears to me an absurdity, that the Interests of certainly not an unimportant Colony, involving in them, those also of no inconsiderable portion of the Commercial concerns of the British Empire, should be in the hands of six petty shopkeepers, a Blacksmith, a Miller, and IS ignorant peasants who form part of our present House, a Doctor or Apothecary, twelve Canadian Avocats, and Notaries, and four, so far respectable people that at least they do not keep shops, together with ten English members compleat the List; there is not one person coming under the description of a Canadian Gentleman among them. The qualification that I think best adapted to the circumstances of the Country, would be one hundred pounds Currency, clear annual revenue arising from Land actually the property of the person presenting himself, for twelve Calendar Months previous to the day of election, or two thou- sand pounds Currency in personal property clear of all debts or demands. With respect to a qualification for the Electors, tho' I am clear that such would be advantageous, and that the present one as established by the Constitutional Act is of little use, yet I feel much greater difficulty in proposing an alteration, forty shillings yearly value of their lands, scarcely excluded one farmer in a thousand, in fact, nearly every head of a family possesses a farm, and every farm is of a value exceeding that amount; the farms in general run so nearly of the same value, or vary only on account of being in a more or less favorable part of the Prov- ince, that any qualification under the general average, would bear the right of suffrage very near where it now is, and if it were established at a higher rate, it might perhaps narrow the right below its fair limits ; It undoubtedly would be desirable that the very lower class should be excluded, but I think the number is not yet so great as to induce the risk of what would be a greater inconvenience, to effect their exclusion, for I should consider as such the reducing the number of Electors within too narrow bounds. In the meantime however an opportunity appears to me to present itself by which much may be done towards keeping the House itself within proper bounds ; by shewing it, that its proceedings are watched, and that it will not be suffered to outstep those limits by which its subordination to the Imperial Parliament is established, while it would tend to manifest that subordination to the people, and perhaps lessen the confidence they may possess in their leaders, by shewing them that they are not all power- ful, and that they may be in the wrong. The House by rendering a certain class of His Majesty's subjects ineligible to a seat, by a vote of their own, has clearly violated the Act of the British Parliament by which they themselves exist, and should this assumption of theirs be submitted to, they will successively vote every class of His Majesty's servants to be ineligible, I do not speak this hy- pothetically My Lord, as what they may do, I mean it Literally as what I firmly believe they will do. I have not a doubt that much good would result from a retaliatory act of the Imperial Parliament forbidding the 1791-1840] Constitutional Documents of Canada. 265 Governor to permit the House to proceed to any business, of any sort whatever, and directing him to prorogue, or dissolve them, as he may see occasion, whenever they attempt to proceed to any vote, or any other mo- tion, except that of rescinding their resolve, and expunging it from their Journals, It would be done without a moment's hesitation, It would teach them caution in future, and it would make them view their situation in a different light from what they do now. This correction proceeding from Parliament would certainly be the most effectual; If however from reasons which are beyond my compe- tency in judging, it should not be thought advisable to move such a meas- ure in the Imperial Parliament, It might perhaps be nearly as affectual, if I were authorized to recommend it in His Majesty's Name, should His Majesty in His wisdom permit me so to do, In this case I presume the message to be delivered would be prescribed to me, otherwise, I should express His Majesty's confident hope and expectation that they would see the expediency of proceeding immediately, and in the first step to a measure required of them, upon every principle of Justice to the people, and of deference to the Imperial Parliament, and in the event of their attempting to enter on any other business whatever, or even admit of a motion other than what might be necessary for the purpose of carrying His Majesty's recommendations into effect, I would immediately prorogue them, and should they show the same spirit of resistance a second time, which is not to be expected, I would dissolve them again. Should I adopt this course as of myself, under His Majesty's instructions tho' without His name, I fear it would produce infinite confusion and an endless con- troversy ; they would certainly resist it in the first instance, how far they would carry their resistance it is impossible to say but tho' they might comply at last and probably would, they would accompany that compli- ance with resolutions and proceedings that would only tend to keep us at variance, and to impede all public business ; and after all, the effect upon them, and upon the people, would fall infinitely short of what might be expected in either of the other ways to which I have alluded. In adverting to the little means of influence that the Governor pos- sesses, I am at a total loss how to propose any (except in the obvious in- stance to which I shall shortly allude) by which it may be increased. The Militia furnishes little or none, the great body of the officers, that is those of the Country Companies, is composed of Habitants, but a Shade re- moved above the others in intelligence, tho' they are chosen from the most respectable among them. They are generally speaking the first to whom the Agents of the Party address themselves, and they are represented to me as among the most disaffected of the Province, as Credulous as their Comrades they listen to, and believe what is told them, while under the same infatuation of mistrust of every body of an Order higher than them- selves, there are no means of disabusing them ; I am certain if I were to dismiss every officer against whom information has been given me, I should change one third of the Militia of the Province. Unfortunately My Lord, the great source of not only the most ex- tensive but also of the most powerful. and useful influence is in the hands of an individual who is himself as I am assured, (and that from no bad authority) at this moment a Suffragan of an Archiepiscopal See in France; I have already adverted to the power exercised by the Bishop in the ap- pointment and removal at his pleasure of the Clergy of this province. Upon careful enquiry into the subject, I find that previous to the Conquest, the Bishop did exercise the right of appointment, In 1667 a Royal Edict gave the right of patronage to the Seigneurs or founders of the Church, but a subsequent Edict of 1699 gave it to the Bishops, but in Order to render this matter more clear I shall enclose a Memorandum given me on the subject by the Chief Justice 1 . His Majesty's Right to the nomination is clear and incontestable, so much so that were a Habitant to refuse to pay his tythes, The Church 1 See Doughty and McArthur, p. 399, note 2. 266 Constitutional Documents of Canada. [1791-1840 might excommunicate him, but for want of that nomination, it is held that the Cure could not in any of His Majesty's Courts of Law compel him to pay; The resumption of this right appears to me to be indispensable to any hopes that may be entertained of retaining the dominions of the Colony, and this I confess seems to me also to be the moment for affect- ing that resumption ; It may be accomplished now, twenty years hence it will be more difficult if not impracticable, but the truth is the danger presses, this influence is universally believed and I believe it myself, to be now silently working against us ; I do not know that the proposed change would turn its current, but I am sure it would lessen the force of it very much. The Person who at present exercises the Episcopal functions 1 , is not I think of a turbulent disposition, but he is a Man of great ambition, and some art, I doubt whether the former is not such as to preclude any great hope of succeeding with him by a negotiation voluntarily to resign the Post he now holds, I am inclined to believe that he himself would prefer that his submission should bear the appearance of an Act of necessity, under the power of an Act of the Imperial Parliament, or of the just exercise of His Majesty's Right, at the same time however, if whether it be accomplished by negotiation, or otherwise, He comes into it with a good grace, I Imagine it will be thought reasonable that his allowance should be increased, He has now only 200 a year, it would not be amiss to hint to him, that his Salary would be increased to the extent that His Majesty in the exercise of His Liberality might think proper to permit. On this very important subject, permit me My Lord to refer to a letter from Sir Robt. S. Milnes together with a Memorial from the Bishop, copies of which I enclose; From some circumstances that occurred at that mo- ment, no instructions were sent here in consequence, otherwise there is no doubt that the measure might have been effected. As to the Cures themselves, it is understood that they are at present rather uneasy at the power exercised over them, and the obvious ameliora- tion of their situation, would I think soon reconcile them to the change ; It would be proper to give them a free hold in their livings, of which they could not be deprived unless it were in consequence of the sentence of the Bishop, who on a complaint against a Cure referred to him by the Govern- ment, should be empowered to call into his assistance his Grands Vicaires, and to examine into it, from which sentence however, the party should have his appeal in His Majesty's Courts (it is thought that it would be dangerous to give him the right of enquiry into Complaints without their being referred to him by the Government, the removal from a living to a better, to be of course at the pleasure of the Crown. It must be recol- lected that the appointment of the Grands Vicaires, must also rest with the Crown, at present they are named by the Bishop without even the Ceremony of presenting them to the Governor. The resumption of the Lands held by the Seminary at Montreal would in like manner tend to an increase of the influence of Government, and would to a certainty lessen that of the self created community, in whose possession they now rest, the right is incontestable, and they are so sensible of it, that they make a rule of dropping all claims by which the discussion might be brought into Court, The Majority of the present Members of the Institution are french emigrant Priests, and are not amongst the least dangerous persons in the Colony; the Person at the head of it particularly is of that description, a very able, but a very artful designing Man, whose predeliction for France is not doubted : the Estate under proper manage- ment would probably produce ten thousand pounds a Year, and four would be an ample allowance to them to carry on their Establishment; The Seminary of Quebec is also in the possession of large property, to which they have an undoubted Claim, and the two together, form an ample provision for the Education of their Youth. I will not detain your Lordship any further by a word more of apology 1 Mons. Plessis. 1791-1840] Constitutional Documents of Canada. 267 for the extreme length of this dispatch, the occasion has seemed to me to require it, and I am yet sensible of the very deficient manner in which 1 have treated the subject, which I have felt it to be my duty to undertake; to remedy this deficiency, I have confided my dispatch to Mr. Ryland my Civil Secretary, this Gentleman has been in office here seventeen years, during the greater part of which, he has been in the Station he now holds under my administration. He possesses my entire confidence and I am persuaded is most perfectly qualified to give every Information that your Lordship may desire, my motive indeed for sending him is that your Lordship may have a more perfect, and detailed account than it is possible to convey in a letter however long it may be. I have the Honor to be, My Lord, Your Lordship's most obedient humble Servant. J. H. CRAIG. LXXIV OBSERVATIONS OF CHIEF JUSTICE SEWELL ON THE UNION OF THE PROVINCES [Trans. ; Doughty and McArthur.] May it please your Excellency. You have been pleased to call for my sentiments upon the present situation of Canada, and I have now the honor to submit them to your consideration and superior Judgment. The Political Evils which we labour under arise in my apprehension from two principal causes, 1st From French predilections in the great Mass of the Inhabitants, and 2dly From want of Influence and power in the Executive Government, from the former, arises that distinction between the Government and the People, which is daily and too visibly productive of mutual distrust, jealousies, and even enmity, and from the latter a total inability to produce the means by which the effects of that distinction may be counteracted. What must be the result, if things remain as they are is obvious, No hopes can be entertained, that French predilections can be obliterated from the minds of His Majesty's Canadian Subjects, and if they be not counteracted, they will continue to augment until by some crisis, force will be required and the future state and condition of Canada will then be decided by a recourse to arms. The great links of connection between a Government and its subjects are religious (religion) Laws, and Language, and when Conquerors possess the same religion, and use the same Laws and the same Language as the Conquered, the incorporation of both into one political body is easily effected : But when they are at variance on these points, experience seems to have demonstrated in Canada, that it cannot at all be effected while this variance subsists. Obedience may be rendered by conquered subjects under such circumstances, but it is the obedience of a Foreigner to a Gov- ernment which in his estimation is not his own, and as he views it as an alien power, there is no attachment, no affection in his mind towards it, and consequently no disposition to unite with those who constitute the Government or its natural subjects. Every favor conferred is considered to be no more than what is due to them, or as a matter obtained from persons who would not have conceded so much if it had been possible for them to retain it. No Confidence exists, and he is in a continual belief, That more is meditated by the Government, in every of its measures, than meets his Eye. At the conquest of Canada, the conquerors were English- men and Protestants. They spoke the English Language and no other, they were attached to the English Laws, and fostered in their minds a natural antipathy against Frenchmen. The English Subjects of the present day who are settled in Canada, having no cause to be dissatisfied with the 268 Constitutional Documents of Canada. [1791-1840 religion the Language or the Laws of their Mother Country, and having no cause to be better pleased with France than their Forefathers, are now precisely what the conquerors of Canada were; on the other hand the People of Canada at the Conquest were Frenchmen, and Roman Catholics, They spoke the French Language, and no other, they were attached to French Laws, and fostered in their minds a National antipathy against Englishmen, since that period. By the Statute 14, Geo. III. c. 83 1 the Laws of France have been enacted, and declared to be the Laws of Canada. And the Homan Catholic Religion has been established in the Province, and as it has not been thought adviseable, by any Act of Parliament or other means to attempt the general introduction of the English Language, The French Tongue universally prevails, even in the Courts of Justice and in the Legis- lature, the Canadians therefore in those several Respects, are also precisely what they were at the conquest. They are still Frenchmen, their habits (the fruits of their Religion, and their Laws) are still the habits of French- men, and so much in opposition to the habits of our own people, tho' there is no intercourse between them; I fear I may add with truth that the anti- pathy of Canadians, and English Subjects against each other, is mutually as great as ever. It seems, Sir, to me, impossible that the incorporation of two such Extremes can ever be effected, and to this I add, that no change in the Laws or religion of the Country can be even expected until the Majority of its inhabitants are Englishmen, in principle, and that while the number of English settlers remains so small in comparison to that of the Cana- dians, a change in Language, cannot be looked for. Yet the Province must be converted into an English Colony, or, it will ultimately be lost to England. I am led from these considerations in the first instance to conceive it indispensably necessary to overwhelm and sink the Canadian population of (Sic) 1 English Protestants, and this I believe to be practicable; I do not mean that subjects can or ought to be procured from England to the extent required for this purpose, but they may, and I think ought to be procured from the neighbouring States, For although it may be feared by some that they would not be good Subjects, I have myself no such fears; I believe that once settled in the Province they would have no wish to return to their former system of Government, an expectation justified by the conduct of those who are already settled in the country. It is besides only in the case of a War with the Northern States of America that the disaffection of such settlers is to be dreaded, and this is an event to be contemplated probably as a remote contingency. We should also remember that the great fear of the Northern States is the Existence of a nation of Frenchmen upon their Borders, and that in all probability the introduction of other settlers by appeasing this apprehension, by increasing our connec- tions with them, and particularly our commercial intercourse, would have a tendency to pursue the good understanding which subsists at present for a longer course of years than otherwise might be expected, and possibly until the original Settlers shall be succeeded by a new Generation of British Born Subjects; But let the weight of these observances be what it may, such settlers it is certain would be the descendants of Englishmen, profess the same religion, and speak the same language, and would therefore be more easily assimilated, and become better subjects than those which we now possess, and if to people the Country with such Characters is to incur a risk, the risk incurred will be less than that which we must incur by suffering the Province to remain in its present state. The Waste Lands of the Crown afford sufficient means for the accom- modation of a much greater number of Settlers than is required, But their dispersion through the settled parts of the Country is desirable upon many accounts, and to effect this would require the aid of Parliament. All the Grants of the French Government were made under the feudal System, 1 See No. XXV. 1 Obviously for "by." 1791-1840] Constitutional Documents of Canada. 269 and all the lands so granted, are now so held by the Lords of the several Seigneuries in Canada, and their respective Tenants. To such Tenures all Englishmen and Americans have an utter aversion, and the consequence is that all the Seigneuries in the Province are entirely settled by Canadians, most of the Seigneurs however, would be glad, to take a fixed price for the fee simple of their farms, and in consideration of that Price to exonerate them from the payment of all rents, mistaken fines ; and other feudal Burthens for ever. But as the Law now stands, this cannot be done, and an Act of Parliament for the conversion of Tenures similar to the Act which was formerly offered to the consideration of the Provincial Legis- lature would be required, and as such, an Act must necessarily proceed upon the principle of a mutual agreement between the Lord and the Tenant, and provide for the payment of the King's Quint upon the purchase. It is evident that no Injury could accrue to the Tenant, to the Lord or to the Crown. In the present state of the Legislature of Canada, three fourths of the House of Assembly are Canadians, and of that proportion of the whole nearly of the lowest Class, The fruits of Universal Suffrage, Four fifths of the whole also are Roman Catholics, and under the guidance of a Priest- hood which is established by Law, but denies that the right of Supremacy is or can be vested in the Sovereign. From such a House, Laws calculated in principle to counteract French predilections, or, to increase the Power or influence of the Crown must not be expected, and almost any alteration in it must necessarily be tor the better. The Introduction of English Settlers of itself will increase the number of English Members but the augmentation of their number would be greatly promoted by an Act requir- ing a qualification as well for Members as for Electors. The Character of the Canadian is Idleness, and inactivity, of the English Settlers Industry and perseverance. The Canadians also divide their real property among their children in equal proportions ad infinitum, while the English Settlers observe an opposite Conduct, and almost universally place their younger sons upon new lands reserving the patrimonial Estate to the Eldest. Gener- ally speaking therefore, the English Settlers will possess property of greater value than the Canadians, and if qualifications comparatively high are required, The nomination of Members to the Lower House will ultimately rest with the English Settlers. The Number also of Persons qualified to be Members will increase among them, while among the Canadians it will be diminished. The present Exigencies of the Colony however require measures more immediately calculated to produce a change in the Legislature than those to which I have alluded, and in my mind, none would be more efficacious than an incorporate union of the two Provinces of Upper and Lower Canada under one Governor General, and one Legislature, leaving to the Upper Province its present Executive Government, but rendering it subor- dinate, and liable to the control of the Governor General, and to both, all laws in force in each respectively. At the time of the Union; subject to such alterations, and regulations from Time to Time, as circumstances to the Parliament of the United Kingdom, or to the Provincial Legislature of the United Provinces may appear to require. By the addition of the Representations of Upper Canada to the Legislature of this Province, The English Interest in the House of Assembly would be much increased, and it might be made to preponderate by diminishing the number of the Repre- sentatives for the Lower Province, and augmenting the Number for the Upper Province. The Importance, The respectability, and the weight of the Legislative Council, would be materially augmented, The Influence of the Roman Catholic Priesthood in the Legislature would be annihilated, The Strength, The Power, and The Resources of both Provinces would be consolidated. The Commercial Jealousies and dissatisfactions which have arisen from the peculiar geographical situation of the two Provinces, from the independence of their respective Legislatures, and the danger of their acting in opposition to each other, with those consequences (to this time prevented by temporary compacts between the two) would effectually be 270 Constitutional Documents of Canada. [1791-1840 done away, The Influence of the Governor General would be augmented by an extensive patronage (which ought to be increased by every means) and the designs of the Imperial Government would be more easily carried into Execution in both Provinces, because there would be but one Legislature to consult. It is obvious if a union of the two Provinces should be adopted, that some alteration in the Courts of Justice would be necessary. But as detail in the several matters upon which I write would carry me far beyond the bounds to which I am limited in a letter, I refrain from it in the present instance. As this however i:. a subject immediately within my own depart- ment, I shall beg your Excellency's permission to refer to a report 1 upon the Courts of Justice in this Province submitted by me when Attorney General to Sir Robert Milnes and dated. And to add that if it be thought expedient to erect a Court of King's Bench in this Province with the Powers then pointed out, It would in my opinion be right to vest in the same Court, a Control to a certain extent over the Courts of the Upper Province. Among the means to be adopted for encreasing the power, and influence of the Crown, I know of none which after those which I have mentioned, would be so immediately efficacious, as to increase the Patronage of the Governor, resuming and exercising the King's Right to appoint Incumbents to all the Roman Catholic Livings in Canada, under the sanction of a declaratory Act of the Imperial Parliament. But as His Majesty's Right to make such appointments may be doubted, because antecedent to the conquest, that Right was vested in the then Roman Catholic Bishop of Quebec, I shall beg leave to lay before your Excellency the grounds upon which in my opinion it is now vested in His Majesty. At the Erection of the Bishoprick of Quebec in 1670 after great contestations between the Courts of Versailles and of Rome, It was deter- mined that the Bishop of Quebec should hold of, and be dependent upon the See of Rome, with the title of "Vicaire du St. Siege Apostolique" and in consequence of this agreement, though the Bishop was immediately nomin- ated by the King of France he received from him a Commission, His powers were derived to him entirely from the Pope, and given by his Bulle upon which he was admitted to take the Oath of Allegiance and installed in his Bishoprick by Royal Letters Patent. By the 6th Article of the Capitulation of Quebec* "The Bishop was to exercise his functions with decency until the possession of Canada should be decided," And in the same spirit By the 29th and 30th and 31st Articles of the Capitulation of Montreal' and the answers, every demand made for the continuation of the Bishops authority was rejected. Under the Capi- tulations therefore the exercise of the Episcopal Functions could not be claimed after the Treaty of 1763 by which the possession of Canada was decided. The Treaty of 1763 permits the Canadians "to profess the wor- ship of their religion according to the rites of the Church of Rome as far as the Laws of Great Britain will permit." 4 And the Statute 14 Geo. Ill cap. 83 declares that they may have, hold, exercise and enjoy the free exercise of the Religion of the Church of Rome subject to the King's supremacy declared and established by the Statute 1 Eliz. cap. 1* Since therefore the Titular Roman Catholic Bishop of Quebec according to the original Creation of the See of Quebec "holds of and is dependent upon the See of Rome," and at this moment as heretofore derives his entire authority from the Pope, without any Commission or power whatever from His Majesty, It is now clear that the Statute of Elizabeth which is formally but unnecessarily recognized by the Statute 14th Geo. Ill Cap. 83, to be in force in Canada has annihilated, not only his power, but his office. The 16th Section having especially prohibited all exercise of the Popes author- ity, and of every authority derived from him not only in England, but in all the Dominions which the Crown then possessed or might thereafter 1 This Report is as yet unfound. (Doughty and McArthur, p. 403, note I.) * See No. I. See No. II. See No. III. See No. XXV. 1791-1840] Constitutional Documents of Canada. 271 acquire. Yet upon a point of so much importance I am desirous of strengthening my own opinion by that of others, and with your Excellency's permission will therefore cite a paragraph from the Report of the Advocate General (Sir James Harriot) to His Majesty in the year 1773 upon the affairs of Canada. It is in these words "that the Benefices (in Canada) heretofore in the gift of the Bishop are vested in your Majesty only cannot be doubted in Law, because there being no Bishop by Law, The Patronage of the said Benefices is devolved to Your Majesty's Crown of Course." I must state as alarming facts, that the education of all the Canadian Youth of the Country male and female, and of a considerable proportion of the English is entirely in the hands of Roman Catholic conventual Institutions. That in the Seminary of Montreal every teacher is a native born subject of france and a Member of the Brotherhood of St. Sulpice. And that in the Seminary of Quebec The last Superior was and the present is also a Native of France. Such Institutions in every Country are Nurseries of Bigotry and of Aversion to the Civil Power, with us in addi- tion of these evils they are the foster parents of french Predilictions, and of a Natural Antipathy against England and her heretical Government. Of these Establishments by far the most important and most extensive is the seminary of Montreal, whose entire property most unquestionably has been vested in the Crown since the period of the Conquest. It is not however necessary for me to enter into any proof upon this point, or to state the means by which this property can be resumed because it is not in my power to add anything to a Report upon the Subject submitted by me to Sir Robert Milnes dated 2d July 1804. Nor will I trespass upon your Excellency's time by any remarks upon the advantages to be derived from the influence of Government in the Education of the rising generation. I have only to observe that I enumerate the resumption of this property and the application of its Rents and issues to the purpose of Education throughout the Province under Masters ap- pointed by the Crown, among the means by which French Predilictions may be prevented and the power and Influence of the Crown eventually increased. In the course of this letter I have hitherto had the honor of offering to your Excellency's consideration those objects only which constitute in my view the greater alterations and amendments in the Constitution, and Government of the Province, more immediately and indispensibly necessary, and a further detail of the whole with the measures which in my humble Judgment it will be right to adopt in the Execution of all, or any of them, I shall be ready to lay before your Excellency if at any time you should be pleased to direct me so to do. I beg leave to add that much Injury to His Majesty's Government, and to the public peace and tranquillity of the Province, may be prevented, by an Act of the Imperial Parliament to regulate printing and Printers in Canada similar to the English Statute of the 38th Geo. Ill cap. 78. I have the honor to be with perfect Respect Sir Your Excellency's most obedient most humble servant (Signed) J. SEWELL. 272 Constitutional Documents of Canada. [1791-1840 LXXV MR. RYLAND TO SIR J. H. CRAIG, K.B. [Trans. : Christie, A History of Lower Canada (Public Documents) DEAR SIR, Vol. VI (Montreal, 1866).] LONDON, Thursday, 23rd August, 1810. I went according to appointment to Downing Street, at 2 o'clock, and after remaining some time with Mr. Peel, was sent for to the adjoining office. ****** Lord Liverpool began the interrogation by enquiring whether I thought a high and decisive tone, at the next meeting of the House of Assembly, or a mild and conciliatory language would produce the best effect? I answered that I could have no hesitation in giving it as my opinion that you could not be instructed to hold too high a language on the occasion, and that if the Government appeared in any degree to give way, I was apprehensive the worst of consequences might ensue. His Lordship then repeated the same question he had before put to me in private, whether the members opposed to Government might not be brought over by the hope of being employed? This question, I must confess, caused me rather a warm sensa- tion ; but I answered with coolness, that this system had already been acted upon in several remarkable instances, and that I could not but attribute to it, in a great measure, the line of conduct which the leaders of the demo- cratic party had adopted; that their original object certainly was to force themselves into place ; but the patronage of the Governor was very limited, and there were but few places to give away. I then repeated an observation I had made in my first interview with Lord Liverpool, concerning Bedard in particular, as the chief leader of the anti-government party, who has now so committed himself as to render it impossible he should be employed. I dwell the more particularly on these first objects of enquiry because they mark the system which the Ministry seem inclined to adopt, and which in my judgment, would be the most disgraceful to Your Excellency's adminis- tration, and most injurious to the interests of the Crown, that a weak mind could devise. A number of questions were put to me by almost every member present. At first they seemed not aware that the Act of Parliament obliged you to call the Legislature together once a year 1 , but on this point I soon put them right. They questioned me concerning the Provincial revenue, and seemed to think that the supplies depended very much on keeping the House of Assembly in good humour. On this head I observed that the casual and territorial revenue, joined to the permanent duties already established by Acts of the Imperial or Provincial Legislature, produced, if my recollec- tion served me right, upwards of 30,000 a year, and that these revenues might be expected to increase with the increasing population and commerce of the country; that the usual annual expenditure did not exceed 40 or 45,000 a year, and that the difference, which you were authorized to receive from the army extraordinaries, could not, I conceived, be considered as a material object to this country: I added, that if we were under a necessity of looking to the House of Assembly for supplies, then indeed it might be found expedient at all hazards, to secure a majority. I made some further observations which it is not necessary to repeat, and they seemed at last perfectly to understand, and acquiesce in the opinion that, as far as the Provincial revenue and expenditure were concerned, there was no urgent necessity for humouring the House of Assembly. They then went into a discussion of the temporary Acts, and I explained to the best of my ability the nature of the Alien Act, the American Intercourse See No. LV. 1791-1840] Constitutional Documents of Canada. 273 Act, and the Act for the better preservation of His Majesty's Government. I spoke of a renewal of the first as very desirable, though not absolutely necessary ; that as far as related to alien enemies coming into the Province, 1 was" persuaded Your Excellency would have no hesitation in taking upon yourself to dispose of them as you might think best. But that it was to be wished that you had certain powers given you with respect to persons who had resided in the French Dominions or in countries under the control of France, etc., etc. The American Intercourse Act they evidently did not understand. I endeavoured to explain how it took its rise under Mr. Jay's Treaty 1 , certain articles of which were considered by the Provincial Gov- ernment as being still in force ; that if it was not renewed the Prohibitory Acts of the Colonial Legislature, whose operation was suspended by it, must take effect, etc. I doubt whether the gentlemen present had a clear conception of the subject, for they read a clause in an Act of the Imperial Parliament as applying to the case, which did not appear to me at all applicable ; but I declined entering further into it, wishing to bring their attention to a matter of much greater importance, I mean the act for the better preservation of His Majesty's Government. I found from what had passed that they had read the memorandum I had given to Mr. Peel, concerning it. They again asked me if I thought the Assembly would renew it? and I answered I felt persuaded they would not. They enquired what was the proportionate number of English and Canadian members in the former and present House of Assembly; whethei the English were always with the Government? I said that in all cases of great importance they were, with one exception, which was that of a Mr. Stuart, formerly the Solicitor General 2 , who had joined the democratic party, and whom you had in consequence dismissed from his office, and that the English influence at Montreal had succeeded in preventing this man from being returned at the last election. They then entered into a string of questions concerning the description of people of which the present and former Houses were composed; the nature and tenure of the estates held by the habitants, their education and prejudices; the reasons why men of property and consequence were not oftener elected, etc. I forgot neither the blacksmith, nor the men who attested the roll by their marks, nor the views and proceedings of the subtle demagogues who wished, for the most mischievous of purposes, to establish a right in the majority to disqualify, by a vote of the House, any class or description of His Majesty's subjects from being returned to serve in it. 3 Lord Liverpool renewed the questions he had put to me in private, as to the probable effect of calling the House together every year, and pro- roguing them again the moment they manifested a disposition to do mis- chief ; to which I answered as I did before, that under such circumstances the Colony would in a manner be without a Legislature ; that the gradual amelioration of the laws would be prevented, and that the mercantile and great landed interests must essentially suffer from such a state of things. His Lordship asked me if I thought five or six-and-twenty English mem- bers would be a sufficient proportion ; I said certainly, but that I did not see how such a number could possibly be obtained but by a re-union of the two Provinces. Lord Bathurst and Mr. Pervical particularly enquired whether I thought that the Assembly at the next meeting, might be alarmed and intimidated into better behaviour? I answered that I certainly thought they might; that the party were sensible of your vigour and firmness, that they already entertained apprehensions from your having sent me to' Eng- land, and that if they found you had the decided approbation and support of His Majesty's Government, they would hardly dare to persist in the same 1 See the Jay Treaty, 1794. 2 And subsequently Sir James Stuart, Baronet, Chief Justice of Lower Canada, decidedly the first Lawver in the Province, and one of the most eminent Jurists of his day. R. Christie. 3 There is in this section of Ryland's letter evidence that he was well acquainted with Craig's despatches to England, and that Craig had tutored him on the part which he had to play before the Cabinet. 274 Constitutional Documents of Canada. [1791-1840 line of conduct that was pursued by the last House, although the present was, if possible, even worse composed; but that, till some radical change was made, so as to give to the King's Representative more influence, and to. bring into the House a greater proportion of English members, I did not think the evil could be radically cured. I must not omit - to mention that several enquiries were put to me respecting the Militia, which gave me occasion to inform them that the Militia Act would expire at the end of the war, that four or five hundred only, in the towns of Quebec, Montreal and Three Rivers, learned the use of arms. One gentleman observed that he supposed the Militia were under the command of the Inspectors sent out from England. This was to me rather a puzzling observation, as I do not recollect those officers having ever come into contact with that body 1 : I said that the Militia were under your command, as Governor in Chief of the Province, but that I feared circumstances were such as to render it impossible for you at this time to ttirn them to any good account 2 . In speaking of the number of regular troops in Canada (which they wished to learn from me !) I took occasion to mention the advantage we had gained by the exchange of the 98th for the 8th Regiment. In short, Sir, during the three-quarters of an hour that I remained with the Council, an infinite number of questions were put to me, which it is scarcely possible I should, nor do I imagine you would wish me to detail. One gentleman only kept sile;i: ; this was the master of the Rolls', who, you know, was in office in Canada some thirty years ago : he appeared to me to be lying perdu for the purpose of taking advantage of any incorrectness I might fall into, or of availing himself, after I was gone, of the intimate knowledge he had acquired of Canadian affairs by a short residence in the Province, when I was a boy. To this gentlemen's suggestions I am inclined to attribute the namby pamby system of conciliation; or, rather, that desperate line of politics which would make it necessary for a firm and dignified Representative of His Majesty to apologize to a band of contemptible demagogues for having frustrated their attempts to overthrow the constitu tion of their country. If I do injustice to Sir William by my surmises I shall be most truly sorry for it, and I trust that my suggestions will on no account go beyond yourself. I have the honor to be, Dear Sir, Your Excellency's most devoted and most faithful humble servant, H. W. RYLAND. P.S. Since I came to town I have had repeated interviews with some of the principal merchants concerned in the trade to the British North American Colonies, to whom I suggested the propriety of their coming forward at this moment to oppose the attempts of the French faction in Lower Canada, to overwhelm the English interests of that Province. The result has been a communication from the Committee of Merchants here to the Earl of Liverpool, of that part of the letter from the Committees of Trade at Quebec and Montreal, which relates to your Excellency's administration, and I have now the satisfaction of enclosing a copy of their Secretary's letter to His Lordship, on the subject I was anxious that this should be sent in before the departure of the September packet, as I am confident it will have a considerable effect on His Lordship's mind, by shewing how decidedly the whole of the mercantile interests concerned is with Your Excellency. Other measures (of which I shall have regular information) are contempleted ; and should the 1 Never their appointments were mere military sinecures at the expense of tin Mother Country. R. Christie. * It was said that in fact Sir James Craig held the Militia in utter contempt. R. Christie. 1 Sir William Grant. 1791-1840] Constitutional Documents of Canada. 275 Minister be inclined to bring forward anything in Parliament relative to Canada, I have reason to believe he will be very strongly supported out of doors. At the same time that I mention these circumstances to Your Excellency, I beg you to be assured that I shall be very careful of com- mitting myself with these gentlemen, or of going one step beyond what you would fully approve. LXXVI MEMORIAL FROM BRITISH MERCHANTS TO LORD LIVER- POOL, 3 SEPTEMBER, 1810 [Trans.: Christie, op. cit.] The Memorial of the Committee of Merchants interested in the Trade and Fisheries of His Majesty's North American Colonies, HUMBLY SHEWETH: That your Memorialists, from the communications which have been made to them by their correspondents in Lower Canada, are much alarmed at the conduct adopted by the majority of the House of Assembly of that Province. That your Memorialists do not presume to state to Your Lordship the proceedings which have taken place thereon, as they have reason to believe His Excellency the Governor General, Sir James Craig, has trans- mitted to Your Lordship official advices on the subject. That your Memorialists apprehend the system which has recently been acted upon by the majority of the House of Assembly will, if permitted to be continued, render insecure the property of the British inhabitants of the Province, operate as a discouragement to other British subjects settling there, and endanger the tranquility and safety of the Colony. That your Memorialists have long felt the existing laws of Lower Canada did not afford adequate protection to the British residents there, in as much as those laws are French, and are inapplicable to the present state of the Colony. And your Memorialists conceive it to be their duty candidly to state to Your Lordship, that so long as the present constitution of the Province remains unaltered, and especially with respect to the man- ner in which the House of Assembly is constituted, the Colony will not improve either in its agriculture or trade, from the baneful influence which predominates therein, notwithstanding the great encouragement which has been given by His Majesty's present Government to the Province; and youi Memorialists regret that so far from a correspondent feeling being evinced by the Canadians towards Great Britain, the majority of the House of Assembly appear determined to oppose the judicious recommendation of His Excellency the Governor General who has uniformly shewn, by the various Acts of his Government, his great anxiety to promote the true interests of the Province. That your Memorialists regret to observe, the conduct of the majority of the House of Assembly shews they are ignorant of the principles of British Jurisprudence, and evinces a narrow minded and illiberal policy, ill-calculated to conciliate the minds and affections of the people to His Majesty's Government, whilst at the same time their conduct has been most disrespectful to the King's Representative in Lower Canada, whose power they not only seem desirous to infringe, but likewise to assume the functions of the other branches of the Legislature of the Colony, of which they only constitute a part. Under the circumstances, and from the vital importance of the Colony to the maritime interests of Great Britain, your Memorialists appeal with great deference to Your Lordship, in the hope that His Majesty's Govern- ment will take into their early consideration the political state of Lower Canada; that they will support His Excellency the Governor General in 276 Constitutional Documents of Canada. [1791-1840 the measures he has been obliged to adopt, and that they will condescend to recommend to the favorable consideration of the Imperial Legislature such alterations in the constitution of Lower Canada as will promote and secure the British interests in that Province. And your Memorialists will ever pray, etc., etc. (Several signatures of business firms follow.) London, 3rd September, 1810. LXXVII MR. RYLAND TO SIR J. H. CRAIG, K.B. [Trans. : Christie op. cit.] LONDON, Tuesday, llth September, 1810. DEAR SIR, Just as I was about to set off for the country yesterday, I received a note .... informing me that .... Lord Liverpool would be glad to see me. . . . He has had the goodness to read to me his public despatch to Your Excellency, the purport of which is nearly such as I expected. His Lordship candidly stated the reasons why His Majesty's Ministers could not, without stronger grounds, venture on bringing the affairs of Canada before Parliament. He particularly remarked that Lord Grenville, as father of the Canada Act of 1791, would rally his whole strength in support of his own Child; that an outcry would be raised con- cerning the oppressed Canadians, etc., etc. In short, Sir, I felt persuaded that, as matters stood, you would not think it decorous or expedient for me to offer any observations in opposition to what His Lordship has stated in his despatch as the reasons for not adopting, at this time, the more decisive measures which you have proposed. His Lordship had the good- ness to observe, that there were several points which did not require legis- lative interference, particularly the ecclesiastical affairs of the Province, and he gave me full liberty to call his or Mr. Peel's attention to them at any time, saying, that they should be taken up in the course of the winter.' * * * * * * LXXVIII LIVERPOOL TO CRAIG [Trans. : Doughty and McArthur.] Downing Street, 12th Sepr., 1810. Sir, Your dispatches have received all the consideration to which they are entitled from the very important Information contained in them And from the very clear and able manner in which you have discussed the dif- ferent Topics connected with it. I proceed now to communicate to you the Sentiments of His Majesty's Government, upon the Points which you have brought under their consid- eration, in the order, in which they appear to arise. It is much to be regretted that the Constitution established for the Province of Lower Canada, by the Act* of the British Parliament of the year 1791, should appear to have so entirely disappointed the expectations of those who introduced it, and that the Conduct of the Assembly should afford such strong ground for concluding that the Constitution was not only repugnant to the established habits and prejudices of the Canadians, but likewise ill-calculated to produce those benefits to the English Settlers which they were led at the time to suppose would result from it. But even supposing that His Majesty's Government should feel the 1 See papre 280 for these "points." 1 No. LV. 1791-1840] Constitutional Documents of Canada. 277 objections to the Constitution of Lower Canada, as established at present and the Inconveniences which you describe to arise from it, as strongly as you do, yet it would be a question of great delicacy and difficulty, how far, under the present Circumstances it would be justifiable to interpose by the Authority of Parliament for the purpose of abolishing or even of altering it. The Act of the 31st of the King does not profess itself to be temporary or experimental It contains in it no Clause, by which the Right of Parlia- ment to alter the Constitution is specially reserved. It appears clearly from the 14th Clause, that it was the intention of Parliament that in ordinary cases at least, such alterations as Circumstances might render necessary should be made by the Assembly of the Province, in concurrence with the Council and Governor And tho' the Parliament of the United Kingdom under its right of general legislation for all parts of the Empire, must be considered as unquestionably possessing within itself, the inherent Right of altering the Constitution of any of its Colonies or Settlements, if it shall be found necessary for the safety or prosperity of the Empire, it would probably be thought by Parliament to require a very strong practical case, to justify the exercise of such a right in the case of Canada, after such an Act as that of 1791 And notwithstanding the Evil Spirit which has made its appearance, and is too evidently gaining ground in the Province notwith- standing the intemperate Proceedings of the Assembly on more than one occasion, His Majesty's Government doubt very much whether upon the Information they at present possess, such a Special Case could at this time be laid before Parliament as would induce Parliament after having so recently established the Constitution, to interfere by its Authority for the purpose of altering it. His Majesty's Government are convinced that an Appeal on this Sub- ject to Parliament, at the present time, would be highly inconvenient, and as it might even be attended with very mischievous consequences 1 , They are clear that unless it should become absolutely and indispensably neces- sary, it ought to be avoided. This opinion receives additional weight from the consideration that such a diversity of sentiment appears to prevail amongst the best informed Persons in Canada as to the nature of the Reform which it would be most expedient to adopt, and as to the efficacy of the different Remedies if adopted. In such a state of things, it would be in vain to calculate with any degree of confidence what might be the determination of Parliament And the most fatal Effects might be produced in Canada from the ferment which would be excited by discussions in Parliament upon this Subject, if they were not followed by the most decisive and effectual Measures, and sup- ported by such a general concurrence of opinion as might reasonably ensure a perseverance in them. I come then to the next Question, What under the Circumstances above stated is the course most fitting to be adopted. His Majesty's Government have no difficulty in delivering it as their opinion that the most advisable course, if practicable would be to endeavour to obtain for Government by a frank exposition of the liberal and bene- ficial views of His Majesty, and by every Measure of conciliation the support of the Assembly as at present constituted His Majesty's Govern- ment understand that the English Representatives in the Assembly, as far as their numbers extend, may be considered as generally favorably disposed towards Government And they most earnestly recommend that every Endeavour should be used by personal communications, to conciliate the most moderate amongst the Canadians, and to reconcile them to the fair support of the Government against the violent designs of the disaffected and factious, as the best means of promoting the Prosperity of the Province and of averting Measures to which Government may otherwise be indispen- sably compelled to resort. 1 Cf. No. LXXVII. 278 Constitutional Documents of Canada. [1791-1840 If however every Effort of this nature should prove abortive they do not see that there exists any such necessary dependence of the Executive Government in Canada upon the House of Assembly, as need prevent your adopting consistently with the most strict and rigid adherence to every legal form a firm, temperate but persevering resistance to all the En- croachments and usurpations of the Assembly. It is provided by the 31st of the King that the Assembly should be called once every year 1 , and it is impossible not to acknowledge that by such a Provision the Parliament intended to secure to the Colony the important Benefits which cannot fail to result from the Opportunity which is thereby afforded of collecting the Sentiments of the Community, and of providing by occasional legislation such Improvements as from time to time may be rendered necessary. These are undoubtedly most important considerations which ought never to be lost sight of in the view which is to be taken of this Subject, but notwithstanding these considerations there does not exist any absolute necessity as in the case of the Parliament of the United Kingdom, that the Assembly should continue sitting, after it had been once convened. It would indeed have been wholly inconsistent with the nature of a Colony, and its necessary connection with the Mother Country, that the Executive Government should have been placed in the same state 01 dependence upon a local Legislature, as most usefully subsists reciprocally between the Crown and the Parliament of the United Kingdom. In Canada therefore, the Executive Government is not dependent upon the Assembly, either for the Supplies requisite for defraying the Expences of the Civil Government of the Province nor for the Military force essen- tial for its security and protection 2 . The Military Force which is judged necessary for these purposes is provided from home, and I understand that the permanent Revenue of the Province, together with what it has been usual to draw from the Military Chest is fully sufficient for all the Expences of the Civil Government The Executive Government therefore, in Canada, is in no way neces- sarily dependent upon the House of Assembly All Laws to regulate the Commercial Intercourse between Canada and other parts of the World, may according to the Constitution, be passed by the Imperial Parliament". There may indeed be some Laws which have been passed by the Legis- lature of Lower Canada for a limited time, the Expiration of which, might prove inconvenient to the Government. With respect to the Alien Law, this observation applies only to a limited extent for as long as the War continues, the Crown and hi Representatives have a clear and undoubted Right by common Law, to send all alien Enemies out of the British Dominions, without the necessity of any Legislative Act for that purpose. The Expiration of the Law for the safety of the King's Government, by suspending the Habeas Corpus, might be some inconvenience, but it does not appear to be of a sufficient magnitude to counterbalance the advantages which would arise from the course of proceeding now proposed, compared with that of any other which has been hitherto suggested. With respect to Laws for internal Improvement, the want of them will be much to be regretted by the Government and by all who are interested in the welfare of the Province. The Inhabitants of the Province must feel, in the first instance, the inconvenience arising from the interruption of all Legislative Proceedings of this nature, and it is to be hoped that they will be led to ascribe it to its true cause the factious and intemperate Conduct of their own Representatives. If this Sentiment once gains ground amongst the Inhabitants of the Province it may operate more powerfully than any other Measure in bring- ing them to a due sense of their Interest and their duty. His Majesty's Government therefore altho' they see much that is 1 See Constitutional Act, f 27 (No. LV). 1 A contemporary and official clear-cut statement of the exact place of the Assembly in the scheme of Government. 1 See Constitutional Act, 46 (No. LV). 1791-1840] Constitutional Documents of Canada. 279 deeply to be regretted in this state of things, see no reason why the Execu- tive Government should feel itself essentially embarrassed in its course of Action upon the present occasion. If the Assembly on being convened annually, as by the Law is necessary, should adopt any violent or intem- perate Proceedings, the Governor should prorogue or dissolve them. That Prorogation or dissolution with whatever inconvenience it may be attended to the Province, must be ascribed to those whose misconduct rendered it necessary. It will be of infinite importance that it should not be resorted to, till the cause of it should be evident to the whole Province And the more active the friends of Government may be in endeavouring to bring forward useful, and therefore popular Measures the more ground the Province in general will have to regret the Prorogation or dissolution of the Assembly. His Majesty's Government earnestly recommend to you the Prorogation rather than the dissolution of the Assembly, unless there is reason to believe from a change in the temper of the People, that a more favorable Assembly will be elected. A Prorogation has equally the effect with a Dissolution of quashing every Proceeding of the Assembly And it is not at all desirable that the Province should be kept in a continual state of ferment by Annual Elections, when by Law they are only necessary, once in four years. I have etc. LIVERPOOL. LXXIX STATEMENT BY RYLAND TO MR. SECRETARY PEEL [Trans.: Christie op. cit.] llth February, 1811. The Assembly of Lower Canada, ever since the establishment of the present constitution, has been constantly endeavouring to acquire privileges beyond what was evidently intended by the Act of Parliament of the 31st of His Majesty 1 , to be given to that body. But the disorganizing tendency of these attempts did not become apparent till towards the beginning of the year 1807, when a party was formed under the auspices of a few individuals of desperate fortunes, which soon obtained a preponderating influence in the House. Funds of a very suspicious origin were provided for the estab- lishment of a press, and a paper intituled "Le Canadien" 2 was published weekly in French, at a very low price, and circulated with uncommon industry throughout the Province. The chief object of this paper, though concealed under frequent professions of loyalty and devotion to His Majesty's person and Government, was to villify and bring into contempt the King's Representative, to persuade the mass of the people that the House of Assembly was superior to, and independent of the other branches of the Legislature, and to excite in the breasts of the French Canadians, the bitterest enmity against the English part of the community. With a view of trying how far the House would be permitted to go, motions were frequently made implying a right in the Assembly to super- intend and control the Executive power, and more particularly to decide by their own resolves on the privileges to which that body might lay claim. The right of prohibiting, not only individuals, but certain classes of His Majesty's subjects, from being elected Members of the Assembly, was attempted in the Session of 1809 to be carried by a simple resolve of the House, and such was the nature of the proceedings on the occasion, that the Governor, with the unanimous advice of the Executive Council, judged it expedient suddenly to prorogue the Provincial Legislature, and soon afterwards to dissolve the House of Assembly. 1 See No. LV. a See No. LXXIII. 280 Constitutional Documents of Canada. [1791-1840 By the time of the general election, however, the influence obtained by the French party through the means of the paper above mentioned, became so powerful as to secure even a more decided majority in the House than it had before, and in the subsequent Session of 1810 after two Bills only had been passed, the Governor found it expendient again to have recourse to a dissolution. It is to be remarked that, in the same Session of 1810, a resolve was proposed and carried by the leading democratic members, "That the House "of Assembly ought to vote, during that Session, the necessary sums for "defraying the Civil expense of the Government of the Province." 1 This was followed up by separate addresses to the King, to the Lords, spiritual and temporal, and to the Commons of Great Britain, in Parliament assembled, declaring the intention of the House of Assembly to take upon itself "to pay the Civil expenditure of the Provincial Government." 2 The real motive for this measure was too obvious to escape the atten- tion of the most superficial observer; indeed, the party did not hesitate to boast to their adherents out of doors, that after having once obtained the right of managing the Civil expenditure, their intention was, to reduce the salaries of the public officers to such a standard as the House should judge proper, and finally to exercise an unlimited control over the Executive power. These extraordinary circumstances induced the Governor in Chief to make a special representation to the Earl of Liverpool of the state of the Province, and to send home his Secretary (Mr. Ryland) with his des- patches, "in order that he might be at hand to afford every explanation and "every information in his power, that His Majesty's Ministers might require "concerning the several objects on which he had written." Mr. Ryland reached London the first week in August, between which time and the closing of the September mail he had the honor of repeated interviews with the Earl of Liverpool, who entered very minutely into the several matters submitted to him by Sir James Craig, the Governor in Chief. The Governor having recommended an interference on the part of the Imperial Parliament for the purpose of checking the efforts of a party whose proceedings had all the appearance of being directed by French influence, this subject was taken into immediate consideration, and Mr. Ryland was desired to attend a meeting of the Cabinet Ministers* for the purpose of answering enquiries concerning the political state of Lower Canada. Previous to the closing of the September Mail, the Earl of Liverpool did Mr. Rylahd the honor of communicating to him a despatch 4 to Sir James Craig, from which it appeared, that His Majesty's Ministers did not judge it expedient to make the affairs of Lower Canada a subject of Parlia- mentary discussion. At the same time His Lordship was pleased to intim- ate, that there were several objects of great importance proposed in the letters from the Governor in Chief, which did not require Legislative interference, although essentially connected with the power and influence of the Crown in Lower Canada, and these His Lordship expressed an intention of bringing under discussion in the course of the winter; but the distressing event of His Majesty's indisposition has hitherto prevented these matters from being taken into ultimate consideration. The principal points here referred to are : First. The assumption, on the part of the Crown, of the patronage of the Romish Church, as directed by the Royal Instructions, but hitherto neglected to be carried into execution by the several Governors of the Province. Sir James Craig's opinion with respect to the most eligible means of carrying this measure into effect was stated in a letter to Mr. Secretary Peel, dated the 4th of August last. Second. A decision respecting the estates formerly possessed by the 1 Ryland quotes from The Journals of the House of Assembly, 10 Feb., 1810. * The address is given in Doughty and McArthur, p. 366. 1 See No. LXXV. * See No. LXXVIII. 1791-1840] Constitutional Documents of Canada. 281 Jesuits in Lower Canada, and those which, at the time of the conquest of the Province, were held by the Society of St. Sulpicians at Paris, commonly called the Montreal Seminary Estates. This extensive and very valuable property, the right to which is indisputably vested in the Crown, would, under able management, not only afford ample means for the purposes of public education, but the surplus monies arising therefrom, if added to the casual and territorial revenue of the Crown, and to the permanent duties already established by Acts of the Legislature would, there is reason to believe, soon render the Provincial funds, that are at the disposal of the Crown, adequate to the payment of the ordinary expenses of the Civil government, and preclude the necessity of having recourse either to the House of Assembly, or to the Military Chest (as hitherto has been custom- ary), to make good the yearly dificiencies. Third. The adoption of a system for the more speedy settlement of the waste lands of the Crown, by which means the English population, the agriculture, commerce, and revenues of the Province might be rapidly increased. By the plan adopted in Upper Canada for the settlement of the waste lands, a population of upwards of eighty thousand inhabitants has, within the last sixteen years, been added to that Colony, whilst in the Lower Province the increase from this source, during the same period, has not amounted to twenty thousand. Should the Earl of Liverpool deem these matters of sufficient import- ance to claim the immediate attention of Government, Mr. Ryland is led to hope (from his having held the Situation of Governor's Secretary in Lower Canada ever since the return of Lord Dorchester to that Province in the year 1793, and the knowledge his official duties have given him of all which has passed concerning them) that he might be enabled to afford some assistance towards bringing them to a final conclusion ; and he would be happy to be employed during the remainder of his stay here in any way in which His Lordship may think it possible for him to contribute to the accomplishment of the important objects which the Governor in Chief of His Majesty's North American Provinces had in view in sending him to England. H. W. R. LXXX AN ACT DISQUALIFYING JUDGES FROM SITTING IN THE HOUSE OF ASSEMBLY OF LOWER CANADA [Trans. : Doughty and McArthur.] AN ACT for declaring Judges to be disabled and disqualifying them, from being elected, or from Sitting and Voting in the House of Assembly. (21st March, 1811.) Whereas it is expedient to make effectual provision for excluding judges of His Majesty's Courts of King's Bench within this Province from being elected or sitting and voting in the House of Assembly of this Province, Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Legislative Council, and Assembly of the Province of Lower Canada,, constituted and assembled by virtue of and under the authority of An Act of the Parliament of Great Britain passed in the thirty-first year of His Majesty's Reign, intituled, "An Act "to repeal certain parts of an Act passed in the fourteenth year of His "Majesty's Reign," intituled "An Act for making more effectual provision "for the Government of the Province of Quebec in North America," and to make further provision for the Government of the said Province." And it is hereby enacted by the authority of the same that from and after the passing of this act, no person who shall be a Judge of either of His Ma- jesty's Courts of King's Bench within this Province, shall be capable of being elected or of sitting, or voting, as a Member of Assembly in any Provincial Parliament. 282 Constitutional Documents of Canada. [1791-1840 LXXXI MEMOIRE 1 AU SOUTIEN DE LA REQUETE DES HABITANS DU BAS-CANADA, A SON ALTESSE ROYALE LE PRINCE REGENT, HUMBLEMENT SOUMIS A LA CONSIDER- DERATION DE MILORD BATHURST, MINISTRE D'ETAT POUR LES COLONIES 1 [Trans.: Christie, op. cit.] N.B. A printed copy of this Memoire is supposed to have accom- panied a general address that was forwarded to England in the year 1814 ; and there is every reason to believe that the said printed paper was trans- mitted by the Secretary of State to Sir George Prevost, who put it into the hands of several persons, but without mentioning from whom he re- ceived it, and it is very certain that the Memoire itself was communicated only to a very few select persons, the people at large knowing no more of it than they did of what was then passing in the moon. [H. W. Ryland.] Nous regardons notre constitution actuelle comme celle qui est la plus capable de faire notre bonheur, et notre plus grand desir serait d'en pou- voir jouir suivant 1'intention de sa Majeste et de son Parlement; mais mal- heureusement, la maniere dpnt elle a etc administree, jusqu'ici, lui donne un effet bien oppose a cette intention. Ce mauvais effet est une suite de la maniere dont se sont formes les partis de cette province. Lorsque notre constitution nous a etc donnee, les anciens sujets (de- nommes Anglais dans le pays, de quelques nations q'ils soient) etaient en possession des places du gouvernement. Si quelques Canadiens y etaient admis, c'etait sur leur recommandation, et ils etaient choisis du nombre de ceux qui leur etaient devoues. Depuis la constitution, les choses ont continue sur le meme pied, les anciens sujets ont continue d'etre en possession des places, et sont devenus le parti du gouvernement; le canal des recommandations est continue le meme, et il n'a etc admis aux places, comme auparavant que quelques Canadiens dont le devpuement etait connu. Comme les Canadiens composent la masse du peuple, la majorite de la Chambre d'Assemblee s'est trouvee composee de Canadiens, et les Ang- lais, avec quelques Canadiens devoues, ont forme la minorite; et comme les Canadiens de la minorite, librement elus par le peuple, ne se trou- vaient pas avoir le devouement necessaire, ils n'ont pu avoir part aux places. Les membres qui ont etc fait Conseillers Executifs ont etc pris dans la minorite, le parti du gouvernement s'est trouve lie avec la min- orite de la Chambre d'Assemblee, et la majorite, c'est-a-dire la Chambre d'Assembles elle-meme, a laquelle est attachee la masse du peuple, rc- gardee comme un corps etranger, a peine reconnu du gouvernement et des autres branches de la legislature, a etc laissee dans 1'opposition comme destinee a etre menee par la force ; et effectivement les gens du parti ang- lais, qui avaient manque de succes dans les efforts qu'ils avaient faits pour que la constitution leur fut donnee a eux seuls, et que les Canadiens n'y eussent aucune part, se trouverent, etant devenus le parti du gouv- ernement, avec un moyen d'empecher les Canadiens d'en jouir autrement qu'ils ne le voulaient eux-memes. A chaque fois que les Canadiens ont voulu proposer quelque chose qui n'etait pas conforme aux idees de ce parti, ils se sont trouves en op- position avec le gouvernement, et ont etc traites de mauvais sujets et de gens opposes au gouvernement. Le gouvernement n'a aucune communi- 1 This is one of the earliest statements of the case for the majority in Lower Canada. It must be compared with "The Ninety-two Resolutions" (see No. CXJV). It contain* an early suggestion for some kind of "responsible government." 1791-1840] Constitutional Documents of Canada. 283 cation avec la majorite de 1'Assemblee que par le moyen des conseillers et gens en place de la minorite, qui, etant rivaux de la majorite, sont peu propres a la bien represented II est en leur pouvoir de faire telles representations que bon leur semble de ses mesures, de ses sentimens et de ses intentions, et n'etant point de la majorite, ils sont plutot comme des ESPIONS employes par le gouvernement pour epier cette majorite, que comme les membres par lesquels un corps communique regulierement avec son gouvernement. Les plans et projets du gouvernement sont prepares par les conseillers de la minorite, avec les autres conseillers, sans la participation des membres de la majorite, et sont ensuite apportes a la Chambre pour etre passes par la majorite, et la majorite n' a alors d'autre alternative que de les passer ou de se trouver en opposition avec la minorite, c'est-a-dire avec le gouv- ernement, et d'etre traitee comme on traiterait des rebelles au gouverne- ment. Le style des gens du gouvernement, avec des talens le plus souvent assez mediocres, et n'ayant qu'un lustre et un merite qui leur est etranger, peut facilement etre imagine. Les divisions de la Chambre d'Assemblee deviennent nationales ; les Anglais d'un cote f ormant la minorite, a la- quelle est lie le gouvernement, et les Canadiens de 1'autre formant la ma- jorite, a laquelle est attachee la masse du peuple; la chaleur de ces divi- sions nationales passe de la Chambre d'Assemblee dans le peuple, tout le pays se trouve devise en deux partis ; le parti anglais du gouvernement d'un cote, et la masse du peuple de 1'autre. Cette apparence des Canadiens Catholiques Francois en opposition avec leur gouvernement, augmente con tinuellement centre eux les prejuges de la partie vulgaire du parti anglais, qui les traite de bonne foi de la maniere la plus revoltante pour en peuple qui se sent loyal ; et ainsi plus les Canadiens veulent jouir de leur consti- tution, plus ils donnent matiere au pretexte sur lequel le parti anglais fonde son interet comme parti, savoir, celui du peu de confiance qu'on doit avoir dans les Canadiens. Les gouverneurs qui rie connaissent les Canadiens que par les gens du parti anglais qui sont dans les emplois du gouvernement, sont frappes de les voir continuellement opposes au gouvernement et aux Anglais, et ne peuvent s'empecher de contracter bientot les memes prejuges qu'eux, qu'ils font sans doute passer au gouvernement de la mere-patrie ; de sorte que 1'effet nature! de 1'exercise de la constitution par les Canadiens, est d'enflammer la division entre les Anglais et eux, de les faire regarder ici comme de mauvais sujets tou jours opposes a leur gouvernement et aux Anglais, et de donner une mauvaise idee d'eux au gouvernement de Sa Majeste, en Angleterre. A chaque fois que les Canadiens, encourages par I'idee de leur con- stitution, ont essaye d'en jouir, ils ont etc terrasses, comme opposes au gouvernement; ils ont encore le coeur brise de traitemens qu'ils ont eprouves sous 1'administration du gouvernement precedent. II leur semble etre les jouets d'une contradiction etrange, comme si d'un cote une con- stitution leur cut ete donnee, sans doute pour en jouir, et que que de 1'autre il cut ete place un gouvernement expres pour les en empecher, ou au moins pour empecher qu'ils ne puissent le faire, sans paraitre mauvais sujets. Ils sont plus mal que s'ils eussent ete prives d'avoir part a la con- stitution, et qu'elle cut ete donnee aux anciens sujets seuls ; car ils ne seraient pas plus prives d'en jouir, et elle ne serait pas un moyen de les rendre odieux a la mere patrie. II leur parait impossible que 1'administration soit placee dans les mains d'un parti qui les regarde comme leurs rivaux, sans que 1'effet direct soit de les tenir continuellement, et comme expres, en opposition avec leur gouvernement. Ce parti a interet de les faire passer pour deloyaux ; il a interet de les gouverner de maniere a les faire paraitre tels; de maniere meme a les rendre tels pour qu'ils le paraissent. L'effet d'une telle administration qui tient continuellement le peuple en opposition avec son gouvernement ne peut etre que bien mauvais. L'administration elle-meme ne peut etre propre a attacher le peuple au gouvernement; elle parait, au contraire celle qui serait la plus propre 284 Constitutional Documents of Canada. [1791-1840 a faire du peuple le plus loyal un peuple de mauvais sujets. Les maximes sur lesquelles ce parti soutient son interet corrompent les idees avantage- uses que les Canadians ont de leur constitution, et tendent a la leur faire paraitre sous un jour sombre et odieux. D'apres ces maximes, les interets du Gouvernement seraient regardes comme opposes a ceux du pays ; les Canadiens comme moins attaches aux interets de la mere-patrie, parce qu'ils sont plus attaches a leur pays, et les gens du parti anglais comme les seuls a qui les interets du Gouverne- ment de Sa Majeste puissent etre confies, parce qu'ils ont moins d'affection pour le pays. Cette colonie serait regardee plutot comme une proie qu'on a besoin de tenir par force, que comme une dependance de 1'empire qui lui est attachee par son propre bonheur, comme les autres parties. Ce n'est pas 1'intention de la mere-patrie que tout soil sacrifie dans ie pays, pour que les places soicnt donnees a un parti plutot qu'a un autre ; et cependant il se trouve que tout a etc sacrifie pour que les places fussent donnees a ce parti. C'est pour que toutes les places de conseillers fussent donnees a ce parti, qu'aucun des membres de la majorite de 1'Assemblee, pas meme 1'orateur, n'a pu etre conseiller, ce qui est la cause de tout le desordre qui parait dans 1'exercice de notre constitution. Nos lois de pro- priete sont tombees dans 1'oubli, pour que nous eussions sur le bane des juges de ce parti qui les ignoraient. II y a un juge en chef et deux juges puisnes pour juger les actions "for goods sold and delivered," et quelques autres actions mercantiles, et il n'y a qu' un juge canadien pour toutes les lois qui assurent les proprietes des sujets canadiens de Sa Majeste. Nos regies et nos formes de proceder sont tombees dans 1'oubli pour avoir sur le bane des juges de ce parti qui les ignoraient; le defaut d'ex- perience qui ne se doute jamais des difficultes, a suggere aux juges qui se trouvaient dans la Legislature, (1'ancient Conseil Legislatif) d'en creer de nouvelles pour n'avoir pas la peine d'apprendre les anciennes. Les nouvelles se sont trouvees imparfaites, il a fallu en faire de nouvelles encore, qui se sont encore trouvees imparfaites ; il a fallu enfin abandonner aux cours de justice la pouvoir d'en faire a discretion, et ainsi, elles ont tpujours etc dans une fluctuation continuelle par le besoin de changer continuellement ; toujours nouvelles, toujours sujettes a inter- pretations, a des cas imprevus, a etre enfreintes lorsqu'il etait trouve equitable de les enfreindre, et 1'administration de la justice a etc arbitraire faute de regies certaines et connues pour la procedure, et tout remede est impossible, soit qu'on s'addresse a la Legislature ou a 1'Executif, parce que par une suite du mal dont nous nous plaignons, et pour avoir partout les gens de ce parti, qui ne peuvent suffire a tout, les juges sont dans les Conseils Legislatif et Executif. La defense de la Province ne peut etre que considerablement affaiblie par 1'existence des partis tels qu'ils sont dans le pays. Un gouverneur ne peut avoit pour lui le parti anglais, le parti du Gouvernement, sans adopter toutes ses idees, ses prejugees et ses plans centre les Canadiens; il ne peut se rendre les Canadiens tant soit peu favorables, sans exciter centre lui la haine de tout ce parti si puissant par ses clameurs qui corrompent tout dans le pays, et pour ses communications en Angleterre, qui font paraitre continuellement precaire et incertain le sort de ceux contre qui Us se plaignent. II y aura bien peu de gouverneurs qui auront assez de talent pour lutter contre tant de desavantages, et une vertu assez sublime pour faire ce qu'ils croiront de leur devoir pour le plus grand interet de la mere- patrie, au risque de succomber sous les rapports faits contre eux aupres du Gouvernement de la mere-patrie et de paraitre 1'avoir mal servi ; tandis qu'il serait si facile de suivre la methode qui procurerait des applaudisse- ments et des rapports favorables, en dormant pour excuse le peu de con- fiance qu'il y a a placer dans les Canadiens. Les Canadiens formant la principale population du pays, et celle dont le Gouvernement peut tirer quelque ressource dans le besoin, il serait juste qu'ils eussent le moyen d'etre connus par eux-memes, et qu'il ne fut pas abandonne au parti qui leur est oppose, quelque respectable qu'il soit, 1791-1840] Constitutional Documents of Canada. 285 de les representer sous les couleurs que bon lui semble. Tous les con- seillers et gens en place qui sont appeles pres du Gouverneur, etant de ce parti, le Gouverneur n'a aucun moyen de connaitre les Canadiens que par cux. Si un gouverneur a voulu etre juste et entendre les deux partis, il a etc oblige de le faire comme a la derobee par des moyens irreguliers, et n'a put le faire sans avoir 1'air de negliger les conseils qui lui etaient donnes par les conseillers et officiers du Gouvernement, pour se conduire par des conseils obtenus c,a et la des particuliers, et sans exciter par la, avec quelque apparence de plausibilite, la jalousie et la haine des premiers et de tout le parti. S'il est juste que les Gouverneurs connaissent les deux partis, et qu'ils ne reqoivent point les accusations contre les habitans du pays, sans les entendre, il est juste que ces derniers aient aussi un moyen regulier d'etre entendus par des conseiljers et gens en place, pris d'entreux, et que ces conseillers ne soient pas nommes d'apres les recommendations qui pas- sent par le Canal ordinaire. La Chambre d'Assemblee offre un moyen d'en obtenir d'une maniere reguliere, sans que ce soit sur les recommandations de ceux du parti ang- lais. Si le Gouvernement avail le pouvoir d'appeler au conseil les principaux membres de la majorite de la Chambre d'Assemblee, il aurait par la un moyen d'entendre les deux partis, et de n'etre point oblige de ne con- naitre 1'un que par les informations regues de 1'autre, il ne serait plus prive des connaissances et des conseils qu'il pourrait tirer des anciens habitans du pays, et necessite de n'ecouter que ceux qui viennent du parti oppose, qui n'est pas celui ou il y a le plus de connaissance du pays, ni le plus d'interets con formes a ceux du pays. Apres avoir entendu les deux partis, il serait en etat de decider sur les mesures qu'il a a prendre, et de transmettre des informations justes en Angleterre. II ne serait pas oblige de suivre les conseils donnes quand il ne les trouverait pas justes, il aurait seulement 1'avantage d'en profiter lorsqu'ils le seraient. II ne serait pas expose a se trouver si souvent en opposition avec la Chambre d'Assemblee. II y aurait un lieu ou les deux partis pourraient s'entendre et se con- cilier sur leurs plans et leurs projets, et bien des oppositions inutiles qui ne viennent que de ce que les projets ont etc concertes separement, et de ce que I'amour propre de ceux qui les ont faits se trouve engage a les soutenir, seraient otees ; il n'y aurait plus de moyen d'indisposer le Gouv- ernement, tant ici qu'en Angleterre, contre la masse du peuple du pays. Le peuple se lierait plus avec le Gouvernement. Le Gouvernement qu'il ne regarderait plus comme compose de gens qui sont remplis de prejuges contre lui, et qui lui sont toujours opposes, lui inspirerait plus de confiance et de respect. II n'arriverait plus que des plans seraient appuyes par le Gouverneur apres que les debats en auraient fait apercevoir les erreurs d'une maniere palpable, a la face de tout le public; il n'arriverait plus qu'on verrait les Gouverneurs s'appuyer de bonne foi sur des raisons donnees par la minorite dans 1'assemblee, et dont tout le faible aurait etc montre dans les debats. L'amour propre blesse d'un conseiller de la minorite n'aurait plus d'nteret de faire reparaitre appuye du Gouverneur, un principe ou une mesure dont 1'absurdite aurait etc publiquement de- couverte. La partialite de communications entre 1'Assemblee et le Gouv- ernement par le moyen d'un conseiller attache a la minorite, dont I'amour propre est interesse a faire valoir le parti qu'il a pris souvent au hazard, ou par esprit de rivalite sur une question imprevue, et a attenuer et deguiser la force des raisons employees contre lui, cesserait d'etre une source de mesintelligences entre le Gouvernement et la Chambre d'Assemblee. La sensibilite des membres de 1'Assemblee ne serait pas si souvent blessee par 1'apparence de partialite du Gouvernement, pour un membre de la minorite contre toute 1'Assemblee, et cette branche de la Legislature ne serait pas ramenee si souvent au sentiment de sa propre degradation, en 286 Constitutional Documents of Canada. [1791-1840 se voyant jugee et souvent injuriee sur le rapport interesse d'une des membres de la minorite, et exposee a 1'insolence irritee d'un de ces mem- bres soutenu par le Gouvernement dans les vains efforts qu'il fait centre elle. Et enfin le moyen d'influence du Gouvernement sur la Chambre d'Assemblee, ne serait plus par des insinuations malignes, des injures et des menaces qui rebutent et qui jettent le feu de la discorde entre les deux partis dans 1'Assemblee d'ou il passe au dehors. S'il etait possible qu'un nombre de places de conseillers ou d'autres places d'honneur et de Profit, fut accord^ a ceux qui ont le plus d'influence sur la majorite de la Chambre d'Assemblee, qu'elles dependissent entiere- ment de leur succes a s"y maintenir, et qu'il fut certain et bien connu qu'il n'y aurait aucun autre moyen de les obtenir, il y a lieu de presumer que les deux partis se reuniraient bien vite dans la Chambre d'Assemblee, que cette division nationale si contraire au but du Gouvernement dis- paraitrait tant dans 1'Assemblee qu'au dehors, et que cette apparence hon- teuse d'opposition entre les Canadiens et leur Gouvernement, qui fletrit le peuple du pays et le fait paraitre sous les couleurs odieuses si peu meritees, d'un peuple de Rebelles, cesserait de gater une des plus belles dependances de 1'Empire dans 1'Amerique. Les idees que ceux du parti anglais s'efforcent d'entretenir, que les Canadiens sont moins propres a remplir des offices de confiance parce qu'ils spnt trop interesses pour leur pays, et qu'ils ont moins d'interet et d'affection pour la mere-patrie, sont peu justes. Un Canadien est plus attache a son pays qu'a toute autre partie de 1'Empire, comme un Ecossais est plus attache a 1'Ecosse, comme un Anglais est plus attache a 1'Angle- terre, il n'en est pas pour cela moins capable d'occuper des offices de con- fiance dans son pays. L'honneur ou meme le risque de perdre sa place n'influera pas moins sur lui que sur un autre, en supposant le faux principe de la difference entre les interets de la mere-patrie et ceux du pays. Un ancien sujet doit etre, il est vrai, plus attache a 1'Empire; mais aussi il a moins d'aversion pour le peuple et le Gouvernement des Etats- Unis, et si tout est mis en calcul, il en resultera qu'un Canadien est beau- coup plus fortement attache aux interets de la mere-patrie, relativement a la conservation de ce pays. Les Canadiens incapables de se proteger eux-memes, n'ont point d'autre ressources que dans la protection de la mere-patrie. Ce pays une fois perdu, ils n'ont plus de patrie ou ils puissent tourner les yeux ; un Anglais a encore sa patrie. Si les Canadas passent sous la domination des Etats-Unis, leur popula- tion sera submergee par celle des Etats-Unis, et ils deviendront nuls, sans aucune influence dans leur Gouvernement ; incapable de proteger leur reli- gion, qui ne fera que les rendre odieux a toutes les autres sectes qui abon- dent dans les Etats-Unis, et qui, quoique tolerantes entr'elles, s'accordent toutes a detester la leur. Tous les peres de famille attaches a leur religion ne peuvent penser qu'avec horreur a laisser en mourant leurs enfans sous une pareille domi- nation. Tant que le pays demeurera sous 1'empire Britanique, ils n'ont pas les memes dangers a craindre, ils n'ont pas a apprehender qu'une popu- lation enemie de leur religion, emigre des domaines de la mere-patrie; ils ont esperance que leur population sera toujours la plus considerable du pays, et qu'avec une constitution telle que leur a accordee la mere-patrie, ils auront le moyen de conserver leur religion, et tout ce qui leur est cher, pourvu que la mere-patrie veuille bien les laisser jouir de cette constitution sans qu'elle serve a les rendre odieux, et pourvu que I'encouragement donne a la population americaine dans ce pays par 1'administration du parti anglais, cesse d'amener le mal qu'ils ont a craindre. Ceux du parti anglais sont opposes a leurs interets, en ce qu'ayant beaucoup plus d'affinite avec les Americains par leurs moeurs, leur reli- gion, leur langage, ils encouragent la population americaine, comme un moyen de se debarrasser des Canadiens qu'ils regardent toujours comme une population etrangere, comme une population franchise Catholique, 1791-1840] Constitutional Documents of Canada. 287 avec les memes prejuges que la classe du peuple, dans la mere-patrie, a centre les Frangais et les Catholiques, ils ne peuvent s'empecher de se regarder comme dans un pays etranger, dans une province ou la popula- tion canadienne (franchise) domine; une colonie peuplee d'Americains leur parait plus une colonie anglaise, et ils ne s'y regarderaient pas autant comme dans un pays etranger. Ces effets sont encore augmentes par la circonstance, que la plus grande partie, peut etre, des officiers du Gouv- ernement est devenue personnellement interessee a 1'introduction de la population americaine dans ce pays, par les concessions des terres de la Couronne, qui leur ont etc accordees, dans le voisinage des Etats-Unis ; ainsi le parti anglais est oppose au parti canadien, justement sur le point qui touche a sa vie et a son existence comme peuple. La seule chose qui reste aux Canadiens dans leur situation actuelle, est 1'espoir qu'ils ont que la mere-patrie trouvera enfin que leurs interets concourent avec les siens pour la conservation du pays, que 1'engloutisse- ment de la population canadienne par la population americaine, sera 1'en- gloutissement de la domination de la mere-patrie sur le pays, et que la perte de la vie politique des Canadiens, comme peuple naissant, sera aussi ia perte de la vie politique de tout le pays, comme colonie britannique. Ils esperent que ces choses seront aperques de la mere-patrie, et qu'on y concevra une assez bonne opinion de leur interet, sinon de leur fidelite pour les juger dignes de jouir de leur constitution, en commun avec les autres sujets de Sa Majeste sans aucune distinction, et s'ils n'ont pas ce bonheur, ils se voyent par leur situation actuelle destines a devenir, aux yeux de la mere-patrie, un peuple odieux et continuellement soupgonnes, en attendant qu'ils soient engloutis dans le gouffre qui les attend. Nous supplions Votre Seigneurie d'etre persuadee que les sujets cana- diens de Sa Majeste sont de vrais et fideles sujets; ils ont deja, sous les armes de Sa Majeste, conserve leur pays dans un temps ou les autres sujets de Sa Majeste leur cederent en fidelite, ils sont encore actuellement sous les armes de Sa Majeste pour le defendre, si leurs faibles efforts peuvent etre un temoignage suffisant de leur fidelite, ils esperent que Son Altesse Royale voudra bien prendre leur situation en consideration, et leur accorder tel remede qu'elle jugera convenable. LXXXII REMARKS (BY C. J. M.) 1 ON A PUBLIC DOCUMENT 3 THAT ACCOMPANIED AN ADDRESS TO HIS ROYAL HIGHNESS THE PRINCE REGENT FROM THE ROMAN CATHOLIC INHABITANTS OF LOWER CANADA, FORWARDED IN NOVEMBER, 1814 Entitled "Memoire au soutien de la requete des habitans du Bas-Canada, a Son Altesse Royale le Prince Regent." "Humblement soumis a la consideration de Milord Bathurst, Ministre d'Etat pour les Colonies." [Trans. : Christie, op. cit.] It is thought that this interesting document was produced by the com- bined efforts of the leading Roman Catholic characters in the several Provincial Parliaments held from 1809 to 1814 inclusive. The sentiments expressed have been principally avowed by those leaders, and uniformly pursued in the House of Assembly. The document, though accompanying the address, was not, however, to the subscribers generally, nor can be considered as being correctly a substantial part of it. It would seem intended by this memoir to represent to His Majesty's 1 Chief Justice Monk, of the King's Bench for the District of Montreal. See No. LXXXI. 288 Constitutional Documents of Canada. [1791-1840 Ministers the conflicts of parties in the colony, their rise, and the occa- sions that produced them, with their attendant pernicious consequences, and to point out the means of avoiding existing and growing evils. The document, when analysed, will present, under different heads, features of no small interest, when it is considered in respect to the sources irom which they have proceeded, and the ends to which they are directed. 1st. The Roman Catholic Canadians are rightly said to constitute the great mass of the people of Lower Canada, it is asserted that their delegates to the House of Assembly represent the whole people. And it is argued that all the representations of their interests by those delegates it would seem, by referring to passed proceedings in the Legis- lature become the rights of the people. 2nd. To resist those rights so represented, is "to do injustice to the "Canadian people. It not only excites conflicts between the legislating "powers of Government, but manifests an injustice that will justify the "discontent of the people, declared and enforced by their representatives." 3rd. Throughout this whole document there pervades a continued libel upon, and an accusation of injustice, in the exercise of the prerogative in this Colonial Government. The officers, the servants of the Crown, are held up as a combined faction "of spies," struggling to support a Gov- ernment adverse to the interest and rights of the people. And this is argued to be manifested by the Government not having appointed into the councils and offices of Government those leaders of the people influencing the majority of the Canadians, and from whom intelligence and support can alone be attained to His Majesty's Government. 4th. By this memoire every Roman Catholic Canadian character that has been promoted to the King's Council, or offices of his Government, are held up as persons devoted to support the adverse interests pursued by the Government minority against that of the Canadian people; and this minority is represented as English subjects, or rather Protestants, who are using constant devices to represent the Canadians as a disloyal people, "a people and country rather considered as a prey, useful to be retained by force, than as a dependance of the Empire." 5th. The appointment of His Majesty's old subjects as judges is held up as an injustice to the new subjects, the Canadians. These subjects are indirectly vilified as being persons unqualified; and the proceedings of the Courts of Justice are represented as the result of ignorance, and uncer- tainty, and injustice. The errors of lay characters placed in those Courts some twenty or thirty years passed, are by allusions applied to the judges of the present day; and the Courts are falsely and grossly vilified. The purpose is plain : to degrade and weaken the main support of His Ma- jesty's Government. 6th. It is stated that every Governor is shackled by those unfaithful servants, who are represented as a factious minority, that ensnare or impel the Governor to follow their Counsel, or to be by them unfavorably repre- sented in England as joining with disloyal Roman Catholics, the leaders of the Canadian people. 7th. That the only means of knowing the two parties, and to pre- vent the Governors being ensnared by the minority above stated, would be that of a power lodged with the Governor to select from the majority of the House of Assembly (the leaders,) and place in the Executive Council such characters of those who might convey a true knowledge of the interests of the country, in place of being restrained to the minority, "Anglais," who neither possess the knowledge, the confidence, nor the in- terests of the people and country. The piece concludes with calling to remembrance the loyalty of the Canadians in 1775, at a time that the King lost his other colonies. That at present they were under arms to defend the country, and their efforts would show at least their zeal and fidelity, and a hope that His Royal Highness would take their situation into consideration, and grant them a suitable remedy. 1791-1840] Constitutional Documents of Canada. 289 The main substance of this public document, proceeding from the mass of the Roman Catholic Canadian people, His Majesty's subjects, or by those entrusted to convey to His Majesty's Government the sentiments and feelings of those subjects, in respect to the Government of Lower Canada, may be reduced to a few prominent features that claim a serious consideration, and such order as may correct the errors and confusion (to say the least) that the opinions contained in that memoire, when fostered and pursued, cannot fail to produce. The whole scope of this memoire appears, and repeated exertions in the Assembly show that the leaders in that body consider the adminis- tration of His Majesty's Government, and the policy of its measures, to pertain to them of right. That the exercise of any powers by the prero- gative that is repugnant to their sense of those rights, must insure oppo- sition and discontent : and that these will be generated by the Canadian people even into hatred; extended from the King's servants to the source of the power exercising such measures. It betrays the most consummate ignorance of the rights of the Crown in the Government of a British colony. It assumes rights in the Legis- lative power the most dangerous to tranquil, constitutional, and good government. It exhibits libels the most detracting to the King's adminis- tration through all its various powers, and it avers falsehoods the most seditious that can promote the various ends contemplated, that of trans- ferring the Executive power and prerogative of the Crown to the Legis- lative, the representatives of the people 1 . The compilers of this revolutionary project would assume and believe that the Governor, representing the Crown, possessed the power and right to pass by or reject all the official duties of the King's servants as shackles upon his authority, that arose from ignorant or factious characters ; and in place of those to take up the leaders in the House of Assembly, who could there secure a majority, and adopt their opinions and measures as being alone calculated for the interest of the Canadian people, and as the only means of obtaining places of profit, honor, and power, and the means avowedly suggested to those ends cannot escape notice. In estimating the charges against the servants of Government, "la minorite Anglaise," it will be proper to see and consider in the Legisla- tive proceedings what have been their opposition to the various measures pursued in the Assembly by the leaders of that House, for enlarging the rights of the Canadian people. The foul aspersions against the King's servants for their supposed constant representations against the Canadian, or new subjects, as a dis- loyal people, must be referred to the jealousies of suspecting minds. It will be seen, only in the evidenc of facts, how far such representa- tions, if made, could have afforded grounds of suspicion, that such repre- sentations had at any time been made against the zeal, fidelity and loyalty of the Canadian subjects, and the Records of His Majesty's Courts of Justice will prove no inconsiderable source of evidence as well as to form a just opinion in respect to the character of the new as well as of the old subjects. 1 Cf. Lord Liverpool's opinion (p. 278). 290 Constitutional Documents of Canada. [1791-1840 LXXXIII A BRIEF REVIEW OF THE POLITICAL STATE OF THE PRO- VINCE OF LOWER CANADA DURING THE LAST SEVEN YEARS, BY MR. RYLAND. 1 [Trans. : Christie, op. cit.] May, 1814. ****** Several important measures were at the same time suggested to the Secretary of State as being calculated to strengthen the Executive Gov- ernment in the Province of Lower Canada, to augment considerably the territorial revenue of the Crown, and to put an effectual check upon the disorganizing projects of the Assembly. Some of these would have re- quired the interference of the Imperial Parliament; others, which were also of great moment, needed only the sanction of His Majesty to be carried into immediate effect; but the distressing event of His Majesty's indisposition, which occurred within a short time after Mr. Ryland's arrival in England, was an insurmountable obstacle to the accomplish- ment of the measures proposed. Under these discouraging circumstances, Sir James Craig met the newly elected Assembly at the close of the year 1810. In the preceding month of March, four persons, three of whom were then Members of the Assembly, had been committed to prison in Quebec, by virtue of an Execu- tive Council Warrant (under authority of the Act for the better preserva- tion of His Majesty's Government,) they being charged on oath with having been guilty of treasonable practices. Two of those persons were again elected ; one of them, Mr. Bedard 2 , was still under confinement, and it was not supposed that the Governor could obtain a renewal of the Act above mentioned. He hesitated not, however, to recommend its renewal in his speech at the opening of the session. The Assembly in their ad- dress manifested a reluctance to the measure ; but the Bill, being first passed in the Legislative Council, obtained the unanimous concurrence of the Assembly on the twelfth day of the session. An attempt was afterwards made to obtain the release of Mr. Bedard, and an Address to the Governor on the subject was proposed and voted, and immediately passed over, the House proceeding to the orders of the day. From this period the most perfect unanimity prevailed between the several branches of the Provincial Legislature and all attempts on the part of the Assembly to violate the privileges of the subject, or entrench on the prerogatives of the Crown, ceased. Such was the effect produced by the firmness and capacity of the person who at that time administered the Government of Lower Canada ! The demagogues who, during the space of three years had convulsed the Province by their incendiary speeches and publications were heard of no more. Those persons whose attachment to the Government and Constitution had been shaken by the false reasonings of the "Canadien" became sensible of their error; and it may truly be said, that at the moment when the ill-health of Sir James Craig compelled him to relinquish the Government, and return to Eng- land, the political state and disposition of the Colony were such as every loyal subject could desire; and in this state and disposition was the Province found by his successor, Sir George Prevost. 1 Previous to his arrival in Canada this officer had received the fullest information of all the steps that had been taken by his predecessor, and 1 The first part of this document is omitted, as it is identical from "The Assembly of Lower Canada" to "several objects on which the Governor has written" with No. LXXIX. * For documents relating to the Bedard case, see Doughty and McArthur, pp. 379 ft. * Ryland was not a persona grata with Prevost a_nd his criticism must be received with caution. Prevost's government was too conciliatory to suit the ideals which Ryland represented. 1791-1840] Constitutional Documents of Canada. 291 of all the measures that had been recommended by him to His Majesty's Ministers for the purpose of counteracting the proceedings of the As- sembly, and for securing to the Crown a greater degree of influence in the Province. But, unhappily, there existed in the mind of Sir George Prevost a rooted prejudice against the late Governor in Chief; and there is but too much reason to believe that he entered on the administration of this government with no unwillingness to throw discredit on the memory of the latter, and with a determination to pursue, at all hazards, a line of politics diametrically opposite in every respect. Within a few weeks after his arrival in Canada, Sir George Prevost took upon himself to recommend to His Majesty's Ministers the new modelling of the Executive Council. By the Royal Instructions of 1791, the number of members (exclusive of the Lord Bishop of Quebec, who receives no salary,) is limited to nine, to whom three honorary members were added in the year 1794, on the recommendation of Lord Dorchester to supply the places of those who reside in the District of Montreal. By the same Instructions it is ordered, that, in case of a vacancy, the Gov ernor shall transmit, through the medium of the Secretary of State, "the names and characters of such three persons as he may esteem the best qualified for fulfilling the trust of such Executive Councillor," a proof that great precaution and deliberation are judged necessary in the choice of persons who are thus called upon to advise the Crown ! On the pres- ent occasion, however, no less than seven additional persons were recom- mended for seats in the Executive Council, before the Governor had been long enough in the Province to acquire an accurate knowledge of the talents and character of any one of them ! a measure which naturally impressed the public with a belief that he was determined to put down the Council which, under the most trying circumstances, had supported his predecessor, and that he hoped, by new modelling the Board, to render it subservient to that line of politics which he himself had resolved to pursue ; and there is no doubt but this measure greatly encouraged the party in the Assembly, which, under the preceding administration, had disturbed the tranquillity of the Province; a more direct encouragement, however, was held out by the Governor's seizing with avidity the first occasion to prefer to places of trust and emolument those individuals who had been at the head of the party above mentioned. In the month of February, 1812, Sir George Prevost first met the Provincial Parliament. He so far followed the footsteps of Sir James Craig on this occasion as to recommend a renewal of the temporary Act for the better preservation of His Majesty's Government; but though the maligners of the latter were the avowed admirers of the new Governor, they manifested no disposition to acquiesce in the measure he had recom- mended, and the Bill, after being first passed in the Legislative Council, was finally lost in the Assembly by the introduction of amendments tend- ing essentially to alter its nature and effect. In consequence of the declaration of war on the part of the American Government, an extraordinary session of the Provincial Legislature was held in the month of July, 1812, and a law was then passed, on grounds suggested by the Executive Council, authorising the issue of a certain quantity of Army Bills as a circulating medium to supply the want of specie, and making the same a legal tender. It will not appear surprising that the Assembly readily gave in to a measure, which, by placing the public purse in a certain degree under their control, greatly facilitated the accomplishment of the projects so long contemplated by certain leaders in that House. In this session the Governor sent to both Houses a message declaring the authority vested in him by the King's Commission, under certain cir- cumstances, to proclaim Martial Law, and proposing to them to pass an Act to modify that power. Of this extraordinary message the Assembly took little notice at the time, but the Legislative Council returned a re- spectful answer expressive of their readiness to concur in the measure proposed. 292 Constitutional Documents of Canada. [1791-1840 As soon as the Act to authorise the circulation of Army Bills was passed, the Provincial Parliament was prorogued ; and a short time pre- vious to the next meeting, at the close of the year 1812, Mr. Bedard, the gentleman before mentioned, whose publications under the preceding ad- ministration had been presented by the Grand Juries of Quebec and Mon- treal as seditious libels, was promoted by Sir George Prevost to a seat on the Bench, being appointed Provincial Judge for the District of Three Rivers, and thus associated with the Chief Justice of the Province, who, in his capacity of an Executive Councillor, had, in the year 1810, con- curred in his commitment to the gaol of Quebec, on a charge of treason- able practices ! A more plain and palpable indication of the system upon which Sir George Prevost intended to conduct the Government could not be given, and it soon became evident that it was perfectly well understood by all those restless spirits who aimed at place and preferment through faction, turbulence and disorder. The governor, having, in his speech at the opening of this session, merely expressed his satisfaction at not having been under the necessity of having recourse to Martial Law, his message relative to that subject, in the preceding session, was now taken into consideration by the As- sembly, and a string of violent and insulting resolutions, contumeliously declaring that he possessed no authority to proclaim Martial Law, was passed upon it. Every project for increasing the privileges of the As- sembly, at the expense of the other branches of the Legislature, was re- newed. Occasion was taken to command the attendance of the officers of the Legislative Council at the bar of the Assembly, without leave being previously asked for the purpose ; and though this order was, in the first instance resisted, it was, upon a repetition, acquiesced in (and as was believed) through the private interference of the Governor himself, five members only, the Lord Bishop of Quebec being absent through indis- position, adhered to the preceding unanimous resolve on this subject, and protested against this gross violation of the privileges of the House. Another measure of great importance, as connected with the system of colonial politics, deserves to be particularly noticed. Previous to his arrival in Canada, Sir George Prevost had been fully informed of all that had taken place under the administration of the two preceding Governors, relative to the assumption, on the part of the Crown, of the patronage of the Romish Church. He knew that the late Romish Bishop, Monsieur Denaut had, through Lieutenant Governor Milnes, transmitted a petition to the King, submitting himself and his Clergy to His Majesty's pleasure; he knew that Sir J. Craig, when he sent home his Secretary 1 , particularly instructed him to press this important matter upon the attention of His Majesty's Ministers, and that the Law officers of the Crown, to whom the question was referred, had unanimously reported their opinion 1 that the right of presentation to Roman Catholic Church livings in Lower Canada is legally vested in His Majesty. Sir George Prevost was more- over fully apprized of the character of Bishop Denaut's successor; and it was very certain that, by adding to the power which this prelate already assumed, an income which might have been made the price of his relin- quishing that power, a greater degree of influence in the Province would be secured to him than His Majesty's Representative could ever hope to possess. There seems, however, to have been in the mind of the Governor one predominant desire, that of acquiring, by every species of concession, a cer- tain share of personal popularity, without a prospect of any determinate or solid advantage arising therefrom, to His Majesty's interests. He recommended, therefore, that the allowance granted to Mr. Plessis, as Superintendent of the Romish Church in the Canadas, should be raised from two hundred to one thousand pounds sterling a year, but it does not appear that he stipulated for the relinquishment of any one of the pre- late's illegally assumed powers, in return for so liberal a boon ! 1 See No. LXXIII. 1 For the opinion, dated 3 July, 1811, see Doughty and Me Arthur, p. 424. 1791-1840] Constitutional Documents of Canada. 293 On receiving from the Governor a communication of the Secretary of State's letter, authorising the above allowance, Mr. Plessis availed himself of this opportunity to claim that, in the warrant to be issued for the payment of it, the appellation of Superintendent of the Romish Church "should be exchanged for that of Roman Catholic Bishop of Quebec" a title which the Provincial Government had hitherto steadily refused such a recognition of, but which the present Governor hesitated not to give, in violation of the King's Instructions, and in direct opposition to His Ma- jesty's Letters Patent establishing the See of Quebec 1 . From this period the machinery by which Sir George Prevost flattered himself he should be enabled to guide the helm of the Provincial Govern- ment may be considered as complete. In compliance with his recommen- dation, an unprecedented addition had been made both to the Legislative and Executive Councils, so that those bodies could no longer be said to be the same that supported the measures of his predecessor. The persons whom the latter had removed from office, or punished as being promoters of sedition, were, with only one exception, (Mr. Stuart) re-established or selected for places of trust and emolument and to these chiefly did the Governor look for advice, treating with marked neglect those servants of the Crown who had hitherto been regarded as the principal support of the Provincial Government. In return for the solid favors conferred upon him, the Romish Bishop bestirred himself to procure a public address to be presented to the Gov- ernor, in the month of December, 1813, on his arrival at Quebec from Montreal. The Provincial Parliament meeting soon afterwards, another address was obtained from the Assembly, in which they grossly censured the late, and applauded the present Governor of the Province, conclud- ing, as the Speech from the Throne led them to do, by expressing an earnest wish that the period for His Excellency's return to Europe might be very remote. It will be proper now to review the proceedings of an Assembly, meeting, as the majority conceived, under the most auspicious circum- stances, and conducted by a party to which the Governor of the Province had openly attached himself. Assured of such powerful support, this faction proceeded, without loss of time, to execute the long contemplated scheme of subverting the constitution and bringing into contempt all the established authorities of the Colonial Government. It is known that, about this time, Mr. Bedard, the Judge, came to Quebec for the purpose of advising the measures to be pursued, but, not having a seat in the Assembly, the principal management was left to an Anglo-American barrister named Stuart 2 , who had been a pupil of the present Chief Justice when he held the situation of Attorney General. This gentleman obtained from Lieut. Governor Milnes the appointment of Solicitor General, from which he was dismissed by Sir Jas. Craig, in consequence of his pursuing a line of conduct which the latter considered utterly inconsistent with his duty as a servant of the Crown. The first measure of importance brought forward by the party was "A Bill for disqualifying the Chief Justices, and Justices of the Court of King's Bench, from being summoned to the Legislative Council, or sit- ting or voting therein." This Bill, as must have been foreseen, was thrown out by the Legislative Council without obtaining a second reading ; but it served a purpose the party had in view, which was, to impress the mass of the people with a disrespectful idea of the Judges, preparatory to a grand attack upon the whole judicature of the Province, which imme- diately followed. This paper would be extended to too great a length by entering 1 In June, 1817, Plessis was appointed to the Legislative Council by Governor- General Sherbrooke, with the approval of Lord Bathurst. His official style was de- nned by Bathurst's despatch as "Bishop of the Roman Catholic Church of Quebec" (Doughty and McArthur, p. 556.) 2 See p. 273. 294 Constitutional Documents of Canada. [1791-1840 minutely into the proceedings of the Assembly during this session. The Journals both of the Legislative Council and of the Assembly are in the press, and when published, they will hardly fail to open the eyes of all men to the alarming situation in which the civil administration of Lower Canada is now placed. On the 2nd February, a Bill of a most insidious nature was sent up to the Legislative Council, intituled, "An Act for the more effectual estab- lishment of Schools for teaching of the first rudiments of education in the country parts of this Province." This Bill, had it passed into a law, would have completely set aside the very important Act of the 41st of His Majesty, intituled, "An Act for the establishment of Free Schools, and the advancement of learning, etc." It would have transferred to elec- tive corporate bodies, to be established in every parish throughout the Province, the powers that are granted by the last mentioned Act to the Crown ; it would have enabled those corporations to hold property in mortmain to the value (collectively) of upwards of nine hundred thou- sand pounds, and have proved the most effectual means for insurrection and revolution, that the minds of its authors could have devised; yet was the Governor heard to express a desire that this Bill might pass the Legis- lative Council ! On the 10th of February, a Bill was sent up to the Legislative Council, intituled, "An Act for appointing an Agent in the United Kingdom of Great Britain and Ireland," and Mr. Bedard (the person before noticed as having been under confinement on a charge of treasonable practices,) was named in the Bill as such Agent, and a salary assigned to him of 2000 per annum. Early in the session a Committee had been appointed, "to consider if it were not fit and expedient humbly to address His Royal Highness the Prince Regent on the state of the Province 1 ," and the Bill for the ap- pointment of an Agent having been rejected by the Legislative Council, this address (in which were introduced expressions of great personal regard for the Governor) was now voted, together with one to His Ex- cellency, praying that he would be pleased to transmit the address to His Royal Highness by such messenger as he should see fit to appoint for that purpose, and to advance a sum not exceeding one thousand pounds to defray the expense, etc., which the Assembly pledged itself to make good. To this address the Governor replied verbally "that he would accede to the request of the House by appointing a proper person or per- sons to present the said address to His Royal Highness the Prince Regent. 1 ' Thus encouraged the Assembly voted a second Address to the Gov- ernor, praying that he "would order an advance not exceeding one thou- sand pounds, in addition to the sum already voted, provided he should appoint two persons to present the Address. To which the Governor re- plied, that he would accede to the request as soon as there was an appro- priation for the service mentioned in the Address," and a message was afterwards sent by His Excellency to the Assembly to the same purport. These proceedings having in the meanwhile been taken into consider- ation by the Legislative Council as encouraging an attempt on the part of the Assembly to appoint an Agent for the Province, without the concur- rence of the Council, several resolves were passed thereon concluding with the following, viz. : "Resolved, that this House views with equal astonishment and con- cern the acquiescence of His Excellency the Governor in Chief in the vote of the Assembly, which requests him to appoint a messenger for the purpose above mentioned ; an acquiescence which they cannot but con- sider to be an unequivocal abandonment of the Rights of this House, and a fatal dereliction of the first principles of the constitution." The appropriation of two thousand pounds was afterwards introduced into a Bill, intituled, "An Act further to continue for a limited time the 1 The history of this petition and of the attempt to appoint Bedard as agent in England can be found in journals of the House of Assembly of Lower Canada, 1812. 1791-1840] Constitutional Documents of Canada. 295 levying the duties imposed by the Act of the 51st of His Majesty, and for other purposes," which Bill was amended in the Council by striking out that appropriation, and so returned to the Assembly, which refused to pass it as amended. It had long been a favourite project with the Assembly to interfere with the salaries, and to lower the consequence of persons holding civil appointments under the Crown, and a Bill was now, for the second time, brought forward for this purpose, by which Bill the salaries and allow ances from the Government were to be diminished in the following- pro- portions, viz. : 15 per cent, on 1500 and upwards, 12 per cent, on 1000 and upwards, 10 per cent, on 500 and upwards, and 5 per cent, on 250 and upwards, per annum. To give this measure an air of plausibility the Bill was intituled "An Act to grant to His Majesty a duty on the income arising from civil offices, and on pensions to be applied to the defence of the Province in the present war with the United States of America." It is to be observed, that the permanent revenues of the Province are not adequate to the payment of the civil list, and the dificiency is made good from the military chest, it may therefore be said that by lowering the salaries of the officers of Government so much less money would be required from the exchequer of Great Britain ; but this could not fairly be called a Provincial Aid towards carrying on the war. The whole saving under this Act would not have exceeded 2500 per annum ; but those officers of Government who now have the utmost difficulty to subsist on their salaries would by this measure have been reduced to the extreme of distress. A special exemption was made in the Bill in favor of the Governor or person administering the Government, and also of officers holding commissions or staff appointments in the Militia, (as the major part of the framers of the Bill did,) and yet the pay and allowances of the field and staff officers of the Militia are even on a more advantageous footing than those of the regular forces, and greatly exceed in value the generality of the appointments under the Civil Government. This Bill was of course rejected by the Legislative Council as it had been in the pre- ceding session. Thus frustrated in various particulars the Assembly proceeded with vigor to the accomplishment of their principal design, the crying down the several Courts of Justice, and finally, voting articles of impeach- ment 1 against the Chief Justice of the Province and the Chief Justice of the Court of King's Bench for the District of Montreal. A violent and most libellous Address was voted to His Royal High- ness the Prince Regent, accusing those Judges by name, of treason, per- jury and oppression, and praying that they might be dismissed from their offices. This Address together with one to the Governor in Chief, pray- ing that His Excellency would be pleased immediately to suspend the said Chief Justices ; also the resolves of the Assembly, in which the whole of the Judges of the Court of Appeals and Courts of King's Bench, collec- tively (with the exception of Mr. Bedard) were criminated and charged with having exercised unconstitutional and illegal powers, were ordered to be published in a separate pamphlet 2 , and copies were furnished for the Provincial newspapers, by which means a strong impression was made upon all classes of people throughout the Province to the unspeakable detriment of the Judges in the public opinion, and of the administration of Justice in the King's Court yet had there not been any evidence be- fore the Assembly, beyond what was contained in the established rules of practice, nor had any complaint whatsoever been preferred by the public against those rules or against the Judges individually or collectively! It is deserving of notice, that, during the whole of the session, sel- 1 Chief Justice Sewell and Chief Justice Monk. Documents connected with their achment are in Doughty and McArthur, pp. 471, ff. Proceedings in the Assembly^ of Lower Canada on the Impeachment of_ Jona- S 1814.) impeachment are in Doughty and McArthur, pp. 471, ff. 1 Proceedings in the Assembly of Lower Canada on the Impeachment of Jc than Sewell and James Monk. (Printed by order of the House: English and French, 296 Constitutional Documents of Canada. [1791-184C dom more than half the number of members of which the House is com- posed attended ; and amongst these, the most respectable, including the English members, finding themselves outnumbered, gave way to the tor- rent, and seldom spoke or voted. All men were astonished that no steps were taken by the King's Representative to check these revolutionary proceedings, more especially as the principal movers of them were persons whom he himself had recently appointed to offices under the Crown. But it is now suggested that it was necessary to give way to the Assembly, iest the Act to authorise the further issue of Army Bills should be lost; an Act containing clauses unconstitutional and unprecedented, but in the formation of which it appears that (after all his sacrifices) the Governor had not sufficient influence to guide and direct the House ! These events may possibly lead His Majesty's Ministers to consider whether it would not be advisable to set aside the Provincial Statute by an Act of the Im- perial Parliament, pledging the faith of Government as a security for the redemption of such Army Bills as the Commander of the Forces may find it necessary to issue for the public service ; and there can be no doubt but such an Act would be far more satisfactory to the inhabitants of these Provinces, and far more advantageous to the interests of the Crown than that which has now been obtained at the risk of so much future mischief. It will be seen by the Governor's speech at the close of the session into how much difficulty and discredit he had brought himself. In the course of their proceedings both Houses had passed resolves severely animadverting on his conduct; and he now availed himself of the oppor- tunity publicly to reprimand both the Houses in his turn ! A few days after the prorogation, the Provincial Parliament (having completed the term of four years) was dissolved, and Writs were imme- diately issued for a general election. Thus has ended an Assembly which was called together for the first time by Sir J. Craig, which in it first session, and under what were then represented as very irritating circumstances, was (after manifesting some symptoms of dissatisfaction) induced to receive from the Legislative Council, and unanimously pass a Bill for the suspension of the Habeas Corpus Act, and which from that period to the end of their Session cordially concurred in every measure that could tend to promote the peace, happiness and prosperity of the Province ! A few words will suffice with respect to the future prospects of this Colony. Immediately after the prorogation the most respectable English members publicly declared their determination not to offer themselves as candidates at the ensuing general election. That election is now over, and the returns are precisely such as were expected under the impression produced throughout the Province by the proceedings of the late Assembly. From the time that the Assembly began its attacks on the Courts of Jus- tice, the licentiousness of a press recently established at Montreal (from whence papers in the French and English languages are published week- ly) has appeared to have no bounds ; every odium that can be imagined is attempted in these publications to be thrown on the memory of the late Governor in Chief, on the principal officers of Government, and on the Legislative Council ; and the poison thus distributed is left to work its effect on the mass of the people without any check or interference on the part of the Crown : thus is the disorganizing party encouraged to pro- ceed ; thus is it led to hope, that any future Governor may be deterred from exercising that vigor which the preservation of His Majesty's Gov- ernment may require. The new Assembly will have in it all that was bad in the last, to- gether with a great accession of the most violent, unprincipled and worth- less characters in the Colony, scarcely a man of respectability would stand forward as a candidate at the late general election, and the British and commercial interests may now be considered as excluded from the Assembly. Still however the country is not lost. It is not yet in a state of insurrection against His Majesty's Government, it may still be pre- 1791-1840] Constitutional Documents of Canada. 297 served to the Crown without having recourse to the bayonet. But the remedy must be immediate. Should His Royal Highness the Prince Regent be pleased to entrust the administration of this Government to a man of high rank, of known and established character for prodence, firmness, dignity and ability; a man accustomed to Parliamentary business, not to be terrified by the clamours of the ignorant, nor appalled by the projects of the vicious: such a man would readily find means to convince the Assembly of its insignificance when disposed to do mischief; and, by making it manifest that all his measures had for their object the public good, he could not fail of restoring to the Province a state of tranquility and happiness. 1 H. W. R. Quebec, 12th May, 1814. LXXXIV OPINION ON THE PRIVILEGES OF THE HOUSE OF ASSEMBLY AND ON THE CASTING VOTE OF THE SPEAKER OF THE LEGISLATIVE COUNCIL. [Trans.: Doughty and McArthur.J 2 Lincoln's Inn, 30th December, 1815. My Lord, We have had the honor to receive your Lordship's letter of the 20th Instant, transmitting to us two papers containing questions which have arisen on the construction of the Act of 31st Geo. 3rd, Chap. 31 2 , respect- ing the Government of Canada; and desiring us to take the same into our consideration, and to report to you our opinion thereupon in point of Law ; we have accordingly considered the same, and as to the questions stated in the paper No. 1 which we have returned with our report, first "Whether by the several Clauses referred to the Assembly of Lower "Canada is entitled to any privileges under that Statute," we beg to report to your Lordship that we consider the Members of the Assembly of Canada entitled to such Privileges as are incidental to, and necessary to enable them to perform, their functions in deliberating and advising upon, and consenting to laws for the peace, welfare and good Government of the Province. In answer to the second question, "Whether the Assembly is entitled "to all the Privileges to which the House of Commons of the imperial "Parliament are entitled under their own peculiar Law, the Lex Parlia- "mentaria." We beg to report, that we think they are not so entitled. The Privi- leges of the High Court of Parliament composed of the King, The Lords spiritual, and temporal, and Commons of the Realm, are founded on the antient law and Custom of Parliament and we conceive arise from the supremacy, or as it is sometimes called, the omnipotence of "this High Court, when the Parliament or great Council of the Nation thus composed sat together in one Assembly; Tho' the period when the two houses separated in their sittings, is not ascertained, yet whenever that event took place, each house retained certain privileges and powers ; The Lords the judical power; the Commons the power of accusation and impeach- ment, and to both remained the right to pass bills of Attainder, and of pains and penalties to be assented to or rejected by the King, and each retained the original right of asserting, deciding upon, and vindicating the mighty privileges of their separate houses, but still we apprehend as constituent parts of our great Council or High Court of Parliament by 1 Prevost's account of the events referred to in this document ought to be read. The dispatches are in Doughty and McArthur, pp. 462 ff, 465 ff, dated 18 March and 4 September, 1814. 2 Constitutional Act, 1791 (No. LV). 298 Constitutional Documents of Canada. [1791-1840 virtue of their united Supremacy. To measure by this standard the privi- leges of Legislative Assemblies created either by the King's Charter, or by Act of Parliament, for the purpose of enacting Laws for the peace, welfare and good Government of any particular Colony, or district, part of the Dominions of the Crown of the United Empire, would be to giyt to subordinate bodies the mighty power of supremacy. The King, by his charter, could not, we apprehend, grant such powers, and tho' Parliament might, if it should deem it expedient, bestow them, yet unless it has so specifically done, such powers cannot belong to them as incident to their Creation and Constitution. If these powers and privileges belong to colonial Legislatures as arising from or by analogy to the Law and cus- tom of Parliament, they must belong as well to the Legislative Council as to the House of Assembly, and then the judicial power in the last resort upon matters arising in the Colony, would be in the Legislative Council; the right to impeach would be in the House of Assembly; and the right to try and adjudge such impeachment would belong to the legislative Council; they would each have a power with the assent of his Majesty to enact Bills of Attainer, and of pains and penalties; it is how- ever clear that by the Statute the Legislative Council have no judicial powers, belonging to them, neither have the House of Assembly any power of Impeachment in the legitimate sense of the word, however they may use the term in any accusation or complaint they may make, either to his Majesty in Council or in any petition they may present to the Parliament of the United Empire. This claim to possess the same privileges as belong to the House of Commons has sometimes been asserted by certain colonial assemblies, as was done in the year 1764 by the House of Assembly of Jamaica, but we apprehend it has never been admitted or recognized, tho' in that particu- lar instance it appears to have been thought expedient, so far to comply with their complaint, as to direct the succeeding Chancellor of the Island to vacate and annul the proceedings which had given offence to the House of Assembly. That the House of Assembly of a Colony is not entitled to the same privileges, nor has the same power in vindicating them as belong to the House of Commons of the imperial Parliament has been the opin- ion of very great and eminent Lawyers in former times. Such was the opinion of the late Lord Camden, when Attorney General, as expressed in these words, "Our house of Commons stands upon its own laws, the "lex Parliaments, whereas Assemblies in the Colonies are regulated by "their respective Charters, Usages, and the Common Law of England, and "will never be allowed to assume those privileges which the house of "Commons is entitled to justly here upon principles that neither can nor "must be applied to the Assemblies of the Colonies." Such appears also to have been the opinion of Lord Mansfield and Sir Richard Lloyd, and the same is to be collected from an opinion given by Sir Simon Harcourt and Sir Edward Northey in the year 1704, and from the opinions of other persons of Eminence, on Cases on which, this question has individually arisen. Thirdly, it is enquired if the House of Assembly are not entitled to the privileges founded upon the lex Parliamentaria to what extent they are entitled? We beg leave to observe that as no particular privilege is stated, as that, to which claim is now made, it is difficult to give a precise answer to this question, or to point put the privileges to which they are by Law entitled, otherwise than by giving a general outline. The House of Asesmbly of Upper Canada has not existed long enough to have established privileges by usage ; the Act of Parliament has not delineated any, and we therefore conceive the outline to comprize and to be confined to such only as are directly and indispensably necessary to enable them to perform the functions with which they are invested, and therefore may be fairly said to be incidental to their constitution. We mention some of these as examples ; personal liberty; eundo, redeundo et morando, or freedom from arrest, in civil Cases ; a power to commit foi such Acts of contempt in the face of the House of Assembly as produce disturbance and interruption of their proceedings, the freedom of debate 1791-1840] Constitutional Documents of Canada. 299 upon the subjects of the Laws to be enacted or considered; they think also they would have the power of expelling a Member convicted by any com- petent Tribunal of a crime of an infamous nature, and as to this latter instance, we are warranted by an opinion of Lord Mansfield and Sir Richard Lloyd in the year 1755. The right of regulating and ordering their own proceedings in their Assembly consistently with the Statute must necessarily be incident to them, and as to the privilege of deciding upon the right of sitting either in legislative Council, or the house of Assembly, this can no longer be a question of privilege, because such right is in certain cases given by the 31st of Geo. 3d. Ch. 31 to the Legislative Council as to their Members and is enacted by the Provincial Statute of the 48th Geo. 3d Chap. 21 as to the houses of Assembly. As to the question stated in the paper No. 2 which we have also returned with this Report "whether the course of proceeding therein "described is the legal course of proceeding in the legislative Council of "Lower Canada under the Statute of the 31st of Geo. 3rd. Ch. 31," we beg to report to your Lordship that we conceive the true meaning of a casting vote to be that of a second vote given to some Member of the constituted body in case there shall be an equality of votes including such members original vote: the phrase however is also in common parlance used as descriptive of the vote of some particular member or officer of such Body, who by its constitution has no vote in the original deliberation or decision of the question proposed, but whether it is to be understood in one sense or the other must be decided by the Charter or Act of Parliament con- stituting the body, if it be extant; or by antient and immemorial usage if no such Charter or Act can be found : The ancient and immemorial usage of the house of Commons, manifesting the Law and Custom of Parliament, is the foundation of the practice of the Commons' House of Parliament, which does not, and cannot apply to the Legislative Council of Canada To decide the present question resort must be had to the Act of the 31st Geo. Ill, Ch. 31, for neither in the regulation of their own proceedings, nor in any other respect can the Legislative Council act against the pro- visions of that Statute. If the Parliament had meant that the person who should be appointed Speaker should be thereby deprived of any of his rights or franchises as an individual Member, and should not vote unless the other Members (exclusive of himself) were equally divided, we are of opinion the Statute would have been penned in very different terms ; there is nothing in the Clause referred to which divests the Speaker of any of the rights belonging to him as a Member of the Legislative Council separ- ate and distinct from the Office or Character of Speaker. Tho' the Legis- lative Council is not confined to any definite number yet it may frequently happen that the number of which it is composed, or the number which may attend, will be an even number; Upon such occasion if the Speaker were excluded from giving an original vote, a majority might exist on a question on which he might think with the minority, and by that means he would be deprived of the exercise of his right or franchise. To prevent the inconvenience of equal division, when his vote is included, it was, that the Statute gave the casting vote to him on an equality of Voices, and we are of the opinion that the giving the casting vote in terms was meant to give a vote or power of voting superadded to his original vote as an abridge- ment or in derogation of his original and inherent right of voting as Member. We therefore report to your Lordship that we are of opinion that the proceeding stated in the paper No. 2 is the legal course of pro- ceeding, and that the Legislative Council has put a right construction on the Act of Parliament. We have the honor to be My Lord, Your Lordship's most obedient Servants W. GARROW To Rt. Hon Earl Bathurst. S ' SHEPHEM> 300 Constitutional Documents of Canada. [1791-1840 LXXXV SHERBROOKE TO BATHURST [Trans. : Doughty and McArthur] Castle of St. Lewis Quebec 15th July 1816 My Lord. On my arrival here I received communication of Your Lordship's dispatch 1 of the 12th July 1815, marked "Separate and confidential" instruct- ing Sir Gordon Drummond under particular circumstances to dissolve the Assembly; And haying given to it the serious and attentive consideration it deserves, I feel it my duty to submit to Your Lordship the sentiments which have arisen in my mind on a perusal of it, and to request to be informed from Your Lordship how far I am to consider it as applying to the Government of my conduct under similar circumstances. It is not for me my Lord to remark on the risque of embarrassment and the possible evils that may arise from restraining the discretion of a Governour in those delicate and difficult circumstances which must often occur in the management of a popular Assembly; and in which, if left to himself, he might find means from his knowledge of the views and charac- ters of the different parties to carry on the Public business without coming to extremities ; These considerations, I am persuaded, had been fully weighed by His Majestys Government before they in their wisdom gave that instruction to which I have alluded, and by the very imperative terms of which I should have conceived myself debarred of all choice or dis- cretion, if it had been addressed to me. But, as at present situated, I feel myself entitled to bring before Your Lordship's view, that the measure adopted by Sir Gordon Drummond in consequence of that command, if it was intended to have its effect by changing for the better the Representation of the lower House, has entirely failed in its operation as far as I have been able to learn since my arrival ; and not only so but has in no small degree aggravated the evil by causing much irritation both among the Representatives and in the country ; and by leading to the general re-election of the same members, or, in those few instances where a change has taken place, it is believed to be for the worse, by the exclusion of the most moderate of the Canadian members of the former House. I cannot here avoid submitting to Your Lordship my humble opinion, that, in this Country, where there is no room for the exertion of a Salutary government influence such as exists in England the strong measure of a dissolution must in almost ail possible circumstances of the country produce rather evil than advantage ; And can never have that effect which may be given to it in England by the exertion of the different means that may be brought into action there for the correction of popular opinion and for securing to the Crown a stronger influence in Parliament. But notwithstanding this opinion, which, with the most respectful deference, I thus submit to Your Lordship, you will not doubt that I shall be ready to carry into full execution the strongest measure that His Majesty's Government shall think proper to prescribe. There does not appear any necessity for calling together the Assembly before the usual period, at the commencement of the winter; And I shall hope to receive before that tinte the pleasure of His Majesty's Government, (if it should still be thought necessary to give specific instructions) as to the course I am to pursue in case the House of Assembly recur as there is scarcely a doubt that they will, to the subject which has lately led to a dissolution of that body. I have the honour to be, My Lord etc. J. C. SHERBROOKE. 1 Bathurst had informed Drummond that he must dissolve the Assembly before it had time to embody resolutions in shape of specific charges such as impeachments. (Doughty and McArthur, p. 472.) 1791-1840] Constitutional Documents of Canada. 301 LXXXVI RIGHT OF HOUSE OF ASSEMBLY TO INITIATE ALL MONEY BILLS [Trans. : Doughty and McArthur.] RESOLUTIONS OF THE LEGISLATIVE COUNCIL OF UPPER CANADA Saturday, 21st March, 1818. 1. Resolved, that in making amendments to a Bill sent up from the Commons House of Assembly, intituled "An Act to make further provision for regulating the trade between this Province and the United States of America" this House acted upon the principle that its concurrence was necessary to pass the same, which it could not, in the exercise of its judg- ment and discretion, without amendment. 2. Resolved, That the Commons House of Assembly having hitherto rejected all Conference on the subject of Money Bills, no course remains to the Legislative Council but implicitly to submit to its judgment and reason, or to reject wholly the offered Bill; unless the House of Commons will continue as it has heretofore in many cases done, even during the present Session, to reject the amendments of the Legislative Council with- out notice, and re-enact the matter, so as to receive the concurrence of the other branches of the Legislature. 3. Resolved, That this House does not consider the necessary amend- ments to a Money Bill as a breach of the Privileges of the Commons House of Assembly ; nevertheless as it is so considered by that House in the said Resolution, the Legislative Council will forbear all amendments to Bills for raisi'.ig or levying money, and merely withhold its assent to the same. RESOLUTIONS OF THE HOUSE OF ASSEMBLY, UPPER CANADA 23rd March, 1818. 1. Resolved, that the Commons have never questioned the principle either of constitutional right of necessity of the concurrence of the Legis lative Council in passing Bills, but do insist that the exercise of its judgment and discretion on all Bills granting aids and supplies to His Majesty, or imposing burthens upon the people is by uniformly acknowledged precedent confined to assent without making any amendments, or to the rejecting totally such Bills ; and that the admission of a contrary principle upon the part of the Commons would be surrendering a constitutional right always exercised by this House, and from time immemorial by the Com- mons of Great Britain, which this House will never consent to. 2. Resolved, that the foregoing resolution is equally applicable to meet the reasoning of the first part of the second resolution of the Legis- lative Council, and that in all cases when this House have rejected amend- ments of the Legislative Council without notice, and re-enacted the matter so as to receive the concurrence of the other branches of the Legislature, this House have done so from the most conciliatory disposition and regard for the interests of the Province, wherever the same could by strained construction be admitted ; but in no instance where the amendments have been made to a Bill the direct object of which has been the raising, levying, or appropriating money. 3. Resolved, that the first part of the third resolution of the Legis- lative Council, avowing that they do not consider the necessary amend- ments to a money Bill as a breach of the privilege of the Commons House of Assembly, cannot be considered by this House without weakening that right which, in the true spirit of our constitution, solely and exclusively appertain to this branch of the Legislature. 4. Resolved, that it is the opinion of this House that the collected consideration of the three resolutions of the Legislative Council require the following avowal. That this House consider it as their constitutional right to commence 302 Constitutional Documents of Canada. [1791-1840 all money Bills, either granting aids and supplies to His Majesty or impos- ing any charge or burthen whatsoever upon the people, and to direct, limit, and appoint in such Bills the ends and purposes, considerations, limitations, and qualifications thereof, and that such grants, limitations and dispositions ought not to be interfered with by amendments in the Legislative Council, because such has never been permitted by the Commons of this Province, nor is it the usage and practice of the British Parliament. RESOLUTIONS OF THE LEGISLATIVE COUNCIL OF UPPER CANADA Tuesday, 24th March, 1818. The Honorable the Legislative Council, on consideration of the Resolu- tion of the House of Assembly, delivered yesterday at the Bar of this House, 1. Resolved, that the Legislative Council and House of Assembly of the Province of Upper Canada are co-ordinate branches of a Limited Legislature, constituted by the Statute enacted in the thirty-first year of His Majesty's Reign. 2. That all powers, immunities and privileges of either branch are derived from that Statute, and extend to their respective advice and con- sent to His Majesty, to make laws not repugnant to that Act for the peace, welfare, and good Government of the Province. 3. That in adopting the order and course of proceeding to advise and consent to laws, this House does not assume the powers, authority and privileges of the Upper House of Parliament, grown out of the practice of ages, and unsuitable to the circumstances of this Colony. 4. That the House of Assembly, adopting as its type the Commons House of Parliament, and claiming all the powers, immunities and priv- ileges thereof, is not justified by the words or spirit of the Constitution, more than the Legislative Council would be justified to assume for itself and its members the powers, immunities and privileges of the Upper House of Parliament. 5. That the origin of all supplies in either House or exclusively in the House of Assembly must be indifferent so long as either house retains the power of rejection, that the exercise of the right to amend an original Bill is equally indifferent except that without the exercise of that right, or the resort to amicable conference between the two Houses time is wasted and the Public service delayed. 6. That the House of Assembly did by Resolutions delivered at the Bar of this House declare that it would not accede to any conference on the subject of a money Bill. 7. That the amendments made to the Bill intituled "An Act to make further provision for regulating the Trade between this Province and the United States of America," by the Legislative Council, were to conform to a national regulation of t-ade imparted to both Houses by His Majesty's Government to reduce the burthen of the people of whom the individuals of this House are a part only distinguished by the duty imposed on them in their Legislative capacity to protect defend and support the interest of the whole. 8. That having no means of interchanging opinion with the House of Assembly, but by way of conference or amendments, the Legislative Council does not consider it reasonable that such amendments should be treated as a breach of privilege, and that having declared by its resolutions trans- mitted to the House of Assembly that it would forbear amendments to money Bills such resolution ought to afford reasonable satisfaction to that House (even if its privilege had been violated) and restore the course and harmony of proceeding in the Public business. RESOLUTIONS OF THE HOUSE OF ASSEMBLY OF UPPER CANADA 26th March, 1818. 1. Resolved, nem. con. that this House, in persisting in their right to reject all amendments made by the Legislative Council to Bills for raising and appropriating moneys, and to decline all conferences thereon, are 1791-1840] Constitutional Documents of Canada. 303 assuming to themselves no new privilege; but are only adhering to the form of proceeding which has been maintained from the first establishment of the Provincial Legislature, and in which they have taken for their guide the representative form of constitution in the Mother Country, by which that of this country is modelled, and by which the Legislative Council have in all their proceedings equally governed themselves ; whatever it may suit their present purpose to disclaim. 2. Resolved, nom. Con., that as this House desire to make no innova- tion, so they are determined to suffer none, but will persist in maintaining in all their deliberations those rules which they have found established, and which, being coeval with their constitution, they consider it would be as inconsistent with their duty as it is repugnant to their inclination to aban- don. 3. Resolved, nem. con., that the gracious Speech of His Majesty's Representative, John Graves Simcoe, Esquire, at the opening and proroga- tion of the first Parliament of this Province, and the answers thereto, be entered on the Journals of this House; that part of the Journals having been destroyed by the enemy in the late war. LXXXVII [Trans. : Doughty and McArthur.] An Act to repeal an Act passed in the thirty-fifth year of His Majesty's Reign, entitled, "An Act to ascertain the ELIGIBILITY of PERSONS to be Returned to the HOUSE of ASSEMBLY," and also to repeal an Act passed in the fifty-fourth year of His Majesty's Reign, entitled, "An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty's Reign, entitled 'An Act to ascertain the eligibility of persons to be Returned to the House of Assembly," and to make further and more effectual provision for securing the freedom and constitution of the Parliament of this Province. (Passed 1st April, 1818, Province of Upper Canada.) WHEREAS, it is most desirable that the eligibility of persons to be proposed as Candidates for the Representation of the several Towns, Ridings and Counties in the Province, in the Commons House of Assembly, should be clearly and expressly defined : and whereas the provisions of an Act passed in the thirty-fifth year of His present Majesty's Reign, entitled "An Act to ascertain the eligibility of persons to be returned to the House of Assembly," and also of an Act passed in the fifty- fourth year of His Majesty's Reign, entitled "An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty's Reign, entitled, "An Act to ascertain the eligibility of persons to be returned to the House of Assembly," have not attained that object: Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, entitled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, entitled, 'An Act for the making more effectual provision for the Province of Quebec in North America, and to make further provision for the Government of the said Province," and by the authority of the same, That from and after the passing of this Act, each of the said Acts respectively shall be and the same are hereby repealed. II. And be it further enacted by the authority aforesaid, That from and after the passing of this Act, no person or persons, of what condition 3(H Constitutional Documents of Canada. [1791-1840 soever, having been a bona fide resident in any country not being under His Majesty's Government, or who shall have taken the oath of allegiance to any other State or Power, shall be eligible to be proposed, chosen or elected, as a Representative or Representatives of any City, County, Riding or Borough, or other place of any description now or hereafter sending a Representative or Representatives to the House of Assembly of this Pro- vince, until such person or persons shall have resided in this Province for and during the space of seven years next before the election at which any such person or persons shall be proposed, elected or chosen as a Repre- sentative or Representatives as aforesaid. III. And be it further enacted by the authority aforesaid, That if any person or persons as aforesaid, not having resided in this Province for seven years as aforesaid, shall propose or offer himself or themselves as a candidate or candidates to become a Representative or Representatives of any County, City, Riding or Borough, or other place now or hereafter sending a Representative or Representatives, and shall be thereof convicted by the oath of one credible witness, shall forfeit and pay the sum of two hundred pounds, to be recovered by any person who shall sue for the same, in His Majesty's Court of His Bench in this Province, by action of debt, bill, plaint or information, wherein no essoigne, privilege, protection or wager of Law shall be allowed, and only one imparlance. IV. And be it further enacted by the authority aforesaid, That if any person or .persons as aforesaid, not having resided in this Province for seven years as aforesaid, whether such person or persons shall have pro- posed or offered him or themselves as a candidate or candidates or not for any County, City, Riding or Borough, or other place of any description now or hereafter sending a Representative or Representatives to the House of Assembly of this Province as aforesaid, shall presume, upon such choice or election to obtrude or present himself or themselves into the said House as a Representative or Representatives, as aforesaid, he or they shall for- feit and pay the sum of forty pounds, over and besides the foregoing penalty, if such person or persons shall have incurred the same, for every day that he shall so obtrude or present himself or themselves, to be recov- ered by any person or persons who shall sue for the same in His Majesty's Court of His Bench, by action of debt, bill, plaint or information, wherein no essoigne, privilege, protection or wager of Law shall be allowed, and only one imparlance. V. And be it further enacted by the authority aforesaid, That from and after the passing of this Act, no person or persons, of what condition soever, shall be eligible to be proposed, chosen or elected as a Representa- tive or Representatives of any County, City, Riding, Borough or other place of any description, now or hereafter sending a Representative or Representatives to the House of Assembly of this Province, unless he shall be possessed of an unincumbered freehold, in lands or tenements, in fee simple, in this Province, to the assessed value of eighty pounds, lawful money of this Province. VI. Provided always, and be it hereby enacted by the authority afore- said, That every person who, from and after the passing of this Act, shall appear as a candidate, or shall by himself or any others be proposed to be elected to serve as a Member for any County, City, Riding, Borough, or any part or place now or hereafter sending a Member to the House of Assembly of this Province, shall, and he is hereby enjoined and required, upon reasonable request to him to be made, at the time of such election, 01 before the day prefixed in the writ of summons for the meeting of Parlia- ment, by any other person who shall stand a candidate at such election or by any two or more persons having a right to vote at such election, take a corporal oath, in the following form, or to the following effect: "I A. B. do swear, that I truly and bona fide have such a freehold estate, over and above all incumberances that may effect the same, and am otherwise quali fied according to the provisions of Law, to be elected and returned to serve as a Member in the Commons House of Assembly, according to the tenor and true meaning of the Act of Parliament in that behalf, and that I have 1791-1840] Constitutional Documents of Canada. 305 not obtained the same fraudulently for the purpose of enabling me to be returned Member to the Commons House of Assembly of this Province, so help me God." VII. And be it further enacted by the authority aforesaid, That if any of the said candidates, or persons proposed to be elected as aforesaid, shall be guilty of false swearing in such oath, such candidate or candidates, or person or persons as aforesaid, shall on conviction thereof, receive and suffer the like pains and penalties to which any other person convicted of wilful and corrupt perjury is liable by the Laws and Statutes of this Province. VIII. And be it further enacted by the authority aforesaid, That the oath aforesaid, shall and may be administered by the Sheriff for any such County as aforesaid, or by the Mayor, Bailiff, or other Officer or Officers for any County, City, Borough, Riding, Place or Places aforesaid, to whom it shall appertain to take the poll or make the return at such election for the same County, City, Borough, Riding, Place or Places respectively, or by any two or more Justices of the Peace within this Province, and the said Sheriff, Mayor, Bailiff or other Officers, and the said Justices of the Peace respectively, who shall administer the said oaths, are hereby required to certify to taking thereof, into His Majesty's Court of His Bench within three months after the same, under the penalty of forfeiting the sum of two hundred pounds, to be recovered with full costs of suit, by action of debt, bill, plaint or information, in His Majesty's Court of His Bench in this Province, and if any of the said candidates or persons proposed to be elected as aforesaid, shall wilfully refuse upon reasonable request to be made at the time of the election or at any time before the day upon which such Parliament by the writ of summons is to meet, to take the oath hereby required, then the election and return of such candidate shall be void. IX. And be it further enacted by the authority aforesaid, That no fee or reward shall be taken for administering any such oath ,or making, receiving, or filing the certificate thereof, except two shillings and six-pence for administering the oath, and five shillings for making the certificate, and five shillings for receiving and filing the same, under the penalty of one hundred pounds to be forfeited by the offender, and recovered as aforesaid. X. And be it further enacted by the authority aforesaid, That one moiety of all fines and penalties that shall be incurred under this Act shall be immediately paid into the hands of the Receiver General for the use of His Majesty, His Heirs and Successors towards the support of the Civil Government of this Province, and shall be accounted for to His Majesty, His Heirs and Successors, through the Lords Commissioners of His Majesty's Treasury for the time being, in such manner and form as His Majesty, His Heirs and Successors shall please to direct, and the other moiety to the person who shall sue for the same. T 306 Constitutional Documents of Canada. [1791-1840 LXXXVIII SHERBROOKE TO BATHURST [Trans. : Brymner, Report of Canadian Archives, 1897.] Calverton near Southwell, Notts., 14th March, 1822. My Lord, I have been honoured with your Lordship's private and confidential letter of the llth inst, the contents of which shall not transpire, and in reply to your question "Whether the Union 1 of Upper and Lower Canada would have a beneficial effect" I answer, that if these Provinces continue in the same state they were in at the time I relinguished the Government, an Union would be very desirable, provided it could be estab- lis.hed on proper principles, so that the undue influence of the Assembly should be somewhat controlled and the power of the Crown increased. But if such a measure were to be attempted considerable difficulties must be expected before it could be reconciled with the jarring interests of the inhabitants and the variety of wild opinions so generally entertained. Your Lordship's description of the persons usually returned to the Legislative Assembly of Lower Canada is perfectly correct. And the mischiefs arising from this cause are incalculable. I also agree that the Assembly of Upper Canada appears more tractable at present. But when I consider the vicinity of the latter Province to the United States, the population continually flowing in from thence, the constant communication and intermarriages between the families on both sides of the line, the num- ber of Americans who purchase the best of the lands as soon as they are cleared and every other description of property in Upper Canada worth having ; and when I look to the loose demoralising principles introduced by those people, I very much doubt whether reliance can be placed on a con- tinuance of this tractable disposition. I am fully aware my Lord of the evils arising from that ascendancy which the Catholics of Lower Canada exercise to the prejudice of what- ever relates to the Protestant interest, but I suspect a very erroneous idea prevails in this country of the state of religion in Upper Canada. It might be supposed that the generality of the inhabitants being called Protestants were either of the communion of the established Church or of the Kirk of Scotland. Whereas the greater part are Methodists and Sectaries of every description. And I am sorry to add there are many who appear to have no sense of religion whatever. Circumstances have materially changed since the separation of the two Provinces, and I could not avoid remarking when I was in Upper Canada, that in many instances a stronger bias prevailed in favour of the American than of the British form of Government. Whereas the Catholics in Lower Canada have a rooted antipathy to the Government of the United States, and have no dread equal to that of one day falling under its Dominion. This trait of character I venture to press on your Lordship's attention, as whatever may be the fate of the Upper Province, the Americans will never be able to establish themselves in Lower Canada whilst this feeling is cherished. In giving my candid opinion of the state of the two provinces, I shal' be happy if I have in any degree answered the expectations your Lordship has done me the honour to express. And I have only to assure you of my 1 In both Provinces disputes between the various divisions of the Government became so pronounced that efficient government seemed impossible. In Lower Canada, race and religion complicated the political situation. In 1822, the British Government proposed to solve the problem, and Sir Robert Horton, Under Secretary for the Colonies, introduced a bill for the union of the two Canadas. It was fiercely opposed by the French-Canadians, and the English-speaking Canadians did not receive it with unanimous enthusiasm. As a consequence, the bill was withdrawn. The financial part, however, was passed under the title Canada Trade Act (3 George IV, c. 119) (see p. 219). This Act led later on to further disputes, as it was claimed that it was contrary to the Tax Repeal Act, 18 George III, c. 12 (see No. XXXIII). In the following documents will be found the abortive Act of Union and the points of view of various interested parties. 1791-1840] Constitutional Documents of Canada. 307 willingness at all times to attend to your Lordship's commands. In repeat- ing that I shall not fail to hold your Lordship's communication confidential I must request that my answer may be looked upon in the same light, and have the honour to be, my lord, Your Lordship's, very obedient and Faithful humble servant, J. C. SHERBROOKE. LXXXIX PROPOSED ACT OF UNION, 1822 [Trans. : Canadian Archives, Q. 160.] A Bill [as amended by the Committee] for uniting the Legislatures of the Provinces of Lower and Upper Canada. WHEREAS in the present situation of the Provinces of Lower and ream e - Upper Canada, as such with relation to Great Britain as to each other, a joint Legislature for both the said Provinces would be more likely to pro- mote their general security and prosperity than a separate Legislature for each of the said Provinces, as at present by law established ; Be it therefore enacted by the KING'S most Excellent Majesty, by| e " ch 3 of and with the advice and consent of the Lords Spiritual and Temporal, and c . 3^ a ' S p ro . Commons, in this present Parliament assembled, and by the Authority of vides a Legis- the same, THAT so much of an Act passed in the thirty-first year of the l ^^ e / e reign of his late Majesty King George the Third, intituled, "An Act to p rov inces of "repeal certain parts of an Act passed in the fourteenth year of his Lower and "Majesty's reign, intituled, 'An Act for making more effectual provision Upper Canada, '"for the Government of the Province of Quebec in North America, and rei " 'to make further provision for the Government of the said Province,' " as provides for the composing and constituting within each of the said Provinces respectively, a Legislative Council and Assembly, and for the passing of laws by the Legislative Council and Assembly of each Province, shall be and the same is hereby repealed, except in so far as the same or any of the provisions thereof, may by this present Act be continued or applied to the purposes of the joint Legislature to be constituted in manner hereinafter mentioned : Provided also, that so much of an Act passed in the fourteenth year of the reign of his said late Majesty, intituled, "An Act "for making more effectual provision for the Government of the Province "of Quebec in North America," as is repealed by the said Act passed in the thirty-first year aforesaid, shall be deemed and taken to be, and shall remain repealed. And be it further Enacted, That from and after the passing of tm ' s "^one'' joint Act, there shall be within the said two Provinces, and for the same jointly Legislative one Legislative Council and one Assembly, to be composed and constitutedCouncU, and in manner hereinafter described, and which shall be called "The Legislative ^"semblyfor "Council and Assembly of the Canadas;" and that within the said Pro- both Pro- vinces, or either of them, His Majesty, His Heirs or Successors, shall havevinces. power, during the continuance of this Act, by and with the advice and consent of the said Legislative Council and Assembly of the Canadas, to* make laws for the peace, welfare and good government of the said Pro- vinces, or either of them, such laws not being repugnant to this Act, nor to such parts of the said Act passed in the thirty-first year aforesaid, as are not hereby repealed ; and that all such laws being passed by the said Legislative Council and Assembly, and assented to by His Majesty, His Heirs or Successors, re-assented to in His Majesty's name by the Governor- in-Chief in and over the said provinces of Lower and Upper Canada, or in case of the death or absence of such Governor-in-Chief, by the Lieuten- ant Governor of the Province of Upper Canada for the time being, or in case of the death or absence of such Lieutenant Governor, then by the Lieutenant Governor of Lower Canada for the time being, or in case there 308 Constitutional Documents of Canada. [1791-1840 Joint Legisla- tive Council to consist of the present Members of both Councils. Other Persons maybe summoned. MICH Persons only shall be summoned as directed by 31 G. 3. Governor to appoint and remove the Speaker of the Legisla- tive Council. Joint Assem- bly to consist of the present Members of both, and to continue until 1 July 1825, unless sooner dissolved. Act of Upper Canada, 60 G. 3, to continue in force. shall be no Lieutenant Governor at such time resident in the Province of Lower Canada, then by the person administering the government thereof for the time being, shall be and the same are hereby declared to be, by virtue of and under the authority of this Act, valid and binding to all intents and purposes whatever within the said two Provinces. And be it further Enacted, That the present members of the Legislative Councils of Lower and Upper Canada shall, by virtue of this Act, and without any new or other commissions for that purpose, constitute together the Legislative Council of the Canadas, which said members shall take precedence in the joint Legislative Council according to the date of the instruments by which they were originally summoned to the Legislative Councils of the two Provinces respectively; and that it shall also be lawful for His Majesty, His Heirs or Successors, from time to time, by an instru- ment under his or their sign manual, to authorize and direct the said Gov- crnor-in-Chief, or in case of his death or absence, such other person, and in such order respectively as is hereinbefore directed, to summon to the said Legislative Council, by an instrument, under a seal to be transmitted by His Majesty to the Governor-in-Chief, or under any other seal which the said Governor-in-Chief shall be by His Majesty directed to use for the purposes of this Act, and which shall be called the Great Seal of the Canadas, and shall be applied only to the purposes directed by this Act, such other person or persons as His Majesty, His Heirs or Successors, shall think fit ; and that every person who shall be so summoned to the said Legislative Council, shall thereby become a member thereof. And be it further Enacted, That such persons only shall be summoned to the said Legislative Council, as by the said above-mentioned Act, passed in the thirty-first year aforesaid, are directed to be summoned to the Legis- lative Council of the said two Provinces respectively; and that every mem- ber of the said Legislative Council shall hold his seat for the same term, and with the same rights, titles, honours, ranks, dignities, privileges and immunities, and subject to the same provisions, conditions, restrictions, limitations and forfeitures, and to the same mode of proceeding, for hear- ing and determining by the said Legislative Council all questions which shall arise touching the same, as are in the said Act, passed in the thirty- first year aforesaid, mentioned and contained, with respect to the members thereby directed to be summoned to the Legislative Council of the two Provinces respectively. And be it further Enacted, That the Governor-in-Chief, or in case of his death or absence, such other person, and in such order respectively as is hereinbefore directed, shall have power and authority from time to time, by an instrument under the Great Seal of the Canadas, to constitute appoint and remove the Speaker of the said Legislative Council. And be it further Enacted, That the members at present composing the Assemblies of the said two Provinces shall, together with such new members as shall or may be returned for either of the said Provinces respectively in manner hereinafter mentioned, form and constitute the Assembly of the Canadas, and shall be and continue until the first day of July one thousand eight hundred and twenty-five, unless sooner dissolved ; and that in case of a dissolution of the said Assembly, or of vacancies occurring therein, members shall be returned from the same counties and places, and in the same manner, and in the same numbers, except as herein- after otherwise provided, as now by law they are returned within the two Provinces respectively. AND whereas an Act was passed by the Provincial Legislature of Upper Canada, in the sixtieth year of the reign of his said late Majesty, intituled, "An Act for increasing the Representation of the Commons of "this Province in the House of Assembly;" BE it therefore further En- acted, That the said Act, and all the provisions therein contained, except as hereinafter otherwise provided, shall remain in full force and effect, and shall be applied to the representation of the said Province of Upper Canada in the joint Assembly, in like manner as the same were applicable 1791-1840] Constitutional Documents of Canada. 309 to the representation thereof in the Assembly of the said Province of Upper Canada before this Act was passed. And be it further Enacted, That it shall and may be lawful for the Governor of Governor, Lieutenant Governor, or person administering the government Lower Canada of the said Province of Lower Canada for the time being, from time t Counties* out* time as he shall judge expedient, from and out of that part of the said O f the To'wn- Province of Lower Canada which has been erected into townships sinceships to be the number of representatives for the said Province was settled by pro- [^l^mbly? clamation, to form and erect new counties, by instrument or instruments under the Great Seal of the said Province, each such new country to consist of not less than six townships; and that when and so often as any such new county shall be formed and erected as aforesaid, the Governor, Lieu- tenant Governor, or person administering the government of the said Province of Lower Canada, shall issue a writ for the election of one mem- ber to serve for the same in the assembly ; and that whensoever the said Governor, Lieutenant Governor, or person administering the government as aforsaid, shall deem it expedient that any such new county, or any county heretofore erected within the said Province of Lower Canada, and at present represented by only one member, shall be represented by two members, he shall in like manner issue writs for that purpose: Provided always, that no subdivision of any counties now erected or to be hereafter erected within either of the said Provinces, except as hereinbefore provided with respect to the said townships, shall extend or be construed to extend to increase the number of representatives for such counties : Provided also, that the number of representatives for each province shall not exceed sixty. And be it further Enacted, That no act by which the number of repre- No Act to sentatives of either Province shall be altered, shall hereafter be passed by^umbe/of His Majesty, by and with the advice and consent of the said Legislative Representa- Council and Assembly, unless the same shall have been passed by two-thirds tivestobe at least of the members present at the question for the second and third by S Two "birds reading of the same in the said Legislative Council and Assembly respec- of both lively. Houses. And be it further Enacted, That all and every the provisions and Provisions of regulations respecting the appointment and nomination, duties, privileges 31 G -. 3 > " and liabilities of returning officers for either of the said Provinces respec- fums'ufre- CC tively, and respecting the eligibility, qualification and disability of persons main in force, to sit as members in the said Assembly, or to vote on the election of such members, and respecting any oath to be taken by candidates or voters at such elections, and respecting all other proceedings at such elections, and respecting the times and places of holding such elections, as are contained in the said abovementioned Act, passed in the thirty-first year aforesaid, except is so far as the said provisions and regulations are hereby in any- wise altered, shall remain and continue in force in both of the said Pro- vinces ; and that all and every the provisions and regulations respecting the objects above enumerated, or any of them, which are contained in any Act or Acts of the provincial Legislatures, which are now in force in either of the said Provinces respectively, shall remain and continue in force within such Province, except as the same are hereby in anyways altered, until othrwise provided for by the joint Legislature. And be it further Enacted, That when and so often hereafter as it Governor may may be necessary to summon and call together a new Assembly for the said s " mm( ' n anew two Provinces, it shall and may be lawful for the said Governor-in-Chief, or in case of his death or absence, then for such other person, and in such order respectively as is hereinbefore directed, by an instrument under the said Great Seal of the Canadas, to summon and call together the said Assembly as hereinafter expressed and provided. And be it further Enacted, That Writs for the election of members j^f/writs to serve in the said Asesmbly, shall be issued by the Governor, Lieutenant f or the elec- Governor, or person administering the government of the Province within tion of Mem- which such members shall be chosen respectively, in the same manner and Directed by directed to the same officers, and returnable within the same period, as inai Geo. 3. 310 Constitutional Documents of Canada. [1791-1840 Qualification tn future to be real Pro- perty, to the value of 500 sterling. Oath to that effect. Persons swear- ing falsely guilty of perjury. Trials of contested Elections. Governor may summon Two Members of the Executive Council of each Province to the Assem- bly. Joint Legisla- ture to be summoned, not later than 1st September 1824, and once every twelve Months after- wards. and by the said Act made and passed in the thirty-first year aforesaid, is directed and provided. And be it further Enacted, That on the first general election of mem- bers for the said Assembly, which shall take place from and after the passing of this Act, and on all subsequent elections, whether general or for particular places, in cases of vacancy, which shall be holden in either of the said Provinces, no person shall be capable of being elected, who shall not be legally possessed to his own use and benefit, of lands and tenements within one or other of the said Provinces, of the value of Five hundred pounds sterling over and above all rents charges and incumbrances which may affect the same, such lands and tenements being by him held in free- hold, in fief or in roture ; and that every candidate at such election, before he shall be capable of being elected, shall, if required by any other candi- date, or by the returning officer, take an Oath in the following form, or to the following effect; "I, A. B. do Swear, That I am legally and bona fide possessed to my "own use and benefit, of lands and tenements within the Province of Canada, of the value of sterling, over and "above all rents charges and incumbrances which may affect the same ; "and that the said lands and tenements are by me held in freehold, in fief, "or in roture [as the case may be] ; and that I have not obtained the same "fraudulently, for the purpose of enabling me to be returned Member to "the Assembly of the Canadas; and also that I am otherwise qualified, "according to the provisions of law, to be elected and returned to serve as "a Member thereof." Provided always, That nothing in this Act contained shall be construed to affect any Act now in force in either of the said Provinces respectively, relating to the qualification (other than as respects property) of any can- didate or voter at elections. And be it further Enacted, That if any person shall knowingly and wilfully take a false oath respecting his qualification, either as candidate or voter at any election as aforesaid, and shall thereof be lawfully con- victed, such person shall be liable to the pains and penalties by law inflicted on persons guilty of wilful and corrupt perjury in the Province in which such false oath shall have been taken. And be it further Enacted, That whenever hereafter any question shall arise touching the validity of the election or return of any person in either Province to serve in the Assembly, such question shall be tried in the Joint Assembly, according to the mode of proceeding now established by law in that Province in which the disputed election or return shall have been made, until a uniform course of proceeding shall be duly established for both Provinces. And be it further Enacted, That it shall and may be lawful for the said Governor-in-Chief, or in case of his death or absence, then for such other person, and in such order respectively as is hereinbefore directed, if at any time he shall deem it expedient, to summon and authorize, by an instrument under his hand and seal, two members of the executive Council of each Province to sit in every Assembly with power of debating therein, and with all other powers, privileges and immunities of the members there- of, except that of voting. And be it further Enacted, That the said Legislative Council and Assembly shall be called together for the first time at some period not later than the first day of September one thousand eight hundred and twenty-four, and once afterwards in every twelve calendar months, and that the said Governor-in-Chief, or in case of his death or absence, such other person, and in such order respectively as is hereinbefore directed, shall and may convene the first and every other session of the said Legis- lative Council and Assembly, at such places within either Province, and at such times, under the restrictions aforesaid, as he shall judge most con- ducive to the general convenience, giving due and sufficient notice thereof, and shall have power to prorogue the same from time to time, and to dis- 1791-1840] Constitutional Documents of Canada. 311 solve the same by proclamation or otherwise whenever he shall deem it necessary or expedient. And be it further Enacted, That every Assembly hereafter to be sum- moned.and chosen, shall continue for five years, from the day of the return con tinuenve of the writs for choosing the same, and no longer; subject nevertheless Years. to be sooner prorogued or dissolved by the said Governor-in-Chief, or in case of his death or absence, by such other person, and in such order respectively as is hereinbefore directed. And be it further Enacted, That all questions which shall arise in the Majority of said Legislative Council or Assembly, except in the cases herein otherwise Y e dde! provided, shall be decided by the majority of voices of such members as shall be present; and that in all cases where the voices shall be equal, the Speaker of such Council or Assembly shall have a casting voice. Provided always, and be it further Encated, That no member either Oath pre- of the Legislative Council or Assembly shall be permitted to sit or vote scribed by therein, until he shall have taken and subscribed the oath prescribed for^^ k ^' n _ that purpose by the said Act passed in the thirty-first year aforesaid, before a person duly authorized to administer the same, as in and by the said Act is directed. And be it further Enacted, That any Bill which shall be passed by Royal Assent the Legislative Council and Assembly shall be presented for His Majesty's to be_ declared assent to the said Governor-in-Chief, or in case of his death or absence, as prescribed to such other person, and in such order respectively, as is hereinbeforeby 31 G. 3. directed, who shall, according to his discretion, declare or withhold His Majesty's assent to such Bill, or reserve such Bill for the signification of His Majesty's pleasure thereon, subject always to the same provisions and regulations with respect to Bills which may either be assented to, or from which His Majesty's assent may be withholden, or which may be reserved as aforesaid, as the case may be, as in and by the said Act, passed in the thirty-first year aforesaid, are contained and enacted with regard to such Bills respectively. And be it further Enacted, That all laws, statutes or ordinances A 11 Laws now which are in force at the time of passing of this Act, within the said c^ntinue^ex- Provinces or either of them, or in any part thereof respectively, shall cept as hereby remain and continue to be of the same force, authority and effect in each repealed or of the said Provinces respectively as if this Act had not been made, except at in as far as the same are repealed or varied by this Act, or in so far as the same shall or may be hereafter by virtue of and under the authority of this Act repealed or varied by His Majesty, His Heirs or Successors, by and with the advice and consent of the said Legislative Council and Assembly. And be it further Enacted, That all rights, privileges, immunities Privileges of and advantages which are at present legally exercised and enjoyed by^^j^f 40 the members of the Assemblies of Lower and Upper Canada respectively, shall continue to be exercised and enjoyed by them as members of the said Assembly of the Canadas, in as full and as ample a manner as here- tofore: Provided always, That no privilege of the said Legislative Council or of the said Assembly, shall extend or be construed to extend to author- ize the imprisonment of any of His Majesty's subjects not being members of the said Legislative Council or of the said Assembly, or officers or servants of the said bodies respectively, until an Act be passed declaratory of the rights and privileges of the said bodies in this respect. And be it further Enacted, That from and after the passing of this Henceforth Act, all written proceedings of what nature soever of the said Legisla- 2} 1 wri en tive Council and Assembly, or either of them, shall be in the English^d^ftefis' language and none other; and that at the end of the space of fifteen Years, all years from and after the passing of this Act, all debates in the said Legis- P e |, ate . s . * be lative Council or in the said Assembly, shall be carried on in the English 1 ^^ 1S language and none other. AND whereas by the said Act of the Imperial Parliament of Great Persons pro- Britain, made and passed in the fourteenth year aforesaid, intituled, "An j? s j s .'" g ^ "Act for making more effectual provision for the government of the the Church of 312 Constitutional Documents of Canada. [1791-1840 Rome not to "Province of Quebec, in North America," it was, amongst other things, ' declared, That His Majesty's subjects, professing the religion of the church of Rome of and in the said Province of Quebec, might have hold and enjoy the free exercise of the said religion, subject to the King's supremacy as in the said Act mentioned, and that the clergy of the said church might hold receive and enjoy their accustorrjed dues and rights with respect to such persons only as should profess the said religion; BE it therefore further Enacted and Declared, That nothing in this Act con- tained, nor any Act to be passed by the said joint Legislature, nor any resolution or other proceeding of the said Legislative Council or As- sembly, shall in anywise affect or be construed to affect the free exercise of the religion of the Church of Rome by His Majesty's subjects pro- fessing the same, within either of the said Provinces, but the same may continue to be exercised, and the clergy of the said church and the several curates of each respective parish of the said Province of Lower Canada, now performing the clerical duties thereof, or who shall hereafter, with the approbation and consent of His Majesty, expressed in writing by the Governor or Lieutenant Governor, or persons administering the govern- ment of the said Province of Lower Canada for the time being, be thereto duly collated appointed or inducted, may continue to hold receive and enjoy their accustomed dues and rights in as full and ample manner, to all intents and purposes, as heretofore, and as is provided and declared by the said last-mentioned Act. Certain pro- ^nd be it further Enacted, That all the provisions, regulations and visions of .. i- t tii 31 G. 3, to restrictions made and imposed in and by the said Act, passed in the extend to Acts thirty-first year aforesaid, with respect to any Act or Acts containing by'th^fo'int anv P rov i s i ns f t* 16 nature therein particularly mentioned and specified, Legislature, shall and the same are hereby declared to extend and apply to each and every Act which shall be passed by the said Legislative Council and As- sembly, and which shall contain any provisions of the nature in and by the said last-mentioned Act set forth and specified. Accounts, &c., And be it further Enacted, That all and every the accounts, returns, befo'rethe papers, and documents, which by any Act now in force in either Province, Legislature, are directed to be laid before the Legislature thereof respectively, shall, under the penalties therein provided, be in like manner transmitted and laid before the Legislature of the Canadas, during the continuance of such Acts. Salaries of And be it further Enacted, That the officers and other persons re- Leg^slature to ce ' vm ? salaries or allowances in respect of services rendered by them in continue till the Legislatures of their respective Provinces, shall continue to receive otherwise such salaries and allowances as heretofore, until otherwise provided for for - by any Act which shall be passed by His Majesty, His Heirs or Suc- cessors, with the advice and consent of the Legislative Council and As- sembly of the Canadas. xc CONSIDERATIONS BY J. B. ROBINSON 1 TO BATHURST [Trans. : Brymner, of. cit., p. 39.] The following paper was submitted to Lord Bathurst by Mr. Robinson, Attorney General of Upper Canada. 23 Apl., 1822. Considerations upon the expediency of giving an united Legislature to the two Provinces of Canada by an Act to be passed during the present session. The reasons which led to the division of the Province of Quebec, were that the inhabitants of the two portions of the Province now form ing Upper and Lower Canada differed in language and religion and had 1 John Beverley Robinson, Attorney-General for Upper Canada. At page 2, Brymner prints a somewhat different copy of this document. rj 1791-1840] Constitutional Documents of Canada. 313 been accustomed to different systems of jurisprudence. These reasons remain not materially weakened in any respect, for the accession to the population of Upper Canada by emigration since the division, has been almost entirely of persons strangers to the French Laws and language, and principally of the Protestant faith, while in Lower Canada the inhabi- tants are at this moment in the proportion, it is stated of 19 in 20 com- posed of Canadian French. Whatever weight, therefore was due to these arguments for a separa- tion at the time it took place, is yet undiminished, and it may be added that the subsequent general disposition of population through a territory, the extremes of which are from 12 to 1,500 miles asunder furnishes an argument of inconvenience against uniting them now under one Legisla- ture, which probably did not exist in a sufficient degree to form an induce- ment for the separation. These circumstances, however, though entitled to consideration as materially affecting the welfare and convenience of the two Provinces whose increase in population and opulence it is desirable to facilitate by giving to them the most convenient form of Government for the local wants ; are none of them it must be confessed of that paramount nature that they ought to stand in the way of the proposed union if it be clear that such union is necessary to increase the value of those colonies to the mother country or to provide in the most effectual manner for their own security and welfare. For my own part, I do not know in what manner any of those ends is expected to be answered by the proposed union. The Provinces have gone on hitherto advancing by very rapid strides in population and im- provement, their inhabitants well satisfied with the footing on which their Government was placed by the 31st Geo. 3rd, c. 31 1 , and sensible themselves of no evil or inconvenience growing out of the system established by that statute, so far as my knowledge extends, except that within these few last years difficulties have arisen in adjusting the proportion of duties and regulating the commercial intercourse between the two Provinces, which matters had hitherto been arranged by amicable agreement but which it has now been found necessary to refer to the decision of the Imperial Parliament, an exigency foreseen as the probable consequence of the separation when the 31st Geo. 3rd was passed and for which a power of providing a remedy by the intervention of British Acts is in terms reserved by that statute. If, however, although the legal and constitutional right of the Im- perial Parliament, to control both Provinces in these respects is un- doubted these differences between them with respect to their commercial anti financial regulations cannot in point of fact be adjusted in any other manner than by an Union of the Legislatures, that would of itself be a sufficient reason, for while these points are unsettled the Governments and Legislatures of both Provinces are subject to be involved in irritating discussions which may tend to much evil, and what is more immediately pressing the Province of Upper Canada is absolutely unable for want of the funds which remain locked up in the treasury of Lower Canada to pay her Creditors or to support the current expenses of her Govern- ment. But I must declare I see no reason for supposing that an Union Df the Legislatures is required on this ground, for I submit, in the first place, that such an Union would by no means get rid of the principal point of disagreement the claims of Upper Canada for the past. Those claims must necessarily remain, the amount must be ascertained and their payment to Upper Canada provided for by some Act of the British Par- liament, notwithstanding an Union, and indeed, as far as respects the claims of Upper Canada for Duties already received to her use, and to be expended when paid, solely for her benefit some difficulty as regards the exclusive appropriation of them would be created by an Union. Then in regard to the future regulations of the intercourse between the two 1 See No. LV. 314 Constitutional Documents of Canada. [1791-1840 Colonies the measures humbly prayed for on the part of Upper Canada are such as it is conceived no reasonable objection can be urged against. At all events the Imperial Parliament can well judge of their expediency and whether they are such as both Provinces ought to be content to acquiesce in, and if either Province be not patient under regulations enacted by a sense of justice due to the other, it will then, I submit, be time, as far as the desired end is to remedy these, difficulties, to project an Union as the only other method of attaining a necessary object. Believing then, as I certainly do, that an Union is not absolutely necessary on this ground, it is next to be considered whether there is anything in the present situation of the two Provinces which calls for a measure so important in its nature, and which may be attended with cir- cumstances of particular inconvenience to each. In remarking upon the inducements which occur to me, I can only speak hypothetically, for it may be that His Majesty's Government are induced to the contempla- tion of an Union by considerations of policy altogether different from those which present themselves to me. I know that the Legislature of Lower Canada have refused to make provision for the expences of ad- ministering Justice and supporting the civil government of their Province in any other manner than by an annual vote, a system of proceeding to which His Majesty's Government object, as being contrary to the spirit of that constitution of which they are ready to avail themselves of the privileges, and as placing every officer of the civil government, even those entrusted with administration of Justice, in a state of the most dangerous dependence upon the pleasure of the popular branch of the Legislature. I am aware too that the greatest embarrassments are felt in conducting the government of that Province, from the refusal of the Assembly to place the civil establishment on any other footing. There may no doubt be other points also, on which the Assembly of Lower Canada, consisting principally of people of French extraction and Catholics, exhibit at least an indifference to objects which in a British Colony it is desirable to ad- vance, and cherish prejudices which confine them to a narrow line of policy and make them hostile to improvements which would advance the welfare of the colony, and render it a more important part of the Brit- ish Dominion. Of these inconveniences it is impossible to say decidedly, until they are more specifically pointed out, how far they might be expected to be removed by an Union of the Legislatures, but as to that first mentioned, namely, the embarrassment felt at present in Lower Canada from the refusal of the Legislature to make more permanent provision for the Civil List. I confess I do not see that it would be removed by such a measure, for supposing the Canadas to be joined according to their present scale of representation, if every member from Upper Canada should con- sent to a permanent provision for the civil list, it would still not be car- ried, and without expressing any opinion upon the question as it now stands in Lower Canada, I do not by any means think it safe to anticipate that the members from Upper Canada, would generally support the pro- vision in the terms in which it was required to be made. As to any inconvenience that may be felt from the entire prepon- derancy of a French Canadian interest in the Legislature of Lower Can- ada, I do not see that the certainty of their being counteracted by an union, is either near enough or clear enough to make it adviseable on that ground. It would be long before the influence of the members from Upper Canada would be an overruling influence and I think it doubtful whether, when it did become so, they would be disposed to exert it in changing the internal municipal policy of the other Province, contrary to the wishes of nine-tenths of its inhabitants, and which, whether wise or not, was endeared to them by long use, and had been so far respected by the British nation that they had been hitherto left to change or retain it as they might prefer. That an union of the provinces might add to their strength, by pro- ducing a more perfect community of interest and feeling, by subjecting 1791-1840] Constitutional Documents of Canada. 315 their militia to an uniform system of discipline, and by placing their means of defence against a foreign enemy more conveniently and effec- tually at the disposal of the Government that it might in time by the gradual operation of the natural consequences of such an union make the whole colony more completely British in their system of laws, in their education, in their feeling and in the general temper of all their public acts that it would produce an uniform regulation of trade throughout the territory, and insure the interest of every part being made subservient to the welfare of the whole and that it would necessarily put an end to all future difficulties about duties and drawbacks by sharing among all the enjoyment of that in which they have all an interest, are general advantages which though some of them are rather indefinite as to the extent and uncertain as to the period in which they might be felt, might I think be rationally expected. On the other hand I am doubtful of the prudence of disturbing the present system of things in the prospect of these rather indefinite and distant advantages and at the hazard of the inconveniences which have suggested themselves to me and which I will shortly state. At present things are proceeding pleasantly and prosperously in Upper Canada. In Lower Canada they are not, but I do not think an union would remove in the least the difficulties existing there and it might have the bad effect of involving one province in the troubles of the other. The number of representatives in Upper Canada is at present less than in the Lower Province, and would no doubt continue so for many years. The latter consists, with very few exceptions of Canadian French and I am apprehensive that an union of the two provinces would be re- garded with such extreme jealousy and repugnance by the great body of the people in Lower Canada, that on future occasions they would even more studiously endeavour to exclude Englishmen from their Assembly, and confine their confidence to those who would sedulously guard their old system of things from innovation, and for many years I fear the people of Upper Canada would find it difficult to obtain any appropria- tion of revenue to purposes of public improvement within their province or to gain sufficient attention in their local interests from an assembly of whom the greater number would be unfriendly to their religion and unacquainted with their laws and jealous of their influence. If these con- sequences should follow they would retard the now rapidly increasing prosperity of Upper Canada at the most critical moment. Perhaps the apprehension is groundless, I state merely my own impression. Upper Canada, it is true, contains at present much less population than the Lower Province the one having been first settled by Europeans only forty year ago, and the other more than two hundred : but it is well known, that in extent of land capable of cultivation, in the excellence of its soil and climate, and consequent capability of production the former possesses al- most unrivalled advantages, and it would be much to be lamented that these should be prevented from developing themselves, by being placed under the control of persons little acquainted with our agricultural inter- est, and even averse to the system of tenures and of laws under which the province has so surprisingly flourished. That it would be thus controlled at least for many years to come I take to be certain, especially if the Legislature should be convened at Montreal, for I fear in the present state of Upper Canada, it would be difficult to find gentlemen who could so completely abandon their own pursuits, as to attend an annual Legislative Session of three months at so great a distance from their homes. It could not be expected that the attendance of Members from the Upper Province would be by any means so numerous even in proportion, as from the Lower, and I see great reason to apprehend that in any question in which the interests of the two Provinces may come into competition, such, for instance, as the proportion of Revenue to be expended in Upper Canada there would be little chance for some time to come of a fair decision. I fear this the 316 Constitutional Documents of Canada. [1791-1840 more from the conviction that the mass of the people of Lower Canada would feel extreme annoyance at the Union, looking upon it as a scheme to give to the English population an undue ascendancy and would be for some time little disposed to unite cordially with us forgetting all dis- tinctions. It perhaps deserves also to be considered how far it is politic upon national grounds to unite two colonies now distinct, thereby involving on all occasions the politics of one with those of the other, giving to them the means of making common cause in any unfortunate dissension which might arise, and rendering any disagreement a cause of irritation and of difficulty in two governments, whereas otherwise it might but affect the tranquillity of one. Several other considerations of less importance naturally suggest themselves in weighing the probable consequences of an Union of the Legislatures. My desire has been to state such as appeared most worthy of notice, and in doing this I beg not to be understood as presuming to speak the sentiments of the Government, or of the Legislature of Upper Canada, for I am neither authorized nor prepared to state their opinions upon the expediency of an Union which was never within my knowledge, contemplated by either. The representations from that Province with which I am charged were not intended I am certain to point specifically to that end, and indeed the measures which I have taken the liberty of proposing, and which are under the consideration of His Majesty's Government are wholly of a different nature. I can not even pretend to say how far an Union would be agreeable to the people of Upper Canada generally. I have reason to think the majority of their present representatives are unfavourable to it, from a conviction that it would not be beneficial, though some of that body, for whose opinion I have much respect think otherwise. I will take the liberty of remarking further, that the Act by which the Province of Quebec was divided and the present separate government established, was the result of great and long deliberation, and if the change of system so matured should prove disagreeable to the inhabitants of both or either of the Provinces, it may be expected that they will feel more deeply in pro- portion as it shall appear to have been hastily decided on, and without an opportunity having been afforded them of making known their senti- ments. The people of Canada have been ever treated by Great Britain with a mildness and degree of parental indulgence that would make them more sensible to any apparent want of consideration even of their feel- ings. Another matter occurs to me upon which it is necessary to guard against any erroneous impression. The French Inhabitants of Lower Canada, I am firmly persuaded, are as peaceably disposed, as much in- clined to submit to authority, and as loyally attached to the British Gov- ernment, as any portion of His Majesty's subjects, and whatever trouble their representatives may give by refusing to make a permanent provision for the Civil List, or upon questions of Revenue, or of any kind between themselves and the Executive Government is not to be ascribed to the preponderance of French influence over the English, but to that desire which is found in all assemblies to assert to the utmost the share of power which they think the constitution gives them, a disposition which I think the descendants of English, Irish and Scotch will be found as likely to persevere in, as the descendants of Frenchmen. It is not my desire by anything I have said, to lead to a conclusion that the Legis- latures should not be united, unless that inference shall appear to be the sound deduction from the consideration I have stated. I have set down what presented itself on both sides, anxious only that the decision may be made on sure grounds, and not formed upon erroneous conceptions or expectations which are not likely to be fulfilled. 1791-1840] Constitutional Documents of Canada. 317 XCI PAPINEAU TO WILMOT [Trans. : Brymner, op. cit.] Montreal, 16th December, 1822. Sir, You may have been informed that the strongest and most de- clared opposition to the Union of the Legislatures of Lower and Upper Canada, lately proposed in the Imperial Parliament has been manifested throughout this Province and Upper Canada. This circumstance alone must attract the notice of every member of the Honourable the House of Commons who was present at the Debates, that took place on the bill alluded to introduced in the last Session of Parliament when it was asserted by the movers and supporters of the Bill, that the proposed law would be received with satisfaction by all His Majesty's subjects in the Canadas, which assertion must have been grounded on misrepresentation made by persons entertaining the hope that the measure would be carried before the sense of the people in these Provinces could be made known to Parliament. They have been thwarted in their expectation by the justice and wisdom of the Honourable the House of Commons. The opportunity afforded to these colonies to express their sentiments on the subject, has been used in both Provinces, and petitions to His Majesty and the two Houses of Parliament against the Union of the Legislatures are now receiving signatures. These Petitions will make known the feelings and dispositions of His Majesty's Canadian subjects. The committee appointed at a general meeting of the district of Mon- treal have considered it expedient that the members of the Honourable the House of Commons should be apprised of the measures now adopt- ing here and beg to request that you will be pleased to consider this their communication as having no other motive or tendency than to intreat your attention, and to solicit your justice as a member of that House, where the dearest interests of this country may become the subject matter of discussion. The committee does not deem it necessary to enter into a detail of facts which would sufficiently characterize the motives of the friends of the projected Bill, but merely wishes to dispel the odious aspersions on the great body of the people in this Province contained in several communi- cations intended for England. Such as assertions that the opposition manifested in this Province on the part of the Populations so stigmatised is the effect of prejudices alone, alluding to their supposed attachment to France and to French principles; calling them foreigners; (foreigners in their native land!). The Bill in question, say these friends of the Union being so well calculated to Anglify the country, which is to be ultimately peopled by a British race. The very style of these communications will it is hoped produce quite a different effect from that intended. It will be easily perceived on which side prejudices lie. No doubt these aspersions on the character of those whom they invidiously denominate French Canadians were intended to produce irritation from which an advantage was expected to be de- rived, but they had no other effect than that of producing contempt for such attempts against the liberties of the country. You will have occa- sion to observe that the representations of the majority of His Majesty's subjects in this Province will be such as should be expected from men who are attached to British principles and to a British constitution. The preposterous calumny against the Canadians of French origin, as to their supposed attachment to France requires no other answer than what is derived from their uniform conduct during the wars, and the loyalty evinced by them on every occasion. They are not foreigners in this the land of their birth; they claim rights as British subjects, in com- mon with every other subject of His Majesty in these colonies. These 318 Constitutional Documents of Canada. [1791-1840 are their birth rights, and yet it was expected by the projectors of the Union Bill to deprive them of these rights, which were so solemnly se- cured to them by the Act of the 31st of His late Majesty, after the ela- borate discussion that then took place, and in conformity with the just and liberal views of the most enlightened politicians of those days. By what they call Anglifying the country is meant the depriving the great majority of the people in this Province of all that is dear to men ; their laws, usages, institutions and religion. An insignificant minority wish for a change and are desirous of ruling against every principle of justice by destroying what they call the Canadian influence, that is to say the influence of the majority of men entitled in the same rights as themselves, of the great mass of the natives: this eagerness to domineer has produced their present exertions to obtain by unjust means that which they should not and cannot reasonably expect if the matter be correctly understood. For it might be asked what right should that minority ex- pect to have which would be subversive of the equal protection due to all His Majesty's subjects, as well in colonies, as everywhere else? Has Great Britain ever entertained any such policy towards its Colonies? Is it just or reasonable or even sound policy, that she should on this occa- sion, wound the feelings of a loyal population for the purpose of satisfy- ing the prejudices of a few? Great Britain wants no other Anglifying in this Colony than that which is to be found in the loyalty and affection of its Inhabitants, no other British race than that of natural born sub- jects loyal and affectionate. Such are inhabitants of both Provinces ; and it is the humble expectation of the Canadians, that on this occasion so momentous to them, their interests will be advocated by every liberal mind, as it is their belief and confidence that they will continue to enjoy the benefits of that constitution to which they manifest so strong an at- tachment and which they consider as the safeguard of their rights and liberties. I have the honour to be, sir, Your most obedient and very humble servant, L. J. PAPINEAU, President. To R. J. Wilmot, Esq., M.P. XCII PETITION FROM MONTREAL FOR UNION, DECEMBER, 1822 [Trans. : Brymner, op. cit.] TO THE KING'S MOST EXCELLENT MAJESTY: The Petition of the Subsctibers, Your Majesty's dutiful and loyal Sub- jects of British birth or descent, Inhabitants of the City and County of Montreal in the Province of Lower Canada : MOST HUMBLY SHEWETH : That Your Majesty's Petitioners learnt with the most lively satisfac- tion, that the measure of uniting the provinces of Upper and Lower Canada under one Legislature had been submitted to the consideration of the Imperial Parliament in its last Session, and have been impressed with the sentiments of the most respectful gratitude for the attention which has been bestowed on this measure of vital importance to both Provinces. Under the agreeable anticipation that the evident policy and urgent necessity of a Union of the Provinces will induce a renewal of the meas- ure, in the next Session, Your Majesty's Petitioners most respectfully beg leave to submit the principal considerations that render them in the highest degree anxious for the adoption of the proposed Union. Your Majesty's Petitioners in all humility represent that the division of the late Province of Quebec into two Provinces, must be referred to 1791-1840] Constitutional Documents of Canada. 319 as a measure which has been most prolific of evil. At the time the divi- sion took place upwards of thirty years had elapsed from the Conquest of the country, by Your Majesty's Arms; and notwithstanding the un- limited generosity which has been displayed towards the conquered, by confirming to them their Laws and Religion, by admitting them to a par- ticipation in the Government and in all the rights of British Subjects, and by continued demonstrations of kindness towards them, no advances had been made in effecting a change in the principles, language, habits and manners, which characterize them as a foreign people. Such change, as well from past experience as from the known operation of the feelings common to mankind, could not be expected while the conquered people were permitted exclusively to regulate their own Government, and thus cherish and maintain the national peculiarities, which it was equally the interest of the Parent State and of the Colony, should be gradually effaced by an intimate union with their fellow subjects of British origin. On this account it seemed evidently necessary in framing a new Constitu- tion of Government that the representation should be so regulated as to ensure a fit and reasonable influence of British feeling and principles on the conduct of the Colonial Legislature. The measures for this purpose were at the time facilitated by the increase of the British population which had taken place, and by the settlements which had been formed by Ameri- can Loyalists in the Upper Districts of the late Province of Quebec; in consequence of which a sufficiently numerous body of persons of British origin might, under a proper system of representation, have been intro- duced into the Colonial Legislature without offending against any prin- ciple of Justice, and certainly in strict conformity with the dictates of sound policy. Had this course which was anticipated at the time by the French Canadian population and would then have been cheerfully ac- quiesced in by them, been pursued, Your Majesty's Petitioners are con- fident that the Province would now have been, in all essential particu- lars, an English Province. Unfortunately Your Majesty's Petitioners in common with their fellow subjects of British origin, have to lament, that instead of adopting the policy which has been mentioned, the measure of dividing the Province was unexpectedly and to the utter surprise of the persons who had petitioned for- a change in the Constitution, without imagining, that it was to be accompanied by any such measure resolved on ; by which the English population in Lower Canada was rendered in- efficient from the comgarative smallness of their numbers, and the whole power of the representative branch of the Government was given to the French Canadians. It is a fact also, not unimportant to be stated, that both the British and Foreign Canadian subjects who had united in a joint petition to the Imperial Parliament, praying for a change in the Government, concurred through their agent, in petitioning, and were heard by Counsel, against the division of the Province ; but their efforts were unavailing. It is from this impolitic measure. your Majesty's Petitioners state with confidence that the political evils under which Lower Canada has since laboured have principally resulted as their primary cause. The French- Canadian population for a short period of time after the adoption of the present constitution, partly from incapacity to exercise the political powers with which they had become invested, and partly from some remaining deference for their English fellow subjects; used their ascendancy with moderation ; but this disposition was not of long continuance, and soon yielded to the inveterate anti-British and anti-commercial prejudices, by which they have not ceased to be actuated. The consequence has been, that persons of British origin, with the exception of a very small number, who have been elected rather for the sake of appearances than from any regard for their qualifications, have been excluded from the House of Assmbly. The proportion of English Representatives for many years past, has hardly ever amounted to one fourth of the entire number ; and at the present time, of fifty members who represent Lower Canada only ten are English. This branch of Government may indeed be said to be 320 Constitutional Documents of Canada. [1791-1840 exclusively in the possession of the uneducated peasantry of the country, under the management and control of a few of their countrymen, whose personal importance, in opposition to the interest of the country at large depends on the continuance of the present vicious system. As illustrative of the spirit by which this body has been actuated, it will not be deemed irrelevant to mention that since the establishment of the present constitu- tion, no person of British origin has been elected Speaker of the Assembly, although if regard had been had to ability, knowledge and other qualifica- tions, a preference must have been given to persons of that description. The composition of a Legislative body, such as that which has been described, under the influence of the prejudices of a foreign people, with- out the requisite ability for the discharge of its functions, and from which persons, who by their knowledge, their property and their respectability and influence in society, would constitute its most eligible members stand excluded, certainly cannot be deemed fit for regulating the concerns of a British Province of so much importance as Lower Canada, consistently with the interests of the Province itself or those of the mother country. And if to those causes of disqualification be added the most marked repugnance to every measure calculated to assimilate the Inhabitants of the country, with their fellow subjects in other parts of the Empire and to promote its commercial prosperity, it is impossible not to observe in the constitution of the Assembly of Lower Canada, the fertile source of all the evils complained of. Hence it is indeed, that the ever recurring differences between the several branches of the Legislature have prin- cipally arisen: Hence it is that the powers of the Executive Government for the improvement and advancement of the Colony, have in a great measure become paralysed and utterly inefficient: Hence it is that the extension of British settlements has been impeded and the increase of British population by the tide of emigration which for some years past has flowed so copiously into the Province, been prevented : Hence it is in fine, that all commercial enterprise and improvement have been crippled and obstructed, and the country remains with all the foreign characteris- tics which it possessed at the time of the conquest, that is, in all particu- lars French. The experience which your Majesty's Petitioners have had of these evils and the prospect of still greater, if an effectual remedy be not ap- plied, have rendered the proposed Union of the Provinces to them, a matter of the most intense interest. They will therefore it is hoped, stand excused, if on a question involving their dearest interests as well as those of their posterity, as British subjects, they speak the language of truth without reserve. In doing so they feel themselves constrained, on this part of the subject, to declare that in their humble apprehension the adop- tion or rejection of the Union will determine whether this Province is to be in fact as well as in name, a British Province, or whether under the disguise of British dependence for some time longer, it is to be for ever French. In assuming the latter to be the consequence of not adopt- ing the Union, Your Majesty's petitioners are grounded on the most ex- clusive facts. The French population of Canada, at the time of the con- quest, was estimated at sixty thousand ; and it is supposed may now exceed Three hundred thousand. The whole of this population, though with the exception of an inconsiderable number born under the English dominion, is as strongly marked by the characteristics of their foreign origin, as to language, manners, habits and dispositions, as they were at the time of the conquest. Without a union this population must retain its present ascendancy in the government of the country, and will not of course, of its own accord cease to be French. Its progressive increase under the fostering protection of Great Britain would therefore necessarily lead to the result, which without a Union is anticipated. And your Ma- jesty's Petitioners cannot omit to notice the unreasonable extent of poli- tical rights which has been conceded to this population to the prejudice of their fellow subjects of British origin together with a sense of their growing strength, has already had the effect of realising in the imagina- 1791-1840] Constitutional Documents of Canada. 321 tion of many of them their fancied existence as a separate nation under the name of the "Nation Canadienne ;" implying pretensions not more irreconcilable with the rights of their fellow subjects than with a just subordination to the Parent state. Your Majesty's Petitioners would re- spectfully submit whether a system of government which has had such effect and which in its ulterior consequences, must expose Great Britain to the mortification and disgrace of haying at immense expence, reared to the maturity of independence a foreign conquered colony, to become the ally of a foreign nation and the scourge of its native subjects and their descendants, ought to be persisted in? In respectfully representing the considerations requiring a Union de- rived from the foreign character of a great part of the population ot Lower Canada and its inimical disposition of everything British, Your Majesty's petitioners have only stated those grounds for the measure to which their situation and past experience have given peculiar force and urgency. But if those were even excluded from view, and the Popula- tion of both Provinces were entirely homogeneous, the necessity of uniting them for their common interest as well as that of the mother country would still be unquestionable. It is a consequence of the relative geo- graphical situation of the Provinces, that Upper Canada is entirely dependent on Lower Canada for the means of communicating with the Parent state and other countries ; it is only through Lower Canada, that the Upper Province can receive its supplies or export its surplus com- modities. The port of Quebec is the entrance common to both. This being situated in Lower Canada the inhabitants of Upper Canada can have neither free ingress into nor egress from, their country, except in so far as it may be permitted by the Government of Lower Canada. This Your Majesty's Petitioners humbly represent is a cause for the Union of the Provinces perpetual in its operation, and which cannot be counteracted without a long series of inconveniences and disasters to both. If while it may still be done, the population of the two Provinces be not gradually assimilated and identified in their interests, by a Union, the differences between them from the causes now in operation and the collisions to which they will give rise, must have the effect of rendering the inhabitants of each a separate and distinct people, with the most hostile feelings towards each other, requiring only a fit occasion to urge them into measures of actual violence. In the progress of things towards this conclusion, the inhabi- tants of Upper Canada would imperceptibly be induced to form connec- tions with their American neighbours and being unnaturally disjoined from Lower Canada, would seek to diminish the inconveniences arising by a more intimate intercourse with the adjoining states, leading inevitably to a Union with that country. The actual tendency of things to this re- sult, while the Provinces continue under separate Legislators, it is to be observed, is likely to be much promoted, by the artificial means of com- munication by canals, which have been lately formed at immense expence in the State of New York, affording to Upper Canada, if the outlet at the port of Quebec should be rendered inconvenient to her, an easy communi- cation to American seaports and her disposition to avail herself of this communication will obviously be increased while the Lower Province con- tinues in its character to be French. Some of the circumstances arising from the division of countries, thus united by nature, Your Majesty's Petitioners beg leave to represent, have been practically exhibited in the disputes respecting revenue between the two Provinces. Upper Canada relies on the revenue to be derived from import duties for the payment of her civil expenditure. The nature of her local situation precludes her from conveniently or effectually levy- ing these duties within her own limits, it is at the port of Quebec only that she can levy them : but this is in another Province, and while she has a separate Legislature, beyond the authority of her Government. The consequence has been that till the recent interposition of the power of the Imperial Parliament, she has been dependent on the good D 322 Constitutional Documents of Canada. [1791-1840 will of the Legislature of Lower Canada, for a proportion of the duties levied at the port of Quebec, and has been virtually subject to taxation by the Legislature of another Province, without her concurrence or con- sent. It is in the nature of things impossible to determine what proportion of the duties in question ought to be allowed in Upper Canada, regard being had to strict Justice between the Provinces. And it has been urged that the claims of natural justice, on the part of Upper Canada, would only require for her, either a free transit for goods imported for that Province, or the payments to her of the duties actually levied on such importations at the port of Quebec. Your Majesty's Petitioners will not, on this occasion, presume to canvass the merits of the conflicting rights of the two Provinces on this subject, but will only observe, that if the Provinces be not united under one Legislature, no system which human ingenuity can devise, will be found effectual or satisfactory in obviating this ground of difference between them or exclude just cause of complaint by one or other of the parties concerned. In what respects the Regulations, recently established by an Act of the Imperial Parliament, for settling the differences now referred to, Your Majesty's Petitioners while they acknowledge the beneficent views which have dictated them, feel it incumbent on them respectfully to state that these regulations if considered in any other light than as a temporary expedient, would not be found reconcileable with the just rights of the Lower Province or of its Legislature, and would be productive of great evils. Your Majesty's Petitioners cannot omit to observe that the pro- portion of duties allowed to Upper Canada is greater than, if regard were had to her present consumption of dutiable articles imported at Quebec she should be considered fairly entitled to, nor can they pass over in silence, the extreme inconveniences and injury that would be occasioned by the restrictions imposed on the power of the Legislature of Lower Canada, as a permanent measure, nor the inadequacy of Arbitration to regulate, as proposed, the important interests in question. With the most perfect submission, Your Majesty's Petitioners beg leave to express their belief that neither of the Provinces would be satisfied for any length of time with the arrangement referred to ; and that the advancement and improvement of both would be most injuriously retarded by the incapacity under which the Legislature of each would labour to provide, by its own authority, a revenue adequate to its wants. While Your Majesty's Petitioners thus humbly represent the convic- tion they feel that the Regulations above referred to must create dissatis- faction, and be found inadequate for the purpose intended, they cannot but observe in this inadequacy the strongest reason for adopting the remedy of a Union by which the evil intended to be palliated by those Regulations would not only, by the removal of its cause, be extinguished for ever, but a multitude of other evils be removed and prevented. IP adverting to the injurious consequences arising from the division of th* late Province of Quebec, Your Majesty's Petitioners cannot omit to notic* more particularly the effect that measure has had in preventing the in crease of the British Population in Lower Canada, and the developmetV of its resources. The preponderance of the French Population in tht Legislature has occasioned obstacles to the settlement of British Emi- grants that have not been surmounted; so that the vast increase of Brit- ish population to have been expected from this cause has been, in a gen- eral degree, prevented. The injury sustained in this particular may be easily appreciated when it is observed that, since the late American War, upwards of eighty thousand souls (that is a number equal to one-fourth of the actual French population) have found their way to this Province, from Great Britain and Ireland, and of these scarcely one-twentieth part remains within its limits, the rest, with the exception of a small number who have settled in Upper Canada having been induced by the foreign character of the country in which they had sought an asylum, and the discouragements they experienced, to try their fortunes in the United States. The loss thus sustained is not confined to those who left the 1791-1840] Constitutional Documents of Canada. 323 country, but comprises their connections and friends who would have fol- lowed them. In the same proportion as the increase of British Popula- tion has been prevented, has the Agricultural and Commercial prosperity of the country been retarded and obstructed ; as it is to the enterprize, in- telligence and persevering industry, of that population that both Agricul- ture and Commerce must be principally indebted for their advancement. On this head it may be fairly advanced that, had not the impolitic division of the late Province of Quebec taken place, and had a fit plan of Repre- sentation been adopted, the British Population would now exceed the French, and the Imports and exports of the country be greatly beyond their present amount. The injury thus produced to the interests of the Mother Country and those of the Colony, by the French character which now belongs to this Country, and the predominance of French principles, Your Majesty Peti- tioners humbly represent, without a Union of the Provinces, must be aggravated by the augmented influence of those causes arising even from a recent Act of liberality on the part of the Mother Country towards her Colonies. According to the Colonial system recently adopted, a direct intercourse between Lower Canada and France is now permitted, the im- mediate effects of which will unquestionably be to give increased strength of these national prejudices which during sixty years of interdicted com- munication with France have remained unabated, and to render more in- veterate the causes of disunion between Your Majesty's subjects in Lower Canada ; which effects as well as others more remote, affecting the stability of Your Majesty's Government, can only be counteracted by the proposed Union of the Provinces under one Legislature. Your Majesty's Petitioners, without trespassing on Your Majesty's patience by a longer detail of the injurious consequences produced by the division will beg leave to specify succinctly the benefits to be expected from a Union of the Provinces. By this measure, the political evils com- plained of in both Provinces would be removed. The French popula- tion in Lower Canada, now divided from their fellow-subjects, by their national peculiarities and prejudices and with an evident disposition under the present system to become a separate people would be gradually as- similated to the British Population of both Provinces, and with it moulded into one people of British character, and with British feelings. All op- position of interest and cause of difference between the Provinces would be for ever extinguished: an efficient Legislature, capable of conciliating the interests of the Colony with those of the Mother Country, and pro- viding for the security and advancing the agricultural and commercial prosperity of the country, would be established by means of which the international improvement of both Provinces would not only be rapidly promoted, with the consequent benefits thereto arising from Great Britain, but their strength and capacity to resist foreign oppression be greatly increased : the tie of connection between the Colony and the Parent State would be strengthened and confirmed, and a lasting dependence of the Canadas on the latter be ensured, to the mutual advantage of both. Under a full conviction that these important and lasting benefits will be realized by a Union of the Provinces Your Majesty's Petitioners humbly pray that an Act for uniting the Provinces of Upper and Lower Canada under one Legislature, may be passed, with such provisions for rendering the measure effectual, as in Your Majesty's wisdom may appear expedient. And Your Majesty's Petitioners, As in duty bound, Will ever pray, etc., etc., etc. Montreal, December, 1822. 324 Constitutional Documents of Canada. [1791-1840 XCIII PETITION IN FAVOUR OF THE UNION OF THE PROVINCES [Trans. : Brymner, op. cit.] TO THE KING'S MOST EXCELLENT MAJESTY: The Petition of the Undersigned Seigniors, Magistrates, Members of the Clergy, Officers of Militia, Merchants, Landholders and others, In- habitants of the City and District of Quebec, Province of Lower Canada : HUMBLY SHEWETH: That your Petitioners have learnt with the greatest satisfaction, that Your Majesty has taken into your Gracious Consideration the State of the Provinces of Upper and Lower Canada, with a view to adjust certain differences relating to matters of Revenue complained of by the Province of Upper Canada; and as it appears that Your Majesty's Government in the course of its inquiry into the sources of these differences, has become satisfied of the necessity of some change being made in the Constitution of these Provinces, but has postponed the adoption of final measures in order to give time to the people thereof to express their sentiments, Your Petitioners beg leave humbly to approach Your Majesty with a statement of various Evils under which they have laboured for some years and from which they have no hope of relief except by the interposition of Your Majesty and the Imperial Parliament. The experience of thirty years has now demonstrated the impolicy of the Act of the British Parliament, 31, Geo. Ill, Cap. 31, by which the late Province of Quebec was divided into the Provinces of Upper and Lower Canada. To this Division Your Petitioners ascribe the present in- effective state of the Legislature and the want of those necessary meas- ures for diffusing throughout the whole population of the country feel- ings becoming their character as British subjects, and introducing that general spirit of improvement which encouraged by the commercial sys- tem, universally pervades and invigorates other British Colonies. This division has created a difference of interest between the Provinces in matter connected with Revenue highly injurious to both, inevitably pro- ducing a spirit of dissension and animosity, and infusing into the Legis- latures principles of a narrow and selfish policy adverse to the general development of their resources, and in an especial manner to the improve- ment of the channels of intercourse between them, and it is essential here to notice that nearly the whole of the Revenue of the two Provinces arises from duties levied on Merchandize imported at the port of Quebec under Laws enacted by the Legislature of the Lower Province. It has also, from the control which the geographical situation of the Lower Province enables it to exercise over the trade of the Canadas placed the export trade of the Upper Province at its mercy being subject to such regulations and restrictions at the Shipping Port, as its Legislature may chose to impose. From this circumstance, and from the feeble attempts made to improve the grand natural channel of the Canadas strikingly contrasted with the enterprise and energy evinced by the neighbouring State of New York in the rapid formation of Canals, together with the indifference mani- fested on this subject by the Legislature of the Lower Province; Your Petitioners have just reason for alarm, that if a similar system be per- sisted in, it may tend in a most injurious degree to increase the Com- mercial Intercourse of the Upper Province with the United States and divert the enterprise and trade of its inhabitants into a foreign channel and from these causes Your Petitioners not only apprehend the imme- diate loss of beneficial Trade, but that the gradual effect would be to interweave the interests of the Upper Canadians with those of the neigh- bouring States, thereby alienating their minds from the people of this 1791-1840] Constitutional Documents of Canada. 325 province and weakening their affection for Your Majesty's Government, notwithstanding their present known and tried loyalty. The Legislature of this Province has for a long time past been agi- tated by dissensions and their deliberations so much interrupted thereby, that Trade, Agriculture, Education and other objects of general interest have been neglected. There exists no Law for the Registry of Lands and Mortgages, so necessary for security in commercial transactions, no In- solvent Debtor's Act, and your Petitioners have looked in vain for a Law to provide for the unrepresented state of the Townships, a fertile and valuable portion of this Province settled by Inhabitants of British origin ; of these Legislative Enactments and many others necessary to quicken the enterprise and industry of a commercial country, your Petitioners en- tertain little hope, until a Reunion of the Provinces shall have weakened the influence which has hitherto prevented their adoption in our statute book. The existence of this influence, your petitioners chiefly attribute to the impolitic division of these Provinces which instead of rendering it the interest, as it is the duty of every Individual of the community to concur in measures to assimilate the whole population and to allay the jealousies naturally existing between the several classes, has unavoidably presented to the individuals, who first attained a majority in the Legis- lature, a temptation to perpetuate their own power by adopting a course directly opposite. To the same influence, may be traced the small encour- agement which has been held out to the settlement of the vacant lands of this Lower Province by British population, and consequently that upwards of eighty thousand souls (a number equal to one-fourth of the actual French population), who since the last American war have emigrated to this Province from Great Britain and Ireland, scarcely one-twentieth part remain within its limits. Your petitioners have observed with gratitude, the disposition which your Majesty's Government has evinced by the Act of the present year of your Majesty's, cap. 119, 1 to apply a remedy to the existing political evils of these Provinces, but it is their humble opinion that the Provisions thereof are insufficient; that numberous circumstances concur to render vain any attempt permanently to regulate to the satisfaction of both Pro- vinces the division of the Revenue collected at the Port of Quebec unless united under one Legislature; and further they humbly beg leave to ex- press their fears, that some of the provisions of this Act although dictated by the necessity of regulating the conflicting claims of the two Provinces may afford a pretext for others for imputing to the Imperial Parliament a disposition remote from the intentions and views of your Majesty's Government. Having thus stated the evils under which they have suffered your Petitioners feel the fullest confidence in the justice and wisdom of your Majesty's government, and being satisfied that the subject will receive the most serious and deliberate consideration, would have felt much hesita- tion in presuming to suggest remedies; but as the Re-union of the two Provinces has been proposed in the Imperial Parliament, they beg leave to express their entire acquiescence in the adoption of that measure upon such principles as shall secure to all classes of your Majesty's Subjects in these Provinces their just rights and protect the whole in the enjoyment of existing Laws and their Religion as guaranteed such a Union would in the opinion of your Petitioners afford the most effectual remedy for existing evils as it would tend gradually to assimilate the whole popula- tion in opinions, habits and feelings, and afford a reasonable hope that the wisdom of the United Legislature would devise a system of government of more consistency and unity, and of greater liberality to all classes than has hitherto been experienced a Union on the Equitable Principles humbly suggested by your Majesty's Petitioners, will necessarily include a repre- sentation proportionate as near as possible to the numbers, wealth and resources of the different classes of inhabitants of these Provinces, will require no innovation in the Laws or Religion of the Country nor pro- 1 See p. 306, note. 326 Constitutional Documents of Canada. [1791-184C scription in Debate or Motion in the Legislature, of the language of any portion of the Inhabitants, in every class of whom, bravery and loyalty have been evinced as fellow soldiers in defence of the Provinces. May it therefore graciously please your Majesty that a Bill for the Union of the two Provinces of Upper and Lower Canada, on the equitable terms prayed for by your Petitioners, dp pass into Law and the Constitu- tion established thereby be preserved inviolate to your Petitioners and their posterity. And your Petitioners as in duty bound will ever pray. QUEBEC, December, 1822. XCIV PETITION FROM THE EASTERN TOWNSHIPS FOR UNION 1 [Trans. Brymner, op. cit.] To the Honorable the Knights, Citizens and Burgesses, representing the Commons of the United Kingdom of Great Britain and Ireland in Parliament assembled. The Petition of the subscribers, His Majesty's dutiful and loyal sub- jects, of British birth or descent Inhabitants of the Townships of Dun- ham, Stanbridge, St. Armand, Sutton, Potton, Stanstead, Barnston, Bar- ford, Hereford, Farnham, Brome, Bolton, Hatley, Compton, Clifton, Granby, Shefford, Stukely, Orford, Ascott, Eaton, Newport, Bury, Hamp- den, Milton, Roxton, Durham, Melbourne, Windsor, Shipton, Stoke, Dud- swell, Simpson, Kinsey, Grantham, Wickham, Wendover, Brompton, and other townships and places situated on the South East side of the River St. Lawrence in the Province of Lower Canada, Humbly Sheweth, That your Petitioners have learnt with the most heartfelt satisfac- tion and the most profound gratitude that a Bill was introduced in the Honorable the House of Commons, at the last Session of the Parliament of the United Kingdom, for uniting the Provinces of Upper and Lower Canada under one Legislature ; a measure to which the Inhabitants of the Townships of Lower Canada look forward as the only effectual means of terminating the difficulties and troubles under which they have laboured in times past, and of preventing the evils with which a con- tinuation of the present state of things would threaten them for the time to come. That the situation of the Inhabitants of the Townships is dif- ferent from that of any other portion of the British Empire, and is likely to prove most unfortunate and disastrous for themselves and their pos- terity, unless the legislative aid of the land of their ancestors be extended to relieve them as will be briefly shown in the following statement. The Province 'of Lower Canada, according to its present condition may be separated into two parts, viz. : First the Seignories or French Lower Canada, which comprehends a narrow tract of land on each side of the River St. Lawrence, varying in breadth from ten to Forty miles and secondly, the Townships or English Lower Canada which comprehends the remainder of the Province, and is more extensive and capable of containing a far greater population than the Seignories or French Lower Canada. The Seignorial part of Lower Canada whose population may be considered as about half filled up, is inhabited chiefly by Canadians, whose origin and language are French, but contains besides these a population of about 40,000 Inhabitants of British origin. The Townships or English Lower Canada are peopled wholly by inhabitants of British birth and descent and American Loyalists amounting at present to about 40,000 souls, who have no other language than that of their British ancestors, who inhabit Lands granted under the British tenure of free and common 1 For the history of the Eastern Townships, see Bradshaw, op. cit., pp. 58, 71, 75. 1791-1840] Constitutional Documents of Canada. 327 spccage who have a Protestant clergy for whose maintenance a portion of those lands is set aside, and who, notwithstanding, are subject to French Laws, (the custom of Paris) of which they know nothing, compiled in a language with which they are unacquainted. In addition to the evil of subjection to foreign laws in a foreign language, the Townships, or English Lower Canada, labour under the further difficulty of having no courts within their own limits for the ad- ministration of those foreign laws, but are compelled for the most trifling legal redress, to resort to the Courts established at the Cities of Quebec, Montreal, or Three Rivers in Seigniorial Canada, at a distance frequently from 100 to 150 miles, thro' a country where the travelling, by reason of the inadequacy of the laws regarding communications, is frequently diffi- cult and dangerous, and to complete the measure of their grievances, the Townships are de facto without any representation whatever in the Pro- vincial House of Assembly in Lower Canada. Their complaints to the Provincial Assembly have been always treated with contempt or indiffer- ence, nor can Your Petitioners account for their being placed, as it were almost out of the pale of Civil Government, by a neglect so different from the course pursued in the Legislatures of the British Provinces, except on the supposition that the French Canadian House of Assembly has not been desirous that emigrants from Britain or of British origin should have inducements to seek an asylum or become settlers in Lower Canada. If such indeed were the object it has not failed of partial success; as of the many thousand Emigrants who, within the last few years, have arrived from Great Britain, scarcely one thousand have settled in the Townships of Lower Canada; but greater numbers of them have gone into the United States, considering possibly, that they should there find themselves in a less foreign country, than in this British Colony under its present cir- cumstances and under the foreign aspect of the Representative branch of its Legislature. Your Petitioners will not enlarge upon the general statement they have given of their condition, by entering into the detail of the numerous hardships and difficulties with which they have had to contend altho' sen sible that the recital would call forth commiseration. They will content themselves with stating, that as settlements under these English Tenures have been commenced, as immense tracts still remain to be settled, and as the population of Lower Canada is trifling compared to the amount which it is capable of attaining, there can be no sound reason for rearing up any portion of the Province, so as at its maturity to consitute a nation of foreigners or for continuing a system calculated to deter Britons and their descendents from settling upon the waste Lands of the Crown. To the management of Colonies as in the management of Youth, prudence would seem to dictate that the lasting interests of the future maturity, not the momentary inclinations of the present condition should be con- sidered of the deepest import. Already within a recent period nearly a hundred thousand Emigrants of British birth have made Lower Canada a place of transit, who, if the foreign aspect of the Legislature had not urged them to take an abode else- where, might have augmented strength and means of the English popu- lation in the province. But notwithstanding the past checks to colonial increase, unless similar causes are allowed to operate hereafter, future Emigrants and their descendents joined to the English already established here, may ultimately form a great majority of the inhabitants, and render the country in fact, as it is in name, a British Colony, and in the attain- ment of this happy result no injury could be done to the just rights of others; nor could even any prejudices be affected, except those delusions circulated and fostered by demagogues, "that the Canadians of French extraction are to remain a distinct people," and that they are "entitled to be considered a nation" prejudices, from which it must follow as a necessary consequence that the Province of Lower Canada (of which not one sixth part is settled) should be deemed their national Territory 328 Constitutional Documents of Canada. [1791-1840 where none but those willing to become French ought to be allowed to establish themselves prejudices which however absurd they may appear will obtain strength and influence ; if not speedily and completely dis- couraged and will be found not only incompatible with colonial duty and allegiance, but also dangerous to the future safety of the adjoining colonies and subversive of the rights of all the Inhabitants of the Townships, as well as of all the English settled in Seignorial Canada, thro' whose hands the entire trade with the Mother Country is conducted. Your Petitioners, the Inhabitants of English Lower Canada, had al- ways flattered themselves that no laws would be imposed or continued on that portion of the country having a tendency to compel them to resemble a foreign nation and to deprive them of the characteristics of their Brit- ish Origin ; and their confidence on this occasion was increased by their recollection of the promises of His late Majesty to give English laws to his subjects settling in Canada by the exception (an exception never yet enforced in practice) contained in the Quebec Act of 1774, declaring that the Provisions of the Act establishing French laws "should not extend to lands to be thereafter granted" in "Free and common soccage" a tenure which exists exclusively in the Townships. Your Petitioners felt, and they trust it is a feeling which cannot fail to meet with sympathy in the hearts of their countrymen and the country- men of their ancestors in Britain, that the knowledge of their native English Language ought to be sufficient to enable them to learn their rights and to perform their duties as faithful subjects, while they resided under British tenures in what is at least in name a British Colony. They felt that one great and glorious object of Nations rearing up and pro- tecting colonies must be the establishment of a people who should perpe- tuate in after ages the honoured resemblance of the Parent State ; and they felt that it could neither be consistent with the dignity nor the In- terests of Great Britain, to rear up a colony to be hereafter in language and in laws a representative of France while France was exempted from all the expense of its protection. They considered the Townships of Lower Canada, now inhabited solely by settlers of British birth and origin, speaking only the English Language and having a Protestant clergy upon whom one seventh of the land is bestowed as possessing a sacred claim upon the British Government for protection against the painful and humiliating prospect that their posterity might be doomed to acquire the language and assume the manners and character of a foreign people, and they also considered that the right of the Townships to Representation in the Provincial Assembly would not have been withheld from them in any other British Colony, nor perhaps even here had not their language and descent been British. Your Petitioners would gladly limit their solicitations to one point that of being allowed a Representation in the Provincial Parliament, pro- portioned to the consequence and growing importance of the extensive Districts they inhabit, if a sober view of their future safety would per- mit them to confine themselves to that object; but it is possible that even this sacred and inestimable privilege might, when accorded, be deprived of much of its advantage and efficiency towards procuring the settlement of the wild lands by Emigrants from Britain, in consequence of the influ- ence of the majority of French Canadians which would still be found in the House of Assembly of Lower Canada who, in the midst of professions of attachment to the Mother Country, seek to preserve themselves a separ- ate and distinct people. To secure and preserve to the colony and to the Mother Country, the full benefit which would be likely to arise from the establishment of principles calculated to produce a gradual assimilation of British feeling among all the Inhabitants of whatever origin it would be essentially necessary that a Legislative Union between the Provinces ot Upper and Lower Canada should take place. There are many reasons in addition to the one Your petitioners have 1791-1840] Constitutional Documents of Canada. 329 just assigned, which render the Legislative Union of the Two Provinces indispensable for their common prosperity, and which cause that measure to be most earnestly desired by all the inhabitants of both, who are not influenced by national prejudices which ought to be extinguished, or by local or private interests which are unworthy to be weighed against the general benefits to be obtained from the Union. Your Petitioners humbly represent that no arguments can be urged against the Union by the French Canadians, which will not when analized be resolvable into this real meaning, that they desire to remain a separate people thereby ultimately to become a French Nation, or as they have denominated themselves the "Nation Canadienne." The Canadians with- out owing any of their increase to Emigration, have more than twice doubled their numbers since the Conquest, and altho' they might, without any injustice or deprivation of actual rights, have been by this time assimilated to their British fellow-subjects, they are nevertheless at this day, with but a few individual exceptions as much foreigners in charac- ter as when this event took place and must ever continue so, were the present state of things to be permanent The present crisis therefore offers this alternative to Great Britain, either by uniting the Provinces to hold out inducements to the French to become English, or by continuing the separation to hold out inducements to the English in Lower Canada to become French, and the question is not whether a country already peopled is to renounce its national feelings and characteristics as the French Canadians may endeavour to represent, but whether a country for the most part waste, and to be hereafter chiefly peopled by a British race is to assume the character, language and manners of a foreign nation. Should the latter course be preferred, Great Britain will be rearing up a people of foreigners, to become at no distant period from their rapidly increasing population a scourge to its adjoining Colonies, whereas if the Union be adopted, it would ultimately remove national prejudices and hostility, derived from difference of origin and consolidate the population of both Provinces into one homogeneous mass, animated by the same views for the public interest and the same sentiments of loyalty towards their Common Sovereign. The geographical situation of the two Provinces and the relations which nature has established between them absolutely and indispensable require their union under one Legislature for they have but one outlet to the sea and one channel of communication with the Mother Country The only key of that communication, the only seaport is in the possession of Lower Canada and with the only means by which for a length of time in a new country, a revenue can be raised for the support of government. To place or to leave the only key of communication the only source of revenue exclusively in the hands of a people like the French Canadians anti-Commercial in principle and adverse to assimilation with their Brit- ish fellow subjects, must be extreme impolicy nor can the checks upon the imposition and repeal of import duties provided by the Act of the last Session of the Imperial Parliament be more than a temporary remedy in as much as Upper Canada is thereby only entitled to a species of veto and has no initiative or deliberative voice in the enactments nor indeed can human wisdom be adequate to devise such a system of revenue upon imports, while the Provinces shall remain separate, as will not give unfair and unequal advantages to the one or the other and of necessity produce irritation and enmity. Your Petitioners further humbly state that the French Canadians have been long admitted to the enjoyments of the freedom and the rights of British Subjects, rights far more extensive than the utmost they could have hoped for had they continued Colonists of France ; but rights and duties are reciprocal ; wherever the former exist the latter are obligatory ; and while the freedom and protection of Britain are bestowed upon Cana dians it can neither be unfair nor ungenerous to require in return, the ex- 330 Constitutional Documents of Canada. { 1791-1840 istence of such an amended constitution as shall encourage a portion oi our Brethren from Britain, to establish themselves and their posterity upon the Crown Lands in Lower Canada. From a union of the Provinces no individual could reasonably complain of injury, no right would be taken away, no just pretensions would be molested, save only such as might be found in those who cherish visionary views of the future existence of a Gallo-Canadian nation which the union would at once and for ever dispel. To discover with certainty what are the rtal feelings which excite opposition to the Union (however diversified the pretexts assigned may be) it would only be requisite to consider whether if the population were all of the same origin in Provinces situated as the Canadas are with respect to each other, any objections to the measure would be made? The answer is obvious; there would be none. And if the real motives of opposition on the part of our French Canadian fellow subjects, whether openly avowed or speciously disguised, arise from the intention of continuing or con- stituting separate people, which would perpetuate among us the disastrous national distinctions of English and French, they form the strongest pos- sible reasons in favour of the Union. Your Petitioners had humbly hoped that the guardian care of the parent state would under Providence secure her colonies in this part of the globe from the ultimate danger of those national animosities and distinctions which have existed for so many ages and proved such fertile sources of evil to Britons in Europe and entertain- ing as they do the most perfect confidence that the salutary measure of the Union of the Canadas would in the most equitable and beneficial man- ner secure their posterity from the evils they have mentioned, they humbly conceive that the honour as well as the humanity of the mother Country, requires it to be effected, while it is yet easily practicable before the population shall be formidable in numbers and before continually recurring exasperations shall have rendered animosity bitter and hereditary. Your Petitioners therefore most humbly pray that an Act be passed to authorize the Provincial Executive Government to divide the townships of Lower Canada into counties entitled to elect members, so as equitably to provide for the interests of their future population according to the extent of their territory and also to unite the Provinces of Upper and Lower Canada under one Legislature in such manner as may allow of Representation proportioned in some measure to territorial extent, which thereby will provide for the growing state of the country and also of necessity be ultimately proportioned to wealth and population and your Petitioners as in duty bound will ever pray, etc., etc. xcv MINORITY RESOLUTIONS OF LEGISLATIVE COUNCIL OF LOWER CANADA IN FAVOUR OF THE UNION OF THE PROVINCES [Trans. : Christie, op. cit. Vol. III.] First Because the union of Upper and Lower Canada, under one legislature, would afford satisfactory, constitutional, and effectual means of removing those fiscal difficulties which have hitherto existed, and which, under the present order of things, must continue to exist, and excite jeal- ousy and disaffection between the provinces. Secondly Because such union would encourage the introduction of a numerous population from the parent state, and give to the province of Lower Canada, a British character. Thirdly Because such union would greatly increase the physical strength of both provinces, and facilitate above all other measures, their power of resisting a common enemy. Fourthly Because such union, by encouraging the settlement of the waste lands (as well seignorial as others) would greatly augment oui 1791-1840] Constitutional Documents of Canada. 331 commercial resources, increase the value of all real property, and give an impetus to the prosperity and improvement of both provinces, which would render them one of the most valuable appendages of the British Empire. (Signed) JOHN RICHARDSON. JAMES IRVINE. HERMAN W. RYLAND. RODERICK MCKENZIE. CHARLES W. GRANT. WM. B. FELTON. XCVI PETITION FROM LEGISLATIVE COUNCIL OF LOWER CANADA AGAINST UNION [Trans. : Brymner, op. cit.] A LA TRES EXCELLENTE MAJESTE DU Roi Qu'il plaise a Votre Majeste \ Nous les fideles et loyaux Sujets de Sa Majeste le conseil Legislatif du Bas-Canada, Assemble en Parlement Pro- vincial, demandons tres humblement la permission d'approcher du Trone avec les sentiments de la plus vive reconnoissance envers Votre Majeste, de ce que, dans sa solicitude et condescendance paternelles, Elle a bien voulu commander a Son Excellence le Gouveureur en Chef, d'informer cette Chambre a 1'ouverture de la presente Session, que les Ministres de Votre Majeste avoient propose au Parlement Imperial certains changements a 1'Acte de la 31ieme Annee du Regne de feue Sa Majeste, George Trois, de glorieuse memoire, ch. 31eme, dans la vue principalement, d'unir en une seule les Legislatures du Haut et du Bas-Canada, mais que cette mesure avoit etc retiree et remise a la Session prochaine, aux fins de donner occasion au peuple de ces Provinces de faire connoitre ces sentiments a ce sujet. Encourages par les bienfaits sans nombre qu'il a plu a Votre Majeste de repandre dans cette colonie, et par cette nouvelle preuve de Sa bien- veillance, et appeles ainsi solennellement a donner notre humble opinion, nous croirions manquer a notre devoir envers Votre Majeste, envers la Province, et envers nous-memes, si, avec la soumission la plus humble et la franchise la plus respectueuse, nous ne representions pas a Votre Majeste que notre constitution, telle qu' elle a etc heureusement etablie par la 31eme Annee de feue Sa Majeste, George Trois, de glorieuse memoire, en avan- gant la prosperite et le bonheur de cette Province, a garantir la tran- quillite et le bienetre de toutes les classes des sujets de Votre Majeste, et a resserre les liens qui les attachoient a la Mere Patrie. Que, tout au contraire, 1'union des deux Legislatures du Haut et du Bas-Canada en une seule, sera, dans notre opinion, la source inevitable de plus grands maux, produira dans les esprits des doutes et des craintes provenant des discussions et de la discordance qui naitra necessairement de la difference des reglements municipaux, du langage, des Loix, de la Religion, des Institutions et des Interets locaux consolides dans les deux Provinces par les Statuts Provinciaux, et rendus maintenant necessaires au bonheur de chacune, et que cette Union excitera la jalousie et le mecon- tentement dans un Peuple fortement attache a sa presente Constitution. Comme Conseillers de Votre Majeste choisis par elle-meme dans cette Province nous croirions manquer a un devoir solennel, si nous ne sou- mettions pas tres humblement a Votre Majeste notre opinion fixe et deter- minee que 1'union des deux Legislatures dans une seule ne pourra que tendre directement a affoiblir et embarrasser 1'administration du gouvern- ment de Sa Majeste et finalement creer des mecontentements dans 1'esprit des fideles sujets de Sa Majeste dans cette colonie. Nous supplions done instamment Votre Majeste qu'il lui plaise de vouloir bien detourner de cette Province, une mesure qui a excite une allarme si generate et nous paroit 1'avant-coureur de tant de malheurs. Par Ordre, J. SEWELL, Orateur. 332 Constitutional Documents of Canada. [1791-1840 XCVII RESOLUTIONS OF ASSEMBLY OF LOWER CANADA AGAINST THE UNION OF THE TWO PROVINCES [Trans. : Christie, op. cit.] That this house participates in the surprise and grief felt by a very large majority of his Majesty's subjects in this province, on learning that his Majesty's ministers have proposed to parliament alterations in the act 31, Geo. III., cap. 31, chiefly with a view of uniting the two legislatures of Upper and Lower Canada. That the constitution conferred on the province by the said act, and the separation of this Province from Upper Canada were, on the part of the Imperial Parliament, an act of justice as well as beneficence towards the inhabitants of both provinces, by giving to each the means of preserv- ing entire the rights and privileges which were guaranteed and secured to them by the faith of government. That the passing of the said act hath been one of the most effectual methods of making known to the inhabitants of this province, the magnani- mity of the British character, and hath for ever secured to his Majesty's government the inviolable confidence, affection and fidelity of all classes of his Majesty's subjects in this colony. That the said act, modelled on the constitution of the Mother Country, by some of its greatest and wisest statesmen, establishes powers sufficient to remedy abuses, redress injuries, allay discontents and provide for the general welfare of the province. That not only do the reaons which occasioned the passing of the said act still exist in full force, but they have even gained additional strength from the happy experience therein acquired by the inhabitants of this Pro vince and from their regarding the same with reason as the unchangeable foundation of their laws, their institutions, and most dearly cherished rights. That were the proposed alterations adopted by parliament, the result would be that the two provinces having laws, civil and religious institutions and usages essentially different, would be subjected to one and the same legislature, whose decisions would alternately endanger the laws and insti- tutions of either province That there would thence result well-founded apprehensions respecting the stability of those laws and institutions, fatal doubts of the future lot of these colonies, and a relaxation of the energy and confidence of the people, and of the bonds which so strongly attach them to the mother country. XCVIII PETITION AGAINST PROPOSED UNION [Trans. : Brymner, op. cit.] A LA TRES EXCELLENTE MAJESTE DU Roi : La Petition des Spussignes, Seigneurs, Magistrats, Membres du Clerge, Officiers de Milice, Marchands, Tenanciers, et autres Habitants de la Province du Bas-Canada. EXPOSE HUMBLEMENT: Que c'est avec la plus profonde douleur et les plus vives alarmes que vos Petitionnaires ont appris que dans la derniere session du Parlement des Royaumes-Unis il avoit etc, de 1'approbation des serviteurs de Votre Majeste, introduit dans 1'honorable Chambre des Communes, un Bill pour alterer 1'heureuse Constitution de Gouvernement etablie en cette Province par le Statut de la 31eme Geo. III., chap. 31. Que I'evenement d'une convocation prochaine du Parlement, pouvant faire perdre a la Legislature de cette Province 1'occasion que les Communes dans leur sagesse et leur justice ont bien voulu donner au peuple de cette Province d'exprimer a Votre Majeste et aux deux Chambres du Parlement, ses sentiments sur un sujet d'une si haute importance, Vos Petitionnaires 1791-1840] Constitutional Documents of Canada. 333 croient qu'il est de leur devoir envers Votre Majeste, et envers eux-memes, de mettre sans delai au pied de Votre Trone, leurs tres humbles representa- tions au sujet de ce Bill. Qu'aucune des autorites constitutes en vertu du dit Statut, ni aucune partis des sujets de Votre Majeste en cette Province n'avaient jamais sollicite publiquement qu'il y fut fait aucun changement, mais au contraire toutes les classes du Peuple de cette Province ont constamment manifeste un attachement inviolable a cette constitution, et ont tout recemment encore expose avec ardeur, leur vie et leurs fortunes pour sa defense et celle du gouvernement de Votre Majeste, tel qu'etabli par le dit statut. Que ce Statut ne fut accorde aux sujets de Votre Majeste en cette Province, conformement a la promesse Royale, contenue dans la Proclama- tion de 7 Octobre 1763, que sur un Message de feu Sa Majeste, recom- mandant au Parlement, la division de la Province de Quebec apres plu- sieurs Petitions pour et centre sa passation, de la part des differentes classes dont il devait affecter les interets et apres que les Petitionnaires eurent etc entendus a la barre de la Chambre des Communes, et en consequence tous vos sujets en ces parties de Vos Domaines 1'ont rec.u et avec raison 1'ont regarde comme un Pacte solonnel, par lequel 1'autorite Supreme de 1'Empire leur donnait une garantie legale et permanente de la conservation de leurs libertes, de leurs proprietes, et de leurs drpits les plus chers. Que ce Statut modele sur la constitution de la Mere Patrie par quelques-uns des plus grands et des plus sages de ses hommes d'Etat etablit des pouvoirs suffisants pour reformer les abus, reparer les torts, appaiser les mecontentements, et promouvoir le bien general de la Province, sans exiger 1'intervention de la Legislature Supreme, intervention qui, lorsqu'- elle a etc exercee, s'est trouvee si pernicieuse en chargeant des mecontente- ments purement locaux et temporaires, et en mesintelligences dangereuses entre les colonies et la Metropole. Que malgre divers obstacles et dimcultes que les ressorts et 1'action de la Constitution etablie par le dit Statut font graduellement disparoitre, la population de cette Province s'est accrue aussi rapidment que celle des Etats-Unis, sans recevoir une augmentation proportionelle par 1'emigration, le revenu public s'est trouve a peu pres suffisant pour subvenir a toutes ses depenses necessaires et son commerce ainsi que son agriculture, meme dans ces temps si difficiles ont fait des progres considerables. Que d'apres ces considerations Vos Petitionnaires ne peuvent que prevoir que si ce Bill introduit a 1'insu des habitants de cette Province, et si contraire a leurs voeux, passoit en loi, outre les maux qu'ils ont a craindre de ses dispositions, ils demeureroient, eux et leur posterite, sans assurance suffisante de conserver ce qui leur resteroit de droits et de libertes, que d'apres un pareil exemple sur des representations secretes et partiales, ils seroient a chaque instant exposes a perdre et qui d'ailleurs demeureroient a la disposition d'une Legislature Coloniale illegalement constitute, etrangere aux interets, aux sentiments et au bonheur de la grande majorite des sujets de Votre Majeste dans cette Cplonie. Que les differends qui se sont eleves entre cette Province et celle du Haut-Canada, relativement a leur revenu, et qui ont etc publiquement allegues comme le principal motif de 1'introduction de ce Bill, ne sont pas une suite de la division des deux Provinces, mais proviennent uniquement de causes temporaires, toujours faciles a faire cesser, soit par des Acts de leurs Legislatures respectivts suivant lesquels chaque Province se borneroit a percevoir son propre revenu, chacune d'elles donnant libre passage et toutes facilites au Commerce de 1'autre ou par des reglements faits dans le Parlement du Royaune-Uni, suivant la 46-eme Section du dit Statut, de la 31eme Geo, III Chap. 31. et apres avoir entendu les deux parties. Qu'on ne sauroit se promettre de 1'Union des Legislatures des deux Provinces de voir terminer d'une maniere juste et efficace ces differends, puisque cette mesure laisseroit aux parties en litige a prononcer elles-meme sur leurs propres pretentions et donnerait necessairement lieu (quelle que fut celle qui 1'emportat) a des injustices et a des discordes nuisibles aux interets de la Mere Patrie et funestes a ceux des deux Provinces. 334 Constitutional Documents of Canada. [1791-1840 Qu'une telle Union feroit renaitre ces dissensions resultant de la dif- ference de langage, de religion, de lois et d'interet locaux qui agiterent la Province de Quebec, et que sa division en deux gouvernements separes si heureusement fait cesser; et qu'une Legislature ainsi constitute, ne saurait parvenir aux fins utiles d'une Legislation eclairee, qu'il ne pourrpit resulter que des lois fondees sur des renseignements insuffisants et nuisibles aux droits, aux interets, aux sentiments et a la situation de ceux pour qui elles seroient faites. Que la situation geographique, la difference de climat, et etendue des deux Provinces, dont quelques parties peuplees sont a plus de quinze cents milles les unes des autres forment ainsi que la difficulte des communications dans les pays nouveaux des obstacles insurmontables a 1'Union projetee et que les sacrifices qui en resulteraient aux membres pour se rendre a leurs places, et aux constituants pour communiquer leurs besoins locaux an siege de la Legislature, priveroient certainement une grande partie des sujets de Votre Majeste, dans 1'une et 1'autre Province de leurs justes droits, et de toute participation dans la legislation de leur pays. Que c'est avec la dpuleur la plus reele que vos Petitionnaires voyent sans pouvoir se le dissimuler, que les dispositions principales de ce Bill, se dirigent contre les plus chers interets de cette partie des sujets de Votrc Majeste, qui forment les neuf dixiemes de la population de cette Province. Et surtout qu'il y ait etc introduit a 1'egard de la langue et des etablisse- ments religieux d'un si grand nombre de vos sujets, des clauses qui doivent faire naitre parmi les habitants de cette partie de vos domaines, des jalousies et des prejuges, funestes a leur repos et a leur bonheur, et qui paroissent incompatibles avec la dignite, la sagesse et la justice du gou- vernement de Votre Majeste. Que la clause de ce Bill qui interdit dans 1' Assemblee projetee 1'usagc de la Langue Franchise, la seule que parle et entend une si grande majorite des habitans de cette Province, leur ferait perdre indirectement le droit d'etre elu a cette Assemblee equivaudroit en effet pour eux a une privation absolue d'un des plus grands avantages qu'aient les sujets de Votre Majestc, generoit et restreindroit leurs franchises et libertes, et diminuant le nombre des personnes propres a les representer efficacement, et feroit des personnes qualifiees une classe privilegiee au sein d'une Colonie Britannique. Que ce Bill en accordant au Haut-Canada dont la population n'est au plus qu'un cinquieme de celle du Bas, autant de Membres qu'a cette derniere pour la representer dans 1'Assemblee Reunie, etabliroit en faveur de la minorite, une preferance humiliante aux habitants de cette Province, con- traire a leur droits, comme sujets Britanniques, et dangereuse pour leurs interets. Et que vos Petitionnaires jaloux de conserver la part que leur assure la division des deux Provinces dans le pouvoir constitutionnel, de faire les iois que les concernent, ne peuyent aussi que desirer que leur co-sujets de Haut-Canada, continuent a jouir d'un pareil avantage commun a toutes les autres Colonies de Votre Majeste. Qu'outre ces sources fatales de discorde, d'injustice et de confusion, ce Bill contient relativement a 1'approbation des subsides leves sur le peuple de cette Province, et a d'autres objets des dispositions contraires aux droits de naissance de vos Petitionnaires comme sujets nes Britanniques, et a la declaration expresse du Parlement. Qu'il plaise done a Votre Majeste que le dit Bill ne passe pas en lot, et que 1'Heureuse Constitution et la Forme de gouvernement de cette Province, etabli par le dit Statut soient conserves intactes a Vos Petition- naires et a leur posterite. Et les Petitionnaires de Votre Majeste ne cesseront de prier. Bas Canada, 1822 N.B. La Petition aux deux Chambre est mot pour mot la meme, a 1'exception de ces differences de forme et de diction que le style Parle- mentaire exige suivant que Ton adresse au Roi, aux Lords ou aux Com- munes. 1791-1840] Constitutional Documents of Canada. 335 XCIX PETITION FROM KINGSTON, ETC., FOR UNION [Trans. : Brymner, op. cit.] TO THE KING'S MOST EXCELLENT MAJESTY. The Petition of Sundry Inhabitants of the Town of Kingston and County of Frontenac in the Midland District and Province of Upper Canada, Most humbly Sheweth: That Your Majesty's Petitioners availing themselves of the oppor- tunity graciously afforded them by the postponement of certain measures lately entertained in the Imperial Parliament, on the subject of uniting the Legislatures of the Canadian Provinces, beg leave with humility and deference to present at the Throne, their reasons and motives, for pray- ing the immediate furtherance of that Union. Not that your Petitioners are insensible to the value of that excellent Constitution which this Province received in the Thirty-first year of the Reign of our Late Most Beloved Sovereign, by which under the wise and fostering administration of the present Lieutenant Governor they acknowl- edge with gratitude, that this favoured portion of Your Majesty's Domin- ions enjoys much happiness and prosperity. But that nevertheless this Province of Upper Canada being from its geographical situation dependent on the sister province of Lower Canada for a channel whereby to import or export the various articles of its Com- erce; and no adequate provision having been made on the division of the province, for its free use of that channel, numerous unhappy disputes have of late years arisen, as touching its due proportion of Revenue aris' ing from Duties on Articles imported to the manifest injury of its fait and equitable claims, as has been fully laid before Your Majesty's Minis^ ters by a Commisssioner appointed by the Provincial Parliament for thai express purpose. That Your petitioners thp' they hail with all gratitude the measures which the parental and considerate wisdom of Your Majesty's Govern- ment has already devised, in the Canada Trade Act, for the remedying of these evil, yet humbly suggest their anxious fears that this Act does not go to their root. They have too much reason to be assured that every impediment will still be thrown in the way of fair and equitable adjustment; and that as often as the right of objecting to Revenue Laws is exercised by Uppei Canada ; great and unpardonable offence will be given to the Legislature and people of Lower Canada, and that, in short, the misunderstanding now unfortunately existing on this subject between the provinces, will be kept up and thereby national prejudices and antipathy already violent will become so inveterate, that the Union of the Legislature, which your peti- tioners conceive must be the ultimate remedy, will in time be difficult, if not altogther impracticable. Your petitioners further beg leave to suggest that the Canada Trade Act will not effectually remove the causes of complaint which exist from the nature of the present state of things, viz., the want of a cordial co- operation between the provinces in improving the navigation of the St. Lawrence, an object of the first importance to Upper Canada, but which without the concurrence of Lower Canada cannot be accomplished; to- gether with the other numerous obstacles to the better regulations of Trade and Commerce, which the mutual jealousy of the two separately existing Legislatures rather tends to increase than to diminish. That from the sketch which your petitioners have received thro' the medium of the public prints of the lately entertained Union Bill they are fully confident that it is sufficient to obviate effectually, the present exist- ing causes of jealousy and distrust, to harmonize the mutual feelings of the two people, and to produce to both provinces an abundant increase 336 Constitutional Documents of Canada. [1791-1840 of strength, wealth and happiness ; securing to each all the essential privi- leges of their present constitutions; or if affecting as is the opinion of some persons amongst us, the Elective franchise, and freedom of par- liamentary proceedings ; yet your petitioners rest contented, that in these and all other matters consistent with sound policy, Your Majesty will lend an indulgent ear to whatever may be the general wish of your faith- ful Canadian subjects. And therefore your petitioners humbly request that Your Majesty will be graciously pleased to recomend your Ministers to further the pro- jected Union in the Imperial Parliament, in such way, and under such terms as may be deemed most expedient to our Mutual Wants and neces- sities and most conducive to the happiness and prosperity of both provinces. And your petitioners as in duty bound will ever pray. PETITION FROM WENTWORTH AGAINST UNION [Trans. : Brymner, op. cit.] To the Honourable the Commons of the United Kingdom of Great Britain and Ireland in Imperial parliament assembled. The Petition of the Inhabitants of the County of Wentworth in the District of Gore and Province of Upper Canada most respectfully sheweth. That your petitioners, His Majesty's dutiful and loyal subjects many of whom emigrated to this province at an early period of its existence as such (for the purpose of enjoying the blessings of British government) immediately drew forth the Paternal care and solicitude of His late Ma- jesty George the third, who in the thirty-first year of His Reign by and with the advice of the British parliament gave to Canada a Constitution a transcript of their own and at the same time for good and sufficient reasons divided Canada into two provinces ; the Upper Province being principally settled by subjects of His Majesty who were accustomed to British Laws and using the English language. Every circumstance that has arisen during the period elapsed has tended to unfold its benefits by bringing its enactments into practical operation, raising our admiration of, and attachment to a constitution so well adapted to our feelings and contributing so largely to our happiness. Conscious that our gratitude and attachment to His Majesty's gov- ernment had been manifested on every proper occasion, it was with deep- est regret and almost astonishment that we received the heads of a bill brought before Your Honourable House during its last session for alter- ing the said Act of 31st Geo. 3rd, Ch. 31. Altering the same so as to destroy our liberty altogether, without our consent, or even our knowledge and without any misconduct on our part amounting to a forfeiture. We beg leave to assure Your Honourable House, that, the proposed alterations could only have originated in misrepresentations of the grossest nature and from utter ignorance of the localities of the Country and the Wants, Circumstances and feelings of the people. It was thought proper in the present Constitution to leave the quantum of property possessed by Representatives to be assigned by the Provincial Legislature which has been done so as to secure the respectability of the assembly without circumscribing too far the choice of the Electors ; bul raising the qualification of members to 500 Sterling agreeably to the Bill before your Honourable House at its last session, would have the effect of disfranchising the electors altogether, some Counties not being able to select such qualified persons out of their whole population. Landed property likewise being made answerable for demands against the owners, in cases where Chattels would only be liable in England, causes real estate in this province frequently to change possessors. We would rather there- fore resign the Representative Branch altogether, than to have the House of Assembly established on such principles, and to be told of every Act 1791-1840] Constitutional Documents of Canada. 337 with which we could not accord, that it was our own when we might, and frequently would be under the necessity of choosing men for our Repre- sentatives, no other way qualified, than by holding large tracts of wild land which is in effect one of the greatest nuisances in the province. The lengthening the duration of each Parliament to five years is to us particularly objectionable as extending too far the period before which the Representatives could again meet their constituents, and the vesting of the Executive government of each province with power to introduce Two Members into the Assembly without the exercise of the elective fran- chise, is we believe, without a precedent, and would give an undue influence to the Executive which in our opinion already possesses enough for all the proper purposes of government ; for in this Country officers under the government are not excluded from the legislature as in England, by whom every wish of the Executive may be made known and ably sup- ported, as has been constantly the case. The requisition likewise made upon the Legislature to make perma- nent provision for the administration of Justice and support of the Civil Government, would at once render that power a nominal and unsub- stantial one, and deprive the House of Assembly of the only proper and effectual check necessary to balance the otherwise overwhelming force of the Executive. For our own short history has taught us that times of plenty are times of profusion, and by granting a permanent supply, the House of Assembly will part with the power to accommodate the expen- diture to the amount their resources may enable them to grant, to curtail enormous contingencies, or to afford compensation to services that may imperatively call for reward. The propriety of this observation has be- come more evident by the experience of a few years for from 1812 to 1816 an unusual quantity of money was in circulation in this province, and as might be expected, abundance in receipt produced extravagance in expenditure, both public and private. The reverse has been great and sudden, for we have experienced and do still experience a period of de- pression beyond parallel, during which, all the usual means of the country have scarcely been equal to the nett supply of an increased expenditure. We proceed humbly to state our objections to an union of the Legis- latures of the Canadas on any terms. The population of this province is chiefly composed of subjects who have emigrated from Great Britain and Ireland, or from His Majesty's late American Colonies and their descendants, who from a sameness of origin, Language, Customs and Government, easily unite, commix and become one people. While His Majesty's subjects, our Brethren of Lower Canada sprung from a distinct origin, speak a different language, profess a different form of Religion, are wedded to their own peculiar manners and customs and each Legislature having enacted, adopted and retained Laws suitable to their own usages, customs and local wants ; and these two provinces hav- ing been separated into different governments for more than thirty years ; your petitioners do not believe that two bodies so heterogeneous and dis- cordant in all their parts as the Legislatures of Upper and Lower Canada must necessarily be can unite, cement and become one so far as to render equal advantages to both, which each has a right to expect from its own separate Legislature; and if an ascendancy should be given to the Repre- sentation of Upper Canada over that of Lower Canada, to which we do not feel entitled from our population it would be offering injustice to our Brethren of the Lower Province, with whom we have no desire to quarrel nor by any measure to break in upon their rights and peace ; and should the advantage be on the part of Lower Canada we must be at their mercy, and we have no right to expect that attention to our interests which our wants and circumstances require, the only ground of difference heretofore existing between us being an account 01 our Quota of the Revenue which having been put in an amicable train of adjustment by the prompt and timely interference of the British Parliament and His Majesty's Government at once does away with every semblance of rea- V 338 Constitutional Documents of Canada. [1791-1840 sonable argument that might be offered by those anxious for a reunion i: and also the extent of Territory would be so great that were it inhabited by the same people throughout, it must necessarily present such varied local interests that the wants of some parts of so extensive a colony will be more liable to suffer from neglect, from ignorance or from clashing interests than a less extent of territory would be. To sum up all, Your Petitioners are of opinion that the different origin of the population of the two Provinces, the difference of their languages, habits, manners, customs and Religions, together with their varied interests, will necessarily produce efforts for ascendancy, create jealousies, strifes, animosities and contentions, which may break out in consequences of an alarming nature, and all, without answering any one desirable object which we can foresee, or that may balance the least of the evils that appear to us so obvious. Wherefore, We his Majesty's faithful subjects most earnestly beseech Your Honourable House to abstain from placing us in a situation so perilous, so contrary to our wishes, and as we fear so destructive of our best interests, and that Your Honourable House would forebear passing the said or any other Bill, of a like nature into a Law for uniting the Legislatures of Upper and Lower Canada, at any future Session of the Imperial Parliament. And Your Petitioners as in duty bound will ever pray. (329 signatures are attached.) CI LORD DALHOUSIE'S SPEECH PROROGUING THE LEGISLA- TURE OF LOWER CANADA 1 [Trans. : Christie, op. cit.] 9th March, 1824. Gentlemen of the legislative council, gentlemen of the assembly, I am now to close a session of the provincial parliament, the result of which I am much afraid will prove to be of little public advantage; at the same time your long and laborious attendance is entitled to my best thanks ; but before I prorogue this parliament, I think it important to the country that I should here, as his Majesty's representative, express my sentiments upon the general result of your proceedings during the several sessions in which I have met you : I declare those sentiments in an earnest desire to attract the serious attention of every member of this parliament, of every man who values the prosperity of Canada, and I trust I know too well the principles of the British Constitution, to express myself in any manner inconsistent with that respect which one branch of the legislature owes to another, or with those rights and privileges which belong to each respectively. A claim has been made to an unlimited right in one branch of the legislature, to appropriate the whole revenue of the province according to its pleasure, including not only that part of it heretofore granted to his Majesty, and which is appropriated by acts of the provincial parlia- ment to specific purposes, and subject to such distribution as the king may see fit, but even that portion also of the revenue which is raised by the authority of the Imperial Parliament, appropriated to defray the ex- penses of the administration of justice and of his Majesty's civil gov- ernment in this province, and directed by an act 3 passed in the British parliament, long before the establishment of the present constitution in this province, to be so applied, under the authority of the lords com- missioners of his Majesty's treasury ; this claim, made by one, has been formally denied by the other two branches of the provincial parliament; 1 Dalhousie's speech and the following documents (No. CII. CHI, CIV, CVII) illustrate the difficulties which arose over the disposal of the revenue. 1 See No. XXVI. 1791-1840] Constitutional Documents of Canada. 339 nevertheless it has been persisted in, and recourse has been had to the unusual proceeding of withholding the supplies, except upon conditions which would amount to an acknowledgment of it constitutional validity. This subject has occupied every session from the first to the last, and is now transmitted to those which shall follow. It has caused incalculable mischief to the province ; and now leaves it to struggle under difficulties, while every inhabitant of it must see that the encouraging aid of the legislature is alone wanting to arouse powerful exertions and draw forth those resources, which, without that aid must, in a great measure, be dor- mant and useless within its reach. But, gentlemen, I see with infinite satisfaction, that notwithstanding these unfavorable circumstances, Canada is powerfully advancing in improvement, and that the differences which continue to disturb the legislature, have not interrupted, in the smallest degree, that general contentment which the people enjoy under the paternal care and protection of his Majesty. In former years, when the supplies necessary for the support of his Majesty's government and the honor of his crown in this province, were not granted, I averted the unhappy consequences which must have resulted from a strict adherence to the letter of the law ; and I trust that my con- duct, on these occasions, will be justified and approved, where alone 1 am responsible : but as my advice has been unavailing to prevent this result at the present period, I shall interfere no further ; adhering now to the letter of the law, I shall guide the measures of the executive government by that rule, and according to my best judgment, lamenting that the public must feel those consequences which have so long impended over it, and which I can no longer avert. Gentlemen of the legislative council, I feel myself called upon to ac- knowledge the calm, firm and dignified character of your deliberations and conduct in the discussion of the public business, and I take it upon me, in a sense of duty, to thank you in his Majesty's name, for the sup- port you have uniformly given to the measures I have from time to time recommended to you for the good of the province. I fervently pray that the wisdom of your proceedings may make a just impression upon the loyal inhabitants of the province, and lead then to that temperate and conciliating disposition which is always best cal- culated to erive energy to public spirit, to promote public harmony, and ensure public happiness; these are the great advantages which result from a wise exercise of the powers and privileges of parliament. CII BATHURST TO BURTON [Trans. : Christie, op. cit.] Downing Street, 4th June, 1825. Sir, I have received your two despatches of the dates of the 24th and 30th March ultimo. In the first of these despatches you state that "you inform me with infinite satisfaction that the differences which have "so long subsisted between the legislative bodies on financial matters, have "been amicably settled, and that I shall perceive by the draft of a bill "which you enclose, that the assembly have decidedly acknowledged the "right of the crown to dispose of the revenue arising out of the 14th Geo. "Ill," etc 1 . I regret to say that it is not in my power to consider this arrange- ment as in any degree satisfactory. The special instructions which had been given by his Majesty's command to the governor-general, in my de- spatches of the llth Sept.. 1820, and 13th September, 1821, had imposed on 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 1 See No XXVI. 340 Constitutional Documents of Canada. [1791-1840 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 no dis- tinction was made between the expenditure chargeable upon the perma- nent revenue of the crown and that which remained to be provided for out of the revenues raised under colonial acts. In other words, had the whole revenue been raised under colonial acts there would have been no difference in the manner of sending in the estimates. The estimate was given at 65,000 sterling, of which the assembly ap- pear to have voted 58,074, as "amount of votes," and 3,537, specially voted by Provincial acts; and they refuse to incur any expenditure for 3,390 for different items. Instead of the king's permanent revenue having certain fixed charges placed upon it, of which the assembly were made cognizant, the revenue was pledged, together with the colonial revenue, as the ways and means of providing for the expenses of the year. The assembly hav- ing calculated the amount of the permanent revenue and of the taxes received under colonial acts proceeded to vote, from the unappropriated revenues, "such sum or sums as might be necessary to make up and com- plete a sum not exceeding 58,074 sterling," and the extent of which must necessarily depend on the amount of the taxes received from the perma- nent revenue. The consequence of this arrangement is, 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, and the only money to be raised under the king's revenue being thus appropriated, no means remain for the liquidation of those expenses formerly carried on the king's revenue, and many of them specially authorized by his Majesty, which have been rejected bv the assembly in this instance. The appropriation of the per- manent revenue of the crown will always be laid by his Majesty's com- mand before the house of assembly, as a document for their information and for the general regulation of their proceedings. They will therein see what services are already provided for by the crown, and what re- mains to be provided for by the legislature; and they will be thus assured that the proceeds of the revenue of the crown, (whether more or less, and from whatever source derived,) will exclusively and invariably be ap- plied, under the discretion of the king's government, for the benefit of the province. , With respect to items rejected by the assembly, I shall feel it my duty, after having given attention to each individual article, to give special instructions to the governor-general on his return 1 , to direct the payment of those which it may be thought expedient to continue. As the bill is limited to one year, I shall not think it necessary to recommend to his Majesty to disallow it, but confine myself to instructing his Majesty's representative in the province of Lower Canada, not to sanc- tion any measure of a similar nature. I have, etc., (Signed) BATHURST. cm RESOLUTIONS OF ASSEMBLY OF LOWER CANADA, 1826 [Trans. : Christie, op. cit.] I. That it is the opinion of this committee that it is expedient to adhere to the determination of the house, as recorded in its votes and proceedings on the civil expenditure of the government of this province, in 1810. 1819, 1821, 1822, 1823, 1824, 1825, and during the present session, 1 Lord Dalhousie was absent from the Province from June, 1824, to September, 1825. Lieutenant-Governor Burton was administrator in his absence. 1791-1840] Constitutional Documents of Canada. 341 to vote upon all the necessary sums for paying the said expenses, and to renew its resolutions of the 12th March, 1821, 12th Jan., 1822, 7th March, 1823, 2d March, 1824, and 13th March, 1826, in so far as they are opposed to the exclusive application of any part of the public revenue, to particu- lar services, without the consent of this house. II. That the Statute of the 18th Geo. Ill, chap. 12 1 , has not con- ferred any new rights upon the inhabitants of the British colonies, but it is a declaratory act, the enactments whereof recognize and consecrate the constitutional maxim, that the colonies having a representation have an unalienable right not to be taxed without the consent of their representa- tives, and that to the Legislaure alone appertains the right of distributing all monies levied in the colonies. III. That the said act as well as a multitude of other acts of the British parliament which announce the same principles, and the acts and constant claims of the British colonies which have enjoyed a representa- tive system, have established a public colonial law, uniform for them all, under which they have prospered, by which their legislatures have an- nually distributed the revenue and exercised an effectual and necessary controul over the expenses of their administration. IV. That there is the less reason to maintain that this province ought not to enjoy that right, as it is the only one of all the North Ameri- can colonies, for which the Imperial Parliament is not every year called upon to vote a great part of the expenses of the civil government. That this house is yet willing, as they have always been, to grant all the sums towards the necessary expenses of the administration of justice, and the support of the civil government provided they have a just controul over the whole revenue. V. That even assuming as a proposition, which, nevertheless, this house do formally reject, that the revenue applicable to the payment of the expenses of the civil government, and of the administration of jus- tice, may legally be distributed by any other authority than that of the legislature ; if they were sufficient to defray the whole of those expenses, the claim set up by the present administration to exemption from the effectual and necessary controul of the assembly, in the distribution of that portion of the public revenue, is by so much the more ungrounded, as in consideration of the acknowledged insufficiency of those funds, the house of assembly being called upon, to supply additional considerable sums, indispensably necessary for covering the whole expenses of the civil government, and of the administration of justice, they have the right of annexing to that grant, such conditions and limitations as the interest of the country appears to them to require. CIV LORD DALHOUSIE'S SPEECH PROROGUING THE LEGISLA- TURE OF LOWER CANADA, 1827 [Trans. : Christie, op. cit.] Gentleman of the legislative council, gentlemen of the assembly, I come to close this session of the provincial parliament, convinced, by the state of your proceedings, that nothing likely to promote the public inter- est can be now expected from your deliberations. To you, gentlemen of the legislative council, who have attended to your duties in this session, I offer my thanks on the part of his Majesty, as an acknowledgment of the regard which, by your presence, you have shown to the welfare of your country, and also of that proper respect which you have manifested for the sovereign, from whom your honours are derived. Gentlemen of the assembly, It is painful to me, that I cannot speak 1 See No. XXXIII. 342 Constitutional Documents of Canada. [1791-1840 my sentiments to you in terms of approbation and thanks. The proceed- ings in this session impose upon me a duty, of which, however unpleasing, I will acquit myself as a faithful servant of my king, and a sincere friend to the province. Many years of continued discussion of forms and accounts have proved unavailing to clear up and set at rest a dispute, which moderation and reason might have speedily terminated. It is lamentable to see, that no efforts or concessions of his Majesty's government have succeeded in reconciling those differences of opinion in the legislature; but it is in- finitely more so, that differences on one subject should cause a rejection of every other measure which his Majesty's government recommends to your considration. The duties expected of you in this session were not difficult ; among the first was an examination of the public accounts of last year, and a report upon them, whether of approval or otherwise; has that duty been done so that your country can know the result? Have you considered the estimated expenditure for the current year, and granted the supply required in his Majesty's name? or have reasons been assigned for the refusal of them, that can be known and understood by the country? Have the messages from his Majesty's representative been duly acknowledged, and answered according to the rules and forms of parliament, or according with the respect which is due by each branch of the legislature to the other? Have the rules or orders of proceeding in the house of assembly been attended to, in so far as they affect and recognize the prerogative tights of the crown? These are questions, gentlemen, which you are now to ask yourselves individually and answer to your constituents on your return to them. These are questions which you are to answer to your consciences, as men who are bound by oaths of fidelity to your country and to your king. In my administration of the government, I have seen seven years pass away without any conclusive adjustment of the public accounts; thus accumulating a mass for future investigation, which must lead to confu- sion and misunderstanding. In the same years I have seen the measures of government, directly applicable to the wants of the province thrown aside without attention and without any reason assigned. I have seen the forms of parliament utterly disregarded ; and in this session a positive assumption of executive authority, instead of that of legislative, which last, is, alone your share in the constitution of the state 1 . The results of your proceedings in this session have been, the refusal of the supplies necessary for the ordinary expenses of government, the loss of the militia bill, the failure of all provision for the maintenance of prisoners in your gaols and houses of correction, for the support of the insane and foundlings, and for the establishments of education and char- ity, and a total obstruction of local and public improvements. In this state of things, and with the experience of past years, it is now no longer consistent with a proper discharge of the high trust com- mitted to me, to entertain hopes of a return to better reason in the repre- sentative branch of this parliament but it is still my duty to call upon you as public men, and to call upon the country, as deeply interested in the result, to consider seriously the consequences of perseverance in such a course. I shall conduct the Government with the means in my power, with an undiminished desire to do good; but while I must submit myself to the interruption of all public improvement, under the authority of the civil government, I will declare my deep regret at such a state of things: I think it right to convey to the country, a free and unreserved expression of my sentiments upon these public misfortunes; and I will leave no doubt on the public mind of my determination to persevere firmly in the path 1 This is a concise statement of the whole difficulty. 1791-1840] Constitutional Documents of Canada. 343 of my diity, with a faithful regard to the rights of my sovereign with which are also combined the^est interests of the province. It only remains for me now, compelled by existing circumstances, to prorogue this parliament, whatever may be the inconvenience resulting to the province by such a measure. cv HUSKISSON'S SPEECH ON CANADIAN AFFAIRS 1 [Trans. : Christie, op. cit.\ There is, I am sure, none who will not say, that the pretensions of the legislative body to take the whole management of these monies into its own hands, are neither founded in law nor practice. On the other hand, the house of assembly holding the public purse in its own hands, having the complete command of the general revenue, in order to enforce its unreasonable pretensions for so I must call them, inasmuch as they are contrary to law, inconsistent with, and subversive of all the principles of constitutional government in order I say to enforce their pretensions, have refused to appropriate any part of the larger revenue, of which they have the command, unless also the appropriation of the permanent crown revenue be given up to them. This, sir, is the state of the controversy between the executive and the legislative body in Canada. The conse- quences of the agitation of such a question as this, in which both parties have stood upon their extreme rights have been most unfortunate, and such as all who looked dispassionately at the subject, could not but most deeply regret. One of the unfortunate consequences has been, the neces- sity under which the representative of the king has found himself, of ap- propriating money for the necessary services of the colony, without the sanction of the colonial legislature. Such a thing as this, in a country with a legislative assembly in a country that has the least pretence to freedom, can only be justified by the absolute necessity of preventing general confusion, and the subversion of the government. I do not stand here, God forbid that I should ! in the British House of Commons, living as I do, in a country where the rights of the popular branch of the legis- lature to controul the expenditure of the money it raises are so well known and universally acknowledged to defend the abstract propriety of a gov- ernor of a colony appropriating its revenue without the sanction of an act of the legislature, as required by law; but, pressed by necessity, it ought not perhaps to be wondered at, however we may regret the neces- sity, that a governor should take all the means in his power to maintain the tranquillity of the place committed to his charge. When principles are pressed to the extreme, a legislature may, no doubt, distress the executive government of a country, and so wear it out by continued op- position, as to have the point in dispute conceded ; but what are not in the meantime the unfortunate results to the people? What, in the midst of these conflicts, has been the result to the province of Canada? Noth- ing was expended of the money raised in this irregular manner, as I must call it, but what was absolutely necessary to carry on the government of the province ; all improvement was at a stand, the roads were neglected, education was overlooked, the public buildings were suffered to fall to decay, and the country generally I will not say reduced to a state of anarchy, because the king's representative properly sustained his govern- ment was brought to such a state that there was not a Canadian whose in- terests did not suffer. The recurrence of such a state of things it is our 1 In 1828 matters reached such a crisis that the Extremists under Papineau attacked Dalhousie in terms of abuse. A monster petition condemning him and setting forth grievances was sent to England. A counter-petition from the Eastern Townships followed. On Huskisson's motion the Government appointed a committee to investi- gate Canadian affairs. Extracts from its Report, whish, including evidence, runs to four hundred pages, are given in the next document. 344 Constitutional Documents of Canada. [1791-1840 duty to prevent, and I think I have made out such a case as is sufficient to convince the house, without going into further details, that, if we have the right and the power, the time is come which warrants us calling upon parliament to interpose its beneficent authority for the purpose of quieting these feuds, and of establishing such a system of civil government as may give a fair share to all parts of the province of the administration of the revenues, so as to render them available for the improvement of the country such a system as will on the one hand give to the legislative assembly the power of directing the whole application of funds for the internal improvement of the province, and on the other, restraining them from the exercise of any authority over what I may call the civil list. Every man who knows anything of the country must be aware of the unfitness of the king's representative in the government, and the judicial establishment for the administration of criminal justice, which is the same as that of England, depending for their stipends upon the varying judg- ments of a popular assembly. The inexpediency of this with regard to the judicial establishment, which in its administration of justice, might often come into collision with the members of the assembly, whose judg- ment is every year to regulate the reward of their services, must be par- ticularly obvious. Judges have duties to perform, which render it essential that they should be perfectly independent. I trust I need say no more to convince the house, that the system wished to be established by the Cana- dian legislature, is not compatible with the independence and dignity either of the king's representative or the criminal judges. Out of what particu- lar fund these charges should be defrayed, I am not prepared to say, but the present plan of paying a fixed and settled sum out of a variable reve- nue, I certainly think might be amended. Without, however, entering into the particulars on this point, I think some mode might be found for estab- lishing what I have styled the civil list, from which the salaries of the judicial and other departments, should be granted for life; or in any other way that would answer the object I have in view. The remainder of the revenue should then be left to the free disposal of the colonial legis- lature. I must here, in justice to the king's government in Canada, claim for them their due. So far was it from wishing to have any control over any further sum than that to which I have alluded, that they never hesi- tated, during the whole of these troubles, to lay before the legislature of the province, an account of the application of, and payments from the revenue, in order that the assembly might be assured there was no mis- application of it. The government there are perfectly willing, it is evident from this, to accede to the suggestion I have just made respecting the share of controul it shall have over the colonial revenues. Sir, I do not think there are any other topics connected with the present state of Canada, which would justify me in detaining the house longer, as I trust I have said sufficient to support me in the motion I intend to make. There are two grounds on which I principally rest. The first is the state of the representative system in Lower Canada, and the situation of the revenue in respect to the administration of justice; and the second is the con- troversy which has grown up respecting the powers of the executive and legislative bodies. The case I have made out on those two points is suffi- cient, I trust, to entitle me to the committee for which I mean to move. Before I sit down, I beg only to add a word or two respecting a point which has been insinuated in this house, and discussed in other places. I allude to what has been said respecting the policy of giving up the colony altogether. Those who think it would be politic to do so, may say that we ought to spare ourselves the trouble and endeavours to improve the state of the provinces, by taking the wiser and better course of relin- quishing them altogether. Let those who argue thus, consider that these are our fellow subjects are born like ourselves, in the king's allegiance are fulfilling all the duties of subjects and are willing to remain as such and fulfil all the obligations their allegiance to the Crown requires. I say, that whilst that is the case, they are fairly entitled to claim from us that protection which their fidelity and good conduct have rendered them 1791-1840] Constitutional Documents of Canada. 345 so worthy of. On such a subject I will not argue on what is, however, a very maintainable ground, the importance of these provinces to Great Britain in a naval, a commercial and political point of view but I im- plore honourable gentlemen, before they venture even to allow themselves to hint at such a conclusion as that to which I have just adverted, to con- sider the political honour of this country, and the moral impression which would be made on all nations by such a relinquishment without necessity, and without its ever having been asked us. Shall we give up such a pos- session without a challenge? Or shall we, as was done in the case of an- other part of America once, also belonging to France, I mean Louisiana shall we make it a matter of pounds, shillings and pence? Shall we sell it to another power? England has not fallen so low, Canada is bound to us by the recollections of honourable valour, both naval and military. It is a trophy too glorious to part with in either of the ways I have alluded to. Canada cannot but be maintained by every means within our power; we are bound if we wish to bear untarnished our honour, to give Canada protection to the last extremity. That, then, is not a view of the subject we can for one instant entertain. It is a country, too, let it be re- membered, where there are none of those unfortunate distinctions which prevail in others of our colonies there is no division of castes, no slavery the people are, I may say, almost as one family united by the most in- timate connections with this country. England is the parent of many colonies, one of which now forms one of the greatest and most flourish- ing empires in the world; by that, and others, we have carried our lan- guage, our free institutions, and our system of laws, to the most remote corners of the globe. What we have thus planted is now taking root, and what we now foster as colonies will be, no doubt, one day or other, themselves free nations, the communicators of freedom to other countries. If I am told that for this we have made great sacrifices, I say, be it so, for in spite of these sacrifices, England remains, for its extent, still the most powerful, the most happy nation that does or ever has existed. 1 say, moreover, that we should be well paid for all the sacrifices we may yet be called upon to make, if we are to add to the rich harvest of glory we have already reaped, by being the parent of countries in which the same happiness and prosperity that has distinguished this country will, I trust, for many ages to come be enjoyed. That will be our reward for establishing our superfluous population not only in America, but in other quarters of the world. What can be a prouder feeling for Englishmen, than that England has done its duty to the world, by attempting, and suc- cessfully, to improve it? Whether Canada is to remain for ever depend- ent on England, or is to become an independent state not, I trust, by hos- tile separation, but by amicable arrangement it is still the duty and in- terest of this country to imbue it with English feeling, and benefit it with English laws and institutions. CVI REPORT OF THE SELECT COMMITTEE ON THE STATE OF THE CIVIL GOVERNMENT OF CANADA 1 [Trans.: British Parliamentary Papers, 1828, VII; S69.J 22nd July, 1828. Your committee began their investigation into the state of the civil government of Canada, by examining the several petitions from the in- habitants of the two provinces, which had been referred to them by the house. The petition from the townships of the lower province 12 , signed by 1 The extracts given from the Report are the most important constitutionally. The whole Report is valuable, and the 308 pages of evidence are of exceptional interest. The Report became, later on, a strong political platform of reform in Lower Canada. Unfortunately, the Report was never debated in the British Parliament, for soon after it was drawn up Huskisson ceased to be Colonial Secretary. 1 The Eastern Townships. 346 Constitutional Documents of Canada. [1791-184C about 10,000 persons, complain of the want of courts within their own limits, and of the administration of french law in the french language. That they are without representation in the house of assembly in Lower Canada ; and that emigrants of British origin have been deterred from settling in the province: And, finally, they pray that a legislative union may take place between Upper and Lower Canada. 1 Your committee then proceeded to examine the petition signed by 87,000 inhabitants of Lower Canada, resident within the seigniories, who complain of arbitrary conduct on the part of the governor of the province of his having applied public money without legal appropriation of vio- lent prorogations and dissolutions of the provincial parliament, and of his having prevented the passing of many useful acts, which they enumerate. They complain also that a receiver general had been maintained in the exercise of his functions for some years after his insolvency was known to the government. That similar abuses had prevailed with respect to the office of sheriff. And it is further stated, that the rights of the petitioners had been injured by acts of the Imperial parliament, particu- larly by the Canada Trade Act and the act passed in the sixth year of his Majesty's reign, chap. 59, affecting the Tenures of Land. For a further knowledge of the grievances complained of, your com- mittee beg leave to refer to the petitions, which will be found in the ap- pendix. Before your committee proceed to explain or to discuss these im- portant subjects, they think it their duty to state, that petitions from the province of Upper Canada were also referred to their consideration ; the prayer of which petitions is, that the proceeds arising from the sale of certain lands set apart for a protestant clergy may not be applied solely to the use of the clergy of the church of England, (the adherents to which throughout the province they state, in contradiction to representations of Archdeacon Strachan, to be comparatively few in number) but that they may be applied to the maintenance of protestant clergymen of other de- nominations, and to the purposes of general education. As these petitions appear to comprehend the most material subjects that have of late agitated the provinces of Upper and Lower Canada, your committee thought the best course they could pursue, was to examine witnesses as to each petition, in succession, and in communicating to the house, the information they have received, and the opinions they have been induced to form as to the civil government of Canada, they will treat of the different subjects as much as possible in the order in which they were investigated. Your committee proceeded to examine into the peculiar system of law established in Lower Canada, to which their attention was peculiarly drawn by the petition from the Townships. Your committee have ex- amined in great detail on this subject, from which they collect that un- certainty has long existed on points of law relating to the tenure of real property in that portion of the province. It appears that shortly after the cession of the province, the king of England, in a proclamation dated the 7th October, 1763 1 (which will be found in the appendix) declared, amongst other things, "That all the inhabitants of the province, and all others re- sorting to it, might confide in his royal protection for enjoying the benefit of the laws of England," and announced that he had given commands for the erection of courts of judicature, with an appeal to his Majesty in council. In the year 1774*, the first act of parliament was passed making pro- vision for the better government of this part of the British dominions. By this act the English criminal law was preserved. But it was enacted that, "in all matters of controversy relating to property and civil rights, resort should be had to the laws of Canada, as the rule for decision of the same, and all causes that should therefore be established in every court of justice, to be appointed within the province, should, with respect to 1 Cf. No. XCIV. * See No. IV. See No. XXV. 1791-1840] Constitutional Documents of Canada. 347 such property and rights, be determined agreeably to the said laws and customs of Canada." There is, however, one marked exception to this concession of the French law, namely, "that it should not apply to lands which had been, or should be granted in Free and Common Soccage." After an interval of several years, this act was followed by the Con- stitutional Act of 179V. The provisions of this important act have no bearing upon the subject under our consideration, excepting that it pro- vides with respect to Lower Canada, that lands shall be granted in free and common soccage if so desired, and further, that such grants are to be subject to such alteration, as to the nature and consequences of Soccage Tenure, as may be made by the provincial legislature, and with his Ma- jety's approbation and assent; but no such alteration has been made. On examining into the application of those provisions in the province, it appears not only that doubts have existed as to the true interpretation of them but that the general practice of the colony has been to convey real property within the townships according to the Canadian forms, and that it has descended and been subject to the incidents of that law. In the year 1826, the British parliament passed an act which put its own interpretation of these statutes beyond the reach of further dispute. This act, commonly called the Canada Tenures' Act, 2 declared that the law of England was the rule by which real property within the townships was to be hereafter regulated and administered. In offering any recommenda- tions on points of so much difficulty and importance, your committee are fully aware of the disadvantages under which they labour, and of their inability, from the want of sufficient technical and local information to enter, for any useful purpose, into minute and intricate details. They do not, however, decline to offer as their opinion, that it would be ad- vantageous that the declaratory enactment in the Tenures' act respecting lands held in free and common soccage should be retained : that mort- gages should be special, and that in proceedings for the conveyance of land, the simplest and least expensive forms of conveyance should be adopted upon the principles of the law of England; that form which pre- vails in Upper Canada, being probably under all circumstances, the best which could be selected : that a registration of deeds relating to soccage lands should be established as in Upper Canada. Your committee are further of opinion that means should be found, of bringing into effective operation the clause in the Tenures' act, which provides for the mutation of tenure; and they entertain no doubt of the inexpediency of retaining the seigniorial rights of the crown, in the hope of deriving a profit from them. The sacrifice on the part of the crown would be trifling, and would bear no proportion to the benefit that would result to the colony from such a concession. In addition to these recommendations it appears to be desirable that some competent jurisdiction should be established to try and decide causes arising out of this description of property; and that circuit courts should be instituted within the townships for the same purposes. The committee cannot too strongly express their opinion that, the Canadians of French extraction should, in no degree, be disturbed in the peaceful enjoyment of their religion, laws, and privileges, as secured to them by the British acts of parliament; and so far from requiring them to hold lands on the British tenure, they think that when the lands in the seigniories are fully occupied, if the descendents of the original settlers shall still retain their preference to the tenure of fief et seigneurie, they see no objection to other portions of unoccupied lands in that province being granted to them on that tenure, provided that such lands are set apart from and not intermixed with the townships. Your committee are now desirous of adverting to the representative system of Lower Canada, with respect to which all parties seem to agree that some change should take place. To this branch of their enquiry, they are desirous of recalling to the recollection of the house that under the provisions of the act of 1791, the division of the province for the purpose 1 See No. LV. 3 6 George IV, c. 59. 348 Constitutional Documents of Canada. [1791-1840 of exercising the elective franchise, was entrusted to the governor; and it appears that Sir Alured Clarke took the numerical amount of the popu- lation as the sole basis on which his calculations were formed, and divided into counties as much land as was found to contain a given number ot inhabitants. On the thickly populated banks of the St. Lawrence, a small district was found to suffice, while in the most distant parts, vast terri- tories were comprehended in one county, in order to obtain the requisite amount of population. Thus it happens that the counties of Kent, Surrey, Montreal, Leinster, and Warwick, do not, altogether, equal, in extent, the single county of Buckinghamshire. The small counties, too, are com- posed wholly of lands holden as seigniories. A bill actually passed the assembly, the object of which was to in- crease the number of the representative assembly. This bill did not be- come a law, and it appears to have been founded upon the same prin- ciple, and to have involved the same error as the original arrangement by Sir Alured Clarke. It has been stated by one of the witnesses, that under the proposed division, a disproportionable increase would have been given to the representatives from the seigniories. In providing a representative system for the inhabitants of a country which is gradually comprehending in its limits newly peopled and exten- sive districts, great imperfections must necessarily arise from proceeding, in the first instance, on the basis of population only. In Upper Canada, a representative system has been founded on the compound basis of terri- tory and population. This principle, we think, might be advantageously adopted in Lower Canada. One of the obstacles which is said greatly to impede the improve- ment of the country is, the practice which has prevailed in making grants of land in large masses to individuals who had held official situations in the colony, and who have evaded the conditions in the grant, by which they were bound to provide for its cultivation, and now wholly neglect it, although powers have been latterly acquired by the government to escheat these lands ; and although we think that under certain modifica- tions this power may be advantageously used, we are nevertheless of opinion that a system should be adopted similar to that in Upper Canada, by the levy of a small annual duty on lands unimproved and unoccupied, contrary to the conditions of the grant. It now becomes the duty of your committee to advert to the petitions signed by the inhabitants of the seigniories, on the important subjects con- tained in them. They thought it right to call for explanation from Mr. Neilson, Mr. Viger, and Mr. Cuvillier, members of the assembly of Lower Canada, who had been deputed to this country for the purpose of seeking redress for the injuries complained of by the petitioners. From the testimony of these gentlemen we have learned, with the deepest regret, that the disputes which have arisen between the govern- ment and the house of assembly, originating (as they appear to have done) in doubts as to the right of appropriating, and accounting for a considerable portion of the public revenues, have led to a state of con- fusion and difficulty in the administration of public affairs in the colony, which calls for a decisive and early remedy. With a view to understand accurately the grounds of this dispute, the committee have carefully examined into the different sources of revenue arising in Lower Canada, and they have examined also the public docu- ments which have enabled them to trace the successive steps which had been taken by the contending parties in these disputes. Your committee beg leave to refer to the evidence of Mr. Neilson and of Mr. Wilmot Hor- ton, for a detailed account of the origin and progress of these differences. Upon this important subject your committee have felt that they should not do wisely in confining their views to a critical examination of the precise meaning of the words of the different statutes they look rather to the circumstances of Lower Canada to the spirit of its constitution to the position and character of the local government, and the powers, privileges and duties of the two branches of the legislature. 1791-1840] Constitutional Documents of Canada. 349 Although from the opinion given by the law officers of the crown, your committee must conclude that the legal right of appropriating the revenues arising from the act of 1774, is vested in the crown, they are prepared to say that the real interests of the province would be best pro- moted by placing the receipt and expenditure of the whole public revenue under the superintendance and controul of the house of assembly. On the other hand, your committee, while recommending such a con- cession on the part of the crown, are strongly impressed with the advan- tages of rendering the governor, the members cf the executive council, and the judges independent of the annual votes of the house of assembly, for their respective salaries. Your committee are fully aware of the objections in principle, which may be fairly raised against the practice of voting the permanent salaries to judges who are removable, at the pleasure of the crown; but being con- vinced that it would be inexpedient that the crown should be deprived of that power of removal, and having well considered the public incon- venience which might result from their being left in dependence upon an annual vote of the assembly, they have decided to make the recom- mendation, in their instance, of a permanent vote of salary. Although your committee are aware that the grant of permanent salaries has been recommended to a much greater number of persons con- nected with the executive government, than they have included in their recommendation, they have no hesitation in expressing their opinion, that it is unnecessary to include so large a number, and if the officers above enumerated, are placed on the footing recommended, they are of opinion that all the revenues of the province (except territorial and hereditary revenues) should be placed under the controul and direction of the legis- lative assembly. Your committee cannot close their observations on this branch of their enquiry, without calling the attention of the house to the important circumstance, that in the progress of these disputes, the local government has thought it necessary through a long series of years, to have recourse to a measure (which nothing but the most extreme necessity could justify) of annually appropriating by its own authority, large sums of money of the province, amounting to no less a sum than 140,000 without the con- sent of the representatives of the people, under whose controul the appro- priation of these monies is placed by the constitution. Your committee cannot but express their deep regret that such a state of things should have been allowed to exist for so many years in a British colony, without any communication or reference having been made to parliament on the subject. Upon the several points referred to your committee connected with the office of receiver general, of the sheriffs, and of the Jesuits' estates, your committee proceeded to examine evidence on each. The facts of the case as regards the receiver general, Mr. Caldwell, are detailed in Mr. Neilson's evidence. Mr. Caldwell was a defaulter in 1823 for 96,000 of the public money of the province. Upon an examination of the accounts by the house of assembly, no acquittal could be traced from the treasury of a later date than 1814, though some balances were stated up to 1819, and it appeared by documents then produced, that the fact of his de- ficiency was known for a considerable time before he was suspended. Your committee recommend for the future that steps should be taken by efficient securities and by a regular audit of the accounts, to prevent the recurrence of similar losses and inconveniences to the province. As connected with this branch of the enquiry, your committee recom- mend that precautions of the same nature should be adopted with regard to the sheriffs, as it appears that within a few years two instances of the insolvency of these officers have occurred, while possessed, in virtue of their office, of large sums of money deposited in their hands. With respect to the estates which formerly belonged to the Jesuits your committee lament that they have not more full information, but it 350 Constitutional Documents of Canada. ' [1791-1840 appears to them to be desirable that the proceeds should be applied to the purposes of general education. One of the most important subjects to which their enquiries have been directed, has been the state of the legislative councils, in both the Canadas, and the manner in which these assemblies have answered the purposes tor which thy were instituted. Your committee strongly recommend that a more independent character should be given to those bodies, that the majority of their members should not consist of persons holding office at the pleasure of the crown, and they are of opinion, that any other measures that may tend to connect more intimately this branch of the constitution with the interest of the colonies, would be attended with the greatest advantage. With respect to the judges, with the exception only of the chief justice, whose presence, on particular occasions, might be necessary, your committee entertain no doubt that they had better not be involved in the political business of the house. Upon similar points, it appears to your committee, that it is not desirable that judges should hold seats in the executive council. Your committee are desirous of recording the principle, which, in their judgment, should be applied to any alterations in the constitution of the Canadas, which was imparted to them under the formal act of the British legislature of 1791. The principle is to limit the alterations which it may be desirable to make by any future British act, as far as possible, to such points as from the relation of the mother country with the Can- adas, can only be disposed of by the paramount authority of the British legislature; and they are of opinion, that all other changes should, if pos- sible, be carried into effect by the local legislatures themselves, in amicable communication with the local government. Upon the great question of the union of the two Canadas, your com- mittee have received much evidence, to which they desire to call the at- tention of the house. With reference to the state of public feeling that appears to prevail in these colonies on thjs momentous subject, your com- mittee are not prepared, under present circumstances, to recommend that measure. Your committee, nevertheless, think it highly desirable that some sat- isfactory arrangement, (and, if possible, one of a permanent nature,) should be effected between the two Canadas, with regard to the imposition and distribution of the customs collected in the St. Lawrence. They trust, however, when the heats which so unfortunately exist shall have subsided, that such an arrangement may be amicably effected. ****** Your committee beg leave to call the particular attention of the gov- ernment to the mode in which juries are composed in the Canadas, with a view to remedy any defects that may be found to exist in the present system. Your committee lament that the late period of the session in which they were appointed, has rendered a minute investigation into all parts of the subject submitted to them impossible. They believe, too, that if the legislative assemblies and the executive government of Canada can be put on a right footing, that means will be found within the province of remedying all minor grievances. They are disposed, nevertheless, that the prayer of the lower Canadians for permission to appoint an agent in the same manner as agents are appointed by other colonies which possess local legislatures, should be granted ; and that a similar privilege should be extended to Upper Canada, if that colony should desire it. At an early period of their investigation, your committee perceived that their attention must be directed to two distinct branches of enquiry : 1st, To what degree the embarrassments and discontents which have long prevailed in the Canadas, had arisen from defects in the system of laws and the constitutions established in these colonies. 2nd, How far these evils are to be attributed to the manner in which the existing system has been administered. 1791-1840] Constitutional Documents of Canada. 351 Your committee have clearly expressed their opinion that serious de- fects were to be found in that system, and have ventured to suggest sev- eral alterations that have appeared to them to be necessary and conveni- ent. They also fully admit, that from these as well as from other cir- cumstances, the task of government in these colonies (and especially in the Lower Province) has not been an easy one ; but they feel it their duty to express their opinion that it is to the second of the causes alluded to, that these embarrassments and discontents are in a great measure to be traced. They are most anxious to record their complete conviction that neither the suggestions they have presumed to make, nor any other im- provements in the laws and constitutions of the Canadas will be attended with the desired effect, unless an impartial, conciliatory and constitutional system of government be observed in these loyal and important colonies. CVII NEILSON'S RESOLUTIONS, HOUSE OF ASSEMBLY, LOWER CANADA 1 [Trans. : Christie, op. cit.] 6th December, 1828. 1. Resolved, That it is the opinion of this committee, that this house has derived the greatest satisfaction from the gracious expression of his Majesty's beneficent views towards this province, and from the earnest desire of his excellency the administrator of the Government, to promote the peace, welfare and good government of the province, as evinced in his excellency's message of Friday last. 2. Resolved, That it is the opinion of this committee, that this house has, nevertheless, observed with great concern, that it may be in- ferred from the expression of that part of the said message which relates to the appropriation of the revenue, that the pretension put forth at the commencement of the late administration, to the disposal of a large por- tion of the revenue of this province, may be persisted in. 3. Resolved, That it is the opinion of this committee, that under no circumstances, and upon no consideration whatsoever, ought the house to abandon or in any way compromise, its inherent and constitutional light, as a branch of the provincial parliament, representing his Majesty's subjects in this colony, to superintend and controul the receipt and ex- penditure of the whole public revenue arising within this province. 4. Resolved, That it is the opinion of this committee, that any legislative enactment in this matter by the parliament of the United King- dom, in which his Majesty's subjects in this province are not and cannot be represented, unless it were for the repeal of such British statutes or any part of British statutes, as may be held by his Majesty's government to militate against the constitutional right of the subject in this colony, could in no way tend to a settlement of the affairs of the province. 5. Resolved, That it is the opinion of this committee, that no inter- ference of the British legislature with the established constitution and laws of this province, excepting on such points as from the relation be- tween the mother country and the Canadas, can only be disposed of by the paramount authority of the British parliament, can in any way tend to the final adjustment of any difficulties or misunderstandings which may exist in this province, but rather to aggravate and perpetuate them. 6. Resolved, That it is the opinion of this committee, that in order to meet the difficulties of the ensuing year, and to second the gracious intentions of his Majesty for the permanent settlement of the financial concerns of the province, with due regard to the interests and efficiency 1 These Resolutions were the Assembly's reply to a conciliatory speech from Sir James Kempt, based on the Report of the Committee of 1828. (See Christie, III, pp. 224 ff.) 352 Constitutional Documents of Canada. [1791-1840 of his government, this house will most respectfully consider any esti- mate for the necessary expenses of the civil government for the ensuing year, which may be laid before it, confidently trusting that in any such estimate a due regard will be had to that economy which, the present cir- cumstances of the country and its wants require. 7. Resolved, That it is the opinion of this committee, that on the permanent settlement before mentioned being effected with the consent of this house, it will be expedient to render the governor, lieutenant- governor, or person administering the government for the time being, and the judges and executive councillors independent of the annual vote of the house, to the extent of their present salaries. 8. Resolved, That it is the opinion of this committee, that although this house feels most grateful for the increased security against the illegal application of the public money, which must result from his Majesty's government referring all persons who may have been concerned in such application, to an act of indemnity to be consented to by this house, it will be inexpedient to consent to any such enactment till the full extent and character of such illegal applications may have been fully enquired into and considered. 9. Resolved, That it is the opinion of this committee, that this house feels the most sincere gratitude for his Majesty's solicitude to effect the most perfect security against the recurrence of abuses on the part of persons entrusted with the public monies in this province. 10. Resolved, That it is the opinion of this committee, that this house has not complained, nor have any complaints been made known to it, respecting the arbitration for the distribution between the provinces of Upper and Lower Canada, of the duties collected in Lower Canada ; but that in this, as in every other respect, this house will most cheerfully co-operate in every equitable and constitutional measure which may be submitted to it, as desirable by the inhabitants of Upper Canada. 11. Resolved, That it is the opinion of this committee, that this house has seen with sentiments of the highest satisfaction and gratitude, the declaration of the willingness of his Majesty's government cheerfully to accede to the desires which the assembly has so frequently expressed during the last twenty years, of having an agent in England, to indicate the wishes of the inhabitants of Lower Canada ; and that it is expedient to provide for such an appointment without delay. 12. Resolved, That it is the opinion of this committee, that so soon as the scheme in contemplation of his Majesty's government for the per- manent settlement of the financial concerns of the province shall have been made known and considered, it may be expedient to provide some adequate indemnity to such persons as were placed on the civil establish- ment of this province, with salaries prior to the year one thousand eight hundred and eighteen, and whose offices may have been found to be un- necessary or require to be abolished. 13. Resolved, That it is the opinion of this committee, that this house will cheerfully concur in any measure which may appear most likely to be successful in effectually removing the great inconvenience which has been sustained from the non-performance of the duties of settlement by grantees or holders of land obtained from the crown, and otherwise remove the obstructions to the settlement of the country, which may have resulted or may hereafter result from the manner in which the powers and superintendence of the crown in this most essential particular as affecting the general prosperity of the province, may have been exer- cised. 14. Resolved, That it is the opinion of this committee, that it is the desire of this house to take as speedy as possible every means in its power, that the inhabitants of the townships, upon a subdivision of the counties in which they are situated by act of the provincial parliament, shall have a full and equitable representation in this house, of persons of their own free choice, and that the house will cheerfully concur in every measure particularly interesting to the townships, which may appear to be the 1791-1840] Constitutional Documents of Canada. 353 most desirable to their inhabitants, and the most conducive to the general welfare. 15. Resolved, That it is the opinion of this committee, that this house is fully sensible of the distinguished mark of confidence reposed in the loyalty and attachment hitherto evinced by his Majesty's Canadian subjects and their representatives in the provincial parliament, by his Majesty's declaration that he relies on them, for an amicable adjustment of the various questions which have been so long in dispute. 16. Resolved, That it is the opinion of this committee, that amongst those questions not particularly mentioned on the present occasion, this house holds as most desirable to be adjusted and most essential to the future peace, welfare and good government of the province, viz. : The independence of the judges and their removal from the political business of the province. The responsibility and accountability of public officers. A greater independence of support from the public revenues, and more intimate connection with the interest of the colony, in the com- position of the legislative council. The application of the late property of the Jesuits to the purposes of general education. The removal of all obstructions to the settlement of the country, par- ticularly the crown and clergy reserves remaining unoccupied in the neighbourhood of roads and settlements, and exempt from the common burthens. And a diligent enquiry into and a ready redress of all grievances and abuses which may be found to exist or which may have been petitioned against by the subject in this province, thereby assuring to all the in- dividual benefit of an impartial, conciliatory and constitutional govern- ment, and restoring a well-founded and reciprocal confidence between the governors and the governed. (Journal of the Assembly, 6th December, 1828.) CVIII THE CONSTITUTIONAL ACT AMENDMENT ACT, 1830 (11 George IV and I William IV, c. S3.) An Act to amend so much of an Act 1 of the thirty-first year of his late Majesty, for making more effectual provision for the Government of the Province of Quebec. 16th July, 1830. Whereas by an Act passed in the thirty-first year of the reign of his 31 Geo. Ill, late Majesty, King George the Third, intituled, "An Act to repeal certain cap. 31. parts of an Act passed in the fourteenth year of his Majesty's reign, in- tituled, 'An Act for making more effectual provision for the Government of Quebec in North America,' and to make further provision for the Government of the said Province," it is amongst other things enacted that no person shall be summoned to the Legislative Council in either of the Provinces of Upper Canada and Lower Canada who shall not be of the full age of twenty-one years, and a natural-born subject of his Majesty, or a subject of his Majesty naturalized by Act of the British Parliament, or a subject of his Majesty having become such by the conquest and ces- sion of the Province of Canada ; and it is thereby further provided that no person shall be capable of voting at any election of a member to serve in the Legislative Assembly in either of the said Provinces of Upper Canada or Lower Canada, or of being elected at any such election, who shall not be of the full age of twenty-one years, and a natural-born sub- ject of his Majesty, or a subject of his Majesty's naturalized by an Act of the British Parliament, or a subject of his Majesty, having become such 1 Sec No. LV. W 354 Constitutional Documents of Canada. [1791-1840 by the conquest and cession of the Province of Canada: And whereas it is expedient that persons naturalized by any Act of the Legislative Council and Assembly of the Province of Lower Canada assembled by his Majesty, his heirs, or successors should be enabled to be summoned to the Legis- lative Council of the said Province of Lower Canada, and of voting at the elections of members to serve in the Legislative Assembly of the said Province, or of being elected at any such election ; Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent naturalized ^ tne Lords Spiritual and Temporal, and Commons, in this present Parlia- may sit in ment assembled, and by the authority of the same, that all persons na- Assembly of turalized by any Act of the Legislative Council and Assembly of the andTfnLegis- Province of Lower Canada, assented to by his Majesty, his heirs or suc- lative Council, cessors, shall henceforth be and be deemed competent in the law to be summoned to the Legislative Council of the said Province of Lower Canada, and to vote at the elections of members to serve in the Legisla- tive Assembly of the said Province, and to be elected at any such election. N Ct f r t' ^' P rov 'ded nevertheless, and be it further enacted, that whenever not't-o havV n an y bill which has been passed by the Legislative Council and by the force or House of Assembly in the said Province of Lower Canada, for the na- authority turalization of any persons or person, shall be presented for his Majesty's Majesty's 9 assent to the Governor or Lieutenant-Governor of the said Province, or assent be to the person administering his Majesty's Government therein, such Gov- signified to ernor or Lieutenant-Governor, or person administering the Government, shall and he is hereby required to reserve every such bill for the signi- fication of his Majesty's pleasure thereon; and no such bill shall have any force or authority within the said Province of Lower Canada until the Governor or Lieutenant-Governor, or person administering the Govern- ment, shall signify, either by speech or message to the Legislative Council and Assembly of the said Province, or by proclamation, that such bill has been laid before his Majesty in Council, and that his Majesty has been pleased to assent to the same ; and no such bill shall have any force or authority within the said Province unless his Majesty's assent thereto shall have been so signified as aforesaid within the space of two years from the day on which such bill shall have been presented for his Ma- jesty's assent to the Governor, Lieutenant-Governor, or person adminis- tering the Government. CIX PETITION FROM HOUSE OF ASSEMBLY, LOWER CANADA [Trans.: Christie, op. cit.] May it please your Majesty. We your Majesty's dutiful and loyal subjects the commons of the province of Lower Canada, in provincial parliament assembled, confiding in the sentiments of justice and liberality which actuate your Majesty, humbly submit for your royal consideration : That notwithstanding the progress that has been made in the edu- cation of the people of this province, under the encouragement afforded by the recent acts of the legislature, the effect of the impediments opposed to its general dissemination by the diversion of the revenues of the Jesuits' estates, originally destined for this purpose, the withholding of promised grants of land for schools, in 1801, and the rejection in the legislative council of various bills in favor of education, are still severely felt throughout the province, and materially retard its prosperity. That the management of the waste lands of the crown has been vicious and improvident, and still impedes the settlement of these lands, by delays, expenses and difficulties, opposed to their easy and secure occupation by all persons without distinction, who may be disposed to become actual settlers thereon, and apply themselves to this branch of industry, so pre- eminently beneficial for the general prosperity of new countries. 1791-1840] Constitutional Documents of Canada. 355 That the power of regulating the trade of the province, reserved by the parliament of the United Kingdom, however beneficially it may have been exercised on several occasions for the prosperity of the colony and the general good of the empire, has, nevertheless, from the variations and uncertainty of the duration of its enactments, occasional injurious uncer- tainty in mercantile speculations, and prejudicial fluctuations in the value of real estate in the country, and in the different branches of industry particularly connected with trade. That the inhabitants of the different towns, parishes, townships, extra- parochial places and counties of this province, suffer from the want of sufficient legal powers for regulating and managing their several local concerns indispensable to improvement and their common welfare. That much uncertainty and confusion has been introduced into laws for the security and regulation of property, by the intermixture of differ- ent codes of laws and rules of proceeding in the courts of justice; and that the administration of justice is become insufficient and unnecessarily expensive. That this uncertainty and confusion has been greatly increased by enactments affecting real property within the colony, made in the parlia- ment of the United Kingdom since the establishment of the provincial par- liament, without those interested having even had an opportunity of being heard, and particularly by a recent decision on one of the said enactments in the provincial court of appeals. That several of the judges in the courts in this province have long been engaged in, and have even taken a public part in the political affairs and differences of the province, at the same time holding offices during pleasure, and situations incompatible with the due discharge of their judi- cial functions, tending to destroy that confidence in their impartiality, in cases where the executive government is concerned, which is so essential to the peace and well-being of the community. That during a long series of years, executive and judiciary offices have been bestowed almost exclusively upon one class of subjects in this pro- vince, and especially upon those the least connected by property or other- wise with its permanent inhabitants, or who have shewn themselves the most averse to the rights, liberties and interests of the people. That holding executive offices essential to the proper and regular administration of the government, and having lost the confidence of the country, several of these persons avail themselves of means afforded by their situations, to prevent constitutional and harmonious co-operation of the government and the house of assembly, and to excite ill-feeling and discord between them, while they are remiss in their different situations to forward the public business. That there exists no sufficient responsibility on the part of the persons holding these situations, nor any adequate accountability among those of them entrusted with public money, the consequence of which has been, the misapplication of large sums of public money, the loss of large sums of public money and of the money of individuals, by defaulters, with whom deposits were made, under legal authority, hitherto without reimbursement or redress having been obtained, norwithstanding the humble representa- tions of your petitioners. That the evils of this state of things have been greatly aggravated, by enactments made in the parliament of the United Kingdom, without even the knowledge of the people of this colony, which enactments have rendered temporary duties imposed by the provincial parliament permanent ; leaving in the hands of public officers, over whom the assembly have no effectual controul, large sums of money arising within this province, which is applied by persons subject to no sufficient accountability. That the selection of legislative councillors has also been chiefly con- fined to the description of the inhabitants of the province before mentioned, or to public officers holding situations during pleasure, with large salaries paid out of the public revenue, and who, uniting in the same persons legis- lative, executive and judiciary powers, countenance, encourage and uphold 356 Constitutional Documents of Canada. [1791-1840 abuses, and render all legislative remedies in the provincial legislature nearly impracticable. That while the people of this province suffer under the present state of things, and endeavour to obtain redress, they are not the less sensible of the advantages which they enjoy under your Majesty's government, and perticularly of the more liberal policy adopted towards this colony within the last two years; they nevertheless feel with sentiments of the deepest regret, that the hopes with which they were cheered, after a long period of unmerited suffering and insult, have been greatly diminished by the delays which have occurred in redressing many of the grievances com- plained of in their humble petition to the king and parliament in 1828, most of which were recommended to be removed by the select committee of the honorable the house of commons on the state of Canada, which reported in the same year ; particularly The interspersion of crown and clergy reserves among the lands granted by the crown. The evils resulting from Imperial legislation for the internal concerns of the colony. The composition of the legislative council. The dependence of the judges, and their interference witli the political concerns of the province. The want of responsibility and accountability of public officers, and of a tribunal in the colony for the trial of impeachments. The withholding of the revenues of the estates of the late order of Jesuits, from the purposes of education. The management of the waste lands of the crown, in consequence of which applicants for actual occupation are prevented from freely possessing the same under secure titles, in sufficient quantities for cultivation, without unnecessary delay, and without any expense or burthen, other than the fair and necessary costs of survey and title. Your petitioners most respectfully submit, that most of the grievances and subjects of complaint above set forth, may be remedied by your Majesty's royal prerogative, and that such a result would be equally advan- tageous to all classes of your Majesty's faithful subjects in this province, and to the general welfare of the empire. Wherefore your petitioners most humble pray that your Majesty will be pleased to take this their humble petition into your gracious considera- tion, and exercise your royal prerogative for remedy of the evils of which they complain, to the end that they may be wholly and for ever removed. And, as in duty bound, your petitioners will ever pray. cx CANADIAN REVENUE CONTROL ACT, 1831 1 (1 &2, William IV, c. 23.) An Act to amend an Act 1 of the fourteenth year of His Majesty King George the Third, for establishing a fund towards defraying the charges of the administration of justice and support of the civil gov- ernment within the Province of Quebec in America. 22ND SEPTEMBER, 1831. 14 G 3 c 88 Whereas by an Act passed in the fourteenth year of the reign of his late Majesty, King George, the Third, intituled "An Act to establish a Fund towards further defraying the charges of the administration of jus- tice and support of the Civil Government within the Province of Quebec in America," it was amongst other things enacted that from and after the fifth day of April, one thousand, seven hundred and seventy-five, there should be raised, levied, collected and paid unto his said late Majesty, his 1 This Act was violently opposed by the Duke of Wellington. (See Lord's Journals, 6 Sept., 1831.) 'See No. XXVI. 1791-1840] Constitutional Documents of Canada. 357 heirs and successors, for and upon the respective goods thereinafter men- tioned, which should be imported and brought into any port of the said Province, over and above all other duties then payable in the said Province by any Act or Acts of Parliament, the several rates and duties therein mentioned; (that is to say,) for every gallon of brandy or other spirits of the manufacture of Great Britain, three-pence; for every gallon of rum or other spirits, which should be imported or brought from any of his Majesty's sugar colonies in the West Indies, six-pence; for every gallon of rum or other spirits which should be imported or brought from any other of his Majesty's colonies or dominions in America, nine-pence; for every gallon of foreign brandy, or other spirits of foreign manufacture, imported or brought from Great Britain, one shilling; for every gallon of lum or of the produce or manufactures of any of the Colonies or Planta- tions in America not in the possession or under the Dominion of his Majesty imported from any other place except Great Britain, one shilling; for every gallon of molasses and syrups which should be imported or brought in the said Province in ships or vessels belonging to his Majesty's subjects in Great Britain or Ireland, or to his Majesty's subjects in the said Province, three-pence; for every gallon of molasses and syrups which should be imported or brought into the said Province in any other ships or vessels in which the same might be legally imported, six-pence ; and after those rates for any greater or less quantity of such goods respective- ly ; and it was thereby further enacted that all the monies that should arise by the said duties (except the necessary charges of raising, collecting, levy- ing, recovering, answering, paying, and accounting for the same) should be paid by the Collector of his Majesty's customs into the hands of his Majesty's Receiver-General in the said Province for the time being, and should be applied in the first place in making a more certain and adequate provision towards defraying the expenses of the administration of justice and of the support of the Civil Government in the said Province; and that the Lord High Treasurer, or the Commissioners of his Majesty's Treasury, or any three or more of them for the time being should be and they were thereby empowered from time to time by any warrant or warrants under his or their hand or hands, to cause such money to be applied out of the said produce of the said duties towards defraying said expenses ; and it was thereby enacted that the residue of the said duties should remain and be reserved in the hands of the said Receiver-General for the future dis- positions of Parliament: And whereas the said Province of Quebec hath since the enactment of the said Act been divided into the two Provinces of Upper Canada and Lower Canada : And whereas it is expedient to make further provision for the appropriation of the duties raised, levied and col- lected under the said Act; be it therefore enacted by the King's Most Excel- Legislative lent Majesty, by and with the advice and consent of the Lords Spiritual and^pperand Temporal and Commons, in this present Parliament assembled, and by the Lower Canada authority of the same, that it shall and may be lawful for the Legislative may appropri- Councils and Assemblies of the said Provinces of Upper Canada and Lower ^^tam Canada respectively, by any Acts to be by them from time to time passed thereof as and assented to by his Majesty, his heirs, and successors, or on his or their shall seem behalf, to appropriate in such manner, and to such purposes as to them meet to them, respectively shall seem meet, all the monies that shall hereafter arise by, or be produced from the said duties, except so much of such monies as shall be necessarily defrayed for the charges of raising, collecting, levying, recovering, answering, paying, and accounting for the same. 1 1 See Lucas, Lord Durham's Report, Vol. I, p. 182; Vol. II, p. 141. 358 Constitutional Documents of Canada. [1791-1840 CXI PETITION OF HOUSE OF ASSEMBLY OF LOWER CANADA, 1833' [Trans. : Christie, op. cit.] To the king's most excellent Majesty. May it please your Majesty, We, your Majesty's faithful and loyal subjects, the commons of Lower Canada, assembled in provincial parlia- ment, deeply impressed with the necessity of the concordance and harmony that ought to prevail between the several branches of the legislature of this province, for promoting the happiness, the welfare and the good govern- ment of its inhabitants, have taken into mature consideration the circum- stances connected with the constitution and composition of the legislative council of this province, as established by the act of the parliament of Great Britain, in the 31st year the reign of your late royal father, our august sovereign of blessed memory, have considered it as our duty towards your Majesty as the supreme head of the British Empire, and paternal chief of the people who compose it; towards ourselves as representing one of the most loyal of those people, and towards the general interests of the empire, most respectfully to represent: That the legislative council of this province, has not, at any period of its existence, given proofs of that spirit of independence and community of interests, with the inhabitants of the country, which could alone ensure that harmony in the proceedings of the government, and give, in particular to each of its branches, that degree of confidence of public opinion which is requisite to produce that effect. That it could not be otherwise, when it is considered that the original constitution of that body, and its renovation in proportion as vacancies occurred has been at the disposal of the crown, at the recommendation of the provincial administrations, most frequently interested in surrounding themselves in that second branch, by public functionaries, or by other indi- viduals known to be advocates of the measures of the executive, and who became thus clothed with a legislative inviolability. No bounds were given to those appointments, and they were thus made, in great majority, from among those who were the least connected with the country, either in point of permanent interest, of services rendered to their fellow citizens, or of the esteem in which they were held. Hence the whole body became iso- lated from the people, none of the great interests of whom it represents. That the existence of this evil which has for a long time formed the subject of the remonstrances of the inhabitants of this country, has induced us to search for a remedy, so that the provincial government might be reconstituted upon bases which may at the same time coincide with those imitations of the metropolitan government, which it was evidently the inten- tion of its legislators to introduce in the Canadas, and at the same time present that practical analogy the results of which were, no doubt, not less their desire to introduce, and without which apparent imitation in forms alone, would only produce a still greater anomaly. Although we have no hesitation in stating our opinions as to the means of remedying this constitutional defect in our government, as forming the bases of pur humble representations to your Majesty, and although we do not consider that all the interests of the country are fully and equally represented in the third branch of the legislature, yet those to whom a defective system of government have given an unconstitutional preponder- ance, might make a handle of it to cause the expression of our opinion not to be looked upon as that of the population in general ; and, by the operation of the same system, the representations of interested public functionaries, and of privileged persons in the colony might reach your Majesty's govern- ment, carrying the same weight as those of the representatives freely elected by the whole people. This danger added to the wide local distance might cause measures adopted in the United Kingdom with the best inten- 1 For an official reply to this Petition, see No. CXIII. 1791-1840] Constitutional Documents of Canada. 359 tions, but without practical and local knowledge, to be discordant with the true interests of the province and even to hurt those interests in essential points. We therefore presume humbly to represent that, in case your Majesty should be convinced of the difficulties that have been exposed, there would be the certain means of preventing them, by placing the people of the coun- try in general, in a situation to express their opinion, and to recommend proper modifications through delegates freely and indiscriminately chosen for that purpose by all classes, and out of all classes of the community, so as to be in harmony with the interests of the province, and with those of his Majesty's government, which cannot be separated from each other. Such a body 1 , constituted in virtue of an act of parliament of the United Kingdom, to whom they would have afterwards to make a report of their labours, would, whilst it could be no disparagement to the supreme author- ity of the empire, be in unison with the numerous examples in the free institutions of this continent, with respect to which it has often been declared that England desired to leave nothing to be wished for by the inhabitants of these colonies. A general assembly of this kind, would prove to be a faithful inter- preter of all the interests of the colony taken collectively, including those which it was the intention to be caused to be represented by the legislative council, and those which that body claim to represent. Those interests would in effect possess therein, all their weight and all their legitimate influence; unless, indeed, whilst the executive branch of the colonial gov- ernment represents the interests of the metropolitan state, there ought to be also another constituted branch out of the country, and compounded of elements without any affinity with the varied interests and feelings of those who inhabit it. In case your Majesty should not consider it proper at this time to adopt such a measure, we will not take upon ourselves, in stating the result of our deliberations, to determine whether the entire abolition of the present legislative council of this province, and the assimilation of its government to that of several of the adjacent colonies, would tend to cause peace and harmony to be re-established in the conduct of affairs. The people of the country, if they had an opportunity of being legally con- stituted for that purpose, would be the best judges to decide this weighty question. We therefore proceed upon the supposition that an intermediate legislative branch may, in certain cases, produce more maturity in the deliberation and examination of bills, than if only one body were called upon to assent to them; at the same time, circumstances of rare occurence might happen in which the popular representations might, for the moment, contravene the interests of the body of their constituents, and that those interests might be cherished in the second branch, and guarded, until the wishes of the people were more fully expressed, either by more decided representations or by the means of new elections. The second branch as actually in existence, in no way connected, in the majority of its members, with the superior and permanent interests of the country, is not adapted to fulfil that end ; and even putting the case, of which as yet there has been no example, that a provincial administration were to send to it a majority of men of opposite principles, the following administration, or perhaps the same, might very soon hasten to recompose the body in such a way as to ensure its approbation of their measures. The habits, the climate, the newness of the country, the changeability of fortunes, the division of estates, and the laws which facilitate it, are obstacles to the existence of a permanent aristocracy, so that an hereditary legislative body with the powers of the house of lords, would be simply an impossibility in Canada. Landed property being here almost wholly owned in small lots by the mass of the people, it would be impossible to make a choice so as to form a permanent legislative council, even supposing it to be a numerous one, of men who in their own persons would present 1 The suggestion of a "Convention" was embodied in a resolution by the House of Assembly in January, 1833. 360 Constitutional Documents of Canada. [1791-1840 an essential portion of the existing means and capitals of the country; much more, they could not counterbalance in importance and in wealth any one single county in the province : and even supposing that such a body could be collected, the above mentioned circumstances would very soon bring it into decay. In fact, several persons heretofore called to the legis lative council, and whom we may reckon then possessed a large and per- manent interest in the country, have since found themselves entirely desti- tute of fortune. As to the idea of perforce creating an aristocracy through the medium of law, either by endeavouring to establish upon a system of substitutions (entails) or otherwise, a state of things, which the moral and physical circumstances in which the country is placed, forbid ; or by making provi- sion out of the public funds for legislators for life and without respon- sibility, it is one that is so contradictory to the known ideas of the con- stitution of England, as a practical model to go by, that your faithful and loyal subjects who now most respectfully address your Majesty, do not think it necessary to dwell upon it. A pecuniary qualification required in the persons called to the council, if the choice of them be left to the executive, would not probably produce any perceptible change in the composition of the body, with relation to the nature of the various other portions of our colonial institutions. The appointments must in that case necessarily be made upon the recommenda- tions of governors, who, being only transitorily in the country, and not having it in their power to become properly acquainted with the inhabitants of the country, until after a long residence, most frequently have recourse to irresponsible advisers in the colony. The persons who are qualified, being much fewer in number than those who would have to be chosen, the result would be that the worst would be chosen of those, and that the sup- posed qualification would only serve to legitimate the abuse, and to render its disappearance more difficult. Then, although each of those who were called to the legislative council might be capable of having a seat there, the majority would collectively have been chosen in an exclusive sense, and from amongst such as had the fewest relations of interest and feelings of the people. We should see as we have in times past, this body, far from being attached to the country, and making part of it, representing only favoritism, monopolies, and privileges, and through its unconstitutional influence upon the march of public affairs, perpetuating that tendency of the men in power in the province, to oppose themselves to every measure demanded by the people, and creating and maintaining a separate interest and feelings of distrust and even hostility in the minority, instead of labouring in conjunction with the house of assembly, to unite all the in- habitants of the country by means of an uniformity of views and institu- tions, possessing the same confidence in your Majesty's government. The abuse here pointed out is, as we humble conceive, sufficiently exemplified in the present composition of the legislative council, the appointments made during the last few years have only in a small number, a relation with the mass of the people generally, whilst the majority has been such as we have supposed it would continue to be along with a pecuniary qualification. There only remains, may it please your most gracious Majesty, the principle of election 1 to rest upon, as being capable in practice of presenting an analogy with the second branch of the legislature of the United King- dom. We entertain no doubt of the result of the adoption of this principle, if the election depended upon a numerous body of electors composed of the best ingredients and the best interests of the colony; and if the choice were confined to persons possessed of a certain easy degree of fortune, without, however, raising that qualification so high that such choice could only be made, in any case, but out of a small number of elegible persons. The best effects might be expected from a legislative body constituted upon those bases, if, whilst its principle of action was founded in the interests of your 1 A motion against the Legislative Council as at present constituted was passed in the House of Assembly, January, 1833, by 34 votes to 26. 1791-1840] Constitutional Documents of Canada. 361 Majesty's subjects in this province, as a general and common motive, it found itself in its formation and its proceedings independent of the popular assembly. It would undoubtedly be thus with the above qualifications, and with a different mode of renewal, so as to give more permanence to the body that is now in question. It is upon these several considerations that we most respectfully sub- mit the following details : That an elective legislative council be established, chosen by land- holders having a nett annual income of ten pounds in the country, and twenty pounds in cities, and who have been residents for at least one year within the circle wherein the election takes place. The eligibility to be restricted to the subjects of your Majesty, having attained the age of at least thirty years, residents of the province, and hav- ing resided therein at least fifteen years, and possessing an annual freehold income arising from property situated within the province, of at least one hundred pounds for those elected for the county, and of at least two hundred pounds for those of the cities at Quebec and Montreal. The duration of the body to be limited to six years ; the renewal to be made by one-sixth part every year, it being to be determined during the first five years by lot which of the members chosen at the general election shall have to retire. When there shall happen to be any vacancies, those who succeed to them to be members only for the period which would have remained to their predecessors. The number of members to be equal to that of the counties, cities, and divisions thereof, or other circles sending members to the house of assem- bly, with the exception of boroughs whose population does not amount to two thousand souls, who would only have to vote in the counties of which they make part. So that the number of councillors would be nearly half of that of members of the assembly. The speaker or chairman of the body to be chosen by the members, subject to the approbation of your Majesty. The judges to be ineligible, as well as the clergy. The members of the present legislative council not to belong to the new council, except they are elected; yet, nevertheless, should your Majesty in your most gracious royal intention think proper to retain them therein, they should only be considered as supernumerary members, and would have to justify their qualifications in landed property, and resign their places of profit. The legislative council not to be subject to dissolution. The members not to accept, otherwise than by bill, places of profit or honor during good pleasure, excepting those of justice of the peace, and in the militia, nor become accountable for public money, nor receive any from the executive government, under whatever denomination, without subjecting themselves to a reelection. The individuals who offer themselves as candidates, to make oath as to their qualifications ; if the candidates are not present, three electors may make affirmation as to that qualification, to the best of their knowledge. The members elected shall, before they take their seats, take the same oath, and shall be bound to renew it at all times upon order of the body. When it happens that members are elected at the same time both for the legislative council and for the assembly, they shall make choice of either one of the other of the houses, within a prescribed time. We cannot close our present humble address to your Majesty, without expressing how much we should have desired to have received the par- ticular statement of the views of your Majesty's government on this im- portant subject, as announced by the right honorable lord viscount Goderich, your Majesty's principal secretary of state for the colonies, in his despatch of the 7th July, 1831, addressed to his excellency the governor in chief of this province, and that the same has not yet been communicated to us, so as to aid us in our endeavours to remedy an acknowledged and instant evil. Wherefore we, the faithful subjects of your Majesty, do most humbly pray that your Majesty will be pleased to take these our representations 362 Constitutional Documents of Canada. [1791-1840 into your gracious and favourable consideration, and grant such remedy therein as to your Majesty in your wisdom may seem proper. And as well from inclination, as from a sense of duty, we shall not fail ever to pray for your Majesty's sacred person. CXII ADDRESS OF THE LEGISLATIVE COUNCIL OF LOWER- CANADA, 1833 1 [Trans. : Christie, op. cit.] To the King's Most Excellent Majesty. Most gracious Sovereign, We your Majesty's dutiful and loyal sub- jects, the legislative council of Lower Canada, in provincial parliament assembled, having had under our serious consideration, the dangerous and unconstitutional proceedings adopted by the assembly, are impelled by a sense of duty to your Majesty, and your Majesty's faithful Canadian people, humbly to approach your Majesty's throne, with a representation of the alarming posture of the affairs of this province, and our earnest suppli- cation for immediate and effectual relief. From the invariable state of peace and prosperity to which we had attained under the constitution, bestowed upon us by your Majesty's royal father and the Imperial parliament, we are approaching to a state of anarchy and confusion unceasing attempts are made to destroy the con- fidence which has hitherto subsisted between the subjects of your Majesty of different origin and language the interests of agriculture and commerce and the wants of the people are neglected for the advancement of the cabals of party your Majesty's representative is falsely charged with partiality and injustice in the exercise of the powers confided to him your Majesty's officers, both civil and military, are deliberately libelled, as a combined faction, actuated by interest alone, to struggle for the support of a corrupt government, adverse to the rights and wishes of the people and this un- merited abuse has, for years past, been as frequent within the walls of the assembly as without nor can it be doubted that this system has been adopted and urged, with the wicked intention to degrade the local author- ities in the eyes of the people, and thereby ultimately to render them powerless and inefficient for the support of your Majesty's government in this province. Everything indicates a continuance, if not an increase of the evils which we have briefly enumerated for while your Majesty's officers, and particularly the judges of your Majesty's courts of law, are accused and defamed, a competent tribunal within the colony, to which they might ap- peal for trial and vindication, is refused whereby a timid, instead of a fearless and independent exercise of their functions is to be apprehended ; and with a view to the completion of its designs, the assembly has ven- tured on the daring step of addressing your Majesty to render the legis- lative council elective. The crisis at which we have arrived, is pregnant with consequences of the deepest interest to the happiness and welfare of your Majesty's subjects in this province, and at such a moment, it would be criminal in the legis- lative council, to withhold from your Majesty, the frank and candid avowal of its sentiments. The efforts of the assembly have been obviously directed, for several years past, to the attainment of power and influence, at the expense of the crown, and in direct violation of the constitutional rights and privileges of the legislative council. In illustration of this, we respectfully advert to the persevering endeavours of that house to obtain the entire controul and disposal of all the provincial revenue and income, refusing, at the same time, to make any adequate permanent provision for the expenses of the 1 This Address is the Legislative Council's answer to the previous document. 1791-1840] Constitutional Documents of Canada. 363 civil government, and to provide for the independence of the judiciary, to the conditions and instructions annexed to the votes of certain sums contained in the bill of supply, sent up during the present session, which strike at the existence of your Majesty's prerogative to appoint to all offices of honor or profit in the colony, to the claim advanced by the assembly to preserve this extensive and important part of your Majesty's dominions, (in which there is room for millions of inhabitants) as a colony to be settled only by Canadians of French origin and descent, contrary to the just and manifest rights of your Majesty's native born subjects, and lastly, in the attempt to induce your Majesty to adopt a measure which would destroy the equilibrium of the constitution, by substituting an elec- tive council for the intermediate branch established by law. In reference to the pretension last noticed, we humbly entreat your Majesty's attention to the undeniable fact, that in proportion as your Majesty has graciously been pleased to increase the constitutional weight and efficiency of the legislative council, by the addition of members, unconnected with the local administration, and largely taken from the assembly itself, the efforts of that house for its entire abolition, have become more and more violent and daring. That the constitution of government established in this province, under the act passed in the 31st year of the reign of his Majesty king George the third, chapter 31, has been efficacious in promoting the welfare and happi- ness of the inhabitants thereof, and in confirming their attachment to the British throne, are facts powerfully attested by the peaceable submission ot the people to the laws, and the readiness with which they have on all occa- sions defended the province against foreign aggression, as well as by the petitions laid at the foot of the throne in the years 1814 and 1828, and the addresses, at those periods, of the assembly itself, in which they entreated his late Majesty and the Imperial parliament "to maintain the inhabitants of Canada in the full enjoyment of the constitution as established by law, without any change whatever." It was in the year 1831, after the general election for the assembly, now in session, and when some grounds of complaint against the local administration were in course of being redressed by the interposition of the Imperial government, that a desire for a change in the constitution was first openly avowed in that body, and it is a matter of astonishment that a violent and reckless party in that house, should be able to induce a majority of its members into an attempt to destroy a form of government, under which your Majesty's Canadian people have enjoyed a state of peace, security and contentment, scarcely exceeded by any part of the world, and against which no considerable portion of the people have yet formally com- plained 1 . While, therefore, the legislative council desire not to conceal from your Majesty, the actual state of the province, they are far from believing that the great body of the people yet participate in the views and wishes of the majority of the assembly, but in a community in which education has made so little progress, even the well-disposed, the happy, and con- tented, are too liable to be misled by the factious and designing. The constitution enables your Majesty to uphold an independent branch of the legislature, by a judicious selection of the members chosen to com- pose it, and we venture, with all humility, to state to your Majesty, that a branch so chosen is essential to sustain your royal prerogative, to main- tain the connection, which happily subsists between this colony and the mother country, and to give security to a numerous class of your Majesty's subjects of British origin, now numbering about one hundred and fifty thousand souls, scattered over this province, whose interests cannot be adequately represented in an assembly, seven-eights of the members where- of are of French origin, and speak the French language. It is under the circumstances above described that the assembly have ^ee Christie, III, pp. 368 ff. 364 Constitutional Documents of Canada. [1791-1840 proposed to your Majesty to abolish this house, and to substitute in its place a council to be elected 1 by proprietors of estates of ten pounds annual value; a measure well conceived to further the desired object of obtaining a legislative body, in all respects, the counterpart of the assembly, inasmuch as that would virtually embrace the whole constituency of the country. Having maturely considered, we trust without improper bias, the nature of the alterations in the constitution, proposed by the assembly, we intreat your Majesty duly to weigh the opinion which we now humbly sub- mit, as to the fatal consequences which may be expected to result from such a change. Its more immediate effects would be to render all offices in the colony elective to unsettle the minds of your Majesty's subjects of British origin respecting the security of life and property, which they now enjoy to prevent their further increase through emigration and to sever the ties which bind the colony to the parent state; while its ultimate result would bring into collision the people of Upper and Lower Canada and drench the country with blood, for it is our solemn conviction that the inhabitants of Upper Canada will never quietly permit the interposition of a French republic between them and the ocean. 2 When the leaders of the assembly, in the year 1831, first openly de- clared themselves against the constitution, they found means of inducing a member of this house to proceed to England, for the sole avowed pur- pose of supporting the petitions of the assembly to your Majesty, and they have since, from year to year, procured the prolongation of his mission. We humbly submit that the representation made by this gentleman to your Majesty's government, ought to be received with extreme caution, because the legislative council have never assented to the mission have never had official communication of any instructions given to him, or of despatches from him and he has committed a gross bneach of the constitutional rights of the house, by receiving a large annual salary from the assembly, knowing the same to be without the sanction of law, paid to him out of the public money, advanced upon the simple votes of that house for defray- ing its ordinary contingent expenses. Upon all these circumstances, the legislative council earnestly beseech your Majesty to take into your most serious consideration, the present alarming posture of affairs in your Majesty's once happy province of Lower Canada to be graciously pleased to adopt such measures, as in your wis- dom will tend to tranquilize the minds, to maintain the constitutional rights and liberties of all your Majesty's subjects therein, and thus guarantee the permanence of the existing connexion between the colony and the parent state. CXIII AYLMER TO HOUSE OF ASSEMBLY OF LOWER CANADA [Trans. : Christie, op. cit.] Castle of St. Lewis, 14th Jan., 1834. The governor in chief communicates to the house of assembly, for its information, an extract from a despatch addressed to him by the secretary of state for the colonial department, in answer to the petition of the house addressed to the king*, which by desire of the house, was transmitted to the secretary of state during the last session, for the purpose of being laid at the foot of the throne: "I have also laid before the king, the addresses of the house of assem- bly. I cannot pass over this document without observation. The object of this address is to pray his Majesty to sanction a national convention of the people of Canada, for the purpose of superseding the legislative 'See No. CXI. I This section of the petition received a rebuke from England in a despatch from Lord Goderich. See Christie, III, 490. II See No. CXI. 1791-1840] Constitutional Documents of Canada. 365 authorities, and taking into their consideration in which of two modes the constitution of Lower Canada shall be altogether destroyed. Whether by the introduction of the elective principle or by the entire abolition of the legislative council. On the mode proposed, his Majesty is willing to put no harsher construction than that of extreme inconsiderateness : to the object sought to be obtained, his Majesty can never be advised to assent, as deeming it inconsistent with the very existence of monarchical institu- tions. To every measure which may secure the independence and raise the character of the legislative council, his Majesty will be most ready to assent. In 1828, a committee 1 of the house of commons carefully investi- gated the grievances alleged by the inhabitants of the Canadas, and amongst them the constitution of the legislative council was a matter of serious deliberation. The committee reported that one of the most important subjects to which their enquiries had been directed was the state of the legislative council in both the Canadas, and the manner in which those assemblies had answered the purposes for which they were instituted. The committee strongly recommended that a more independent character should be given to those bodies, that the majority of their members should not consist of persons holding offices at the pleasure of the crown, and that any other measures that might tend to connect more intimately that branch of the constitution with the interests of the Colonies would be attended with the greatest advantage. With respect to the judges, with the exception only of the chief justice, whose presence on particular occasions, might be necessary, the committee entertained no doubt that they had better not be involved in the political business of the house. An examination of the constitution of the body at that period and the present, will sufficiently show in what spirit his Majesty's government have laboured to accomplish the wishes of parliament. The house of assembly state correctly that it has often been avowed that the people of Canada should see nothing in the institutions of neighbouring countries to which they should look with envy. I have yet to learn that his Majesty's subjects in Canada entertain such sentiments at present, or that they desire to copy in a monarchical govern- ment all the institutions of a republic, or to have the mockery of an execu- tive absolutely dependent for its existence upon a popular body, usurping the whole authority of the State. I am not prepared to advise his Majesty to recommend to parliament so serious a step as the repeal of the act of 1791, whereby the institutions of this country were conferred separately upon the provinces of Upper and Lower Canada. Serious as are the diffi- culties by which your lordship's administration is beset, they are yet not such as to induce me to despair of the practical working of the British constitution ; but should events unhappily force upon parliament the exer- cise of its supreme authority to compose the internal dissensions of the colonies, it would be my object, and my duty as a servant of the crown, to submit to parliament such modification of the charter of the Canadas, as should tend, not to the introduction of institutions inconsistent with mon- archical government, but to maintaining and strengthening the connection with the mother country, by a close adherence to the spirit of the British constitution, and by preserving in their proper place, and within their due limits, the mutual rights and privileges of all classes of his Majesty's sub- jects." 2 1 See No. CVI. 2 This despatch was severely criticised in "The Ninety-Two Resolutions" (No. CXIV), and was expunged from the Journals of the House (see p. 388). 366 Constitutional Documents of Canada. [1791-1840 CXIV THE NINETY-TWO RESOLUTIONS OF 1834 1 [Trans. : Blue Books relating to Canada, vol. VI, 1836.] Resolutions of the House of Assembly of Lower Canada, dated Quebec, Friday, 21 February, 1834. 1. Resolved, That His Majesty's loyal subjects, the people of this province of Lower Canada, have shown the strongest attachment to the British Empire, of which they are a portion ; that they have repeatedly defended it with courage in time of war ; that at the period which preceded the Independence of the late British Colonies on this continent, they re- sisted the appeal* made to them by those colonies to join their confederation. 2. Resolved, That the people of this province have at all times mani- fested their confidence in His Majesty's Government, even under circum- stances of the greatest difficulty, and when the government of the province has been administered by men who trampled under foot the rights and feelings dearest to British subjects; and that these sentiments of the people of this province remain unchanged. 3. Resolved, That the people of this province have always shown themselves ready to welcome and to receive as brethren, those of their fellow-subjects who, having quitted the United Kingdom or its dependen- cies, have chosen this province as their home, and have earnestly en- deavoured (as far as on them depended) to afford every facility to their participating in the political advantages, and in the means of rendering their industry available, which the people of this province enjoy; and to remove for them the difficulties arising from the vicious system adopted by those who have administered the government of the province, with regard to those portions of the country in which the new-comers have generally chosen to settle. 4. Resolved, That this House, as representing the people of this province, has shown an earnest zeal to advance the general prosperity of the country, by securing the peace and content of all classes of its inhabit- ants, without any distinction of origin or creed, and upon the solid and durable basis of unity of interest, and equal confidence in the protection of the mother country. 5. Resolved, That this House has seized every occasion to adopt, and firmly to establish by law in this province, not only the Constitutional and Parliamentary law of England, which is necessary to carry the Government into operation, but also all such parts of the public law of the United Kingdom as have appeared to this House adapted to promote the welfare and safety of the people, and to be conformable to their wishes and their wants; and that this House has, in like manner, wisely endeavoured so to regulate its proceedings as to render them, as closely as the circumstances of this colony permit .analogous to the practice of the House of Commons of the United Kingdom. 6. Resolved, That in the year 1827, the great majority of the people of this province complained, in petitions signed by 87,000 persons, of serious and numerous abuses which then prevailed, many of which had then existed for a great number of years, and of which the greater part still exist without correction or mitigation. 7. Resolved, That the complaints aforesaid, and the grievance which 1 These Resolutions were introduced by Elzear Bedard, first Mayor of Quebec. They were first embodied in an address to the Governor-General, Lord Aylmer, and then forwarded to England, where their subject matter was debated in the House of Commons at the instance of J. A. Roebuck, M.P. for Bath, who had been agent in England for Lower Canada since 1833. Their historical interest is largely due to the fact that they mark the parting of the ways among the "reformers" in Lower Canada, and that they led to the formation of the Constitutional Societies of Montreal and Quebec. They are printed here in full, as they illustrate better than any other docu- ment the matured attitude of Papineau and his followers, and distinguish them from the Moderates and Constitutional Radicals, led by John Neilson. 'See No. XXVII. 1791-1840] Constitutional Documents of Canada. 367 gave rise to them, being submitted to the consideration of the Parliament of the United Kingdom, occasioned the appointment of a Committee of the House of Commons, of which the Honourable Edward Geoffrey Stanley, now His Majesty's Principal Secretary of State for the Colonial Depart- ment, and several others who are now Members of His Majesty's Govern- ment, formed part ; and that after a careful investigation and due delibera- tion, the said Committee, on the 18th July 1828 1 , came to the following very just conclusions : Istly. "That the embarrassments and discontents that had long prevailed in the Canadas, had arisen from serious defects in the sys- tem of laws, and the constitutions established in those colonies. 2dly. "That these embarrassments were in a great measure to be attributed to the manner in which the existing system had been admin- istered. 3dly. "That they had a complete conviction that neither the sug- gestions which they had made, nor any other improvements in the laws and constitutions of the Canadas, will be attended with the desired effect, unless an impartial, conciliating and constitutional system of government were observed in these loyal and important colonies." 8. Resolved, That since the period aforesaid, the constitution of this province, with its serious defects, has continued to be administered in a manner calculated to multiply the embarrassments and discontents which have long prevailed; and that the recommendations of the Committee of the House of Commons have not been followed by effective measures of a nature to produce the desired effect. 9. Resolved, That the most serious defect in the Constitutional Act, its radical fault, the most active principle of evil and discontent in the province; the most powerful and most frequent cause of abuses of power; of the infraction of the laws; of the waste of the public revenue and prop- erty, accompanied by impunity to the governing party, and the oppression and consequent resentment of the governed, is that injudicious enactment, the fatal results of which were foretold by the Honourable Charles James Fox at the time of its adoption, which invests the Crown with that exor- bitant power (incompatible with any government duly balanced, and found- ed on law and justice, and not on force and coercion) of selecting and com- posing without any rule or limitation, or any predetermined qualification, an entire branch of the legislature, supposed from the nature of its attribu- tions to be independent, but inevitably the servile tool of the authority which creates, composes and decomposes it, and can on any day modify it to suit the interests or the passions of the moment. 10. Resolved, That with the possession of a power so unlimited, the abuse of it is inseparably connected ; and that it has always been so exer- cised in the selection of the Members of the Legislative Council of this province, as to favour the spirit of monopoly and despotism in the execu- tive, judicial and administrative departments of government, and never in favour of the public interest. 11. Resolved, That the effectual remedy for this evil was judiciously foreseen and pointed out by the Committee of the House of Commons, who asked John Neilson, esquire, (one of the agents who had carried to England the Petition of the 87,000 inhabitants of Lower Canada) whether he had turned in his mind any plan by which he conceived the Legislative Council might be better composed in Lower Canada ; whether he thought it possible that the said body could command the confidence and respect of the people, or go in harmony with the House of Assembly, unless the principle of election were introduced into its composition in some manner or other ; and also, whether he thought that the colony could have any security that the Legislative Council would be properly and independently composed, unless the principle of election were introduced into it in some manner or other; and received from the said John Neilson answers, in which (among other reflections) he said in substance, that there were two modes in which 1 See No. CVI. 368 Constitutional Documents of Canada. [1791-1840 the composition of the Legislative Council might be bettered; the one by appointing men who were independent of the executive, (but that to judge from experience there would be no security that this would be done,) and that if this mode were found impracticable, the other would be to render the Legislative Council elective. 12. Resolved, That judging from experience, this House likewise believes that there would be no security in the first mentioned mode, the course of events having but too amply proved what was then foreseen; and that this House approves all the inferences drawn by the said John Neilson from experience and facts; but that with regard to his suggestion that a class of electors of a higher qualification should be established, or a qualification in property fixed for those persons who might sit in the Coun- cil, this House have, in their Address to His Most Gracious Majesty, dated the 20th March 1833 1 , declared in what manner this principle could, in their opinion, be rendered tolerable in Canada, by restraining it within certain bounds, which should in no case be passed. 13. Resolved, That even in defining bounds of this nature, and requir- ing the possession of real property as a condition of eligibility to a Legis- lative Council, chosen by the people, which most wisely and happily has not been made a condition of eligibility to the House of Assembly, this House seems rather to have sought to avoid shocking received opinions in Europe, where custom and the law have given so many artificial privileges and advantages to birth and rank and fortune, than to consult the opinions generally received in America, where the influence of birth is nothing, and where, notwithstanding the importance which fortune must always natu- rally confer, the artificial introduction of great political privileges in favour of the possessors of large property, could not long resist the preference given at free elections to virtue, talents and information, which fortune does not exclude but can never purchase, and which may be the portion of honest, contented and devoted men, whom the people ought to have the power of calling and consecrating to the public service, in preference to richer men, of whom they may think less highly. 14. Resolved, That this House is nowise disposed to admit the excel- lence of the present Constitution of Canada, although His Majesty's Secre- tary of State for the Colonies has unseasonably and erroneously asserted, that it has conferred on the two Canadas the institutions of Great Britain; nor to reject the principle of extending the system of frequent elections much further than it is at present carried ; and that this system ought especially to be extended to the Legislative Council, although it may be considered by the Colonial Secretary incompatible with the British Govern- ment, which he calls a monarchical government, or too analogous to the institutions which the several States, composing the industrious, moral and prosperous confederation of the United States of America, have adopted for themselves. 15. Resolved, That in a despatch, of which the date is unknown, and of which a part only was communicated to this House by the Governor-in- chief on the 14th January, 1834", His Majesty's Secretary of State for ib,e Colonial Department, (this House having no certain knowledge whether the said despatch is from the present Colonial Secretary or from his predeces- sor) says, that an examination of the composition of the Legislative Coun- cil at that period (namely, at the time when its composition was so justly censured by a Committee of the House of Commons) and at the present, will sufficiently show in what spirit His Majesty's Government has en- deavoured to carry the wishes of Parliament into effect. 16. Resolved, that this House receives with gratitude this assurance of the just and benevolent intentions, with which, in the performance of their duty, His Majesty's Ministers have endeavoured to give effect to the wishes of Parliament. 'No. CXI. * See No. CXIII. 1791-1840] Constitutional Documents of Canada. 369 17. Resolved, That unhappily it was left to the principal Agent of His Majesty's Government in this Province to carry the wishes of the Imperial Parliament into effect; but that he has destroyed the hope which His Majesty's faithful subjects had conceived of seeing the Legislative Council reformed and ameliorated, and has confirmed them in the opinion that the only possible mode of giving to that body the weight and respec- tability which it ought to possess, is to introduce into it the principle of election. 18. Resolved, That the Legislative Council, strengthened by a majority inimical to the rights of this House and of the people whom it represents, has received new and more powerful means than it before possessed of perpetuating and of rendering more offensive and more hurtful to the country the system of abuses of which the people of this province have up to this day ineffectually complained, and which up to this day, Parliament and His Majesty's Government in England have ineffectually sought to correct. 19. Resolved, That since its pretended reform the Legislative Council has, in a manner more calculated to alarm the inhabitants of this province, and more particularly in its address 1 to His Majesty of the 1st of April 1833, renewed its pretension of being specially appointed to protect one class of His Majesty's subjects in this province, as supposing them to have interests which could not be sufficiently represented in the Assembly, seven-eighths of the Members of which are by the said Council most erroneously stated to be of French origin and speak the French language : that this pretension is a violation of the constitution, and is of a nature to excite and perpetuate among the several classes of the inhabitants of this province, mutual distrust and national distinctions and animosities, and to give one portion of the people an unjust and factious superiority over the other, and the hope of domination and undue preference. 20. Resolved, That by such claim the Legislative Council after a reform which was held up as one adapted to unite it more closely with the interests of the colony in conformity with the wishes of Parliament, calls down, as one of its first acts, the prejudices and severity of His Majesty's Government upon the people of this province, and upon the representative branch of the Legislature thereof; and that by this conduct the Legisla- tive Council has destroyed amongst the people all hope which was left them of seeing the said Council, so long as it shall remain constituted as it now is, act in harmony with the House of Assembly. 21. Resolved, That the Legislative Council of this Province has never been anything else but an impotent screen between the Governor and the people, which by enabling the one to maintain a conflict with the other, has served to perpetuate a system of discord and contention ; that it has unceasingly acted with avowed hostility to the sentiments of the people as constitutionally expressed by the House of Assembly ; that it is not right under the name of a Legislative Council to impose an aristocracy on a country which contains no natural materials for the composition of such a body; that the Parliament of the United Kingdom in granting to His Majesty's Canadian subjects the power of revising the Constitution under which they hold their dearest rights, would adopt a liberal policy, free from all considerations of former interests and of existing preju- dices ; and that by this measure, equally consistent with a wise and sound policy, and with the most liberal and extended views, the Parliament of the United Kingdom would enter into a noble rivalry with the United States of America, would prevent His Majesty's subjects from seeing any- thing to envy there ; and would preserve a friendly intercourse between Great Britain and this province, as her colony, so long as the tie between us shall continue, and as her ally, whenever the course of events may change our relative position. 22. Resolved, That this House so much the more confidently emits the opinions expressed in the preceding resolution, because, if any faith 1 Se No. CXII. 370 Constitutional Documents of Canada. [1791-1840 is to be placed in the published reports, they were at no distant period emitted with other remarks in the same spirit, in the Commons House of the United Kingdom, by the Right Honourable Edward Geoffrey Stanley, now His Majesty's Principal Secretary of State for the Colonial Depart- ment, and by several other enlightened and distinguished Members, some of whom are among the number of His Majesty's present Ministers; and because the conduct of the Legislative Council since its pretended reform, demonstrates that the said opinions are in nowise rendered less applicable or less correct by its present composition. 23. Resolved, That the Legislative Council has at the present time less community of interest with the province than at any former period ; that its present composition, instead of being calculated to change the character of the body, to put an end to complaints, and to bring about that co-operation of the two Houses of the Legislature which is so neces- sary to the welfare of the country, is such as to destroy all hope that the said Council will adopt the opinions and sentiments of the people of this province and of this House with regard to the inalienable right of the latter to the full and entire control of the whole revenue raised in the province, with regard to the necessity under which this House has found itself (for the purpose of effecting the reformation which it has so long and so vainly demanded of existing abuses) to provide for the expenses of the Civil Government by annual appropriations only, as well as with regard to a variety of other questions of public interest, concern- ing which the Executive Government, and the Legislative Council which it has selected and created, differ diametrically from the people of this province, and from this House. 24. Resolved, That such of the recently appointed councillors as were taken from the majority of the Assembly, and had entertained the hope that a sufficient number of independent men, holding opinions in unison with those of the majority of the people and of their Representa- tives, would be associated with them, must now feel that they are over- whelmed by a majority hostile to the country, and composed of men who ha -re irretrievably lost the public confidence, by showing themselves the blind and passionate partisans of all abuses of power, by encouraging all the acts of violence committed under the administration of Lord Dal- housie, by having on all occasions outraged the representatives of the people of the country; of men, unknown in the country until within a few years, without landed property or having very little, most of whom have never been returned to the Assembly (some of them having even been refused by the people), and who have never given any proofs of their fitness for performing the functions of Legislators, but merely of their hatred to the country; and who, by reason of their community of sentiment with him, have found themselves, by the partiality of the Gov- ernor-in-Chief, suddenly raised to a station in which they have the power of exerting during life an influence over the legislation and over the fate of this province, the laws and institutions of which have ever been the objects of their dislike. 25. Resolved, That in manifest violation of the Constitution, there are among the persons last mentioned several who were born citizens of the United States, or are natives of other foreign countries, and who at the time of their appointment had not been naturalized by Acts of the British Parliament; that the residence of one of these persons (Horatio Gates) in this country during the last war with the United States was only tolerated; he refused to take up arms for the defence of the country in which he remained merely for the sake of lucre ; and after these pre- vious facts, took his seat in the Legislative Council on the 16th March, 1833; and 15 days afterwards, to wit, on the 1st April, voted for the ad- dress before mentioned, censuring those who during the last war were under arms on the frontiers to repulse the attacks of the American armies and of the fellow-citizens of the said Horatio Gates: that another (James Baxter) was resident during the said late war within the United States, and was bound by the laws of the country of his birth, under 1791-1840] Constitutional Documents of Canada. 371 certain circumstances, forcibly to invade this province, to pursue, destroy and capture, if possible, His Majesty's armies, and such of his Canadian subjects as were in arms upon the frontiers to repulse the attacks of the American armies, and of the said James Baxter, who (being at the same time but slightly qualified as far as property is concerned) became, by the nomination of the Governor-in-Chief, a Legislator for life in Lower Canada, on the 22d of March, 1833 ; and eight days afterwards, on the 1st of April aforesaid, voted that very address which contained the cajuminipus and insulting accusation which called for the expression of His Majesty's just regret, "that any word had been introduced which should have the appearance of ascribing to a class of his subjects of one origin, views at variance with the allegiance which they owe to His Majesty." 1 26. Resolved, That it was in the power of the present Governor-in- Chief, more than in that of any of his predecessors (by reason of the latitude allowed him as to the number and the selection of the persons whom he might nominate to be Members of the Legislative Council) to allay, for a time at least, the intestine divisions which rend this colony, and to advance some steps towards the accomplishment of the wishes of Parliament, by inducing a community of interest between the said Council and the people, and by giving the former a more independent character by judicious nominations. 27. Resolved, That although 16 persons have been nominated in less than two years by the present Governor to be Members of the said Council (a number greater than that afforded by any period of 10 years under any other administration), and notwithstanding the wishes of Par- liament, and the instructions given by His Majesty's Government for the removal of the grievances of which the people had complained, the same malign influence which has been exerted to perpetuate in the country a system of irresponsibility in favour of public functionaries, has prevailed to such an extent as to render the majority of the Legislative Council more inimical to the country than at any former period ; and that this fact confirms with irresistible force the justice of the censure passed by the Committee of the House of Commons on the constitution of the Legis- lative Council as it had theretofore existed, and the correctness of the opinion of those Members of the said Committee who thought that the said body could never command the respect of the people, nor be in har- mony with the House of Assembly, unless the principle of election was introduced into it. 28. Resolved, That even if the present Governor-in-Chief had, by making a more judicious selection, succeeded in quieting the alarm and allaying for a time the profound discontent which then prevailed, that form of government would not be less essentially vicious which makes the happiness or misery of a country depend on an Executive over which the people of that country have no influence, and which has no perma- nent interest in the country, or in common with its inhabitants ; and that the extension of the elective principle is the only measure which appears to this House to afford any prospect of equal and sufficient protection in future to all the inhabitants of the province, without distinction. 29. Resolved, That the accusations preferred against the House of Assembly by the Legislative Council, as recomposed by the present Goy- ernor-in-Chief, would be criminal and seditious, if their very nature did not render them harmless, since they go to assert, that if in its liberality and justice the Parliament of the United Kingdom had granted the earnest prayer of this House in behalf of the province (and which this House at this solemn moment, after weighing the Despatches of the Sec- retary of State for the Colonial Department, and on the eve of a general election, now repeats and renews), that the constitution of the Legisla- tive Council may be altered by rendering it elective, the result of this 1 See a despatch from the Secretary of State for the Colonial Department quoted to the Legislative Council by Lord Aylmer, in giving them the reply of the British Government to their "Address" (No. CXII), 14 January, 1834. (Christie, III, 491.) 372 Constitutional Documents of Canada. [1791-1840 act of justic and benevolence would have been to inundate the country with blood. 30. Resolved, That by the said Address to His Majesty, dated the 1st of April last, the Legislative Council charges this House with having calumniously accused the King's Representative of partiality and injus- tice in the exercise of the powers of his office, and with deliberately calumniating His Majesty's officers, both civil and military, as a faction induced by interest alone to contend for the support of a government inimical to the rights, and opposed to the wishes of the people: with reference to which this House declares, that the accusations preferred by it have never been calumnious, but are true and well founded, and that a faithful picture of the Executive Government of this province in all its parts is drawn by the Legislative Council in this passage of its address. 31. Resolved, That if, as this House is fond of believing, His Ma- jesty's Government in England does not wish systematically to nourish civil discord in this colony, the contradictory allegations thus made by the two Houses, make it imperative on it to become better acquainted with the state of the province than it now appears to be, if we judge from its long tolerance of the abuses which its agents commit with im- punity; that it ought not to trust to the self praise of those who have the management of the affairs of a colony, passing, according to them, into a state of anarchy; that it ought to be convinced, that if its protection of public functionaries, accused by a competent authority (that is to say by this House, in the name of the people), could for a time by force and intimidation aggravate, in favour of those functionaries and against the rights and interests of the people, the system of insult and oppression which they impatiently bear, the result must be to weaken our confidence in, and our attachment to His Majesty's Government, and to give deep root to the discontent and insurmountable disgust which have been ex- cited by administrations deplorably vicious, and which are now excited by the majority of the public functionaries of the colony, combined as a faction, and induced by interest alone to contend for the support of a corrupt Government, inimical to the rights and opposed to the wishes of the people. 32. Resolved, That in addition to its wicked and calumnious address of the 1st April, 1833, the Legislative Council, as recomposed by the pres- ent Gpvernor-in-chief, has proved how little community of interest it has with the colony, by the fact, that out of sixty-four Bills which were sent up to it. twenty-eight were rejected by it, or amended in a manner contrary to their spirit and essence ; that the same unanimity which had attended the passing of the greater part of these Bills in the Assembly, accompanied their rejection by the Legislative Council, and that an oppo- sition so violent, shows clearly that the provincial executive and the council of its choice, in league together against the representative body, do not, or will not, consider it as the faithful interpreter and the equit- able judge of the wants and wishes of the people, nor as fit to propose laws conformable to the public will ; and that under such circumstances, it would have been the duty of the head of the Executive to appeal to the people, by dissolving the Provincial Parliament, had there been any analogy between the institutions of Great Britain and those of this province. 33. Resolved, That the Legislative Council as recomposed by the present Governor-in-chief, must be, considered as embodying the senti- ments of the colonial executive Government, and that from the moment it was so recomposed, the two authorities seem to have bound and leagued themselves together for the purpose of proclaiming principles subversive of all harmony in the province, and of governing and domineering in a spirit of blind and invidious national antipathy. 34. Resolved, That the address voted unanimously on the 1st April, 1833, by the Legislative Council, as recomposed by the present Governor- in-chief, was concurred in by the Honourable the Chief Justice of the province, Jonathan Sewell, to whom the Right Honourable Lord Viscount 1791-1840] Constitutional Documents of Canada. 373 Goderich, in his Despatch, communicated to the House on the 25th No- vember, 1831, recommended "a cautious abstinence from all proceedings by which he might be involved in any contention of a party nature;" by John Hale, the present Receiver-General, who, in violation of the laws, and of the trust reposed in him, and upon illegal warrants issued by the Governor, has paid away large sums of the public money, without any regard to the obedience which is always due to the law ; by Sir John Caldwell, baronet, the late Receiver-General, a peculator, who has been condemned to pay nearly 100,000, to reimburse a like sum levied upon the people of this province, and granted by law to His Majesty, His heirs and successors, for the public use of the province, and for the support of His Majesty's Government therein, and who has diverted the greater part of the said sum from the purposes to which it was destined, and appropriated it to his private use; by Mathew Bell, a grantee of the Crown, who has been unduly and illegally favoured by the Executive, in the lease of the forges of St. Maurice, in the grant of large tracts of waste lands, and in the lease of large tracts of land formerly belonging to the order of Jesuits; by John Stewart, an Executive Councillor, com- missioner of the Jesuits' estates, and the incumbent of other lucrative offices : all of whom are placed by their pecuniary and personal interests under the influence of the Executive; and by the Honourable George Moffatt, Peter M'Gill, John Molson, Horatio Gates, Robert Jones, and James Baxter, all of whom, as well as those before mentioned, were, with two exceptions, born out of the country, and all of whom, except one, who for a number of years was a member of the assembly, and has ex- tensive landed property, are but slightly qualified in that respect, and had not been sufficiently engaged in public life to afford a presumption that they were fit to perform the functions of legislators for life; and by Antoine Gaspard Couillard, the only native of the country, of French origin, who stooped to concur in the address, and who also had never been engaged in public life, and is but very moderately qualified with respect to real property, and who, after his appointment to the council, and before the said 1st of April, rendered himself dependent on the Executive by soliciting a paltry and subordinate place of profit. 35. Resolved, That the said address, voted by seven councillors, under the influence of the present head of the Executive, and by five others of his appointment, (one only of the six others who voted it, the Hon. George Moffatt, having been appointed under his predecessor,) is the work of the present administration of this province, the expression of its sentiments, the key to its acts, and the proclamation of the ini- quitous and arbitrary principles, which are to form its rule of conduct for the future. 36. Resolved, That the said address is not less injurious to the small number of Members of the Legislative Council who are independent, and attached to the interests and honour of the country, who have been Mem- bers of the Assembly, and are known as having partaken its opinions and seconded its efforts, to obtain for it the entire control and disposal of the public revenue ; as having approved the wholesome, constitutional, and not, as styled by the Council, the daring step taken by this House of praying by address to His Majesty that the Legislative Council might be rendered elective; as condemning the scheme for the creation of an ex- tensive monopoly of lands in favour of speculators residing out of the country; as believing that they could not have been appointed to the Council with a view to increase the constitutional weight and efficacy of that body, in which they find themselves opposed to a majority hostile to their principles and their country; as believing that the interests and wishes of the people are faithfully represented by their representatives, and that the connexion between this country and the parent state, will be durable in proportion to the direct influence exercised by the people in the enactment of laws adapted to ensure their welfare; and as being of opinion, that His Majesty's subjects recently settled in this country will share in all the advantages of the free institutions and of the improve- 374 Constitutional Documents of Canada. [1791-1840 ments which would be rapidly developed, if, by means of the extension of the elective system, the administration were prevented from creating a monopoly of power and profit in favour of the minority who are of one origin, and to the prejudice of the majority who are of another, and from buying, corrupting and exciting a portion of this minority in such a manner as to give to^ all discussions of local interest the alarming char- acter of strife and national antipathy ; and that the independent Members of the Legislative Council, indubitably convinced of the tendency of that body, and undeceived as to the motives which led to their appointment as Members of it, now refrain from attending the sittings of the said Council, in which they despair of being able to effect anything for the good of the country. 37. Resolved, That the political world in Europe is at this moment agitated by two great parties, who in different countries appear under the several names of serviles, royalists, tories and conservatives on the one side, and of liberals, constitutionals, republicans, whigs, reformers, radi- cals and similar appellations on the other; that the former party is, on this continent, without any weight or influence except what it derives from its European supporters, and from a trifling number of persons who become their dependents for the sake of personal gain, and from others, who from age or habit cling to opinions which are not partaken by any numerous class ; while the second party overspreads all America. And that the Colonial Secretary is mistaken if he believes that the ex- clusion of a few salaried officers from the Legislative Council could suffice to make it harmonize with the wants, wishes and opinions of the people, as long as the Colonial Governors retain the power of preserving in it a majority of members rendered servile by their antipathy to every liberal idea. 38. Resolved, That this vicious system, which has been carefully maintained, has given to the Legislative Council a greater character of animosity to the country than it had at any former period, and is as contrary to the wishes of Parliament, as that which, in order to resist the wishes of the people of England for the Parliamentary Reform, should have called into the House of Lords a number of men notorious for their factious and violent opposition to that great measure. 39. Resolved, That the Legislative Council, representing merely the personal opinions of certain members of a body so strongly accused at a recent period by the people of this Province, and so justly censured by the Report of the Committee of the House of Commons, is not an au- thority competent to demand alterations in the constitutional Act of the 31st Geo. 3, c. 31, and that the said Act ought not to be and cannot be altered, except at such time and in such manner as may be wished by the people of this Province, whose sentiments this House is alone com- petent to represent; that no interference on the part of the British Legislature with the laws and constitution of this province, which should not be founded on the wishes of the people, freely expressed either through this House or in any other constitutional manner, could in anywise tend to settle any of the difficulties which exist in this province, but, on the contrary, would only aggravate them and prolong their continuance. 40. Resolved, That this House expects from the justice of the Par- liament of the United Kingdom, that no measure of the nature afore- said, founded on the false representations of the Legislative Council and of the members and tools of the Colonial Administration, all interested in perpetuating existing abuses, will be adopted to the prejudice of the rights, liberties and welfare of the people of this province; but that on the contrary, the Imperial Legislature will comply with the wishes of the people and of this House, and will provide the most effectual remedy for all evils present and future, either by rendering the Legislative Council elective in the manner mentioned in the Address of this House to His most gracious Majesty, of the 20th March, 1833, or by enabling the people to express still more directly their opinions as to the measures to be adopted in that behalf, and with regard to such other modifications of 1791-1840] Constitutional Documents of Canada. 375 the constitution as the wants of the people and the interests of His Ma- jesty's Government in the province may require; and that this House perseveres in the said Address. 41. Resolved, That His Majesty's Secretary of State for the Colonial Department has acknowledged in his despatches, that it has frequently been admitted that the people of Canada ought to see nothing in the in- stitutions of the neighbouring States which they could regard with envy, and that he has yet to learn that any such feeling now exists among His Majesty's subjects in Canada; to which this House answers, that the neighbouring States have a form of government very fit to prevent abuses of power, and very effective in repressing them; that the reverse of this order of things has always prevailed in Canada under the present form of government; that there exists in the neighbouring States a stronger and more general attachment to the national institutions than in any other country, and that there exists also in those States a guarantee for the progressive advance of their political institutions towards perfection, in the revision of the same at short and determinate intervals, by conven- tions of the people, in order that they may without any shock or violence be adapted to the actual state of things. 42. Resolved, That it was in consequence of a correct idea of the state of the country, and of society generally in America, that the Com- mittee of the House of Commons asked, whether there was not in the two Canadas a growing inclination to see the institutions become more and more popular, and in that respect more and more like those of the United States; and that John Neilson, esquire, one of the agents sent from this country, answered, that the fondness for popular institutions had made great progress in the two Canadas ; and that the same agent was asked, whether he did not think that it would be wise that the object of every change made in the institutions of the province should be to comply more and more with the wishes of the people, and to render the said institutions extremely popular: to which question this House for and in the name of the people whom it represents, answers, solemnly and de- liberately, "Yes, it would be wise; it would be excellent." 43. Resolved, That the constitution and form of government which would best suit this colony are not to be sought solely in the analogies offered by the institutions of Great Britain, where the state of society is altogether different from our own; and that it would be wise to turn to profit by the information to be gained by observing the effects produced by the different and infinitely varied constitutions which the Kings and Parliament of England have granted to the several plantations and colonies in America, and by studying the way in which virtuous and enlightened men have modified such colonial institutions when it could be done with the assent of the parties interested. 44. Resolved, That the unanimous consent with which all the Ameri- can States have adopted and extended the elective system, shows that it is adapted to the wishes, manners and social state of the inhabitants of this continent; that this system prevails equally among those of British and those of Spanish origin, although the latter, during the continuance of their colonial state, had been under the calamitous yoke of ignorance and absolutism; and that we do not hesitate to ask from a Prince of the House of Brunswick, and a reformed Parliament, all the freedom and political powers which the Princes of the House of Stuart and their Par- liaments granted to the most favoured of the plantations formed at a period when such grants must have been less favourably regarded than they would now be. 45. Resolved, That it was not the best and most free systems of colonial government which tended most to hasten the independence of the old English colonies ; since the Province of New York, in which the institutions were most monarchical in the sense which that word appears to bear in the despatch of the Colonial Secretary, was the first to refuse obedience to an Act of the Parliament of Great Britain; and that the colonies of Connecticut and Rhode Island, which though closely and affec- 376 Constitutional Documents of Canada. [1791-1840 tionately connected with the mother country for a long course of years, enjoyed constitutions purely democratic, were the last to enter into a confederation rendered necessary by the conduct of bad servants of the Crown, who called in the supreme authority of the Parliament, and the British Constitution to aid them to govern arbitrarily, listening rather to the governors and their advisers than to the people and their representa- tives, and shielding with their protection those who consumed the taxes rather than those who paid them. 46. Resolved, That with a view to the introduction of whatever the institutions of the neighbouring States offered that was good and ap- plicable to the state of the province, this House had among other meas- ures passed, during many years, a Bill founded on the principle of pro- portioning arithmetically the number of Representatives to the popula- tion of each place represented; and that if by the pressure of circum- stances and the urgent necessity which existed that the number of Repre- sentatives should be increased, it has been compelled to assent to amend- ments which violate that principle, by giving to several counties contain- ing a population of little more than 4,000 souls, the same number of Representatives as to several others of which the population is five times as great, this disproportion is in the opinion of this House an act of injustice, for which it ought to seek a remedy: and that in new countries where the population increases rapidly, and tends to create new settle- ments, it is wise and equitable that by a frequent and periodical census, such increase, and the manner in which it is distributed, should be ascer- tained, principally for the purpose of settling the representation of the province on an equitable basis. 47. Resolved, That the fidelity of the people, and the protection of the government, are co-relative obligations, of which the one cannot long subsist without the other; that by reason of the defects which exist in the laws and constitution of this province, and of the manner in which those laws and that constitution have been administered, the people of this province are not sufficiently protected in their lives, their property and their honour; and that the long series of acts of injustice and op- pression, of which they have to complain, have increased with alarming rapidity in violence and in number under the present administration. 48. Resolved, That in the midst of these disorders and sufferings, this House and the people whom it represents, had always cherished the hope and expressed their faith that His Majesty's Government in Eng- land did not knowingly and wilfully participate in the political immorality of its colonial agents and officers ; and that it is with astonishment and grief that they have seen in the extract from the despatches of the Colonial Secretary, communicated to this House by the Governor-in-chief during the present session, that one at least of the members of His Majesty's Government entertains towards them feelings of prejudice and animosity, and inclines to favour plans of oppression and revenge, ill adapted to change a system of abuses, the continuance of which would altogether discourage the people, extinguish in them the legitimate hope of happiness which, as British subjects, they entertained, and would leave them only the hard alternative of submitting to an ignominious bondage, or of see- ing those ties endangered which unite them to the mother country. 49. Resolved, That this House and the people whom it represents do not wish or intend to convey any threat ; but that, relying as they do upon the principles of law and justice, they are and ought to be poli- tically strong enough not to be exposed to receive insult from any man whomsoever, or bound to suffer it in silence; that the style of the said extracts from the despatches of the Colonial Secretary, as communicated to this House, is insulting and inconsiderate to such a degree that no legally constituted body, although its functions were infinitely subordinate to those of legislation, could or ought to tolerate them; that no similar example can be found even in the despatches of those of his predecessors in office least favourable to the rights of the colonies ; that the tenor of the said despatches is incompatible with the rights and privileges of this 1791-1840] Constitutional Documents of Canada. 377 House, which ought not to be called in question or defined by the Colonial Secretary, but which, as occasion may require, will be successively pro- mulgated and enforced by this House. 50. Resolved, That with regard to the following expressions in one of the said Despatches, "should events unhappily force upon Parliament the exercise of its supreme authority to compose the internal dissension of the Colonies, it would be my object and my duty, as a servant of the Crown, to submit to Parliament such modifications of the Charter of the Canadas as should tend, not to the introduction of institutions inconsistent with monarchical government, but to maintaining and strengthening the connexion with the mother country, by a close adherence to the spirit of the British constitution, and by preserving in their proper place and within their due limits the mutual rights and privileges of all classes of His Majesty's subjects 1 ;" if they are to be understood as containing a threat to introduce into the constitution any other modifications than such as are asked for by the majority of the people of this province, whose sentiments cannot be legitimately expressed by any other authority than its representatives, this House would esteem itself wanting in candour to the people of England, if it hesitated to call their attention to the fact that in less than 20 years the population of the United States of America will be as great or greater than that of Great Britain, and that of British America will be as great or greater than that of the former English Colonies was when the latter deemed that the time was come to decide that the inappreciable advantage of governing themselves instead of being governed, ought to engage them to repudiate a system of Colonial Gov- ernment which was, generally speaking, much better than that of British America now is. 51. Resolved, That the approbation expressed by the Colonial Secre- tary, in his said despatch, of the present composition of the Legislative Council, whose acts, since its pretended reform, have been marked by party spirit and by invidious national distinctions and preferences, is a subject of just alarm to His Majesty's Canadian subjects in general, and more particularly to the great majority of them, who have not yielded at any time to any other class of the inhabitants of this province in their attachment to His Majesty's Government, in their love of peace and order, in respect for the laws, and in their wish to effect that union among the whole people which is so much to be desired, to the end that all may enjoy freely and equally the rights and advantages of British subjects, and of the institutions which have been guaranteed to and are dear to the country; that the distinctions and preferences aforesaid have almost constantly been used and taken advantage of by the Colonial Administra- tion of this Province, and the majority of the Legislative Councillors, Executive Councillors, Judges and other functionaries dependent upon it; and that nothing but the spirit of union among the several classes of the people, and their conviction that their interests are the same, could have prevented collisions incompatible with the prosperity and safety of the province. 52. Resolved, That since a circumstance, which did not depend upon the choice of the majority of the people, their French origin and their use of the French language, has been made by the colonial authorities a pretext for abuse, for exclusion, for political inferiority, for a separation of rights and interests; this House now appeals to the justice of His Majesty's Government and of Parliament, and to the honour of the people of England; that the majority of the inhabitants of this country are in nowise disposed to repudiate any one of the advantages they derive from their origin and from their descent from the French nation, which, with regard to the progress of which it has been the cause in civilization, in the sciences, in letters, and the arts, has never been behind the British nation, and is now the worthy rival of the latter in the advancement of the cause of liberty and of the science of Government; from which this country derives the greater portion of its civil and ecclesiastical law, and 1 See No. CXIII. 378 Constitutional Documents of Canada. [1791-1840 of its scholastic and charitable institutions, and of the religion, language, habits, manners and customs of the great majority of its inhabitants. 53. Resolved, That our fellow-subjects, of British origin, in this pro- vince, came to settle themselves in a country, "the inhabitants whereof, professing the religion of the Church of Rome, enjoyed an established form of constitution and system of laws, by which their persons and their property had been protected, governed and ordered, during a long series of years, from the first establishment of the province of Canada;" that, prompted by these considerations, and guided by the rules of justice and of the law of nations, the British Parliament enacted that, "in all mat- ters of controversy, relative to property and civil rights, resort should be had to the laws of Canada;" that when Parliament afterwards de- parted from the principle thus recognised, firstly, by the introduction of the English criminal law, and afterwards by that of the representative system, with all the constitutional and parliamentary law necessary to its perfect action, it did so in conformity to the sufficiently expressed wish of the Canadian people; and that every attempt on the part of public functionaries or of other persons (who on coming to settle in the pro- vince, made their condition their own voluntary act) against the existence of any portion of the laws and institutions peculiar to the country, and any preponderance given to such persons in the Legislative and Executive Councils, in the courts of law, or in other departments, are contrary to the engagements of the British Parliament, and to the rights guaranteed to His Majesty's Canadian subjects, on the faith of the national honour of England, and on that of capitulations and treaties. 54. Resolved, That any combination, whether effected by means of Acts of the British Parliament, obtained in contravention to its former engagements, or by means of the partial and corrupt administration of the present constitution and system of law, would be a violation of those rights, and would, as long as it should exist, be obeyed by the people from motives of fear and constraint, and not from choice and affection ; that the conduct of the Colonial Administrations and of their agents and instruments in this colony, has for the most part been of a nature unjustly to create apprehensions as to the views of the people and government of the mother country, and to endanger the confidence and content of the inhabitants of this province, which can only be secured by equal laws, and by the observance of equal justice, as the rule of conduct in all the de- partments of the Government. 55. Resolved, That whether the number of that class of His Ma- jesty's subjects in this province, who are of British origin, be that men- tioned in the said address of the Legislative Council, or whether (as the truth is) it amounts to less than half that number, the wishes and inter- ests of the majority of them are common to them and to their fellow- subjects of French origin, and speaking the French language; that the one class love the country of their birth, the other that of their adoption ; that the greater portion of the latter have acknowledged the generally beneficial tendency of the laws and institutions of the country, and have laboured, in concert with the former, to introduce into them gradually, and by the authority of the Provincial Parliament, the improvements of which they have, from time to time, appeared susceptible, and have resisted the confusion which it has been endeavoured to introduce into them in favour of schemes of monopoly and abuse, and that all without distinc- tion wish anxiously for an impartial and protecting Government 56. Resolved, That in addition to administrative and judicial abuses which have had an injurious effect upon the public welfare and con- fidence, attempts have been made, from time to time, to induce the Par- liament of the United Kingdom, by deceiving its justice and abusing its benevolent intentions, to adopt measures calculated to bring about com- binations of the nature above mentioned, and to pass Acts of internal legislation for this province, having the same tendency, and with regard to which the people of the country had not been consulted ; that, un- happily, the attempts to obtain the passing of some of these measures were 1791-1840] Constitutional Documents of Canada. 379 successful, especially that of the Act of the 6 Geo. 4, c. 59, commonly called the "Tenures Act," the repeal of which was unanimously demanded by all classes of the people, without distinction, through their represen- tatives, a very short time after the number of the latter was increased ; and that this House has not yet been able to obtain from His Majesty's Representative in this province, or from any other source, any informa- tion as to the views of His Majesty's Government in England with regard to the repeal of the said Act. 57. Resolved, That the object 1 of the said Act was, according to the benevolent intentions of Parliament, and as the title of the Act sets forth, the extinction of feudal and seigniorial rights and dues on lands held en fief and a cens in this province, with the intention of favouring the great body of the inhabitants of the country, and protecting them against the said dues, which were regarded as burdensome; but that the provisions of the said Act, far from having the effect aforesaid, afford facilities to seigniors to become, in opposition to the interests of their censitaires, the absolute proprietors of the extensive tracts of unconceded lands which, by the law of the country, they held only for the benefit of the inhabi- tants thereof, to whom they were bound to concede them in consideration of certain limited dues ; that the said Act, if generally acted upon, would shut out the mass of the permanent inhabitants of the country from the vacant lands in the seigniories, while at the same time they have been constantly prevented from settling on the waste lands of the Crown on easy and liberal terms, and under a tenure adapted to the laws of the country, by the partial, secret and vicious manner in which the Crown Land department has been managed, and by the provisions of the Act aforesaid, with regard to the laws applicable to the lands in question ; and that the application made by certain seigniors for a change of tenure, under the authority of the said Act, appear to prove the correctness of the view which this House has taken of its practical effect. 58. Resolved, That it was only in consequence of an erroneous sup- position that feudal charges were inherent in the law of this country, as far as the possession and transmission of real property and the tenures recognised by that law were concerned, that it was enacted in the said Act that the lands with regard to which a change of tenure should be effected, should thereafter be held under the tenure of free and common soccage; that the seigniorial charges have been found burdensome in cer- tain cases, chiefly by reason of the want of adequate means of obtaining the interference of the Colonial Government and of the courts of law, to enforce the ancient law of the country in that behalf, and that the Provincial Legislature was, moreover, fully competent to pass laws pro- viding for the redemption of the said charges in a manner which should be in accordance with the interests of all parties, and for the introduc- tion of the free tenures recognised by the laws of the country; that the House of Assembly has been repeatedly occupied, and now is occupied about this important subject; but that the said Tenures Act, insufficient of itself to effect equitably the purpose for which it was passed, is of a nature to embarrass and create obstacles to the effectual measures which the legislature of the country, with a full knowledge of the subject, might be disposed to adopt; and that the application thus made (to the exclu- sion of the Provincial Legislature) to the Parliament of the United Kingdom, which was far less competent to make equitable enactments on a subject so complicated in its nature, could only have been made with a view to unlawful speculations and the subversion of the laws of the country. 59. Resolved, That, independently of its many other serious imper- fections, the said Act does not appear to have been founded on a suffi- cient knowledge of the laws which govern persons and property in this country, when it declares the laws of Great Britain to be applicable to certain incidents to real property therein enumerated ; and that it has only served to augment the confusion and doubt which had prevailed in 1 Cf. Lucas, Lord Durham's Report, I, p. 161. 380 Constitutional Documents of Canada. [1791-1840 the courts of law, and in private transactions with regard to the law which applied to lands previously granted in free and common soccage. 60. Resolved, That the provision of the said Act which has excited the greatest alarm, and which is most at variance with the rights of the people of the country, and with those of the Provincial Parliament, is that which enacts that lands previously held en fief or en censine shall, after a change of tenure shall have been effected with regard to them, be held in free and common soccage, and thereby become subject to the laws of Great Britain, under the several circumstances therein mentioned and enumerated; that besides being insufficient in itself, this provision is of a nature to bring into collision, in the old settlements, at multiplied points of contiguity, two opposite systems of laws, one of which is entirely un- known to this country, in which it is impossible to carry it into effect; that from the feeling manifested by the colonial authorities and their partisans towards the inhabitants of the country, the latter have just reason to fear that the enactment in question is only the prelude to the final subversion, by Acs of Parliament of Great Britain, fraudulently obtained in violation of its former engagements, of the system of laws by which the persons and property of the people of this province were so long happily governed. 61. Resolved, That the inhabitants of this country have just reason to fear that the claims made to the property of the seminary of St. Sul- pice, at Montreal, are attributable to the desire of the colonial adminis- tration, and its agents and tools, to hasten this deplorable state of things; and that His Majesty's Government in England would, by re-assuring His faithful subjects on this point, dissipate the alarm felt by the clergy, and by the whole people without distinction, and merit their sincere gratitude. 62. Resolved, That it is the duty of this House to persist in asking for the absolute repeal of the said Tenures Act, and until such repeal shall be effected, to propose to the other branches of the Provincial Par- liament such measures as may be adapted to weaken the pernicious effects of the said Act. 63. Resolved, That this House has learned with regret, from one of the said despatches of the Colonial Secretary, that His Majesty has been advised to interfere in a matter which concerns the privileges of this House; that in the case there alluded to, this House exercised a privilege solemnly established by the House of Commons, before the principle on which it rests became the law of the land ; that this privilege is essential to the independence of this House, and to the freedom of its votes and proceedings; that the resolutions passed by this House, on the 15th of February, 1831, are constitutional and well-founded, and are supported by the example of the Commons of Great Britain ; that this House has re- peatedly passed bills for giving effect to the said principle, but that these bills failed to become law, at first from the obstacles opposed to them in another branch of the Provincial Legislature, and subsequently by rea- son of the reservation of the last of the said bills for the signification of His Majesty's pleasure in England, whence it has not yet been sent back; that until some bill to the same effect shall become law, this House per- sists in the said resolutions; and that the refusal of his Excellency, the present Governor-in-chief, to sign a writ for the election of a knight representative for the county of Montreal, in the place of Dominique Mondelet, 1 esquire, whose seat had been declared vacant, is a grievance of which this House is entitled to obtain the redress, and one which would alone have sufficed to put an end to all intercourse between it and the Colonial Executive, if the circumstances of the country had not offered an infinite number of other abuses and grievances against which it is urgently necessary to remonstrate. 64. Resolved, That the claims which have for many years been set up by the Executive Government to that control over and power of ap- propriating a great portion of the revenues levied in this province, which belong of right to this House, are contrary to the rights and to the con- 1 For the history, see Christie, III, pp. 448, 498. The despatch referred to in this "Resolution" is in Ibid, pp.. 524 ff. 1791-1840] Constitutional Documents of Canada. 381 stitution of the country; and that with regard to the said claims, this House persists in the declarations it has heretofore made. 65. Resolved, That the said claims of the Executive have been vague and varying; that the documents relative to the said claims, and the ac- counts and estimates of expenses laid before this House, have likewise been varying and irregular, and insufficient to enable this House to proceed with a full understanding of the subject on the matters to which they related; that important heads of the public revenue of the Province, col- lected either under the provisions of the law or under arbitrary regula- tions, made by the Executive, have been omitted in the said accounts ; that numerous items have been paid out of the public revenue without the authority of this House, or any acknowledgment of its control over them, as salaries for sinecure offices, which are not recognized by this House, and even for other objects for which, after mature deliberation, it had not deemed it expedient to appropriate any portion of the public revenue; and that no accounts of the sums so expended have been laid before this House. 66. Resolved, That the Executive Government has endeavoured by means of the arbitrary regulations aforesaid, and particularly by the sale of the waste lands of the Crown, and of the timber on the same, to create for itself out of the revenue which this House only has the right of ap- propriating, resources independent of the control of the representatives of the people; and that the result has been a diminution of the whole- some influence which the people have constitutionally the right of exer- cising over the administrative branch of the Government, and over the spirit and tendency of its measures. 67. Resolved, That this House having, from time to time, with a view to proceed by bill, to restore regularity to the financial system of the province, and to provide, for the expenses of the administration of justice and of His Majesty's Civil Government therein, asked the Pro- vincial Government by address for divers documents and accounts relating to financial matters, and to abuses connected with them, has met with repeated refusals, more especially during the present session and the pre- ceding one ; that divers subordinate public functionaries, summoned to appear before committees of this House to give information on the said subject, have refused to do so in pursuance of the said claim set up by the Provincial Administrations to withdraw a large portion of the public income and expenditure from the control and even from the knowl- edge of this House ; that during the present session one of the said subor- dinate functionaries of the Executive being called upon to produce the originals of sundry registers of warrants and reports, which it was im- portant to this House to cause to be examined, insisted on being present at the deliberations of the committee appointed by the House for that purpose; and that the head of the administration being informed of the fact, refrained from interfering, although in conformity to Parliamentary usage, this House, had pledged itself that the said documents should be icturned, and although the Governor-in-chief had himself promised com- munication of them. 68. Resolved, That the result of the secret and unlawful distribution of a large portion of the public revenue of the province has been, that the Executive Government has always, except with regard to appropria- tions for objects of a local nature, considered itself bound to account for the public money to the Lords Commissioners of the Treasury in Eng- land, and not to this House, nor according to its votes, or even in con- formity to the laws passed by the Provincial Legislature; and that the accounts and statements laid before this House from time to time have never assumed the shape of a regular system of balanced accounts, but have been drawn up, one after another, with such alterations and irre- gularities as it pleased the administration of the day to introduce into them, from the accounts kept with the Lords of the Treasury, in which the whole public money received was included, as well as all the items 382 Constitutional Documents of Canada. [1791-1840 of expenditure, whether authorized or unauthorized by the Provincial Legislature. 69. Resolved, That the pretensions and abuses aforesaid have taken away from this House even the shadow of control over the public revenue of the province, and have rendered it impossible for it to ascertain at any time the amount of revenue collected, the disposable amount of the same, and the sums required for the public service ; and that the House having during many years passed bills, of which the models are to be found in the Statute-book of Great Britain, to establish a regular system of accountability and responsibility in the department connected with the receipt and expenditure of the revenue, these bills have failed in the Legislative Council. 70. Resolved, That since the last session of the Provincial Parlia- ment, the Governor-in-chief of this Province, and the members of his Executive Government, relying on the pretensions above mentioned, have without any lawful authority paid large sums out of the public revenue, subject to the control of this House; and that the said sums were divided according to their pleasure, and even in contradiction to the votes of this House, as incorporated in the Supply Bill passed by it during the last session, and rejected by the Legislative Council. 71. Resolved, That this House will hold responsible for all monies which have been, or may hereafter be paid, otherwise than under the au- thority of an Act of the Legislature, or upon an address of this House, out of the public revenue of the province, all those who may have author- ized such payments, or participated therein, until the said sums shall have been reimbursed, or a bill or bills of indemnity freely passed by this House shall have become law. 72. Resolved, That the course adopted by this House in the Supply Bill, passed during the last session, of attaching certain conditions to cer- tain votes, for the purpose of preventing the accumulation of incompatible offices in the same persons, and of obtaining the redress of certain abuses and grievances, is wise and constitutional, and has frequently been adopted by the House of Commons, under analogous circumstances ; and that if the Commons of England do not now so frequently recur to it, it is be- cause they have happily obtained the entire control of the revenue of the nation, and because the respect shown to their opinions with regard to the redress of grievances and abuses, by the other constituted authorities, has regulated the working of the constitution in a manner equally adapted to give stability to His Majesty's Government, and to protect the interests of the people. 73. Resolved, That it was anciently the practice of the House of Commons to withhold supplies until grievances were redressed ; and that in following this course in the present conjuncture, we are warranted in our proceeding, as well by the most approved precedents, as by the spirit of the constitution itself. 74. Resolved, That if hereafter, when the redress of all grievances and abuses shall have been effected, this House should deem it fit and expedient to grant supplies, it ought not to do so otherwise than in the manner mentioned in its fifth and sixth resolution of the 16 March, 1833, and by appropriating by its votes in an especial manner, and in the order in which they are enumerated in the said resolutions, the full amount of those heads of revenue, to the right of appropriating which claims have been set up by the Executive Government. 75. Resolved, That the number of the inhabitants of the country being about 600,000, those of French origin are about 525,000, and those of British or other origin 75,000; and that the establishment of the civil government of Lower Canada for the year 1832, according to the yearly returns made by the Provincial Administration, for the information of the British Parliament, contained the names of 157 officers and others receiving salaries, who are apparently of British or foreign origin, and the names of 47 who are apparently natives of the country, of French origin: that this statement does not exhibit the whole disproportion 1791-1840] Constitutional Documents of Canada. 383 which exists in the distribution of the public money and power, the latter class being for the most part appointed to the inferior and less lucrative offices, and most frequently only obtaining even these by becoming the dependents of those who hold the higher and more lucrative offices; that the accumulation of many of the best paid and most influential, and at the same time incompatible offices, in the same person, which is forbidden by the laws and by sound policy, exists especially for the benefit of the former class; and that two-thirds of the persons included in the last com- mission of the peace issued in the province are apparently of British or foreign origin, and one-third only of French origin. 76. Resolved, That this partial and abusive practice of bestowing the great majority of official places in the province on those only who are least connected with its permanent interests, and with the mass of its inhabitants, has been most especially remarkable in the judicial depart- ment, the judges for the three great districts having, with the exception of one only in each, been systematically chosen from that class of persons, who, being born out of the country, are the least versed in its laws, and in the language and usages of the majority of its inhabitants; that the result of their intermeddling in the politics of the country, of their con- nexion with the Members of the Colonial Administration, and of their yrejudices in favour of institutions foreign to and at variance with those of the country, is that the majority of the said judges have introduced great irregularity into the general system of our jurisprudence, by neglect- ing to ground their decisions on its recognized principles ; and that the claim laid by the said judges to the power of regulating the forms of legal proceedings in a manner contrary to the laws, and without the interference of the legislature, has frequently been extended to the fun- damental rules of the law and of practice; and that in consequence of the same system, the administration of the criminal law is partial and un- certain, and such as to afford but little protection to the subject, and has failed to inspire that confidence which ought to be its inseparable com- panion. 77. Resolved, That in consequence of their connexion with the mem- bers of the Provincial Administrations, and of their antipathy to the country, some of the said judges have, in violation of the laws, attempted to abolish the use in the courts of law of the language spoken by the majority of the inhabitants of the country, which is necessary to the free action of the laws, and forms a portion of the usages guaranteed to them in the most solemn manner by the law of nations and by statutes of the British Parliament. 78. Resolved, That some of the said judges, through partiality for political purposes, and in violation of the criminal law of England as established in this country, of their duty and of their oath, have connived with divers law officers of the Crown, acting in the interest of the Pro- vincia4 Administration, to allow the latter to engross and monopolize all criminal prosecutions of what nature soever, without allowing the private prosecutor to intervene or be heard, or any advocate to express his opinion as amicus curiae, when the Crown officers opposed it ; that in consequence of this, numerous prosecutions of a political nature have been brought in the courts of law by the Crown officers against those whose opinions were unfavourable to the Administration for the time being; while it was impossible for the very numerous class of His Majesty's subjects to which the latter belonged to commence with the slightest confidence any prose- cution against those who, being protected by the Administration, and having countenanced its acts of violence, had been guilty of crimes or misdemeanors ; that the tribunals aforesaid have, as far as the persons composing them are concerned, undergone no modification whatever, and inspire the same fears for the future. 79. Resolved, That this House, as representing the people of this province, possesses of right, and has exercised within this province when occasion has required it, all the powers, privileges and immunities claimed 384 Constitutional Documents of Canada. [1791-1840 and possessed by the Commons House of Parliament in the kingdom of Great Britain and Ireland. 80. Resolved, That it is one of the undoubted privileges of this House to send for all persons, papers and records, and to command the attendance of all persons, civil or military, resident within the province, as witnesses in all investigations which this House may deem it expedient to institute; and to require such witnesses to produce all papers and iccords in their keeping, whenever it shall deem it conducive to the public good to do so. 81. Resolved, That as the grand inquest of the province, it is the duty of this House to inquire concerning all grievances, and all circumstances which may endanger the general welfare of the inhabitants of the province, or be of a nature to excite alarm in them with regard to their lives, their liberty, and their property, to the end that such representations may be made to our Most Gracious Sovereign, or such legislative measures intro- duced, as may lead to the redress of such grievances, or tend to allay such alarm; and that far from having a right to impede the exercise of these rights and privileges, the Governor-in-chief is deputed by his Sovereign, is invested with great powers, and receives a large salary, as much for defending the rights of the subject and facilitating the exercise of the privileges of this House, and of all constituted bodies, as for maintaining the prerogatives of the Crown. 82. Resolved, That since the commencement of the present session, a great number of petitions relating to the infinite variety of objects con- nected with the public welfare, have been presented to this House, and many messages and important communications received by it, both from His Majesty's Government in England and from His Majesty's Provincial Government; that many bills have been introduced in this House, and many important inquiries ordered by it, in several of which the Governor- in-chief is personally and deeply implicated ; that the said petitions from our constituents, the people of all parts of this province ; the said com- munications from His Majesty's Government in England and from the Provincial Government; the said bills already introduced or in prepara- tion ; the said inquiries commenced and intended to be diligently prose- cuted, may and must necessitate the presence of numerous witnesses, the production of numerous papers, the employment of numerous clerks, mes- sengers and assistants, and much printing, and lead to inevitable and daily disbursements, forming the contingent expenses of this House. 83. Resolved, That from the year 1792 to the present, advances had constantly been made to meet these expenses, on addresses similar to that presented this year by this House to the Governor-in-chief, according to the practice adopted by the House of Commons ; that an address of this Kind is the most solemn vote of credit which this House can pass, and that almost the whole amount of a sum exceeding 277,000 has been ad- vanced on such votes by the predecessors of his Excellency the Governor- in-chief, and by himself (as he acknowledges by his message 1 of the 18th January, 1834), without any risk having ever been incurred by any other governor on account of any such advance, although several of them have had differences, attended by violence and injustice on their part, with the House of Assembly, and without their apprehending that the then next Parliament would not be disposed to make good the engagements of the House of Assembly for the time being; and that this refusal of the Gov- crnor-in-chief, in the present instance, essentially impedes the despatch of the business for which the Parliament was called together, is deroga- tory to the rights and honour of this House, and forms another grievance for which the present administration of this province is responsible. 84. Resolved, That besides the grievances and abuses before men- tioned, there exist in this province a great number of others (a part of which existed before the commencement of the present administration, which has maintained them, and is the author of a portion of them), with regard to which this House reserves to itself the right of complaining 1 See Christie, III, p. 531. 1791-1840] Constitutional Documents of Canada. 385 and demanding reparation, and the number of which is too great to allow / of their being enumerated here: that this House points out, as among that number, Istly. The vicious composition and the irresponsibility of the Execu- tive Council, the members of which are at the same time judges of the Court of Appeals, and the secrecy with which not only the functions, but even the names of the members of that body have been kept from the knowledge of this House, when inquiries have been instituted by it on the subject. 2dly. The exorbitant fees illegally exacted in certain of the public offices, and in others connected with the judicial department, under regu- lations made by the Executive Council, by the judges, and by other func- tionaries usurping the powers of the legislature. 3dly. The practice of illegally calling upon the judges, to give their opinions secretly on questions which may be afterwards publicly and contradictorily argued before them ; and the opinions themselves so given by the said judges, as political partizans, in opposition to the laws, but in favour of the administration for the time being. 4thly. The cumulation of public places and offices in the same per- sons, and the efforts made by a number of families connected with the administration, to perpetuate this state of things for their own advan- tage, and for the sake of domineering for ever, with interested views and in the spirit of party, over the people and their representatives. Sthly. 1 The intermeddling of members of the Legislative Councils in the election of the representatives of the people, for the purpose of influ- encing and controlling them by force, and the selection frequently made of returning officers for the purpose of securing the same partial and cor- rupt ends ; the interference of the present Governor-in-chief himself in the said elections; his approval of the intermeddling of the said legisla- tive councillors in the said elections; the partiality with which he inter- vened in the judicial proceedings connected with the said elections, for the purpose of influencing the said proceedings, in a manner favourable to the military power and contrary to the independence of the judicial power; and the applause which, as commander of the forces, he bestowed upon the sanguinary execution of the citizens by the soldiery. 6thly. The interference of the armed military force at such elec- tions, through which three peaceable citizens, whose exertions were neces- sary to the support of their families, and who were strangers to the agi- tation of the election, were shot dead in the streets ; the applause bestowed by the Governor-in-chief and Commander of the Forces on the authors of this sanguinary military execution (who had not been acquitted by a petty jury) for the firmness and discipline displayed by them on that occasion. 7thly. The various faulty and partial systems which have been fol- lowed ever since the passing of the Constitutional Act, with regard to the management of the waste lands in this province, and have rendered it impossible for the great majority of the people of the country to settle on the said lands ; the fraudulent and illegal manner in which, contrary to His Majesty's instructions. Governors, Legislative and Executive Coun- cillors, Judges and subordinate officers have appropriated to themselves large tracts of the said lands; the monopoly of an extensive portion of the said lands in the hands of speculators residing in England, with which the province is now threatened ; and the alarm generally felt therein with regard to the alleged participation of His Majesty's Government in this scheme, without its having deigned to re-assure his faithful subjects on this head, or to reply to the humble address to His Majesty adopted by this House during the last session. Sthly. The increase of the expenses of the Government without the authority of the Legislature, and the disproportion of the salaries paid to public functionaries for the services performed by them, to the rent of real property, and to the ordinary income commanded by the exertions 1 For the history, see Christie, III, ch. XXXII ff. Y 386 Constitutional Documents of Canada. [1791-1840 of persons possessing talent, industry and economy equal to, or greater than those of the said functionaries. 9thly. The want of all recourse in the courts of law on the part oi those who have just and legal claims on the Government. lOthly. The too frequent reservation of bills for the signification of His Majesty's pleasure, and the neglect of the Colonial-office to consider such bills, a great number of which have never been sent back to the province, and some of which have even been returned so late that doubts may be entertained as to the validity of the sanction given to them; a circumstance which has introduced irregularity and uncertainty into the legislation of the province, and is felt by this House as an impediment to the re-introduction of the bills reserved during the then preceding session. ' llthly. The neglect on the part of the Colonial-office to give any answer to certain addresses transmitted by this House on important sub- jects; the practice followed by the administration of communicating in an incomplete manner, and by extracts, and frequently without giving their dates, the despatches received from time to time on subjects which have engaged the attention of this House; and the too frequent refer- ences to the opinion of His Majesty's Ministers in England, on the part of the provincial administration, upon points which it is in their power and within their province to decide. 12thly. The unjust retention of the college at Quebec, which forms part of the estates of the late Order of Jesuits, and which from a col- lege has been transformed into a barrack for soldiers; the renewal of the lease of a considerable portion of the same estates, by the provincial executive, in favour of a member of the Legislative Council, since those estates were returned to the Legislature, and in opposition to the prayer of this House, and to the known wishes of a great number of His Majesty's subjects to obtain lands there, and to settle them; and the refusal of the said executive to communicate the said lease, and other information on the subject, to this House. 13thly. The obstacles unjustly opposed by the executive, friendly to abuses and to ignorance, to the establishment of colleges endowed by virtuous and disinterested men, for the purpose of meeting the growing desires of the people for the careful education of their children. 14thly. The refusal of justice with regard to the accusations brought by this House, in the name of the people, against judges, for flagrant acts of malversation, and for ignorance and violation of the law. ISthly. The refusals on the part of the governors, and more espe- cially of the present Governor-in-chief, to communicate to this House the information asked for by it, from time to time, and which it had a right to obtain, on a great number of subjects connected with the public busi- ness of the province. 16thly. The refusal of His Majesty's Government to reimburse to the province the amount for which the late Receiver-general was a de- faulter, and its neglect to enforce the recourse which the province was en- titled to against the property and person of the late Receiver-general. 85. Resolved, That the facts mentioned in the foregoing resolutions, demonstrate that the laws and constitutions of the province have not, at any period, been administered in a manner more contrary to the in- terests of His Majesty's Government, and to the rights of the people of this province, than under the present administration, and render it neces- sary that his Excellency Matthew Lord Aylmer, of Balrath, the present Governor-in-chief of this province, be formally accused by this House, of having, while acting as Governor, in contradiction to the wishes of the Imperial Parliament, and to the instructions he may have received, and against the honour and dignity of the Crown, and the rights and privi- leges of this House and the people whom it represents, so recomposed the Legislative Council as to augment the dissensions which rend this colony; of haying seriously impeded the labours of this House, acting as the grand inquest of the country; of having disposed of the public 1791-1840] Constitutional Documents of Canada. 387 revenue of the province, against the consent of the Representatives of the people, and in violation of the law and constitution ; of having main- tained existing abuses, and created new ones ; of having refused to sign a writ for the election of a representative to fill a vacancy which had happened in this House, and to complete the number of representatives established by law for this province; and that this House expects from the honour, patriotism and justice of the reformed Parliament of the United Kingdom, that the Commons of the said Parliament will bring impeachments, and will support such impeachments before the House of Lords against the said Matthew Lord Aylmer, for his illegal, unjust and unconstitutional administration of the government of this province; and against such of the wicked and perverse advisers who have misled him, as this House may hereafter accuse, if there be no means of obtaining justice against them in the province, or at the hands of His Majesty's Executive Government in England. 86. Resolved, That this House hopes and believes, that the inde- pendent members of both Houses of the Parliament of the United King- dom will be disposed, both from inclination and from a sense of duty, to support the accusations brought by this House, to watch over the pre- servation of its rights and privileges which have been so frequently and violently attacked, more especially by the present administration ; and so to act, that the people of this province may not be forced by oppression to regret their dependence on the British Empire, and to seek elsewhere a remedy for their afflictions. 87. Resolved, That this House learned, with gratitude, that Daniel O'Connell, Esq., had given notice in the House of Commons in July last, that during the present Session of the Imperial Parliament, he would call its attention to the necessity of reforming the Legislative and Execu- tive Councils in the two Canadas ; and that the interest thus shown for our own fate by him whom the gratitude and blessings of his country- men have, with the applause of the whole civilized world, proclaimed Great and Liberator, and of whom our fellow-countrymen entertain corresponding sentiments, keeps alive in us the hope that through the goodness of our cause and the services of such a friend, the British Par- liament will not permit a minister, deceived by the interested represen- tations of the provincial administration and its creatures and tools, to exert (as there is reason from his despatches to apprehend that he may attempt to do,) the highest degree of oppression, in favour of a system which in better times he characterized as faulty, and against subjects of His Majesty who are apparently only known to him by the great patience with which they have waited in vain for promised reforms. 88. Resolved, That this House has the same confidence in Joseph Hume, Esq., and feels the same gratitude for the anxiety which he has repeatedly shown for the good government of these colonies, and the amelioration of their laws and constitutions, and calls upon the said Daniel O'Connell and Joseph Hume, Esqrs., whose constant devotedness was, even under a tory ministry, and before the reform of Parliament, partially successful in the emancipation of Ireland, from the same bond- age and the same political inferiority with which the communications re- ceived from the Colonial Secretary during the present session menace the people of Lower Canada, to use their efforts that the laws and con- stitution of this province may be amended in the manner demanded by the people thereof; that the abuses and grievances of which the latter have to complain may be fully and entirely redressed ; and that the laws and constitution may be hereafter administered in a manner consonant with justice, with the honour of the Crown and of the people of Eng- land, and with the rights, liberties and privileges of the people of this province, and of this House by which they are represented. 89. Resolved, That this House invites the members of the minority of the Legislative Council who partake the opinions of the people, the present members of the House of Assembly, until the next general elec- tion, and afterwards all the members then elected, and such other persons 388 Constitutional Documents of Canada. [1791-1840 as they may associate with them, to form one committee or two commit- tees of correspondence, to sit at Quebec and Montreal in the first instance, and afterwards at such place as they shall think proper; the said com- mittees to communicate with each other, and with the several local com- mittees which may be formed in different parts of the province, and to enter into correspondence with the Hon. Denis Benjamin Viger, the agent of this province in England, with the said Daniel O'Connell and Joseph Hume, Esqrs., and with such other members of the House of Lords or of the House of Commons, and such other persons in the United King- dom of Great Britain and Ireland, as they may deem expedient, for the purpose of supporting the claims of the people of this province and of this House; of furnishing such information, documents and opinions as they may think adapted to make known the state, wishes and wants of the province; the said committees also to correspond with such persons as they shall think proper in the other British colonies, which are all inter- ested, that the most populous of their sister colonies do not sink under the violent attempt to perpetuate the abuses and evils which result as well from the vices of its constitution as from the combined malversation of the administrative, legislative and judicial departments, out of which have sprung insult and oppression for the people, and, by a necessary conse- quence, hatred and contempt on their part for the provincial government. 90. Resolved, That the Honourable Denis Benjamin Viger be re- quested to remain at the seat of His Majesty's Government, at least during the present session of the Imperial Parliament, to continue to watch over the interests of the province with the same zeal and the same devotedness as heretofore, without suffering himself to be discouraged by mere formal objections on the part of those who are unwilling to listen to the com- plaints of the country. 91. Resolved, That the fair and reasonable expenses of the said two Committees of Correspondence, incurred by them in the performanc of the duties entrusted to them by this House, are a debt which it contracts towards them ; and that the representatives of the people are bound in honour to use all constitutional means to reimburse such expenses to the said Committee, or to such persons as may advance money to them for the purposes above mentioned. 92. Resolved, That the message from his Excellency the Governor- in-chief, received on the 13th of January last, and relating to the writ of election for the county of Montreal, with the extract from a despatch which accompanied it, the message from the same, received the same day, and relating to the Supply Bill, and the message from the same, received on the 14th January last, with the extract from a despatch which accom- panied it, be expunged from the journals of this House. 1 cxv DECLARATION' Of the causes which led to the formation of THE CONSTITUTIONAL ASSOCIATION OF QUEBEC, and of the objects for which it has been formed. [Trans.: Christie, of. cit. Vol. IV.] The political evils under which Lower Canada has long labored, have recently been increased in so alarming a degree, that the subversion of government itself is to be apprehended, with the consequent disorders of 'For the message of 13 January, see Christie, III, p. 524; for that of 14 January, see No. CXIII. 'This document and Nos. CXVI. CXXII. CXXVII, illustrate the parting of the ways in Lower Canada. They represent the platform of the Moderates irrespective of creed or race, who, while determined on reform, were far removed from Papmeau and the language of "The 92 Resolutions." 1791-1840] Constitutional Documents of Canada. 389 anarchy, unless the progress of them be arrested, and an effectual remedy applied. Under the influence of a party in the Assembly of the Province, labor- ing by every means which they could devise to concentrate political power in their own hands exclusively, national distinctions have been fostered and established, the administration of the local government Jjas been per- severingly obstructed and impeded, its authority brought into contempt, and public and private security essentially impaired and endangered ; whilst the just subordination of the colony to the parent state has been openly questioned, and resistance to its authority, if not avowedly inculcated, certainly covertly promoted. In prosecution of the views of the party to which those evils are mainly ascribable, that portion of the population of the Province which has been by them designated as of "British or Foreign origin," has virtually been, and now is 1 , deprived of the privilege of being heard in the representative branch of the government in support of their interests and views. The portion of the population thus proscribed amounts to about one hundred and fifty thousand souls, or one-fourth of the whole, and comprises nearly all the merchants, the principal members of the learned professions, a large body of skilful and wealthy artizans and mechanics, and a great number of respectable and industrious agriculturalists, possesses extensive real estate, and holds by far the greatest portion of the capital employed in the pursuits of trade and industry, all which interests are liable to be burthened and in fact have been injuriously affected, in consequence of the proceed- ings of the said party and of the majority of the same origin by whom they have been supported in the assembly of the Province. The class of persons by whom members of the assembly are almost exclusively returned, that is, the inhabitants of French origin, who form the majority, and whose character is in other respects most estimable, has shewn itself peculiarly liable to be acted upon by ambitious and self- interested individuals, who, by exciting the latent national prejudices of the majority against their fellow-subjects of a different origin, can, as appears from late events, lead them astray by specious though perfectly unfounded representations addressed to their prejudices and passions. By these means the party in the Assembly already alluded to, has acquired a dangerous ascendancy over this class of the population, and the result of the late elections evinces that they will use it for the purpose of securing the return of such persons only as will act in subserviency to them. Upon that occasion it is notorious that no other qualification war- asked or required from candidates than an implicit acquiescence in the views and wishes of the party as expressed in the resolutions of the Assem- bly to be presently adverted to. While the representation of the Province continues on such a footing, with the concentration of power incident to it, experience has shewn that there can be no hope of a fair and impartial administration of the powers of government, and there is too much reason to apprehend that in a body so constituted, the public and general interests of the Province, commercial and agricultural, will continue to be overlooked and neglected, or subjected to injurious regulations, its improvement obstructed and retarded, and the whole internal government of the Province deprived of the legislative superintendence and provisions which are necessary for its efficiency, and the promotion of the general welfare. The political evils arising from the constitution and composition of the Assembly have been greatly increased and aggravated by the act of the Imperial Parliament 2 placing at the disposal of the Assembly, absolutely and unconditionally as it is understood by that body, the important revenue by means of which the civil expenditure of the Province was previously defrayed. By this increase to the power derived from great numerical superiority in the Assembly, have been superadded the irresistible weight and influence necessarily conjoined with the exclusive power of appropri- 1 Papineau had succeeded in gaining almost complete control of the House of Assembly in the elections of 1834. 2 See No. CX. 390 Constitutional Documents of Canada. [1791-1840 ating the revenues absolutely and indispensably requisite for defraying the civil expenditure of the Province, by means of which the Executive govern- ment has been rendered entirely dependent on the will and pleasure of the leaders in the Assembly for its very existence; and public authority, both administrative and judicial, from the Governor-in Chief and the Chief Justice of the Province to the most humble individual in the scale of office, has been subjected to their interested, partial, vindictive, or capricious control. If any doubt could heretofore have been entertained as to the design and tendency of the proceedings of these men, that doubt must have been removed by the resolutions' passed in the Assembly on the 21st day of February, 1834, containing divers false and scandalous imputations of so general a nature as not to admit of answer or investigation, against the character and conduct of His Majesty's government in this Province, against the whole body of its officers, civil and military, against the judi- ciary and the second branch of tke Provincial Legislature, against a large portion of the inhabitants of the colony engaged solely in the duties and pursuits of private life, and against the British government generally as respects this Province, since the cession of Canada to His Majesty by the Crown of France. These resolutions passed by a majority of 56, of whom 51 were members of French origin, against 24, of whom 17 were not of that origin. They formally class and enumerate His Majesty's subjects in this Province as persons of "French origin" and of "British or Foreign origin," the former of whom are erroneously stated as consisting of 525,000 and the latter of 75,000 souls. The address to His Majesty and to the two Houses of Parliament, wherein these resolutions are embodied ,and which have been transmitted to England, claims a revision and modification, by the majority of the people of this Province, of the Constitutional Act ; an extension of the elective system contrary to the prerogative of the Crown and the British constitu- tion, for the purpose of investing the appointment to offices of honor and profit in the said majority of the people; the election of the second branch of the legislature, now appointed by the Crown for life, in virtue of the aforesaid act; threatening at the same time the British government and Parliament with the example of the late colonies, now the United States of America, and insisting upon being supported in the demands contained in the said resolutions, that the people of this Province 'may not be forced by oppression to regret their dependence on the British empire, and to seek elsewhere a remedy for their afflictions.' In furtherance of the views of the framers of the said resolutions and address, the said resolutions were, shortly after the close of the last session of the Provincial Parliament, printed and distributed in great num- bers throughout the Province at the public expense ; and certain committees were therein invited to be formed, to aid in giving effect to the same, under a pledge of the "honor of the representatives of the people" to reim- burse the expenses of the said committees to them, or to such persons as might advance money to them. The party already referred to, composed of certain members of the House of Assembly, of French origin, has for several years past, as already stated, and as is well known, taken advantage of every opportunity, both by speeches delivered in the House of Assembly and elsewhere, and through means of newspapers under their control, to excite the ancient national prejudices of the inhabitants who are of French origin, against their fel- low-subjects who are not of that origin ; and particularly by the aforesaid resolutions printed and distributed as aforesaid, and by meetings and com- mittees in support thereof, they have in fact so operated upon the preju- dices of persons of their origin, as to excite a great number of them to frequent public expressions of hatred, and threatened violence to those not of the same national origin. In consequence of these machinations and others connected with and See No. CXIV. 1791-1840] Constitutional Documents of Canada. 391 resulting from them, it has come to pass, as might have been looked for under such circumstances, that at the late general election, (as the poll books kept of record according to law will shew,) majorities consisting of persons of French origin have chosen nearly the whole of the members who are to compose the House of Assembly for the ensuing four years, of per- sons of that origin who have publicly approved of the said resolutions, or pledged themselves to their support. As subordinate to the grievances now stated, but contributing materi- ally to the political evils of the Province, other departments of the govern- ment may be mentioned as to which measures of reform are urgently called for. The system of judicature as now established, it is universally known, is altogether insufficient and unsuited to the present state and condition of the Province. From the great extension of the settlements, and the increase of population in different districts, the courts of original juris- diction have become inaccessible to the inhabitants at a distance from them, otherwise than at a ruinous expense, involving in many cases a denial or failure of justice; whilst the Court of Appeals, from its peculiar constitu- tion, is unfit for the exercise of the powers with which it is entrusted. That a system of such vital importance to the public welfare, and yet so injuriously defective and inadequate, should have continued without altera- tion or improvement, is among the striking evidences of the imperfect exercise of powers entrusted to the Provincial Legislature. In every well-regulated government it is essential that the executive authority should be aided by the advice of able and well-informed indi- viduals, acting together and in a body, by which sound discretion, uniform- ity, consistency and system are imparted to its measures. Among colonial governments, which are generally administered by persons laboring under the disadvantage of a deficiency of local information, assistance of this nature is indispensable for the attainment of the ends of good government. This body of advisers ought to be found in the Executive Council of the Province; but its members are too few in number, and its composition too defective, to answer the purposes of its institution. Whilst the greatest importance ought to be attached to the selection of fit persons for seats in the Legislative Council, it is indispensably neces- sary for the stability of the government as now constituted, and for the security of His Majesty's subjects within the Province, that the power of appointing members to that branch of the legislature should continue to reside exclusively in the Crown, but subject to such regulations as may be deemed proper for ensuring the appointment of fully qualified persons. Under the foregoing view of the political state of the Province, the object of the Constitutional Association of Quebec will be, By constitutional means, 1st. To obtain for persons of British and Irish origin, and others His Majesty's subjects laboring under the same privation of common rights a fair and reasonable proportion of the representation in the Provincial Assembly. 2nd. To obtain such reform in the system of judicature and the administration of justice as may adapt them to the present state of the Province. 3rd. To obtain such a composition of the Executive Council as may impart to it the efficiency and weight which it ought to possess. 4th. To resist any appointment of members of the Legislative Council otherwise than by the Crown, but subject to such regulations as may ensure the appointment of fit persons. 5th. To use every effort to maintain the connexion of this colony with the parent state, and a just subordination to its authority. 6th. To assist in preserving and maintaining peace and good order throughout the Province, and ensuring the equal rights of His Majesty's subjects of all classes. Now WE, whose names are undersigned, taking the premises into our serious consideration, do hereby form ourselves into a Constitutional Asso- ciation for the purposes stated in the foregoing declaration, and for mutual 392 Constitutional Documents of Canada. [1791-1840 support in the discharge of the duties of our allegiance to His Majesty, as lawful Sovereign of the United Kingdom of Great Britain and Ireland, and of this Province, dependent on and belonging to the said Kingdom. Declaring that we wish for no preferences or advantages over our fellow-subjects of whatever national origin, nor for any infringement of the rights, laws, institutions, privileges and immunities, civil or religious in which those of French origin may be peculiarly interested, and to which they are entitled, or which they enjoy under the British government and the established constitution ; desiring merely for ourselves the enjoyment of equal rights with our fellow-subjects, and that permanent peace, security and freedom for our persons, opinions, property and industry which are the common rights of British subjects. And in furtherance of the purposes aforesaid, to the utmost of our power, we hereby pledge ourselves to each other and to our fellow-subjects throughout the Empire. CXVI AN ADDRESS BY THE CONSTITUTIONALISTS OF MONTREAL TO MEN OF BRITISH OR IRISH ORIGIN, 1834 [Trans. : Christie, op. cit.] Fellow Countrymen, Engaged in a contest, the result of which must be felt throughout the Provinces of British America, we, your oppressed brethren of Montreal, solicit your attention to a brief and temperate exposition of our principles and grievances. Connected with you by identity of origin, by community of feeling, by national recollections, and by one common interest, in this the hour of danger we look to you for support. The population of Lower Canada, heterogeneous in its character, com- prehends two distinct classes a majority of French, and a minority of British descent governed by feeling and attachments widely differing from each other; the causes which have produced that division may be generally known. The want of education among the French majority, and their conse- quent inability to form a correct judgment of the acts of their political leaders, have engendered most of our grievances. The extent of that ignor- ance may be collected from the facts, that within the last few years in each of two Grand Juries of the Court of King's Bench for the district of Montreal, selected under a provincial law, from among the wealthiest in- habitants of the rural parishes, there was found but one person competent to write his name ; and that trustees of schools are specially permitted, by statute, to affix their crosses to their school reports. The political information of that part of the Canadian population en- gaged in agricultural pursuits is, therefore derived exclusively from the few educated individuals scattered among them, who speak the same language, and who possess the means of directing public opinion, exempted from those salutary checks which education alone can bestow. The persons who wield this mighty power are, generally speaking seigniors, lawyers and notaries, of French extraction, all of whom as will be shown hereafter, have a direct and selfish interest in maintaining a system of feudal law, injurious to the country, and bearing with peculiar severity on British interests. Our endeavours to procure relief have been represented as an overt attack upon the customs and institutions of the Province; national preju- dices have been called into action, national feelings excited, and a French majority, ignorant of the nature of the contest, is now arrayed against a British minority. Passing by the petty vexations of the feudal tenure, such as the 1791-1840] Constitutional Documents of Canada. 393 seignior's right to call for the title deeds of every vassal ; his exclusive light of grinding the grain of his seigniory; his right to assume any pro- perty within the limits of his seigniory, on reimbursing to the purchaser the cost of his acquisition ; and other claims of a servile and arbitrary character incident to feudal law; we proceed to the subject of the more grievous burdens by which we are oppressed. Throughout the seigniories of Lower Canada, within the limits of which are comprised the cities of Montreal and Quebec, upon the sale of real property the feudal Lord extracts from the purchaser a fine, equal to one-twelfth part of the price a claim which recurs with each successive sale ; thus every person who clears, or otherwise improves a farm, erects a building either in town or country, or invests capital in landed estate, bestows one-twelfth of his outlay on the seignior, whenever the property is brought to sale. This odious law, so injurious in its effects, readily explains why this fine Province, although richly endowed by nature, is so far surpassed in the career of improvement by neighboring Provinces and States. From the want of a bill for the registration of acquisition of real property, the validity of a title cannot be ascertained except by a course of expensive proceedings through Courts of Law, but secret incumbrances may still exist, unaffected by that procedure, for whose discovery no means are afforded ; hence the difficulty of borrowing money on mortgage, and the frequent seizure and forced sale of real estate. The profits which accrue to the seignior from this state of things are obvious ; and the interest of the French lawyer and notary in maintaining a system of law that fosters litigation and produces corresponding expense is equally intelligible. Such are the considerations which govern a party exercising a para- mount influence in the House of Assembly : and thus it is that British liber- ality which conferred upon the French population the elements of free government has been perverted by designing and interested individuals to the means of retaining laws adverse to national prosperity and to the spirit of free institutions. The repugnance of Britons to a slavish and antiquated system of feudal jurisprudence has drawn upon them the undisguised hostility of the French party; an hostility which has been manifested by attempts even of a legis- lative character to check emigration from the British Isles, and to prevent a permanent settlement in the Province of that class of His Majesty's sub- jects, whom they have invidiously described as of "British or Foreign origin." The most prominent of these enactments, and the most unjust, is the imposition of a tax on British emigrants, and British emigrants only, in violation of the most sacred rights we inherit from our fathers, and con- trary to the best interests of the Province. They have denounced, as a mischievous monopoly, a Land Company, established for the purpose of settling, with a British population, lands which, by their distance from a market and want of roads, would otherwise be inaccessible to individual enterprise; wilfully overlooking the fact, that the immense tracts of land still held by the Crown, and offered for sale, in small parcels, at low rates, secure the advantages of competition, and will prevent the Company from using the privileges to the detriment of the community. In the formation of counties for the election of representatives, the townships, which are held by the tenure of free and common soccage, and are therefore the natural resort of British settlers, have been divided into counties, according to the actual population, without making any provision for their future growth, although the territory thus parcelled out is of much larger extent that the French seigniores ; so that were the respective sections of the Province peopled in proportion of their productive powers, a majority of British constituents would return a minority of representa- tives. They have excluded co-tenants and co-proprietors from the elective 394 Constitutional Documents of Canada. [1791-1840 franchise, as being generally Britons, whilst to co-heirs, as being chiefly French, the right of voting has been carefully secured. The qualification of magistrate, of militia officers and of jurors, is made to depend upon real estate ; the possession of which, in properties of limited value, is generally confined to Canadians, whilst Britons, whose capitals are more commonly embarked in commercial and manufacturing pursuits, are virtually debarred from those offices and public trusts ; thus confining our liberties to the discretion of a body of men, the greater num- ber of whom are devoid of education, and have been taught to regard Britons as their natural enemies. Their abuse of power and contempt of enlightened public opinion, (confident in the support of an unlettered French majority,) are exempli- fied by their proceedings in the House of Assembly. We have seen Mr. Christie 1 expelled from successive Parliaments, despite the remonstrances of the disfranchised electors of Gaspe, and contrary to every principle of a representative government Mr. Mondelet expelled by a forced construc- tion of an illegal resolution, a construction, from which the framer of the resolution declared his dissent; and contrary to the precedent in the case of Mr. Panet who under like circumstances, was permitted to retain his seat The West Ward of Montreal, containing a majority of independent British electors, disfranchised for two years a pretended enquiry into the melancholy riot of the 21st of May, 1832, where individuals were pro- nounced guilty before the examination of a single witness ; and where, in violation of a solemn pledge, and of common justice, the evidence for the prosecution was sent forth to the world without any evidence having been received in defence public monies misapplied under resolutions of the Assembly, without the assent of the co-ordinate branches of the legislature the contingent expenses of the Assembly charged with a salary to Mr. Viger, originally of 1000, but gradually increased to 1700 per annum a sum so disproportionate to the services rendered, as to justify the conclu- sion, that the vote itself was a convenient pretext for the secret misapplica- tion of Provincial funds and, their daring contempt of all public and con- stitutional principles during the last session, and on the eve of a dissolu- tion, in attempting to commit a new Parliament to the reimbursement of the expenses attendant upon the convening of public meetings throughout the Province, avowedly for the purpose of influencing the general election. The laws governing commercial transactions introduced from France, remain as they were at the conquest. Applications to the Assembly for a bankrupt law, and other modifications of the existing jurisprudence, suited to the altered circumstances of the country, have been uniformly neglected, and we continue subjected to the uncertain and ill defined provisions of a body of laws long since repudiated in that France, whence it was originally derived. The provincial banks called into existence by acts of the Provincial Legislature, and by the terms of their charters, compelled annually to exhibit statements of their affairs, have been openly denounced by Mr. Papineau, late Speaker of the Assembly, and organ of the French party, from no other possible motive than a desire to inflict injury upon com- merce, and consequently on Britons, by whom the commerce of the country is chiefly conducted. The same individual has publicly recommended to the French party to abstain from all intercourse with Britons : an advice which has been acted upon to a considerable extent. Not satisfied with the powers with which they are constitutionally invested, the French party in the Assembly have been incessantly occupied in attempting to arrogate to themselves supremacy in the concerns of the Province. Their refusal to pass laws, except of temporary duration, has involved in uncertainty important interests which would require to be regulated by permanent enactments. 1 Christie gives a full account of his expulsion, etc., in his History. For the Mondelet case and the Montreal riot, see pp. 380, 385. 1791-1840] Constitutional Documents of Canada. 395 Their claim to pass in review the salaries of all public officers by an annual Civil List, voted by items, would, if acceded to, lead to a disorgan- ization of government, and ultimately render the Judges and other public functionaries, the instruments of their political animosities. The Legislative Council, a body appointed by the Crown, and where alone British interests are fairly represented, they are endeavouring to replace by an elective Council, which, returned by the same constituency, must, from necessity, be in all respects a counterpart of the Assembly; a measure which would remove the barriers that defend us against French tyranny, and give to a majority, hostile to British interests, a power that would be employed to sever the connexion between Canada and the Empire. Our opposition to this extension of the elective principle, dictated by preservation, has been falsely represented as an opposition to liberal insti- tutions. Accustomed to see in the neighboring States the mild toleration of equal laws, and a constitution in its essential features approximating to our own, we are not of those who startle with alarm at the name of a republic, or view their institutions with jealousy or distrust. With senti- ments of generous pride, we recognise the lineaments of kindred blood and national character. Sensible of the benefits derived from our connexion with the parent state, and ardently attached to the land of our fathers, we view with grief and indignation, proceedings, which, if not successfully resisted, will leave us no choice between a change which we deprecate, and a submission to French oppression. It were an insult to the understanding to dwell upon public opinion, as expressed by a population destitute of the advantages of education, as a mass of the French population in this Province has been shewn to be, and we regard with blended feelings of indignation and contempt, the affec- tation of the leaders of the French party, of the character of liberals and reformers, whilst they have sedulously fostered a system of feudal exac- tions and feudal servitude, which invest a privileged class with more arbitrary rights than the nobility of England, without the plea of hereditary claims to legislative honors. Numbering in our ranks many who, both in Britain and in Ireland, were foremost in the cause of reform ; independent in our principles ; un- connected with office ; of all classes and of all creeds ; bound together by the endearing recollection of a common origin, and the powerful sentiment of a common danger, we are prepared to resist to the uttermost the efforts of a party, which, under the specious guise of popular institutions, would sever wisdom from power, and respect from intelligence, and consign us to unendurable bondage. Cherishing sentiments of becoming respect for His Majesty's govern- ment, and correctly appreciating its many efforts to advance our prosperity, the task we have undertaken to perform requires, nevertheless, that we should explicitly declare our opinion, that the evils which oppress us have been aggravated by the various and temporising policy of successive admin- istrations. The destinies of this important Province have been confided to Colonial Secretaries, ignorant of the state of parties in the Colony. Entering upon office without a competent knowledge of our affairs ; relying for informa- tion upon a House of Assembly, constituted as that body has been shewn to be; alternately making unwise concessions or attempting to enforce unwise principles, and not unfrequently retiring from office at a time when experience would have enabled them to act with becoming judgment and decision, the tendency of their measures has been to compromise the dig- nity of the Home Government and to confer a sanction upon the preten- sions by which our interests are assailed. We are not insensible to the just grounds of complaint arising from the inefficiency of the Executive Council, and the feeble claims which that body possesses to the confidence of the community. We cannot recognize just principles of government in calling to a seat in one of the Councils, a clerk or subordinate officer of the other; and although the Legislative Council, as at present constituted, commands our 3% Constitutional Documents of Canada. [1791-184C respect as possessing a majority of independent members, we consider that it yet contains too many persons holding dependent situations under the Crown and liable to be acted upon by undue influence. The accumulation of offices in the family and connection of a leading member of the Legislative Council, deserves to be held up to public repre- hension. The irresponsible manner in which the Land Granting Department is conducted, the salary disproportioned to the duties performed, which is attached to the office, and other abuses connected with the Woods and Forests, demand revision. To the redress of these abuses, and to all other reforms, based upon just principles, we offer the most strenuous support, and we, deliberately and with confidence submit this exposition of our principles and grievances, in order that our fellow-countrymen may be enabled to judge of the sin- cerity of the respective parties in the Province, by contrasting professions with facts. The subject of this address cannot fail to suggest important reflections connected with the social and political relations of the country. Of what the future will disclose we can offer no conjecture. Recent events have roused us to a sense of impending danger, and the British and Irish popu- lation of Lower Canada are now united for self-preservation, animated by a determination to resist measures, which, if successful must end in their destruction. Shall we, in this, the country of our adoption, be permitted to find a home? or shall we be driven from it as fugitives? Strong in the sympathies of our fellow countrymen in the Sister Pro- vinces, injury cannot be inflicted upon us, without affecting them; and the French party may yet be taught, that the majority upon which they count for success, will, in the hour of trial, prove a weak defence against the awakened energies of an insulted and oppressed people. By order of the Committee appointed at a public meeting of the in- habitants of Montreal, held on the 20th of November, 1834. (Signed) JOHN MOLSON, Jun. CXVII ABERDEEN TO AYLMER [Trans. : Christie, op. cit.] Downing Street, llth February, 1835. My Lord, In conformity with the pledge given in my despatch of the 8th of January, I can assure Your Lordship that His Majesty's government have not ceased to direct their anxious attention to the discovery of those means which appeared to offer the most reasonable prospect of bringing to a happy termination the existing differences between the House of Assem- bly of Lower Canada and the Executive government of the Province. This enquiry has been undertaken with a deep sense of the importance of the object to be attained and has been prosecuted with the most zealous and earnest endeavors to arrive at a favorable result; but I cannot disguise from Your Lordship that throughout the investigation I have found myself surrounded by no common difficulties. Your Lordship will recollect that in the year 1828 a Committee of the House of Commons, was appointed for the purpose of enquiring into the state of the civil government of Canada which, after a laborious and pro- tracted examination, embodied in their report 1 various suggestions calcu- lated in their opinion for the improvement of the administration of the Province. This report was declared by the House of Assembly of Lower Canada to be "an imperishable monument of the justice and profound wisdom of 1 No. CVI. 1791-1840] Constitutional Documents of Canada. 397 the Committee," and to point out the certain mode of removing all the evils of which the people of Canada had complained. On a future occasion I may endeavour to show, and I hope incontrovertibility, the manner in which the recommendations of the Committee have been carried into full effect. At present I will only observe that notwithstanding the general enthusiasm with which the appearance of the report was hailed by the House of Assembly, a spirit of discontent from whatever cause arising, has continued gradually to increase among the members of that body, until in the last year it has burst forth with a vehemence altogether unparallelled. This spirit was remarkably exhibited in the ninety-two resolutions 1 passed by the House of Assembly on the 23rd of February, 1834. These resolu- tions were referred to a Committee of the House of Commons on the 25th April, and occupied their attention for a considerable time. On the 3d July, the Committee closed their labors with a report, 2 in which they did full justice to the anxiety of the Home Government to carry into execution the suggestions of the Select Committee of 1828 ; and declared that the en- deavors of the Government to that end had been unremitting, and guided, in all cases, by a desire to promote the interests of the Province. The Committee delivered no opinion upon the subject matter of any one of the resolutions submitted to their consideration, but lamented that mutual misconception appeared to prevail, which they hope might be removed ; and finally expressed their persuasion that the practical measures for the future administration of the affairs of Lower Canada might best be left to the consideration of the Government, who were responsible for their adoption and execution. From that period up to the present day I do not find that any measures have been undertaken in compliance with the recommendation of the Com- mittee of the House of Commons. On the 15th November, the day on which the dissolution of the late administration took place, Your Lordship was apprized by Mr. Spring Rice, that he was prepared to transmit very full instructions on the various important points upon which it was essen- tial for Your Lordship to be informed on the approaching meeting of the Assembly of Lower Canada ; but in consequence of the event 3 which had then occurred, he was prevented from making any further communication. Not being aware of the nature and purport of these contemplated instruc- tions, Your Lordship will see that I have thus been deprived of the fruits of the matured reflection of my predecessor; and that on my own accession to office, I find this complicated question very much in the same situation in which it was left by the Committee of the House of Commons, on the 3d July: with this difference however, that the difficulties of its solution have been materially aggravated by the additional delay of six months. In adverting to this delay, Your Lordship will not understand that it is with the view of imputing blame to any one, but simply for the purpose of expressing my regret that a crisis should now have arrived, in which a prompt decision is rendered indispensable, and that it must be taken at a moment and under circumstances when there exists a peculiar necessity for the most careful review of all that has passed, and for the most delib- erate reflection on the consequences of any step that may be adopted. The painful situation in which Your Lordship has long been placed, and the personal relation in which you have been made to stand towards the House of Assembly form no slight addition to the embarrassments which obstruct the successful termination of the question at issue. It is due, however, to Your Lordship to state that from your first assumption of the Government of Lower Canada, my predecessors in the Department over which I now preside, have signified their general approbation of the conduct you have pursued in the Administration of the affairs of that Province. With satisfaction I add that from an examination of Your 1 No. CXIV. : The Report is in British Parliamentary Papers, 1834, XVIII. The evidence is in Ibid, 1837, VII. 3 The fall of the ministry in which Aberdeen's predecessor, Spring Rice, was Colonial Secretary. 398 Constitutional Documents of Canada. [1791-1840 Lordship's Official correspondence, commencing at the period referred to, I can see no reason to dissent from the accuracy of these opinions. At the same time it must be obvious that the exasperated feelings so prevalent in the Assembly, and the alienation of that branch of the Canadian Legis- lature from the Executive Government, have rendered Your Lordship's position so extremely difficult as even to forbid the hope that you would be enabled to employ with any good effect the words of conciliation and peace. Looking then at the matter of dealing with the whole of this subject, and bearing in mind the circumstances to which I have already adverted, His Majesty's Government are of opinion that the exigences of the case demand some more decisive and expeditious mode of proceeding than is consistent with an ordinary and regular correspondence. Your Lordship's sentiments have been more than once expressed to the same effect. The King has therefore been humbly advised to select an individual 1 possessing His Majesty's entire confidence, who has been unconnected with past Canadian polities, and has had the opportunity by recent personal com- munication with the members of His Majesty's Government, of ascertaining their views and intentions more fully and unreservedly than could be pos- sible by means of written statements. This individual in the capacity of His Majesty's Royal Commissioner,* will repair to Lower Canada fully instructed to examine, and, if possible, to terminate the various points of discussion, in the hope of composing all those differences which have so long agitated the Province, and which have deeply afflicted His Majesty's loyal subjects. Without attempting to give Your Lordship even an outline of the in- structions of which His Majesty's Extraordinary Commissioner will be the bearer, it may be sufficient to inform you that his mission will not be so much for the purpose of promulgating any new principles of government, as of carrying into effect that system of liberality and justice towards the people of Lower Canada, which His Majesty has long since adopted, and which a committee of the House of Commons recently declared had charac- terised the policy and conduct of all those by whom the affairs of the King- dom have been administered during the last six years, although the result which has hitherto attended these efforts might perhaps render our hopes of the future less sanguine, it will not diminish the desire or the determina- tion of the King to satisfy all the just claims and expectations of his Cana- dian subjects. They will find that His Majesty is unwearied in his endeavors to establish "an impartial, conciliatory and constitutional Government in Can- ada." For this end it will be the object of His Majesty to renew an enquiry into every alleged grievance, to examine every cause of complaint, and to apply a remedy to every abuse that may still be found to prevail ; for this end there is no sacrifice he would not cheerfully make which should be compatible with the fundamental principles of the Constitution itself, and with the continued existence of the Province as a possession of the British Crown. I am unwilling to believe that the Canadian people can be insen- sible to feelings so truly paternal, which as Your Lordship well knows have not been recently adopted or on the spur of the occasion, and for which we may reasonably hope that His Majesty will be rewarded by the loyalty and attachment of all classes in the important Province now under your immediate government. Your Lordship will communicate this despatch to the House of Assem- bly in the usual manner. Although without any direct information on the subject from Your Lordship, I learn from other sources of intelligence, that the Legislature will have met on the 27th of January should their sittings have been adjourned, you will take such means as may appear most 1 Lord Gosford, who succeeded Aylmer in 1834, was accompanied by two fellow Commissioners, Sir Charles Grey and Sir George Gipps. They handed in, in 1836, six Reports, which are in British Parliamentary Papers, 1837, XXIV. Out of the sug- gestions of their final report emerged The Ten Resolutions of March, 1837 (see No. CXXIV). It is interesting to note in the light of future events that their Reports implied that a suspension of the Constitution seemed better than a continued policy of ineffective conciliation. For the Instructions to Gosford, etc., see No. CXVIII. 1791-1840] Constitutional Documents of Canada. 399 proper for bringing the despatch under the knowledge of the members, before the period of their re-assembling in Parliament. I will not fail to give Your Lordship timely notice of the probable arrival of His Majesty's Commissioner, in order that you may be enabled to convoke the Assembly with the least possible inconvenience to its mem- bers. I have the honor to be, My Lord, Your most obedient, > ' (Signed) ABERDEEN. CXVIII GLENELG TO GOSFORD 1 [Trans. : Imperial Blue Books Relating to Canada, 1836, Vol. VI.] Copy of a Despatch from Lord Glenelg to the Earl of Gosford, the Right Hon. Sir C. E. Grey and Sir G. Gipps, His Majesty's Commissioners of Inquiry in Lower Canada. My Lord and Gentlemen, Downing-street, 17 July 1835. 5. Before I approach more closely to the discussion of the questions which will principally engage your attention, it is necessary that I should explain the motives by which His Majesty has been induced to issue the commission which you are about to execute. 6. The dissensions which commenced in Lower Canada in the year 1820, have since that time, with some transient intermissions, been continu- ally increasing in violence and animosity. They have at length advanced to such a height as not only to invade the peace of society, but nearly to paralyse the activity of the executive government, threatening with the most fatal confusion a country exempt beyond the common lot of nations from the influence of ordinary causes of social evil. 7. This state of affairs in a portion of the King's dominions so valu- able, and otherwise so prosperous, has engaged His Majesty's most anxious and deliberate attention. To heal the disorders by which the province is distracted, and to restore internal peace and union, it has appeared to His Majesty necessary to adopt some well-digested and comprehensive plan ol adjustment. But the foundation of such a plan must be laid in a complete knowledge of the people in all its bearings, moral, social and political. 8. Notwithstanding the variety and amount of the intelligence on this subject which has been collected during the last few years, there is yet a deficiency of adequate information upon many questions of the greatest moment to the correct apprehension of the state of Canadian affairs. The seven years which have elapsed since the first Parliamentary Report have given birth to numerous changes, to new wants, new interests, and new combinations of interests. The very removal of some grievances has, in some instances, aggravated those which remain or altered their relation to each other. The general balance of society has also been constantly and rapidly affected by the infusion of new masses of inhabitants, bringing with them new views and prepossessions. In order to appreciate the actual wants and wishes of a country developing its resources and undergoing internal changes with such extreme rapidity, it is necessary that a new and careful survey should be made, by impartial and intelligent observers, of the state and prospects of society in the province. The crisis cannot be met by effective measures, unless those measures be founded on the results of such an inquiry. His Majesty has been induced to sanction your mission 1 These Instructions represent the complete policy of "conciliation," as it was termed by the anti-French-Canadians. 400 Constitutional Documents of Canada. [1791-1840 to Lower Canada, in the hope that you will be able to conduct this investi- gation to a satsi factory and successful issue. It is His Majesty's earnest injunction, that in the discharge of this duty you avail yourselves of every opportunity to impress the minds of the people of Lower Canada with a just sense of the warmth and honesty ot feeling with which their interests are regarded by all orders of society in this kingdom ; that you consult with equal kindness the claims and wishes of every class of His Majesty's Canadian subjects; and that by applying to the consideration of every question which shall come before you the maxims of an enlightened policy, you endeavour to unite the inhabitants of the province in mutual concord, and to strengthen the bonds by which they are connected with the other members of the British empire. 10. Proceeding in this spirit to Lower Canada, you will there make universally known His Majesty's deep solicitude to redress, to the utmost extent of his lawful authority, every real grievance under which his Cana- dian subjects may labour. You will listen with the most respectful atten- tion to every complaint, and investigate by all accessible evidence, oral or documentary, the merits of every question which shall be brought before you. You will ascertain by personal inspection what are the real points in which, in practice, the existing system presses most severely; and in con- sultation with each other, you will mature such plans as may appear to you best adapted to place the affairs of the province on a permanent basis of order and of well-regulated liberty. 11. His Majesty has thought it proper that the Commission should consist of more than one member, because the proposed range of inquiry will embrace so many topics, legislative, judicial, fiscal, moral and social, that it is not to be imagined that the studies or previous habits of any single mind, however gifted, would be sufficient to compass them all. 12. With the actual administration of the provincial government the commissioners, as such, will have no concern. Although the Earl of Gos- ford, the Governor-general of all His Majesty's Colonies in British North America, has been placed at the head of the Commission, his Lordship's functions as Commissioner are totally distinct from those which he will discharge as head of the government. The duty of the Commissioners is limited, with the utmost strictness, to inquiry, to mutual deliberations, and to reporting, for His Majesty's information, the conclusions which they may be led to adopt. The Governor will alone exercise the powers which have been vested in his predecessors under the Constitutional Act of 1791. 13. But although your duty as Commissioners be exclusively to inquire, to deliberate, and to report; yet, within the sphere of that duty you are placed under no restrictions, excepting such as the necessity of the case or your own judgment may prescribe. You will lay before His Majesty a faithful statement of all matters entrusted to your investigation, and of your matured sentiments regarding them. It will then remain for the King, on the advice of his confidential servants, to determine on the course of action to be pursued. Your counsels and those measures will have for their common object the advancement of the welfare and pros- perity of Lower Canada by all methods compatible with the integrity of the empire, and with the authority of the King as supreme in all parts of the British dominions. 14. You will ever bear in mind that you are sent on a mission of peace and conciliation. You will therefore proceed in a spirit not of dis- trust, but of confidence ; remembering that much of your success will de- pend, not only on the zeal, ability and fairness of your inquiries, but also on your perfect separation from all local and party disputes, and on the unquestionable frankness and impartiality of your general conduct. 15. I must not omit to observe, that the legislature of Lower Canada must ultimately be the instrument through which any benefits resulting from your mission must, to a very great extent, be accomplished. His Majesty disclaims the intention of provoking any unnecessary Parliamen- tary interferences in the internal affairs of the province. To mediate be- tween adverse parties, with an entire respect for the constitutional rights 1791-1840] Constitutional Documents of Canada. 401 common to them all, is the high office appropriate to his Royal station, and this function the King, aided by your inquiries and advice, is anxious on the present occasion to perform. 16. With these preliminary remarks on the motives in which your mission has originated, and on the spirit in which your duties as Com- missioners are to be discharged, I proceed to advert to some of the more prominent subjects of claim and complaint on the part of the House of Assembly. 17. Among the most pressing of these is the Financial Question which has given rise to so protracted a controversy. 18. After the several gradations through which this question has passed, it has at length assumed the following shape : As representatives of the people of Lower Canada, the House of Assembly claim the right of appropriating to the public service, according to their own discretion, the whole of the revenues of the Crown accruing within the province. The claim extends to the proceeds of all Parliamentary and provincial statutes, whatever may have been the original conditions of these grants ; to the funds drawn from the sale of timber and of the waste lands of the Crown ; to all fines and forfeitures ; and to the income derived from the Seigneurial rights inherited by the King from his royal predecessors. In fine, the authority of the local legislature over the income and expendi- ture of the province is declared to be so extensive as to embrace every part of that receipt and outlay, and so inalienable as to supersede even the concessions deliberately made in preceding times by the former repre- sentatives of the Canadian people. 19. Without pausing to discuss the great constitutional questions which these claims involve, I content myself with referring to the un- doubted fact, that the Kings of England have at all times been, in right of their Crown, in possession of certain sources of revenue peculiarly their own, and of which they could not be divested, except by their own consent. In modern times, as is well known, the control of Parliament over this revenue in these kingdoms has been established on the accession of each Sovereign to the Throne by a solemn compact made between the Crown and the Houses of Lords and Commons. If, therefore, the King were disposed to insist upon positive law, ancient practice, or constitu- tional analogy, His Majesty might readily vindicate his right to dispose of the territorial, hereditary and casual revenue of the Crown arising in Lower Canada, towards the maintenance of the civil government in that part of his dominions. But anxious to render his reign a blessing to his Canadian subjects, His Majesty is prepared to decline taking this ground, and to refer the decision of the question to the single test of the advan- tage or disadvantage to the province, with which the proposed cession would be attended. It would be difficult to imagine any pecuniary sacri- fice which would not be wisely incurred in purchasing a peaceful settle- ment of the dissensions of the last fifteen years. 20. If pecuniary interests alone were at stake, the King would not hesitate to make this cession permanently and without conditions. They must ill indeed have understood the character and policy of the British Government, who may have supposed that the peace and well-being of thiF great empire, has been put to hazard in a prolonged contest with the most valuable of its foreign dependencies, for the sake of a sum of money so insignificant, as to be scarcely perceptible in the financial opera- tions of Great Britain, and of no considerable moment even in those of Lower Canada. During the progress of this controversy, there have been expended by Parliament, for objects altogether Canadian, sums, com- pared with which, the utmost demand that has been made on the liberality of the House of Assembly, for the support of the executive government of the province, is altogether trivial. The real importance of connecting the surrender of the hereditary and territorial revenue with some reser- vation or conditions for the support of the civil government, and for the administration of justice, rests upon grounds far higher than any which could be brought to a pecuniary measurement. There are objects essential, Z 402 Constitutional Documents of Canada. [1791-1840 as it would seem, to the welfare of His Majesty's Canadian subjects which could not probably be secured if that surrender were made uncon- ditionally. In this view of the question, His Majesty is bound not to relinquish the appropriation of funds which the law and the constitution have placed at his disposal, without making a stipulation suggested ex- clusively by his care for the common benefit of his people. 21. Amongst the foremost of the objects which His Majesty is thus bound to rescue from a precarious support, are the independence of the judges and the pure administration of the law. From the commence- ment of his reign, it has been the constant and persevering effort of His Majesty to render the judges of the Superior Courts in Lower Canada independent alike of the Crown for the tenure of their offices, and of the representatives of the people for their annual emoluments. In the various documents already noticed you will find the history of those attempts, and a full explanation of the causes to which their failure is to be ascribed. Yet a review of the Journals of the Assembly will, I think, convince you that between that House and His Majesty's Government no real, or at least no irreconcileable, difference of opinion exists on this subject. On the contrary, you will find, that respecting the general principles on which we must proceed, a perfect unanimity has prevailed. It is fully admitted that the judges ought to hold their offices not at the pleasure of the King, but during good behaviour, and that their official incomes should be paid, not at the pleasure of the popular branch of the legislature, bu f from adequate funds to be irrevocably pledged for that purpose. 22. This, then, will be one of the subjects of your earliest inquiry; and you will endeavour to suggest the plan of a law, in which there may be good ground to anticipate the concurrence of the House of Assembly, for the securing of judicial independence. If this can be effected, one ot the chief difficulties which might otherwise obstruct the cession of the revenues, would be overcome. 23. The regard which it is His Majesty's duty to maintain for the welfare of the people of Lower Canada, appears to forbid a surrender of the revenues of the Crown in that province to the appropriation of the legislature, unless some condition be further made for the support of the executive government by an adequate civil list. 24. I pass over, without any direct notice, the grounds on which the contending parties in the province have, on the one hand, urged the necessity of such a stipulation, and, on the other hand, denied that it could be safely or constitutionally admitted. You will readily learn from various public documents, which will be pressed upon your atten- tion, in the province itself, what are the arguments to which I refer. 1 cannot, however, abstain from recording in this place, the principal con- siderations which appear to make it necessary, that the concession about to be made to the provincial legislature should be qualified by the demand of a proper civil list. 25. A constant altercation between the House of Assembly and the executive government, on the subject of the official emoluments of the chief officers of the Crown, would be derogatory to the character of those officers, and especially of the Governor, representing the person and clothed with the delegated prerogatives of the King. The tendency of such con- troversies would unavoidably be, to induce a dis-esteem for those func- tionaries, by exhibiting them in the light of pensioners on the reluctant bounty of the representatives of the people ; although the common wel- fare of society evidently requires that they should rather be respected as the ministers of the King; exercising, under a just responsibility indeed, but yet with freedom and independence, the powers confided to them for the public good. 26. The continued agitation of a subject so capable of being placed in an invidious light, could scarcely be compatible with the tranquil and steady progress of those most important branches of the public business, with which the higher functionaries of the government are charged. It would also be directly injurious to them, and therefore to the society at the head 1791-1840] Constitutional Documents of Canada. 403 of which they are placed, thus to give an habitual and offensive prominence to the remuneration they were receiving, and in the same degree to divert public attention from the services by which that pecuniary reward was earned. 27. The security which the Governor and his principal officers would derive from the grant of a civil list, would strengthen the connexion sub- sisting between Canada and the other members of the British empire. It would be a distinct recognition of the principle, that the administration of the affairs of the province, by a Governor and officers appointed by the King, is a substantive and essential part of the provincial constitution. To debate from year to year whether grants shall or shall not be made for the support of such functionaries, might almost seem to involve a tacit assumption, that the existence of such offices was itself a question open to annual revision. In so remote a part of His Majesty's dominions, it is especially necessary that the Royal Authority, as represented by His Majesty's officers, should be most distinctly admitted as one of the com- ponent and inseparable principles of the social system. 28. Nor are the motives by which the independence of the judges has been recommended by the King, and admitted by the Assembly, inapplicable to the case of the principle officers of the local government. They have frequently unpopular duties to perform; they are not seldom called to oppose the passions and emotions of the day ; and, for the permanent well- being of society, to brave the displeasure of the popular leaders. They should therefore be raised above all influence, and all suspicion of influ- ence, of unworthy fear or favour. The interests of freedom and of good government require that those upon whose firmness and constancy the maintenance of order and the authority of the laws mainly depend, should not be looking for their subsistence to the favour of a body, which neces- sarily reflects most of the fluctuating movements of the public mind. 29. Such are the principle motives which induce me to conclude that the King could not consistently with the interests of his Canadian subjects, relinquish, except in return for an adequate civil list, the control which His Majesty at present exercises over the hereditary and territorial reve- nue. 30. It will be for you to consider and report, what ought to be the precise terms of this stipulation. A temporary cession of the revenue, in return for a provision for the chief public officers of the province for a corresponding period, would be the most satisfactory arrangement. In the rapid progress of settlement in the Canadian provinces, a few years will probably be productive of changes, demanding a corresponding alteration in the terms of any adjustment concluded at the present period; and a decennial revision of the compact now to be made, would seem best cal- culated to secure those public benefits, and avert those public evils, by the hope or fear of which the compact itself is recommended. 31. If however a temporary settlement, to be renewed from time to time, should prove impracticable, or upon a closer consideration of the subject should seem to you inexpedient, you will then consider in what manner the inconveniences inseparable from the permanent adjustment of such a question can be most effectually mitigated or avoided. 32. Respecting the amount of the civil list to be demanded, the very moderate proposal of the Earl of Ripon might perhaps be taken as the basis. But as his Lordship proposed to retain for the Crown, the control of the territorial and hereditary revenue, it would be in perfect consistency with his principle to advance beyond the limit of his demands. It will be for you to consider what part of the public revenue ought thus to be with- drawn from the annual appropriation of the provincial legislature. In attempting to draw this line, you will judge what are those services in the performance of which the common good requires that the officers of the Crown should be elevated above the reach of popular prepossessions and prejudices. Other considerations will probably claim a place in deciding on the amount of the civil list to be demanded; but to maintain the proper 404 Constitutional Documents of Canada. [1791-1840 freedom of action in the chief organs of the executive government, will be the principal object to be borne in view. 33. The opponents of the claims preferred by the House of Assembly to the control of the territorial revenue insist, with peculiar emphasis, that the necessary effect of yielding to this claim would be, to transfer from the executive government to the popular branch of the legislature the manage- ment of the uncleared territory, asserting that the assumption of this duty by the House of Assembly would be most injurious to the agricultural and financial interests of Lower Canada. 34. Were the right of appropriating the revenue arising from the Crown lands, and the charge of their management indissolubly connected, I should admit this reasoning to be correct. The objections to the combina- tion in the same hands of a large share of the legislative power with so important a branch of the executive authority, are too obvious to escape your notice; and I therefore may, without inconvenience, abstain from a particular explanation of them. It may be sufficient to say, that His Majesty's confidential advisers regard as conclusive and unanswerable, the objections which are made to confiding the management of the uncleared territory of Lower Canada to either or to both of the Houses of General Assembly, or to persons appointed by them and subject to their control. 35. In the distribution of the different powers of the State, the office of settling and alienating the uncleared territory properly belongs to the executive government. 36. It is competent to the legislature upon this as upon other subjects to lay down general rules for the guidance of the executive authorities; or either branch of the legislature may separately offer its advice to the Crown as to the policy and system of management which it thinks should be pursued ; but the practical application of such general rules, and the charge of carrying into effect the system of management which may be approved, are functions so strictly of an executive and administrative character, that they can only be properly discharged by those in whose hands all similar powers are lodged by the constitution. Nor am I aware of any ground on which a surrender of that trust could be properly required from His Majesty, or which would justify the resignation of it by the King. 37. Wishing to meet the whole subject frankly and without reserve. I am not disposed to deny, that at a period which perhaps can hardly be called remote, large grants of land were improvidently made to persons who had no legitimate title to that advantage ; but this I believe to have been the necessary consequence of a system of management which, though faulty in itself, was consonant with opinions prevalent at the time of its establish- ment; and I am entitled, on behalf of the executive government, as admin- istered by Lord Ripon and by his Lordship's successors, to assert, that they gave conclusive evidence both of the disposition to originate, and of the ability to effect, a complete reform in this department of the public service. Lord Ripon took the most effectual security against the recurrence of such abuses, by establishing the rule, that no waste lands should be disposed of except by public auction, and at such an upset price as should effectually prevent fictitious sales. I am aware that complaint has been made of the infringement of this rule; but after the most careful search into all the documents within my reach, I am able to declare that I find no evidence of a solitary deviation from it. The cases mentioned as exceptions, are all to be explained by the same simple statement. Persons who, before the date of Lord Ripon's regulations, had entered into contracts, or had received from the government promises for the grant of lands upon different terras, insisted afterwards on their earlier titles ; against which, of course, it would have been unjust to plead a subsequent and retrospective rule. 38. But while claiming for His Majesty, and for the public officers appointed by him, the right and duty to regulate the settlement and aliena tion of the wild lands of the Crown, I am not only ready, but anxious that every proper security should be taken for the intelligent, faithful, and punctual execution of that duty; nor does it seem to me that it would 1791-1840] Constitutional Documents of Canada. 405 necessarily be incompatible with these objects, to place the territorial revenue at the disposal of the legislature. 39. In considering this subject, it will be, in the first place, necessary to determine the principles upon which the uncleared territory could be most advantageously brought into settlement. This inquiry has engaged the serious attention both of speculative observers and of persons prac- tically engaged in such affairs. Lord Ripon evidently devoted to it much time and thought; and his Instructions to Lord Aylmer on this head rest on principles which certainly underwent a very close investigation. Aware, as I am, how many are the sources of error to which speculations of this kind are liable, and how necessary it is for the correction of such fallacies, to possess an intimate acquaintance with the scene in which such abstract principles are reduced to practice, I express my concurrence in the general views of my predecessor, with the same self-distrust by which he appears to have been actuated. It was under the influence of that feeling, as well as from respect for the local authorities, that Lord Ripon took the wise course of soliciting the advice of the House of Assembly for the guidance of the local government in maturing his scheme, and in the discharge of the duties connected with it. The House has not, as yet, acted on that request. 40. This silence may, I trust, be understood to imply an approbation of the system so fully explained by Lord Ripon ; but as it is of the greatest importance that some permanent rules should be prescribed upon this sub- ject which cannot with propriety be left to the arbitrary discretion of any functionaries, however eminent in character or station, it will be part of your duty to inquire and ascertain what are the principles and the rules which could be most conveniently adopted for this purpose. The existing regulations, if not perfect, seem at least sufficiently accurate to form the basis of a legislative enactment on the subject. You will, however, have an opportunity of learning how far Lord Ripon's plan has really been productive of the beneficial effects which his Lordship anticipated, and how far any unforeseen difficulties may have embarrassed its operation. You will thus be enabled to judge to what extent it may demand or admit of amendment. 41. But it will be necessary not merely to determine the general system of management which should be adopted, but likewise to provide adequate machinery by which that system may be practically applied. In your in- quiries upon this head, your attention will naturally be drawn to the course of proceeding followed in this country, in a case which, however dis- tinguishable, is not dissimilar from that of the management of the wild lands in Lower Canada. The land revenue of the Crown in England, is placed under the direction of a Board, of which all the members are ap- pointed by the King. 42. The Commissioners of Woods and Forests, under the direction of the Treasury, receive the rents and profits which arise from the estates of the Crown; apply such portions of the receipts, as in their discretion they think expedient, in the improvement of the property, and in defraying the various expenses of management; and transfer the balance which may remain to the public account, under the compact entered into at the com- mencement of the reign. As a check upon any abuse in the discharge ot these duties, and more especially in the application out of the gross revenue of the sums required for the management and improvement of the estates, the Board is placed under the obligation of presenting, annually, to both Houses of Parliament a full report of its proceedings, including an account, in detail, of all receipts and disbursements within the preceding year. 43. You will consider whether any obstacles exist to the adoption, in Lower Canada, of a similar ararngement, which, if practicable, would remove the principal difficulty in making over to the legislature the right of appropriating the territorial revenue, by securing to the executive gov- ernment that free action in the management of the wild lands of the Crown which it is absolutely essential to preserve. 44. It remains to notice one other topic, which must be considered in 406 Constitutional Documents of Canada. [1791-1840 connection with the proposed financial arrangements. The cession of the hereditary and territorial revenue to the appropriation of the provincial legislature, would deprive the King of the means of paying the pensions and compensation allowances which have been charged upon that fund, in the exercise of His Majesty's lawful and undoubted authority It is almost superfluous to say, that any violation of the pledged faith oi the Crown cannot, in the prospect of any advantage whatever, be admitted even as the subject of debate. The total charge under this head is of no formidable amount ; and, as far as I can ascertain, there is no single case in which such a grant has been charged upon the Crown revenues of the province, without a substantial and adequate ground of personal desert or public policy. 45. You will ascertain what are all the liabilities to which this revenue is legally subject. His Majesty will not consent to abandon the cause of any claimant whose title may rest upon a legal foundation. No plan of surrendering to the provincial legislature the appropriation of these funds will be submitted by yourselves to the King, or proposed by His Majesty to the Assembly, which does not comprise, as an essential part of its basis, the maintenance of such legal titles. 46. I will not allow myself to suppose that, on this subject, any dif- ference of opinion can arise between the executive government and the representatives of the Canadian people. The charge for pensions and com- pensation allowances will be continually diminishing; nor will it be for- gotten that, by the proposed arrangement, His Majesty would surrender the exercise of the most grateful of the Royal functions, reserving to himself no funds for the reward of merit, however distinguished, but devolving entirely on the local legislature, the means of dispensing public favour, and of testifying public gratitude. But although His Majesty abstains from demanding a control over any part of the revenue of the province, for the purpose either of relieving faithful public servants when labouring under the pressure of old age or sickness, and incapable of per- forming their accustomed duties, or even of rewarding eminent merit, yet, as often as such cases may arise, His Majesty will lay his commands on the Governors of the province to prefer the claims of such persons to the justice and liberality of the House of Assembly. Nor does His Majesty doubt that to such applications the representatives of the people of Lower Canada will accord a cheerful assent. 47. I have now enumerated the various subjects which, I think, may fairly enter as conditions into any arrangement for the cession of the Crown revenue. They are, the independence of the judges; the settlement of a civil list ; the management of the waste lands ; and the continuance of existing pensions. If on these topics a satisfactory adjustment can be made, I am not aware that there will remain any further difficulty in the way of a compliance with the wishes of the House of Assembly on the subject of the appropriation of the provincial revenues. 48. I am not, however, insensible to the danger of overlooking, at this distance from the scene, some conditions which, on closer observation, it might seem necessary to embrace in the final settlement of a plan, at once so comprehensive and so important to the best interests of the pro- vince. During your residence in Lower Canada, some topics kindred to those to which I have adverted may present themselves to your notice ; and you will not exclude from your consideration any question which may appear to you to have a material bearing on the decision to be ultimately adopted by the King. To place the financial affairs of the province on some safe and permanent basis, and thus to relieve the executive government and the two Houses of General Assembly from the unhappy distractions of the last 15 years, may be truly stated to be the main object of your mission. It will, therefore, receive your first and most careful attention. 49. I next proceed to the consideration of a subject which has given rise to long and embarrassing discussions between the executive govern- ment and the House of General Assembly; I refer to the tenures on which lands in the Province of Lower Canada are holden. Much controversy has prevailed, not only respecting the legal incidents of soccage tenure in that 1791-1840] Constitutional Documents of Canada. 407 province, but also respecting the comparative advantages of holding land in fief and seigniorie, or in soccage, and a question has arisen whether these controversies would be more properly adjusted by Parliamentary or by provincial enactments. Convinced of the propriety of referring the whole subject to the provincial legislature, Lord Ripon embodied that principle in an Act which was passed in 1831. It has been since maintained that the language of that statute is not sufficiently precise or copious to effect the real design of its author; and it has been strongly pressed on His Majesty's Government that Parliament should be advised to repeal the Canada Tenures Act of 1825. 50. On the whole of this subject I am well convinced that the Imperial Legislature will adopt any measure distinctly recommended to them by the legislature of Lower Canada. To advance any further, except at the in- stance of that legislature, and with a perfect assurance of its approbation, would be to disregard every lesson to be derived from the experience of past years. No security less than the distinct declaration by the local legis- lature, of their wish for such a proceeding, could rescue the authors of a new Parliamentary enactment respecting Canadian tenures from the re- proach of invading, in violation of the most solemn pledges, one of the admitted privileges of the Governor, Council, and Assembly. The law as it at present stands, invests the local legislature completely with the right of dealing with Acts of the Imperial Parliament relating to tenures of land in the province, and it does so, as it appears to me, in terms as ample as could possibly be selected. The principle of avoiding all unnecessary inter- ference is, I think, more effectually respected by this delegation to the provincial legislature of the right to repeal all or any of the provisions of British Acts respecting tenures, than by a repeal of such Acts directly, or in the first instance by the British Parliament itself. 51. The more material inquiry, however, is, whether there be sufficient reason for commuting the existing feudal tenures into the tenure in free and common soccage; or for subjecting the soccage lands to any of the incidents of the tenure in fief and seigniorie ; and under what tenure those lands which yet remain a part of the demesne of the Crown should here- after be granted. Ample materials exist from which a correct judgment on this question might be drawn by persons resident in the province. 52. You will ascertain what have been the real consequences of the two different kinds of tenure on the prosperity of the different portions of the province in which they have respectively prevailed. 64. The importance of the topics to which I have hitherto adverted would be very imperfectly understood, unless they were viewed in their connection with another question to which the majority of the House of Assembly would seem to attach a yet higher interest. In the 92 Resolutions of the Session of 1834, 1 in the address to His Majesty of that year, and in the address adopted in the Session which closed abruptly in the commence ment of the present year, the constitution of the Legislative Council was insisted upon as the chief and prominent grievance in the whole system of provincial government. To the discussion of this subject, nearly half of those resolutions, and of those addresses, is devoted ; and the Assembly, in the most decided language, have declared that all remedial measures will be futile and unsatisfactory which should stop short of rendering the seats in the Legislative Council dependent on a popular election. 65. The petitioners 2 of Quebec and Montreal, on the other hand, depre- cate with equal earnestness any departure from the principle on which the appointment of the members of the Legislative Council is regulated by the Act of 1791, and denounce any such change as pregnant with the most for- midable evils. 66. The King is most unwilling to admit, as open to debate, the ques- 1 No. CXIV. 2 Compare Nos. CXV and CXVT. 408 Constitutional Documents of Canada. [1791-184C tion whether one of the vital principles of the provincial government shall undergo alteration. The solemn pledges so repeatedly given for the main- tenance of that system, and every just prepossession derived from constitu- tional usage and analogy, are alike opposed to such innovations, and might almost seem to preclude the discussion of them. 67. But His Majesty cannot forget that it is the admitted right of all his subjects to prefer to him, as King of these realms, their petitions for the redress of any real or supposed grievances. His Majesty especially recog- nises this right in those who are themselves called to the high office of representing a large and most important class of his people. The acknowl- edgment of that right appears to the King to imply on his own part, the corresponding duty of investigating the foundations of every such com- plaint. His Majesty therefore will not absolutely close the avenue to in- quiry, even on a question respecting which he is bound to declare that he can for the present perceive no reasonable ground of doubt. His Majesty will not refuse to those who advocate such extensive alterations, an oppor- tunity of proving the existence of the grievances to which so much promin- ency has been given. 68. The King is rather induced to adopt this course, because His Majesty is not prepared to deny that a statute which has been in effective operation for something less than forty-three years may be capable of im- provement, or that the plan upon which the Legislative Council is consti- tuted may possibly in some particulars be usefully modified ; or that in the course of those years some practical errors may have been committed by the Council, against the repetition of which adequate security ought to be taken. Yet if these suppositions should be completely verified, it would yet remain to be shown, by the most conclusive and circumstantial proof, that it is necessary to advance to a change so vital as that which is demanded by the House of Assembly. 69. It must be recollected that the form of provincial constitution in question is no modern experiment nor plan of government, in favour of which nothing better than doubtful theory can be urged. A Council nomin- ated by the King, and possessing a co-ordinate right of legislation with the representatives of the people, is an invariable part of the British colonial constitution in all the Transatlantic possessions of the Crown, with the exception of those which still remain liable to the Legislative authority of the King in Council. In some of these colonies it has existed for nearly two centuries. Before the recognition of the United States as an independ- ent nation, it prevailed over every part of the British possessions in the North American continent, not comprised within the limits of colonies founded by charters of incorporation. The considerations ought indeed to be weighty which should induce a departure from a system recommended by so long and successful a course of historical precedent. 70. To the proposal 1 made by that body to refer the consideration of this question to public conventions, or, as they are termed primary meetings, to be holden by the people at large in every part of the province, His Majesty commands me to oppose his direct negative. Such appeals are utterly foreign to the principles and habits of the British constitution, as existing either in this kingdom or in any of the foreign dependencies of the Crown. 71. You will therefore apply yourselves to the investigation of this part of the general subject, endeavouring to ascertain how far the Legis- lative Council has really answered the original objects of its institution; and considering of what amendments it may be susceptible. It is His Majesty's most earnest hope and trust that in the practical working of the constitution of the province, there will be found to exist, no defects which may not be removed by a judicious exercise of those powers which belong to the Crown, or which Parliament has committed to the provincial legis- lature. 72. When your report shall have been received, His Majesty will take 1 See No. CIX. 1791-1840] Constitutional Documents of Canada. 409 into his most serious consideration the question whether there are any amendments in the law on this subject, which it would be fit to propose for the consideration of the Imperial Legislature; and which being founded on the principles, and conceived in the spirit of the Act of 1791, may be calculated to render the practical operation of that statute more conform- able to the wishes and intentions of its framers. 73. There is one complaint closely connected with the topic referred to, of which I do not find any notice in the Resolutions of the Assembly. The constitution of Lower Canada consists of various brances or members. To each of which Parliament has assigned such functions as were thought necessary to counterbalance the danger of abuse in the other organs of government. If the balance be disturbed, a counterpoise would be required to rectify the disturbance. It is earnestly maintained by many, that the House of Assembly does not supply a fair representation of the Canadian people; that the constituencies throughout the province are so arranged as to insure the return of a much larger proportion of members in the interest of the Canadians of French descent, than is warranted either by their num- bers or their property; and that neither the commercial interest, nor the landholders in the townships, are protected in the popular branch of the legislature with any just regard to their importance, or to the wealth and number of the persons embraced in those classes. The Canadians of British descent have been therefore, it is said, accustomed to look to the Legislative Council for defence against the partiality which they ascribe to the mem- bers of the House of Assembly. 74. On the truth and justice of these representations, it is not for me here to pronounce an opinion. But assuming them to be true, it is clear that the existence of such a state of things would throw additional diffi- culties round an attempt to modify the Legislative Council. 75. It will be necessary for you to inquire into the truth of these allegations. This duty indeed you are bound to perform, with a view to the general interests of the colony, even independently of any reference to its bearing on the construction of the Legislative Council. The number of persons of British or of French birth or origin actually sitting in the Assembly will of course afford a most imperfect criterion of the influence by which their seats may have been obtained, and of the course of policy to which they will habitually incline. The material question respects the national character and prepossessions rather of the several constituencies, than of the different members. Lower Canada must also be viewed as a country in which the limits of settlement and cultivation are continually widening. It requires therefore an elective system, resting on a principle such as shall accommodate itself to changes which are taking place in the circumstances of the electors, with a magnitude and rapidity to which there is no parallel in the communities of Europe. 76. If your inquiries should lead you to the conclusion, that a change in the Law of Election in Lower Canada is necessary or desirable, it will be right that the change should, if possible, be effected, not by an Act of Parliament, but by an Act of the local legislature. 77. The composition of the executive council has also been made the subject of censure. It is maintained that the members of the body are incompetent to the judicial duty with which they are charged, and unfit to act as the confidential advisers of the Governor in their more appropriate office of aiding in the execution of his administrative authority. Hence, it is said, has arisen the habit of appealing, with inconvenient frequency, to the Secretary of State, on many questions which might more advan- tageously have been disposed of in the province itself. To this practice is ascribed not only much needless delay in the dispatch of public business, but the mischief inseparable from bringing the ultimate and supreme executive authority into needless collision with individuals and with the two Houses of Legislature. 78. So far as these complaints refer to the appellate jurisdiction of the executive councillors, there appears an unanimity so entire amongst all the parties concerned, that the only subject of inquiry is, by what means 410 Constitutional Documents of Canada. [1791-1840 that jurisdiction can be most speedily and advantageously transferred to a more appropriate tribunal. But, on the other branch of the subject, there is a wider scope for investigation. 79. I am disposed to doubt whether the number of the members of the executive council might not be reduced with advantage to the com- munity. In the Indian presidencies, as well as in all the new British colo- nies, the number is limited to three or four. A much larger number would seem scarcely compatible either with promptitude, secrecy, and a due sense of personal responsibility; or with calmness of deliberation, freedom from party dissensions', and exemption from the danger of inconvenient compro- mise. If three members only had seats at the board, it might at once be reasonable to impose, and possible to enforce, the observance of the rule, that on all questions of importance the Governor should be bound to explain to the board his own opinions, and to receive from them, in return, an explanation of theirs. This, however, is a subject on which His Majesty is not, at N the present moment, disposed to act without the aid of your judgment and report. 80. I would not, however, exclude from your consideration any pro- posal of which it is the professed object to render the Executive Council a more effective instrument of good government. You will therefore report whether there are any practicable amendments which, on the whole, it would be desirable to adopt, either in the mode of convening, of consulting, or remunerating the members of this body, or regarding the tenures of -their seats. 81. The state of education in Lower Canada must engage your most serious attention, with a view to the best means of promoting the more general diffusion of sound learning, religious knowledge, and Christian principle. Of His Majesty's anxiety in regard to these paramount objects, it would be difficult to speak in terms sufficiently emphatic. But the earnest endeavours of my predecessors on this subject have been so repeatedly frustrated, that I suspect the existence of some obstacles of which the Home Government is not aware. Amidst the heat of contention on ques- tions comparatively of slight temporary concern, this momentous and per- manent interest of the whole Canadian people may have been overlooked. Sufficient attention, perhaps, has not been given to the essential distinctions between the state of society in this kingdom and in the province. It may have been forgotten that in a new country, pressing forward in the career of agricultural and commercial enterprize, it is far more impolitic than in this kingdom to calculate on the voluntary exertions of those who combine the advantages of wealth and leisure with practical experience in public affairs. If His Majesty's Government have not hitherto addressed them- selves with sufficient promptitude to the duty of devising and recommending well-considered plans, for an object so nearly touching the moral and intel- lectual no less than the social benefit of the Canadian people, it is an error which cannot be too frankly confessed nor too zealously redeemed. 82. You will therefore apply yourselves to the collection of all such intelligence as may be necessary for framing a general system of provin- cial education, embracing not the mere rudiments of literature, but all that relates to the culture of the minds and the development of the moral and religious principles of youth in the different ranks of society. This is a task, the due performance of which requires so intimate an acquaintance with the character and wants of the people, that I doubt whether, within the time of your residence in Canada, it will be possible for you to be com- pletely prepared to form a deliberate conclusion on a question thus compre- hensive. It will, however, be of great value if a commencement can be made, resting on a solid basis, on which, aided by the co-operation of the Governor, a more complete structure may hereafter be erected by the Legislative Council and Assembly. I am sanguine in the hope that such will be the result of your inquiries and your report. 83. The last topic to which I shall refer in my present communication is, the distribution between the Provinces of Lower and Upper Canada of duties, levied under Acts of Parliament or Statutes of the Lower Province, 1791-1840] Constitutional Documents of Canada. 411 at the ports in the River St. Lawrence. The interposition of Parliament to apportion these funds was dictated and justified by necessity. Between two great dependencies of the empire, at variance on a question of the deepest interest to both, Parliament assumed an aumority to mediate, not with a view to any interest exclusively or principally British, but for the sake of objects altogether Canadian. Still it has never been disputed or concealed, that this intervention was accompanied by the exercise of an extreme right, nor have His Majesty's Government ever been slow to seize every oppor- tunity for remitting the decision of this dispute to the legislatures, within whose cognizance the question properly falls. You will make it your busi- ness to inquire whether such an adjustment of the rights of the two pro- vinces, satisfactory to them both, can be devised, as would justify the repeal of the Canada Trade Act. If any such project can be matured, His Majesty's Government would be happy to introduce into Parliament the necessary measure for accomplishing that repeal. 84. It appears from the records of this office that my immediate pre- decessor, the Earl of Aberdeen investigated with great diligence the question whether the recommendations of the House of Commons' Com- mittee of 1828, on Canadian Affairs, had been completely executed. The result of those inquiries his Lordship embodied in a Minute of which I have the honour to enclose a copy for your information. In reliance on the habitual accuracy of Lord Aberdeen, I think myself entitled confidently to maintain with him, that to each of the recommendations of that Committee, the King has given complete effect to the utmost extent of His Majesty's constitutional authority; that in obedience to His Majesty's commands, the most pressing instances have been made to the Legislative Council and Assembly to accomplish every other part of the designs of that Committee to which legislative aid was indispensable ; and further, that so frank and cordial was the spirit in which those concessions were made, that on every one of the principal topics included in the Report of 1828, His Majesty spontaneously advanced considerably beyond the limits recommended by its authors. 85. This however, is a general conclusion of so much importance, and enters so largely into the justification of the policy observed by the King, from the commencement of his reign, towards his Canadian people, that His Majesty is not satisfied that it should rest merely on the revision under- taken by his own confidential servants, of the events of the last seven years. Desiring that it should be brought to the test of the most rigid and impartial inquiry, His Majesty commands me to instruct you, on your arrival in Lower Canada, to ascertain and to report whether the recom- mendations of the Canada Committee of 1828 have, to the full extent of His Majesty's authority and legitimate influence, been carried into complete effect; or whether there is any, and if any, what part of their advice which it yet remains with his Majesty to execute. 86. I have now adverted to all the topics which it is necessary to com- prise in the present communication ; I have accompanied them with such observations as the occasion seemed to require. In offering those observa- tions I must again disclaim the remotest intention of fettering your dis- cretion or of restricting in any degree the exercise of your own judgment, either as to the subjects of inquiry or the opinions at which you may arrive. In the course of your investigations new topics will occur to you, and new views of topics already familiar will present themselves. You will not on any occasion, or for any reason, shrink from the explicit declaration ot your sentiments. You will not decline any inquiry, the prosecution of which may promise benefit to the colony or to the mother country. You cannot err, either in the selection or in the treating of questions, if you steadily bear in view the purpose for which His Majesty has been induced to entrust you with the execution of this commission, and the obligation under which you are placed to contribute, by every means in your power, to the accomplishment of that gracious purpose. I have, &c. (Signed) GLENELG. 412 Constitutional Documents of Canada. [1791-1840 CXIX GLENELG TO HEAD 1 [Trans. : Imperial Blue Books relating to Canada, Vol. VI, 1836.] Copy of a Despatch from Lord Glenelg to Sir F. B. Head. Sir, Downing Street, 5 December 1835. I have the honour herewith to transmit to you, a commission under His Majesty's sign-manual, appointing you lieutenant-governor of the province of Upper Canada. You have been selected for this office at an era of more difficulty and importance than any which has hitherto occurred in the history of that part of His Majesty's dominions. The expression of confidence in your discretion and ability which the choice itself implies, would only be weak- ened by any more formal assurance which I could convey to you. In the following instructions, I shall presuppose your knowledge of many occurrences, the correct understanding of which is essential to the discharge of the duties to which you are called, but which it is unnecessary for me to recapitulate. As, However, a more exact acquaintance with Canadian affairs is indispensable for your guidance in the administration of the government of Upper Canada, I think it right to refer you to those sources of information on which you will be able most safely to rely. Amongst these, the first place is due to the journals of the Legislative Council, and of the House of General Assembly. The appendices sub- joined to the annual summary of the proceedings of the two Houses, con- tain a fund of information on almost every topic connected with the statistics and political interests of the province; and to those reports you will be able to resort with far greater confidence than to any other source of similar intelligence. The Report of the Committee of the House of Commons of the year 1828, with the evidence, oral and documentary, to which it refers, will also throw much light on the progress and the actual state of the questions agitated in the upper province. The correspondence of my predecessors and myself, with the officers who have successively administered the provincial government, will of course engage your careful attention. In Upper Canada, as in all countries which enjoy the blessing of a free constitution, and of a legislature composed in part of the representa- tives of the people, the discussion of public grievances, whether real or supposed, has always been conducted with an earnestness and freedom of inquiry of which, even when occasionally carried to exaggeration, no reasonable complaint can be made. The representatives of the Canadian people, if departing at times from the measured style and exact terms in which the investigation of truth may perhaps be most successfully con- ducted, have yet, even in the agitation of questions the most deeply affecting the interests of their constituents, exhibited a studious respect for the person and authority of their Sovereign, and a zealous attachment to the principles of their balanced constitution. Until the last session of the provincial parliament, the remonstrances of the House were chiefly confined to insulated topics of complaint ; discussions, indeed, occasionally arose, and discontent was occasionally manifested ; but it may be affirmed, that generally there subsisted a spirit of amicable co-operation between the executive government and the legislature. The cession by His Majesty of the revenues raised under the statute 14 Geo. 3, c. 88, to the appropriation of the House of Assembly,* was a gratuitous and unsolicited act, and was accepted by that body in a spirit of grateful cordiality. I will not pause to recapitulate the events which immediately preceded, 1 In this despatch to the new Governor of Upper Canada, Sir Francis Bond Head, Glenelg outlines the methods of dealing with the famous Seventh Report on Grievance* which was drawn up by a Committee of the Upper Canadian Assembly early in 1835. Se No. CX. 1791-1840] Constitutional Documents of Canada. 413 if they did not produce the interruption of this mutual good understanding. It is sufficient for my present object to observe, that the relations which had formerly subsisted between the executive government and the repre sentatives of the people underwent an entire change immediately after the election which took place in the autumn of 1834. The supporters of the local government now for the first time found themselves in a constant minority on every question controverted between them and their political antagonists. A committee of grievances was appointed, by which a report was made impugning the administration of affairs in every department of the public service, and calling for remedial measures of such magnitude and variety as apparently to embrace every conceivable topic of complaint. Having adopted this report, and having directed its publication in an un- usual form, the House transmitted through the lieutenant-governor, to the King, an address, in which some of the more considerable of the claims of the committee were urged in terms of no common emphasis. It will be your first duty on the assumption of the government to convey to the House the answer which His Majesty has been advised to return to these representations. I cannot proceed to explain the terms of that answer without prelimi- nary remark with a view to which the preceding statement has been chiefly made. Whatever may be the justice of the complaints now preferred respecting the general principles on which the public affairs of the province have been conducted, the representatives of the people of Upper Canada are at least not entitled to impute to the confidential advisers of the King any disregard of their remonstrances. The greater part of the grievances detailed by the committee and the House are now for the first time brought by them under His Majesty's notice My predecessor, the Earl of Ripon, in his despatch of the 8th of November 1832, to Sir John Colborne, was commanded by the King to state, that "there was no class of the Canadian people, nor any individual amongst them, to whose petitions His Majesty did not require that the most exact and respectful attention should be given." His Majesty has never ceased to be actuated by the spirit which dictated those instructions, and of course will not deny to the House of General Assembly that careful investigation of the grounds of their com- plaints, which He graciously pledged himself to bestow on the representa- tion of any individual petitioner. I feel myself therefore entitled, on behalf of His Majesty's Government, to object to any resort on the part of the House to that ulterior measure to which they allude, but which they will feel with me is to be justified only by an extreme emergency. I now proceed to the consideration of the various topics embraced in the seventh report of the. committee of grievances, and in the addresses of the two Houses to His Majesty: and I shall advert to them in the order in which they are pursued in the report itself. In the following pages, if any subject should appear to be passed over without due regard, you will understand that I have at least been guilty of no intentional omission, but have, in obedience to His Majesty's commands, made it my endeavour to meet every question which the committee and the House have thought it necessary or proper to raise. 1. It is stated that "the almost unlimited extent of the patronage of the Crown, or rather of the Colonial Minister for the time being, and his advisers here, together with the abuse of that patronage, are the chief sources of colonial discontent. Such (it is added) is the patronage of the Colonial Office, that the granting or withholding of supplies is of no politi- cal importance, unless as an indication of the opinion of the country con- cerning the character of the Government, which is conducted on a system that admits its officers to take and apply the funds of the colonists without any legislative vote whatever." The committee then proceed to an enumera- tion of the various public offices, and the different departments and branches of the public service, over which this patronage is said to extend ; and by bringing the whole into one view, they suggest what must be the amount of the authority and influence accruing to the executive government from these sources. 414 Constitutional Documents of Canada. [1791-1840 The statement is substantially this: that tne number of public offices in the colony is too great; and that the patronage, instead of being vested, as at present, in the Crown, and the local representative of the Crown, should be transferred to other hands. In the long enumeration of places at the disposal of the executive government in Upper Canada, the committee have not adverted to one con- sideration to which I think that great prominence might justly be assigned. It is perfectly true, as it is quite inevitable, that in Upper Canada, as in other new countries, the number of public employments is and will be far larger in proportion than in older and more densely-peopled states. The general machinery of government must be the same in a scanty as in a large and redundant population ; corresponding departments of the public service, whether legislative, judicial or administrative, must exist in both. And in a new country, besides, there will be some establishments for which in the settled states of Europe no counterpart can be found ; such, for example, are all which relate to the allocation, surveying and granting of wild lands. Nor is it to be forgotten, that in the early stages of such a society many duties devolve upon the government, which at a more ad- vanced period are undertaken by the better educated and wealthier classes, as an honourable occupation of their leisure time. Thus in the Canadas, although the mere text of the law would there, as in England, authorize any man to prefer and prosecute an indictment in His Majesty's name, yet virtually- and in substance the prosecution of all offences is confided to the government or its officers. These causes have inevitably tended to swell the amount of the patronage of the provincial government, without sup- posing any peculiar avidity on their part for the exercise of such power. With respect to the patronage of the requisite offices, His Majesty's Government are not solicitous to retain more in their own hands, or in those of the governor, than is necessary for the general welfare of the people and the right conduct of public affairs. I confess myself, however, unable to perceive to whom the choice amongst candidates for public em- ployment could with equal safety be confided. It requires but little fore- sight or experience to discover that such patronage, if exercised in any form of popular election, or if committed to any popular body, would be liable to be employed for purposes far less defensible, and in a manner less conducive to the general good : chosen by irresponsible patrons, the public officers would themselves be virtually exempt from responsibility ; and all the discipline and subordination which should connect together in one un- broken chain the King and his representative in the province, down to the lowest functionary to whom any portion of the powers of the state may be confided, would be immediately broken. I conclude, therefore, that as in such a country as Canada there must exist a number of public officers, large in proportion to the present number and wealth of the inhabitants, so the selection of them must for the most part be entrusted to the head of the local government. I disclaim, however, on the part of the Ministers of the Crown, every wish to urge these general principles beyond their just and necessary limits. There are cases in which I think, according to the analogy of similar cases in this country, the patronage now said to be exercised by the lieutenant- governor might with perfect safety and propriety be transferred to others. On this subject, however, it will be more convenient to state the general principle, than to attempt the specific and detailed application of it at this distance from the scene of action. That principle is to maintain entire, by the nomination and removal of public officers, that system of subordination which should connect the head of the Government with every person through whose instrumentality he is to exercise the various delegated prerogatives of the Crown. What is necessary for this end must be retained ; whatever patronage is unnecessary for the maintenance of this principle should be frankly and at once aban- doned. It is noticed in the report, as an aggravation of the evils of the gov- ernment patronage, that almost every public officer holds his place at the 1791-1840] Constitutional Documents of Canada. 415 pleasure of the Crown. I cannot disguise my opinion, that the public good would be little advanced if the subordinate functionaries held their places upon a more certain tenure. In practice, indeed though subject to certain exceptions to be hereafter noticed, no public officer is in danger of losing his employment, except for misconduct or incompetency : but there are many kinds of misconduct and incompetency which could never be made the subject of judicial investigation, but which yet would be destructive of the usefulness of a public officer, and ought therefore to be followed by a dismissal from the public service. Nor is it necessary to insist at any length on the evils which would arise in the transaction of business, if the subordinate officers were aware that they were entirely independent of the good opinion of their superiors for continuance in their employments. It is not difficult to show, in reference to any conceivable arrangement on the subject of patronage, that there will be dangers against which it is impossible to take an absolute and perfect security. I know not, however, that any less exceptionable scheme could be devised than that which at present prevails, of giving to the head of the local government the choice of the subordinate officers, and of making their places dependent on His Majesty's pleasure. To prevent, however, as far as may be possible, the continuance of any well-founded ground of complaint on this head, His Majesty, disclaiming for himself and for his representatives in the province all desire to exercise, with the view merely to patronage, the power of appointing public officers, is pleased to prescribe for your guidance the following rules : First: You will, at the earliest opportunity, enter into a diligent review of the offices in the appointment of the Crown and of the local government, as detailed in the report of the committee, and the appendix, with a view to ascertain to what extent they may, without impairing the efficiency of the public service, be reduced immediately and prospectively. You will report to me the result of your investigation, with such particular information as will enable His Majesty's Government to decide in each case on the expediency of adopting your recommendation. Secondly: If, during the reference of that report to me, any occasion occur for the reduction of offices, either by abolition or by consolidation, you will exercise your own discretion as to waiting for fresh instructions, or proceeding at once to the reduction. Any appointment, however, made under such circumstances, will be merely provisional. In case of the immediate abolition of any office not required for the efficient discharge of the public service, you will stipulate for such a compensation to the present holders, as the disappointment of their reasonable expectations may entitle them to receive. Thirdly : In the prescribed revision of these offices you will make it one of your objects to form a judgment what share of the patronage of the Crown or the local government may safely and wisely be transferred to other hands. You will report to me on this subject, but will refrain from taking any steps regarding it without further instructions from me. Fourthly: In the selection of persons to execute public trusts, you will be guided exclusively by the comparison of the claims which the dif- ferent candidates may derive from past services, or from personal qualifi- cations. Fifthly: In general, you will not select for any public employment in Upper Canada any person who is not either a native or a settled inhabitant of the province. To this general rule occasional exceptions may be admit- ted ; as in cases where some peculiar art or science is demanded, which no provincial candidate may be found to possess in the requisite degree. An exception must also be made in reference to those officers who are imme- diately attached to your own person, in the choice of whom His Majesty does not think it right to subject you to any such restriction. Sixthly: As often as any office shall be vacant, which is not to be suppressed, and of which the annual emolument shall exceed 200, you will make the appointment provisional only, and with the distinct intimation 416 Constitutional Documents of Canada. [1791-1840 to the party elected that his confirmation will depend entirely on the estimate which His Majesty may form of his pretensions; and you will on every such occasion signify to me, for His Majesty's information, the grounds on which you have proceeded, and the motives which have directed your choice. If His Majesty should be pleased to issue, under his sign- manual, a warrant authorizing' you to make a grant of the office under the public seal of the province, then, and not till then, the appointment must be considered as finally ratified. I trust that in these regulations the House of Assembly will perceive a sufficient proof of His Majesty's settled pur- pose to exercise this branch of His prerogative for no other end than the general good of His Canadian subjects, and to prevent its being converted into an instrument of promoting any narrow, exclusive or party designs. 3. Under the head of salaries and fees, the committee have entered into very copious statements, to show that the emoluments of the public officers in Upper Canada are excessive, and out of all just proportion to the value of the services rendered. It is unnecessary for me to enter into these details, because, as to the general principles on which it will be your duty to act on questions of this nature, there can be no room for contro- versy. Indeed, those principles will, I think, be most conveniently con- sidered when divested of topics connected with the interests and the services of particular persons. There is no measure of retrenchment, compatible with the just claims of His Majesty's various officers, and with the efficient discharge of the public service and duty, to which the King is not disposed to give a prompt and cheerful assent. To determine what ought to be the scale of remunera- tion to public functionaries of different classes, would require information too minute and exact to be obtained beyond the limits of the province itself. This would appear a very fit subject for a special inquiry, in which it might be proper to employ commissioners, to be appointed under the authority of an act of the Asesmbly. I have reason to suppose that the subject has never yet undergone a full and fair investigation ; and therefore I dp not feel myself entitled to assume the non-existence of those abuses which so readily grow up under a system which is not subjected to a careful scrutiny, conducted upon permanent and enlightened views of pub- lic economy. Even if the result of the examination should be only to show that there is no evil of this nature to be remedied, the labour would be amply repaid, by placing so important a fact beyond the reach of all reason- able suspicion. In dealing with existing interests, the local legislature will, I doubt not, be well disposed to adopt the rules which have been uniformly taken by Parliament for the guidance of their discretion in similar cases. The saving of public money which could arise from the unexpected reduction ot official incomes, would not only subject numerous families to extreme dis- tress, but by impairing general confidence in the public credit, would weaken the foundations on which all proprietary rights must ultimately repose. The King confidently relies on his faithful subjects of Upper Canada, that they will not reduce His Majesty to the distressing alternative of either abandoning the just interests of any of his servants, or opposing himself to measures having for their object the reduction of public expen- diture. 4. Next in the order of complaints, is that which relates to the amount of the pension list. On this, as on the subject which I have last noticed, I conceive that I shall better discharge my duty by attempting to provide against any future abuse, than by engaging in a minute retrospect of any which may have already occurred I do not anticipate that the Assembly of Upper Canada would wish to withhold from the King the means of rewarding faithful and zealous public services, or would think it desirable that no provision should ever be made 1791-1840] Constitutional Documents of Canada. 417 by His Majesty to solace the declining years of those who have consumed in laborious public duties in the colony the larger portion of their lives. You will therefore assent to any law which may be tendered for your acceptance, of which the object shall be to regulate, on a just and reason- able scale, the amount of the future pension list of Upper Canada, and to prescribe the principles upon which any pensions shall be granted. The chief practical question, then, which at present demands considera- tion, is whether His Majesty should be advised to recommend to Parliament the assumption to itself of the office of deciding on the future appropria- tion of these lands. There are two distinct reasons, both of which appear to me conclusively to forbid that course of proceeding. First: Parliamentary legislation on any subject of exclusively internal concern, in any British colony possessing a representative assembly, is as a general rule, unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates and justifies the exception. But important as is the question of the clergy reserves 1 in Upper Canada, yet I cannot find in the actual state of the question any such exigency as would vindicate the Imperial Legislature in transferring to themselves the settlement of this controversy. The conflict of opinion between the two Houses upon this subject, much as it is to be lamented, yet involves no urgent danger to the peace of society, and presents no insuper- able impediment to the ordinary administration of public affairs. Although a great evil, it is not such as to exclude every hope of mitigation by the natural progress of discussion, and by the influence of that spirit which, in public affairs, not seldom suggests to parties alike solicitous for the general good, some mutual surrender of extreme views, and some com- promise on either side of differences which at first sight might have ap- peared irreconcileable. Until every prospect of adjusting this dispute within the province itself shall have been distinctly exhausted, the time for the interposition of Parliament will not have arrived, unless indeed both Houses shall concur in soliciting that interposition ; in which event there would of course be an end to the constitutional objections already noticed. The second ground on which I think myself bound to abstain from advising His Majesty from referring this question immediately to Parlia- ment, is, that the authors of the Constitutional Act have declared this to be one of those subjects, in regard to which the initiative is expressly reserved and recognized as falling within the peculiar province and the special cog- nizance of the local legislature, although its ultimate completion is no less distinctly made to depend, in addition to the ordinary submission to His Majesty, on the acquiescence of the Imperial Parliament. It is not difficult to perceive the reasons which induced Parliament in 1791, to connect with a reservation of land for ecclesiastical purposes, the special delegation to the Council and Assembly of the right to vary that provision by any Bill, which being reserved for the signification of His Majesty's pleasure, should be communicated to both Houses of Parlia- ment for six weeks before that decision was pronounced. Remembering, it should seem, how fertile a source of controversy ecclesiastical endow- ments had supplied throughout a large part of the Christian world, and how impossible it was to foretell with precision what might be the prevail- ing opinions and feelings of the Canadians on this subject at a future period, Parliament at once secured the means of making a systematic pro- vision for a Protestant clergy, and took full precaution against the eventual inaptitude of that system to the more advanced stages of a society then in its infant state, and of which no human foresight could divine the more mature and settled judgment. In the controversy, therefore, respecting ecclesiastical endowments, which at present divides the Canadian legislature, I find no unexpected 1 See, inter alia, Brymner, Report on Canadian Archives (1899); Appendix B, Lord Durham's Report. AA 418 Constitutional Documents of Canada. [1791-1840 element of agitation, the discovery of which demands a departure from the fixed principles of the constitution, but merely the fulfilment of the anticipations of Parliament in 1791, in the exhibition of that conflict of opinion for which the statute of that year may be said to have made a deliberate preparation. In referring the subject to the future Canadian legislature, the authors of the Constitutional Act must be supposed to have contemplated the crisis at which we have now arrived, the era of warm and protracted debate, which in a free government may be said to be a necessary precursor to the settlement of any great principle of national policy. We must not have recourse to an extreme remedy, merely to avoid the embarrassment which is the present though temporary result of our own deliberate legislation. I think, therefore, that to withdraw from the Canadian to the Imperial Legislature the question respecting the clergy reserves, would be an in- fringement of that cardinal principle of colonial government which forbids parliamentary interference, except in submission to an evident and well- established necessity. Without expressing any further opinion at present on the general objects of the Bill of last session, I think the effect of that Bill would, as it appears, have been to constitute the Assembly not merely the arbiters respecting the disposal of the funds to be raised by the sale of these lands, put the active and independent agents in effecting those sales, and thus to invest them with the appropriate functions of the executive government. 10. The withholding of public accounts from the House of Assembly is the next head of complaint. It is proposed, that to remedy this evil a statute should be passed providing the time and manner of making such returns, and naming the officers who should render them to the legislature ; "but," add the com- mittee, "it is well known that such an enactment would fail in the Council, which has an interest in preventing the enforcement of practical accounta- bility to the people." Although I cannot permit myself to believe that the Council would really oppose themselves to any judicious measure of this kind, I fear that such legislation would be found to involve many serious, if not insuperable difficulties. I must object to the appointment of individuals for any pur- pose of this kind by name in a statute, or by any authority other than that of the King. Persons so appointed would exercise a control over all the functions of the executive government, and would have a right of inspect- ing the records of all public offices to such an extent as would leave His Majesty's representative, and all other public functionaries, little more than a dependent and subordinate authority. Further, such officers would be virtually irresponsible and independent. On this subject, however, His Majesty commands me to state, that there is no information connected with the receipt and expenditure of any part of the revenue of Upper Canada, which He wishes to withhold from the representatives of the Canadian people. You will, immediately on your arrival in the province, apprise the heads of every public department by which any such funds are received or administered, that they must con- stantly keep in preparation, to be produced to the Assembly, in compliance with any addresses which may be presented to you by that House, copies and abstracts of all public accounts ; and you will consider in what form these can be drawn up, so as to exhibit all material information in the most complete and luminous manner. It will, perhaps, be possible to concert with the House beforehand some system for preparing such returns; and as often as they may present to you addresses for such information, you will promptly accede to their wishes, except in the extreme case, which it is difficult to suppose, of any demand of that nature being made in such a form that the compliance with it would endanger some great public interest. 1791-1840] Constitutional Documents of Canada. 419 12. The next topic of complaint is, that many of the recommendations contained in Lord Ripon's despatch of the 8th November 1832, have not been carried into effect. Amongst these are especially mentioned such as relate to the amendment of the election laws, the non-interference of His Majesty's officers at elections, the disclosure to the House of the receipt and expenditure of the Crown revenue, the exclusion of ministers of religion from the Legislative and Executive Councils, the reducing the costs of elections, the judicial independence, and the limitation of the number of public officers who may sit in the Assembly. Adhering, without reserve or qualification, to all the instructions issued under His Majesty's commands by Lord Ripon, the King is pleased to direct that you do adopt that despatch as a rule for the guidance of your own conduct ; and that you exert your legitimate authority and influence to the utmost possible extent, to carry into effect all such of his Lordship's suggestions as may still continue unfulfilled. 13. The selection of justices of the peace is said to "have been made chiefly from persons of a peculiar bias in politics, and to be the means of extending the power and influence of the colonial system." It is not in my power to verify the accuracy of this opinion ; and I am happy to feel myself relieved from the necessity of such an investigation. If any such abuse exists, it cannot be too promptly or decisively remedied. Whenever any increase of the number may appear to you desirable, you will propose to any gentleman in Upper Canada, possessing the necessary qualifications of knowledge, property and character, and unquestionable fidelity to the Sovereign, the assumption of the office of a justice of the peace, without reference to any political considerations. 14. A very considerable part of the report is devoted to the statement and illustration of the fact that the executive government of Upper Canada is virtually irresponsible; and the conclusion drawn from this statement is, that under the present system there can be no prospect of a good and faithful administration of public affairs. Without entering on the one hand unnecessarily into a discussion of those general principles to which my attention is thus invited, or digressing, on the other hand, into personal topics, it is enough for me to observe on the present occasion, that experience would seem to prove that the admin- istration of public affairs in Canada is by no means exempt from the con- trol of a practical responsibility. To His Majesty and to Parliament the governor of Upper Canada is at all times most fully responsible for his official acts. That this responsibility is not merely nominal, but that His Majesty feels the most lively interest in the welfare of His Canadian subjects, and is ever anxious to devote a patient and laborious attention to any representations which they may address to Him, either through their representatives or as individuals, is proved not only by the whole tenor of the correspondence of my predecessors in this office, but by the despatch which I am now addressing to you. That the Imperial Parliament is not disposed to receive with inattention the representations of their Canadian fellow-subjects, is attested by the labours of the Committees which have been appointed by the House of Commons during the last few years to inquire into matters relating to those provinces. It is the duty of the lieutenant-governor of Upper Canada to vindicate to the King and to Parliament every act of his administration. In the event of any representations being addressed to His Majesty upon the sub- ject of your official conduct, you will have the highest possible claim to a favourable construction ; but the presumptions which may reasonably be formed in your behalf will never supersede a close examination how far they coincide with the real facts of each particular case which may be brought under discussion. This responsibility to His Majesty and to Parliament 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. 420 Constitutional Documents of Canada. [1791-1840 I further unreservedly acknowledge that the principle of effective responsibility should pervade every department of your government ; and for this reason, if for no other, I should hold that every public officer should depend on His Majesty's pleasure for the tenure of his office. If the head of any department should place himself in decided opposition to your policy, whether that opposition be avowed or latent, it will be his duty to resign his office into your hands, because the system of government cannot proceed with safety on any other principle than that of the cordial co-operation of its various members in the same general plans of promoting the public good. The inferior members of the different offices ^liould consider neutrality on this great litigated question of provincial policy as at once their duty and their privilege. Diligently obeying all the lawful commands of their superiors, they will be exempted from censure if the course which they have been directed to pursue should issue in any unfor- tunate results. Some of the members of the local government will also occasionally be representatives of the people in the Assembly, or will hold seats in the Legislative Council. As members of the local legislature they will of course act with fidelity to the public, advocating and supporting no mea- sures which, upon a large view of the general interest, they shall not think it incumbent on them to advance. But if any such person shall find himself compelled by his sense of duty to counteract the policy pursued by you as head of the government, it must be distinctly understood that the im- mediate resignation of his office is expected of him; and that, failing such a resignation, he must, as a general rule, be suspended from it. Unless this course be pursued, it would be impossible to rescue the head of the government from the imputation of insincerity, or to conduct the adminis- tration of public affiairs with the necessary firmness and decision. I need hardly say, that in the event of any public officer being urged into a resignation of his place by his inability to give a conscientious support to his official superior, the merits of the question would undergo an investigation of more than common exactness by His Majesty's Minis- ters, and that His Majesty's decision would be pronounced with a perfect impartiality towards those who had the honour to serve him in the pro- vince, however high or however subordinate might be their respective stations. By a steadfast adherence to these rules, I trust that an effective system of responsibility would be established throughout the whole body of public officers in Upper Canada, from the highest to the lowest, without the introduction of any new and hazardous schemes ; and without recourse to any system, of which the prudence and safety have not been sufficiently ascertained by a long course of practical experience. 15. I next advert to two subjects of far more importance than any of those to which I have hitherto adverted : I refer to the demand made partly in the report of the committee, and partly in the address from the Assembly to His Majesty, for changes in the mode of appointing legislative council- lors, and for the control by the Assembly of the territorial and casual revenues of the Crown. On these subjects I am, to a considerable extent, relieved from the necessity of any particular investigation ; because claims precisely iden- tical have been preferred by the Assembly of Lower Canada, and because, in the instructions 1 to the commissioners of inquiry who have visited that province, I have already had occasion to state the views which have re- ceived His Majesty's deliberate sanction. The principles of government in the two sister provinces must, I am well aware, be in every material respect the same; I shall therefore annex for your information, as an appendix to this despatch, so much of the instructions to the Earl of Gosford and his colleagues as applies to these topics. In the prosecution of the inquiries of the commissioners in Lower Canada, they will be instructed to enter into full and unreserved communi- 1 See No. CXVIII. 1791-1840] Constitutional Documents of Canada. 421 cation with you upon these questions, and to frame their report in such a manner as may enable His Majesty to adopt a just and final conclusion upon the course to be pursued respecting them in both the Canadas. For this purpose you will supply the commissioners with all the information which you may think necessary for them to receive, and with every sugges- tion which you may think it expedient to make for their assistance in com- paring the state of these questions in the two provinces. If it should ultimately appear desirable, the commission may perhaps be directed to resort to Upper Canada, there to pursue, in concurrence with yourself, a more exact inquiry into these subjects than they could institute at Quebec, in reference to the affairs of the upper province. In general, the Earl of Gosford and his colleagues will be directed to enter into unreserved communication with you, not only on the points just mentioned, but on every subject of common interest to the two pro- vinces. You on your part will conduct yourself towards them in the most cordial spirit of frankness and co-operation. I have thus, in order, adverted to every subject to which the Assembly of Upper Canada have called the attention of His Majesty's Government. You will communicate to the Legislative Council, and to that House, the substance 1 of this despatch, as containing the answer which His Majesty is pleased to make to the addresses and representations which I have had the honour to lay before Him from the two Houses in their last session. I trust that in this answer they will find sufficient evidence of the earnest desire by which His Majesty's councils are animated to provide for the redress of every grievance, by which any class of His Majesty's Canadian subjects are affected. I close this communication with the expression of my earnest hope, and I trust not too confident belief, that the representatives of the people of Upper Canada will receive with gratitude and cordiality this renewed proof of His Majesty's paternal solicitude for the welfare of His loyal subjects in that province; and that, laying aside all groundless distrusts, they will cheerfully co-operate with the King, and with you as His Majesty's representative, in advancing the prosperity of that interesting and valuable portion of the British empire. I have, &c. (Signed) GLENELG. cxx EXTRACTS FROM PETITIONS OF HOUSE OF ASSEMBLY, LOWER CANADA, 1836 2 [Trans. : Christie, op. cit.] ****** We solemnly repeat that the principal of the political reforms which this House and the people have for a great number of years used every effort to obtain, is to extend the^elective principle to the Legislative Council. To render the Executive Council directly responsible to the representatives of the people, conformably to the principles and practice of the British Constitution, to place under the wholesome and constitutional control of the House the whole public revenue from whatever source derived to obtain the repeal of certain Acts of the Imperial Parliament, in which the people of the Province were not represented, with regard to the internal affairs of the Province, making its territory and best resources the subject 1 Head submitted a copy of these Instructions to the Legislature of Upper Canada (see his Narrative, p. 47, for his reasons for doing so). As a result, Gosford's work was severely hindered, and Papineau turned on him the same stream of abuse as he had poured on Aylmer. (See Kingsford, History of Canada, Vol. IX, p. 618.) 2 This document represents the final position of Papineau's party on the eve of the Rebellion. It contains the earliest reference in exact terms to a responsible executive. The next document contains the Resolutions of the House of Assembly on which it was founded. 422 Constitutional Documents of Canada. [1791-1840 of unfair speculation and monopoly to ensure equal rights and impartial justice to all classes to abolish sinecures, and the accumulation of incom- patible offices to redress the numerous abuses which prevailed in the various departments of the public service and to obtain for the Provincial Legislature with regard to the internal affairs of the Province, and more especially over the management and settlement of the waste land thereof for the benefit of all classes of His Majesty's subjects without distinction, that essential control which would be the direct consequence of the prin- ciples of the Constitution. ****** At the head of the reforms which we persist in considering as essential, is the introduction of the principle of popular election into the constitution of the Legislative Council. The people of the country, without distinction, regard this body, as at present constituted, as factitiously opposed to its institutions, its state of society, its feelings and its wants, and as having been and as being necessarily the strong-hold of oppression and abuses. They continue in like manner to believe that any partial reform which shall stop short of the introduction of the elective principle, will be altogether insufficient, and will, as leaving the inherent vice untouched, bring back the same evils and the same collisions. We think, that with regard to the constantly baneful action of the Legislative Council, we have amply ex- plained ourselves to your Majesty, and that no other proof than the past and present acts of that body is needed to remove all doubt as to the nature and spirit of the improvement to be introduced into it. We look, in this respect, upon the Act of 1791, giving Legislators for life to the Canadian Provinces, at the mere pleasure of the Executive authority, as an unfor- tunate experiment, followed by most unhappy consequences. We also look upon this experiment as entirely foreign to the British constitution. We regret that in the extracts from the Despatches we have mentioned 1 , an attempt is made by begging the question to infer an analogy which does not exist, for the purpose of aggravating certain specious objections against an elective Council. We would respectfully pray your Majesty to remark, that the influence which prevailed in the Councils of the Empire, at the period when the Act of 1791 was passed, was calculated to give an undue preponderance to the aristocratic principle, while in America, the independent state and the progress of society, repelled any doctrine of this nature, and demanded the extension of the contrary principle. We must also express our regret, that while your Majesty's representative in this Province has solicited the co-operation of the two Houses of the Provin- cial Legislature to labor at the reform of abuses, and while this House is fully disposed to grant that co-operation, the constant opposition of the Legislative Council is of a nature to prevent so important an appeal from being followed by any result. For ourselves, we are conscious that we have ever been, and are still guided in our labors by our conviction of what was for the greatest advantage of the people, and best adapted to cause your Majesty's Government in this Province to be respected, cherished and strengthened ; and firm in our determination to pursue the same course, we pray your Majesty to believe that we shall not depart from it. Respecting as we do the expression of the Royal pleasure, we yet regret that the Ministers of the Crown should have declared that your Majesty was most unwilling to admit that the question of an elective Legislative Council was a subject open to debate in this Province. We beg to be permitted to represent to your Majesty, that it is not within the province of the Colonial Secretary to limit the subjects which are to engage the attention of this House and the people it represents, within the required forms, and with the view of improving the laws and condition of the Pro- vince. Against this infringement of the liberties of the subject, by one of your Majesty's responsible servants, we dare to appeal to the supreme 1 These instructions were made public by Sir Francis Head, the Lieut. -Gov, of Upper Canada, and communicated to Papineau by Bidwell, Speaker of the Upper Canadian Legislature. 1791-1840] Constitutional Documents of Canada. 423 authority of the Empire, to that of your Majesty, sitting in your high Court of Parliament. We do not intend to discuss the historical points of English colonial government, on which we venture to differ with your Majesty's ministers. Time has solved the problem, and we firmly believe that those happy countries to which these questions refer, would never have attained the degree of prosperity which they now enjoy, either under the old colonial government, or under a system like that which successive colonial minis- ters have established and maintained in this colony. On the subject of the Executive Council, we abstain from entering on any details, because we hold this question to be closely connected in prac- tice with the other more important subjects of colonial policy. We shall confine ourselves in saying, that the full and entire recognition of the rights of this House and of the people, by those whom your Majesty maybe pleased to call to your Councils, and their constitutional responsibility based upon the practice of the United Kingdom, will be essential motives for confidence in your Majesty's government. On the subject of the independence of the Judges, we see with pleasure that there exists no difference between the views of His Majesty's Govern- ment and our own. We regret that we were mistaken in our efforts to carry them into effect. Since that time the modifications which have ren- dered the character of the Legislative Council worse, while it was pre- tended to make it better, have convinced us that it would be of no advan- tage to the due administration of justice, to proceed on the same basis. We shall not, however, abandon the consideration of the subject, and we shall attentively examine any plan which shall appear to us well adapted for the attainment of the desired end. What we have now said will suffice to show your Majesty what our views are, with regard to the politics of the colony as a whole, to the functions and powers which be believe to belong to the Provincial Legis- lature on all matters relative to the internal affairs of the colony, and with regard to what we conceive to be the best means of ensuring activity, efficiency and responsibility in the public service. We would suggest to your Majesty, that there are on this portion of the American Continent, more than a million of your Majesty's subjects, composing the Colonies of Upper and Lower Canada, who, speaking different languages, and having a great diversity of origin, laws, creeds and manners, characteristics pecu- liar to them respectively, and which they have severally the right to pre- serve as a separate and distinct people, have yet come to the conclusion that the institutions common to the two countries ought to be essentially modified, and that it has become urgently necessary to reform the abuses which have, up to this day, prevailed in the administration of the Govern- ment. We rejoice that we have, in our just claims, the support of our brethren of Upper Canada. This support will render manifest to your Majesty and to our fellow subjects in all parts of the Empire, that we have been sincere in our declarations, that the circumstances and wants of the two Canadian Provinces do indeed require a responsible and popular gov- ernment, and that we have been actuated by no narrow views of party or of origin in repeating to your Majesty for many years, our prayer that such a Government may be granted to us. With regard to the protection and to the equality of the rights which your Majesty's Canadian subjects are entitled to, the remedy of evils and abuses, the abolition of sinecures and pluralities, the expected formation of an Executive Council on the principles we have set forth, and to .divers other subjects more particularly mentioned in the Speech from the Throne at the opening of the present Session, we refer to the answer to His Excel- lency the Governor in Chief, and we ardently wish that the views and in- structions of your Majesty's Government, on the essential points, may be of a nature to facilitate the results which your Majesty's Representative 424 Constitutional Documents of Canada. [1791-1840 has been pleased to promise, and which it will afford us the most lively satisfaction to see attained. In the extracts from despatches hereinbefore cited, there are certain passages which induce us to believe that we have not made ourselves understood by your Majesty's Government, with regard to the nature of the control we desire for the Provincial Legislature over the waste lands on the public domain of the Province, and which might cause some appre- hension in the opinion of our fellow subjects. We have never claimed to exercise over tHis portion of the affairs of the Government, any other authority than the parliamentary and constitutional authority which we are entitled to exercise over all the other affairs of the country in so far as the peace, welfare and good government of the country may be therein concerned. We have also set forth at length our reasons for believing that this authority belongs to us. On this head, as on all others, our wish is that the due execution of the laws may remain in the hands of the Executive authorities, within the limits prescribed by the laws and the con- stitution, and under the necessary responsibility ; but we also wish that the right of the Assembly of the Province to legislate on these subjects, jointly with the other branches of the Legislature, and to exercise in this behalf the other powers of the Commons of the country, may receive its full application. It remains for us to address your Majesty on this important and exten- sive subject, the public revenue and expenditure of this Province. We humbly thank your Majesty for the gracious declaration, that your Majesty is disposed to admit the control of the Representatives of the people over the whole public Revenue raised in this Province. We regard the fulfilment of this promise as of the highest importance. In stating explicity in the preceding portions of the Address, the rights which we humbly believe to belong to the Legislature of this Province, with regard to certain parts of this Revenue, we wish to present the subject in its true point of view, in order that no misconception may hereafter retard the desired result. In the proposals which it may please Your Majesty to make to us for the purpose of attaining this result, it is impossible that your Majesty should lose sight of the essential principles of the Constitution, or to the declara- tory Act of 1778 1 , to the benefit of which we believe the people of this country are peculiarly entitled. We shall receive with respect, and examine with the most scrupulous attention any communication which Your Majesty may be pleased to make to us, tending to the settlement of the financial questions. We believe, however, that any merely temporary arrangement, made as a matter of expediency, and not carrying with it the recognition of the principles we have supported, could not have the desired effect, but would sooner or later bring back the very difficulties with which we are now contending. We humbly represent to Your Majesty, that the people of this Province, tired of the continued struggle in which they have been so long engaged to obtain the recognition of their rights on the part of the Metropolitan and Colonial authorities, would regard with painful ap- prehension the possibility of the recurrence of the same state of things, and of the necessity of making new sacrifices for the purpose of laying these complaints before Your Majesty and Parliament. We wish for a Government which shall assure us freedom and security; the unrestricted effect of Your Majesty's declarations can alone confer it on us; and it will be when we possess it, and can entertain a hope of the removal of grievances and abuses we complain of, that we can properly seek the means of giving effect to Your Majesty's wishes with regard to an appropriation of a permanent nature. With respect to the extension of any appropriation of this nature beyond what we have hitherto thought to be reasonable, it will be impossible for us to take the subject into consideration until after the views of Your Majesty's Government, with regard to the details, shall have been made known to us. We must, however, declare that having represented to Your Majesty our views with regard to the efficiency and 1 See No. XXXIII. 1791-1840] Constitutional Documents of Canada. 425 responsibility which we wish to see established in the Provincial Govern- ment, we should think we failed in our duty to our constituents if we destroyed that efficiency and that responsibility, by placing, as a general rule, the great public functionaries of the province, beyond the reach of the wholesome action of the constitution. We are not actuated by any merely pecuniary motive; we believe that the largest sums Your Majesty's Government could ask for, would be utterly insignificant in comparison with those for which Your Majesty's servants in this province have been defaulters, or the enormous sums expended out of the public revenue, with- out the authority of the Provincial Legislature, and even in opposition to the votes of this House ; or in comparison with the waste of the public property, by which four millions of acres of land or more, scarcely^ an eighth part of which has yet been settled, have been monopolized or alien- ated. But we earnestly desire to preserve the benefit of a just control on the part of the Legislature over the several branches of the Provincial Executive, and we can never consent by renouncing it, to confound all the powers of the state for time to come. Having thus rendered manifest our opinions on the essential points of the extracts from despatches which have come to our knowledge, we refer on all other points, to our 'humble petition to Your Majesty and your Parliament of the 1st of March, 1834, and the 21st February, 1835, in which we presevere We beg leave to call Your Majesty's royal attention to the essential reforms we have pointed out in the former part of this address, and which we believe to be indispensably necessary. Declaring ourselves unsatisfied with the views and intentions of Your Majesty's ministers, we address ourselves to Your Majesty and to your Parliament, in order that our just claims may be listened to, and that Your Majesty's government in this province may forthwith become a constitutional and responsible gov- ernment, and one possessing the confidence of your faithful subjects. We have frequently regretted that the destinies of the inhabitants of this portion of the British Empire should depend almost solely on a Colo- nial Minister acting on the other side of the ocean, and for the most part on incorrect data and an imperfect knowledge of facts. We expect full justice from the august tribunal to which we appeal, and we trust that the Provincial Parliament will be so called together, for its next session as to enable us to continue as early as possible our labours for the welfare of the country, and, reassured by the measures we expect, to consider the means of finally arranging the difficulties which subsist in the Government of this Province, and of giving strength, stability and public confidence to Your Majesty's government therein. Wherefore we respectfully entreat Your Majesty to listen favorably to pur humble prayers, and as well by the exercise of the august powers which belong more especially to Your Majesty as jointly with the Parlia- ment of the United Kingdom, to render full justice to your faithful sub- jects, and to deliver them from the system of oppression and bad govern- ment which the Colonial Ministers have long made to press heavily upon them. And by inclination led, as well as by duty bound, we shall ever pray for Your Majesty's sacred person. CXXI RESOLUTIONS OF HOUSE OF LOWER CANADA, 1836 [Trans. : Christie, op. cit.] Resolved, That it is the opinion of this Committee, that this House, in its exertions to procure a redress of the various grievances under which the people of this Province labour, and to introduce a good and responsible system of local government, have, in addition to the other weighty and substantial reasons by which it has been guided, been greatly encouraged by the hope and expectations that any amelioration in the political institu- 426 Constitutional Documents of Canada. [1791-1840 tions of the colony would be followed, of right, by similar advantages to our brethren inhabiting the sister Provinces of British North America. Resolved, That it is the opinion of this committee, that the political reforms which this House and the good people of this Province have been for a great many years endeavouring to obtain, have at various epochs been explained by the votes, resolutions and addresses of this House, and by the petitions of the people themselves. That the principal object of those reforms is: To render the Executive Council of this Province directly responsible to the representatives of the people, in conformity with the principles and practice of the British Constitution as they obtain in the United Kingdom ; to extend the principle of election to the Legislative Council, which 'branch of the Provincial Legislature has hitherto proved, by reason of its independence of the people, and of its imperfect and vicious constitution insufficient to perform the functions for which it was originally designed ; to place under the constitutional and salutary control of this House the whole of the revenues levied in this Province from what- ever source arising; to abolish pluralities, or the cumulation in one person of several or incompatible offices; to procure the repeal of certain statutes passed by the Imperial Parliament, in which the people of this Province are not and cannot be represented, which acts are an infringement of the rights and privileges of the Legislature of this colony, and are injurious to the interests of the people thereof ; to obtain over the internal affairs of this Province, and over the management and settlement of the wild lands thereof (for the advantage and benefit of all classes of His Majesty's sub- jects therein without distinction), that wholesome and necessary control which springs from the principles of the Constitution itself, and of right belongs to the Legislature, and more particularly to this House as the rep- resentatives of the people ; which reforms are specially calculated to pro- mote the happiness of His Majesty's subjects in this Province; to draw more close the ties which attach the colony to the British empire, and can in no way prejudice or injure the interests of any of the sister Provinces. Resolved, That it is the opinion of this Committee, that it has long been the aim of the enemies of these colonies, by deliberate and unfounded mis- representations to engender dissensions and bad feelings between the people thereof, in the hope of preventing all union of purpose among the said people, and of thereby preventing the reform of those many abuses and evils of which the people have so frequently complained, and which are connived at or upheld for the advantage of a minority hitherto unjustly possessing, and still endeavoring to maintain, a political ascendency in this Province, contrary to the principles of all good government. Resolved, That it is the opinion of this Committee, that this House has seen with extreme concern, a speech delivered at the opening of the present session of the Legislature of Upper Canada, by His Excellency Sir John Colborne, late Lieutenant Governor of that Province, at a moment when his sudden recall reflected particularly on the merits of his administration, in which it is stated that the affairs of this Province had exercised an injurious influence on the interests of Upper Canada had tended appar- ently to discourage emigration and the transfer of capital to that country, and had acted disadvantageous^ in respect to the terms on which the large loan authorized by the legislature of the province was recently negotiated in England ; that such a statement is calculated to misrepresent the views of this House to prejudice the people of those Provinces against each other to disturb that good understanding which ought to prevail, and which has hitherto prevailed between the said people ; and in place thereof to sow dis- cord and animosity among the several classes of His Majesty's subjects in these Provinces. Resolved, That it is the opinion of this Committee, that strong in the rectitude of their intentions and principles, and moved alone by a desire to introduce order and responsibility into their political institutions, in the place of the disorder and abuses which now unhappily prevail, this House and the people who it represents, indignantly repudiate all design to injure the interests or embarrass the exertions of the people of Upper Canada, in 1791-1840] Constitutional Documents of Canada. 427 whose welfare the people of this Province feel a lively interest, and for whose patriotic exertions to improve their political and social conditions, this House entertains a sincere respect, and this House is gratified to per- ceive that the representatives of the sister province have done this house the justice to acquit it of being the cause of any dissensions or embarrass- ments existing in the country ; and this House firmly repeats that those dis- sensions and embarrassments proceed from the defective constitution of the Legislative Council of these colonies, and from the continued uncon- stitutional exercise by the same persons of executive, legislative and judi- cial functions, from which causes have resulted the abuses of which the people have so long and so justly complained. Resolved, That the Speaker of this House be authorized to transmit copies of the foregoing resolutions to the Speakers of the several Assem- blies of Upper Canada 1 , and of the other sister Provinces, and to express the desire of this house cordially to co-operate with the said Assemblies in all constitutional measures calculated to promote the mutual interests of these colonies. CXXII ADDRESS TO THE INHABITANTS OF BRITISH AMERICA, 1836 [Trans. : Christie, op. citJ] FELLOW COUNTRYMEN, When an industrious population, after years of suffering are aroused to a sense of danger, by renewed attacks upon their rights and liberties, an appeal to those of kindred blood, ani- mated by the same spirit, and allied by a communion of interests, can excite no surprise, and requires no justification. Long and patiently have the population of British and Irish descent in Lower Canada endured evils of no ordinary description, relying on the interposition of the Imperial Government for relief ; deceived in the fondly cherished trust, they are impelled to seek from their own energies, that protection which has been withheld by the power on whose justice they reposed. For half a century they have been subjected to the domination of a party, whose policy has been to retain the distinguishing attributes of a foreign race, and to crush in others that spirit of enterprise which they are unable or unwilling to emulate. During that period, a population descended from the same stock with ourselves, have covered a continent with the smiling monuments of their agricultural industry; Upper Canada and the United States bear ample testimony of the floodtide of prosperity, the result of unresisted enterprise and of equitable laws, which has rewarded their efforts. Lower Canada, where another race predominates, presents a solitary exception to this general march of improvement. There, sur- rounded bv forests inviting the industry of man, and offering a rich reward to his labour, an illiterate people, opposed to improvements, have com- pressed their growing numbers almost within the boundaries of the original settlements, and present in their laws, their mode of agriculture, and pecu- liar customs ,a not unfaithful picture of France in the seventeenth century. There also may be witnessed the humiliating spectacle of a rural population not unfrequently necessitated to implore eleemosynary relief from the Legislature of the country. It were incredible to suppose that a minority, constituting nearly one- third of the entire population, imbued with the same ardour for improve- ment that honorably distinguishes their race throughout the North Ameri- can continent, and possessing the undisputed control of all the great interests of the colony, would resign themselves to the benumbing sway 1 This appeal did not produce the desired result. After being entered on the Journals of the House of Assembly in Upper Canada, it was expunged by the suc- ceeding Assembly. 428 Constitutional Documents of Canada. [1791-1840 of a majority differing from them so essentially on all important points whilst any mode of deliverance was open to their choice. Nor would supineness or indifference on their part, produce a corresponding change in their opponents, or mitigate the relentless persecution with which they have been visited. The deep rooted hostility excited by the French leaders against those of different origin, which has lead to the perpetration of out- rages on persons and property, and destroyed confidence in juries who have been taught to regard us as their foes, has extended its pernicious influence beyond the limits of Lower Canada. Upper Canada, repulsed in her en- deavours to open a direct channel of communication to the sea, has been driven to cultivate commercial relations with the United States, whose policy is more congenial with her own. Nova Scotia and New Brunswick will learn, with indignant surprise, that the destruction of their most im- portant interests is countenanced and supported by the Assembly of this Province. A French majority in one Province has caused these accumulated evils a British majority in the United Provinces will compel their removal. If it be the desire of the French Canadians to isolate themselves from the other subjects of the Empire, by cherishing the language and manners of a country which stands to them in the relation of a foreign power, the effects of such a prejudice will chiefly be felt by themselves, and may be left for correction to the hand of time; but when national feeling is ex- hausted in an active opposition to the general interests of the British American Provinces, when immigration is checked, the settlement of the country retarded, and the interests of commerce sacrificed, to the visionary schemes of establishing a French power; it becomes the solemn duty of the entire British population to resist proceedings so pregnant with evil. Let it not be said that a million of freemen permitted their rights to be invaded, and their onward course impeded, by a faction which already recoils in alarm from the cbntest it has rashly provoked. Connected as are the Provinces of British America by a chain of Rivers and Lakes, affording the means of creating an uninterrupted water communication between their extremities, at a small expense; possessing within themselves the elements of all extensive trade by the interchange of those products which are peculiar to each, and forming part of the same Empire, they have the undoubted right to require that these advan- tages shall not be sacrificed by the inertness or the mistaken policy of any one state; more especially when, as in the case of Lower Canada, that state, from geographical position, exercises a preponderating influence on the prosperity of all. The facts which have been made public in two Addresses, emanating from the Association, conclusively establish, the want of education among the French population, their subserviency to their political leaders, and the hostility of those leaders to the population of British and Irish descent. Many additional illustrations of their hostile policy might be adduced. At a time when men of all political parties in the Sister Province are united in opposing the contemplated change in the timber duties, the Assembly of this Province, far from lending their assistance, have coun- tenanced the attack, by recognizing as their agent in England, an individual who is distinguished by his advocacy of the Baltic interests, and his active opposition to the Colonial trade. To aid in the prosecution of this design, they have not scrupled to appropriate a part of the Provincial funds, (ob- tained under the pretext of defraying their contingent expenses), to reward their Agent, and to circulate through the British press, statements that are calculated to mislead the public mind ; thus gratifying their national animos- ity, by lending a willing aid to ruin the shipping and mercantile interests of the British American Provinces, and preventing the influx of immigrants from the British Isles, who are brought to the Colonies, at a trifling cost, by the vessels engaged in the timber trade. Upper Canada is honorably distinguished for works completed and in progress, remarkable for their magnitude and for the extensiveness of their destined utility. The St. Lawrence canal, at this moment in active progress, 1791-1840] Constitutional Documents of Canada. 429 will complete an uninterrupted navigation for vessels of considerable burden from the upper Lakes to the line dividing that Province from Lower Canada; but at that point, the spirit of English enterprise encounters the influence of French domination ; the vast designs of rendering the remotest of the inland seas accessible to vessels from the ocean is there frustrated by the anti-commercial policy of the French leaders; we look in vain to their proceedings for any manifestation of a desire to co-operate in the great work of public improvement, which animates, as with one spirit, the entire North American population of British descent; nor is their adverse disposition less visible in their opposition to other important designs ; they either refuse to grant charters to carry into effect works of acknnowledged public utility, or, when after repeated and earnest applications charters are obtained, they are clogged with restrictions of an unusual character, in the hope of rendering them inoperative. In all new countries the deficiency of capital proves a serious impedi- ment to the exertions of the enterprising and industrious, and it would be among the first duties of a wise Legislature to invite the introduction of foreign capital, by the adoption of an equitable system of law, that would inspire confidence in personal and landed securities. In Lower Canada, from the absence of offices for the registration of real estate, and from the system of secret and general mortgages, not only is foreign capital ex- cluded, but the Colony is impoverished by the withdrawal of funds for profitable and secure investment in other countries. In tracing the motive of resistance to a measure that more than any other would advance the public welfare, we again encounter the pernicious influence of French ex- clusiveness. A general distrust of the titles and securities of landed estate is suffered to exist, in order to prevent the acquisition of real property by emigrants from the British Isles. This spirit of exclusiveness, which betrays itself in all the proceedings of the Assembly, disfigures even those measures which, it might reasonably be expected, would inspire sentiments of a more lofty and generous nature. Although the British Act 1 of the 14th Geo. Ill, which confirmed the right of the French Clergy to tithes, declared, most probably for that very reason, that the religious communities should not hold estates. They continue in the undisturbed possession of tracts of land, exceeding fifteen hundred square miles in extent, besides possessing property of great value in Que- bec, Montreal, and elsewhere. In addition to the revenues derived from these possessions, the Assembly annually appropriate large sums of money out of the Provincial revenues for the support of those communities, and for the establishment of institutions rigidly and exclusively French, whilst to other institutions on a liberal foundation, affording relief to all, without distinction of origin or creed, a fair participation of legislative aid has been refused. It is, to 'the great body of the people' thus characterised, that His Excellency the Earl of Gosford, the Representative of a British King, and the head of the Commission deputed to enquire into our complaints, has declared that all future appointments to office shall be made acceptable. A legislative Council constituted on such a principle, would be but a counterpart of the Assembly; it might, and no doubt would, relieve the Executive from the odium of sanctioning the illegal appropriation of a part of the Provincial revenues, by the mere vote of the Assembly; but it would not prevent the same misapplication of the public funds being effected by bill, which is now accomplished by an Address to the head of the administration. A Government thus conducted would forfeit all title to our confidence, would be regarded 'but as an instrument to secure the domination of a party, and the brief period of its duration would be marked by scenes of outrage, and by difficulties of no ordinary description. The French leaders, if we are to credit their reiterated assertions, entertain an attachment so deep, so absorbing, for elective institutions, that l No. XXV. 430 Constitutional Documents of Canada. [1791-1840 they would at once confer that important privilege to its fullest extent, without reference to previous habits, education, or political dissentions. How much of this ardour may have been called forth by a desire to estab- lish French ascendency, and to depress British interests, may fairly be deduced from a review of their past proceedings. Without discussing the question of elective institutions, which, it is obvious, cannot be introduced to the extent demanded by the Assembly, under the existing political rela- tions of the colony, which relations we are resolute to maintain, we dis- tinctly aver, that we are not influenced by idle apprehensions of a Govern- ment of the people and for the people; but it must be emphatically a Gov- ernment of 'the people', truly represented, and not a French faction; the Government of an educated and independent race, attached to the principles of civil and religious liberty, and not that of an uninformed population, striving for domination, and seeking to perpetuate in America, the institu- tions of feudal Europe. To the people of the Sister Colonies we appeal, earnestly recommend- ing the adoption of measures for assembling at some central point, a Congress of Deputies from all the Provinces of British North America. A British American Congress, possessing strength from union, and wisdom from counsel, by the irresistible weight of its moral influence, would super- sede those other remedial measures which are the last resource of an insulted and oppressed community. On it would devolve the solemn duty calmly to deliberate on all matters affecting the common weal, and firmly to resist all attempts to invade the rights, or impair the interests of the United Provinces. In submitting a brief recapitulation of the objects of the Constitutional Association, it may not be misplaced to offer a few observations explana- tory of the position of parties in Lower Canada, and of the sentiments of the British population towards their fellow-subjects of French origin. The moral guilt of exciting national hostility undoubtedly rests with the French leaders, who alone benefit by the distracted state of the coun- try ; but the facility with which the French peasantry have received these impressions, and the unanimity with which they support the aggressive policy of their leaders, render them, although less culpable, yet equally the determined opponents of our rights and liberties. Unhappily their want of education prevents a direct appeal being made, through the press, to their judgment; but those of their countrymen who are not blinded by the in- fatuation of party, who possess education to comprehend, and opportunity to make known, the sentiments of the British population, may be led to reflect upon the consequences that must result from their present delusion. Should the admonition be disregarded, on them let the responsibility rest. The Province of Lower Canada, whether regarded as a part of the British Empire or of the great North American family, is evidently des- tined to receive the impress of national character from those States by which she is surrounded. An obstinate rejection of all measures, having for their aim the gradual removal of those peculiarities which distinguish the population of French origin, may retard, for a time, an inevitable event, but will certainly hasten the introduction of changes of a more abrupt and decisive character. A dispassionate examination of the changes required by the British population, will satisfy all unprejudiced men, that they are adapted to the general interests of society, are liberal and comprehensive in their charac- ter, and unconnected with party objects. To relieve landed estate from the servitudes and exactions of feudal law. To introduce Registry Offices and put an end to the iniquitous frauds that grow out of the present system. To promote works of public improvement. To encourage agriculture and protect commerce. To recognize an equality of rights among all classes. To resist the domination of sect or party, and to establish a general system of education, divested of sectarian tests. 1791-1840] Constitutional Documents of Canada. 431 These are our objects and our demands; they are based on truth, are essential to national prosperity and to individual security; they admit of no compromise, and from them we will not recede. The threatening aspect of the times demands action ; neutrality, the usual resource of ordinary minds, will not be attended by an immunity from danger; it must remain with the population of French origin to decide, whether, by continuing to support the leaders they have hitherto selected, they are to be regarded as hostile to our just claims, or, by uniting with their fellow-subjects of British origin, they will compel the introduction of salutary reforms, consign to their native insignificance the few indi- viduals who alone profit by the present system of misrule, and by repudi- ating ancient prejudices and exclusive pretensions, place themselves in accordance with the spirit of the age. To us, it is in one respect, a matter of indifference what their decision may be. The principles we espouse are identified with the happiness of the human race; they have taken root with our language in all quarters of the globe, and wherever that language is spoken, there shall we meet en- couragement, and thence shall we derive force. Although Lower Canada presents the strange spectable of a British Government bestowing its confidence on men who have openly avowed their hostility to England, and their desire to effect a separation from the Empire; although by the contrivance of that Government, the Provincial funds have been illegally applied to reward French agitators, to support French journals, and to pay French agents; yet do we feel the proud con- viction that the energies of Britons will rise superior to the emergency, and that despite an unnatural coalition, the banners of our country will continue to wave over a British Province. The voice of supplication has been unheeded amidst the insolent clamours of faction. United British America .assuming an attitude alike removed from menace or from fear, will proclaim her wrongs, assert her rights, and claim from the Imperial Parliament that interposition, which shall remove existing grounds of complaint, and carry with it a sufficient guarantee against future aggressions. By order of the Executive Committee of the Montreal Constitutional Association. CXXIII GLENELG TO GOSFORD [Trans. : Christie, op. cit.] Downing Street, 7th June, 1836. My Lord, His Majesty having had under his consideration the Address of the House of General Assembly of Lower Canada 1 , on the state of public affairs in that Province, has commanded me to convey to the House, through Your Lordship, the following answer : "The King contemplates with deep regret the ill success of His Majesty's efforts to remove from the minds of the Representatives of the people of Lower Canada, those distrusts and jealousies with which they appear unfortunately to have been affected. Conscious, however, that His measures have been dictated by an earnest solicitude for the welfare of all classes of His Canadian Subjects, unmixed with any motive of a less just and liberal character. His Majesty awaits with tranquility the result of this long and painful discussion, assured that when the misconceptions of the moment shall have passed away, His labours for the prosperity of Lower Canada, will be repaid by the confidence of the inhabitants of that Province, of whatever class or national origin." His Majesty is sustained and encouraged in these hopes by observing that the House of Assembly were led to grant the supplies only for six 1 No. CXX. 432 Constitutional Documents of Canada. [1791-1840 months, and to prefer their present complaints, apparently in consequence of the publication of some detached passages from my Despatch of the 17th of last July 1 , on which passages the House have founded the remark "that the researches authorized by His Majesty for the purpose of ascer- taining the means of doing justice to His Canadian Subjects, were on several of the most essential points, limited by pre-conceived opinions and anticipated decisions." This supposition, even if it had received any countenance from the isolated extracts from my instructions to you and your colleagues in the Canada Commission, which were brought under the notice of the House of Assembly, would have been entirely removed if the House had been in possession of the whole of those instructions. They would have found not only that the general tenor of those Instructions favored an entire freedom of enquiry and judgment by the Commissioners, but that the most unequi- vocal language had been studiously employed for the express purpose of counteracting the opposite opinion. I know not how it would have been possible to have expressed His Majesty's gracious intentions in terms stronger or more unambiguous. In my Despatch of the 17th July last, I stated that, "although your duty as Commissioners would be exclusively to enquire, of that duty you were placed under no restrictions excepting such as the necessity of the case, or your own judgments might prescribe." I concluded my instructions by disclaiming "the remotest intention of fettering your discretion, or of restricting in any degree the exercise of your own judgments, either as to the subjects of enquiry, or the opinions at which you may arrive." I observed that in the course of your investi- gation new topics would occur to you, and new views of topics already familiar would present themselves. "You will not," I added, "on any occa- sion, or for any reason, shrink from the explicit declaration of your senti- ments. You will not decline any enquiry, the prosecution of which may promise benefit to the Colony or to the Mother Country." If the whole of my despatch of the 17th July had been before the House of Assembly, they would have found in these and in other passages, a sufficient disproof of the supposition that your enquiry was limited by any pre-conceived opinions or anticipated decisions. It is indeed true that, in approaching this subject, I recorded reasons which strongly enforce the closest possible adherence to the existing Con- stitution of Provincial Government. In every part of His extensive domin- ions, it has been the constant object of His Majesty to correct real abuses, and to introduce such improvements as the existing state of society, and the deliberate voice of Public opinion have appeared to demand. But to reconcile necessary changes with the stability of political and social institu- tions has been no less an object with His Majesty. At once to reform in the spirit of the Constitution, and to oppose changes conceived in a contrary spirit, is a duty which the King will never shrink from avowing his inten- tion to fulfil. In conformity with this rule you were directed to "apply yourselves to the investigation of this part of the general subject, endeavouring to ascer- tain how far the Legislative Council has really answered the original objects of its institution, and considering of what amendments it may be susceptable." You were also informed that when your "Report should have been received, His Majesty would take into his most serious consideration the questionss whether there are any amendments in the law on this sub- ject, which it would be fit to propose for the consideration of the Imperial Legislature, and which, being founded on the principles and conceived in the spirit of the Act of 1791, may be calculated to render the practical operation of that statute more conformable to the wishes and intentions of its framers." If it be enquired what definite meaning is to be attached to the terms which I have thus employed, I answer that the principle of the Constitution 1 See No. CXVIII. 1791-1840] Constitutional Documents of Canada. 433 of 1791 is, that there shall be two distinct and independent Houses of Legislature. Adhering to this general principle, it remains for your lord- ship and your colleagues, acting on the instructions addressed to you as Commissioners, to enquire how the most effectual means can be taken for securing such a Legislative Council as shall enjoy at once a due share of public confidence, and a full exercise of an enlightened and independent judgment on all matters submitted for its consideration. The fears of some and the hopes of others, have placed a more narrow construction on the extracts of my Despatch of the 17th July. In disavow- ing that meaning I make no concession, but simply adhere to the views which I was honored by his Majesty's commands, to express before. Such as the intensions of His Majesty's confidential advisers were on this sub- ject in July last, such they still continue. The Address further advances a complaint connected with the Execu- tive Government of Lower Canada, a complaint which does not find a place either in the 92 resolutions of 1834 or in any of the earlier Addresses or votes of the House of Assembly. The house now, however, state the necessity of establishing in the Province what is termed "a responsible and popular government." 1 Understanding these expressions in their obvious sense, His Majesty is happy to declare that they do not advance beyond the principles by which it is His pleasure and command that the Executive Government of Lower Canada should be administered. It is His Majesty's desire and injunction that full and early explanations should be afforded to the Representatives of the people, of all important measures adopted by the government; that the Assembly should enjoy the most ample opportunity of explaining both to the King, himself, and to His Majesty's Representative, in the Province, their opinions and their wishes respecting every such measure ; that the imputed misconduct of any public officer, with the exception of His Majesty's Representative, the Governor, who must be responsible directly to the King and the Imperial Parliament, should be closely and impartially investigated, that means should be devised for bringing to trial and punish- ment within the Province, itself, every such officer to whose charge any malversation in office may be laid; and that effectual security should be taken for the zealous co-operation of all subordinate officers in every measure advised by the Legislature and sanctioned by the King for the general welfare of His Majesty's subjects. The Address of the Assembly calls upon His Majesty to recommend to Parliament the repeal of the British statute respecting the tenures of land in Lower Canada. If the House had been in possession of my Des- patch of the 17th July, they would probably have waived this application. They would have been aware that the reluctance of the King, to recom- mend to Parliament any measure which could be plausibly represented as an unnecessary interference with the internal affairs of the Province, is the single obstacle to the introduction of a Bill on that subject. The Address proceeds to demand the repeal of the Act and the revoca- tion of the Charter under which the British North American Land Company is incorporated, and the resumption of the lands which have been sold to them. I shall not, I trust, be thought forgetful of what is due to the privileges and dignity of the House, if I do not shrink from the avowal of any opinion deliberately entertained by the Ministers of the Crown, though it be not in accordance with the sentiments of the Representatives of the Canadian people; I must, therefore, state that His Majesty's Govern- ment cannot proceed to the consideration of the questions raised by the Assembly respecting the British North American Land Company, unless it can first be established in due course of law that the claim of the Com- pany to their corporate character and to their lands is invalid. No con- siderations however urgent, of temporary or apparent expediency, not even the desire to conciliate the good will of the Assembly of Lower Canada than which no motive can be of greater weight, could reconcile 1 See No. CXXI. BB 434 Constitutional Documents of Canada. [1791-1840 His Majesty to a measure, the principle oj which would endanger the foun- dation of all proprietary titles, and all social rights. The remaining topics embraced in the Address require, on the present occasion, no very lengthened notice, because when attentively considered, that document does not appear to advance any principle respecting them essentially different from those which are admitted or maintained in my Despatch of the 17th of July. Respecting Judicial independence, the Assembly frankly admit the entire coincidence between the opinions of His Majesty's Ministers and their own. With regard to the settlement and management of the uncleared lands, and to all questions of finance, I trust I am not mistaken in supposing that no essential difference in principle exists between the sentiments contained in the Address, and those expressed in my despatch of the 17th July. And now, referring to the preceding remarks, I conceive myself entitled to state, that there did not exist during the last Session any real or sub- stantial difference of opinion between the Ministers of the Crown and the House of Assembly, on any question regarding which His Majesty's Gov- ernment felt at liberty to take any immediate proceedings. No single complaint had been alleged which had not been either promptly removed, or made the subject of impartial enquiry. No maladministration of the affairs of the Province was imputed to your Lordship. Without any actual controversy with the Executive Government, the House, however, declined a compliance with the proposition to provide for the arrears and for the supplies pending the enquiry. His Majesty does not deny that this is a power which the law has entrusted to the representatives of the people. But he cannot admit that, on the present occasion, the recourse to the exercise of that power can be attributed to any indisposition on the part of His Majesty to accord the fullest measure of justice to His Canadian subjects. On a review of all the circumstances of the case, His Majesty's Government are led to the conclusion, that the course pursued by the House |s to be ascribed to the misapprehension of the tenor of your Lordship's instructions, induced by the publication of a few detached passages from them. Your Lordship will, therefore, communicate to the House a complete copy of those instructions, and will renew your application for the arrears now due to the public officers, and for the funds necessary to carry on His Majesty's service, I have the honor to be, my Lord, Your most obedient servant, (Signed) GLENELG. CXXIV LORD JOHN RUSSELL'S TEN RESOLUTIONS, MARCH 6, 1837 1 [Trans.: Hansard: (3rd Series) Vol. XXXVI. p. 1303.] 1. That since the 31st day of October, in the year 1832, no provision has been made by the Legislature of the province of Lower Canada, for defraying the charges of the administration of justice, and for the support of the civil government, within the said province, and that there will, on the 10th day of April now next ensuing, be required for defraying in full the charges aforesaid to that day, the sume of 142,160. 14s. 6d. 2. That at a Session of the Legislature of Lower Canada, holden at the city of Quebec, in the said province, in the months of September and October, 1836, the Governor of the said province, in compliance with his Majesty's commands, recommended to the attention of the House of Assembly thereof, the estimates for the current year, and also the accounts, showing the arrears due in respect of the civil government, and signified to the said House his Majesty's confidence that they would accede to the 1 For the circumstances which led to these Resolutions, see p. 398, note, and cf. No. CXXV. 1791-1840] Constitutional Documents of Canada. 435 application which he had been commanded to renew, for payment of the arrears due on account of the public service, and for the funds necessary to carry on the civil government of the province. 3. That the said House of Assembly, on the 3d day of October, 1836, by an address to the Governor of the said province, declined to vote a supply for the purposes aforesaid, and by the said address, after referring to a former address of the said House to the Governor of the said province, declared that the said House persisted, amongst other things, in the demand of an elective Legislative Council, and in demanding the repeal of a certain Act passed by the Parliament of the United Kingdom in favour of the North American Land Company; and by the said address, the said House of Assembly further adverted to the demand made by that House of the tree exercise of its control over all the branches of the Executive Govern- ment ; and by the said address, the said House of Assembly further de- clared, that it was incumbent on them, in the present conjuncture, to adjourn their deliberations until his Majesty's Government should, by its acts, especially by rendering the second branch of the Legislature conformable to the wishes and wants of the people, have commenced the great work of justice and reform, and created a confidence, which alone could crown it with success. 4. That in the existing state of Lower Canada, it is unadvisable to make the Legislative Council of that province an elective body; but that it is expedient that measures be adopted for securing to that branch of the Legislature a greater degree of public confidence. 5. That while it is expedient to improve the composition of the Executive Council in Lower Canada, it is unadvisable to subject it to the responsibility demanded by the House of Assembly of that province. 6. That the legal title of the North American Land Company to the land holden by the said Company, by virtue of a grant from his Majesty, under the public seal of the said province, and to the privileges conferred on the said company by the Act for that purpose made, in the fourth year of his Majesty's reign, ought to be maintained inviolate. 7. That it is expedient, that so soon as provisions shall have been made by law, to be passed by the Legislature of the said province of Lower Canada, for the discharge of lands therein from feudal dues and services, and for removing any doubts as to the incidents of the tenure of land in fee and common soccage in the said province, a certain Act made and passed in the sixth year of the reign of his late Majesty King George IV., commonly called "The Canada Tenures Act," and so much of another Act passed in the third year of his said late Majesty's reign, commonly called 'The Canada Trade Act," as relates to the tenures of land in the said pro- vince, should be repealed, saving nevertheless to all persons all rights in them vested under or by virtue of the said recited Acts. 8. That for defraying the arrears due on account of the established and customary charges of the administration of justice, and of the civil government of the said province, it is expedient, that after applying for that purpose such balance as shall, on the said 10th day of April, 1837, be in the hands of the Receiver-General of the said province, arising from his Majesty's hereditary, territorial, and casual revenue, the Governor of the said province be empowered to issue from and out of any other part of his Majesty's revenues, in the hands of the Receiver-General of the said pro- vince, such further sums as shall be necessary to effect the payment of the before-mentioned sum of 142,160. 14s. 6d. 9. That it is expedient that his Majesty be authorised to place at the disposal of the Legislature of the said province, the net proceeds of his Majesty's hereditary, territorial, and casual revenue arising within the same, in case the said Legislature shall see fit to grant to his Majesty a civil list for defraying the necessary charges of the administration of jus- tice, and for the maintenance and unavoidable expenses of certain of the principal officers of the civil government of the said provinces. 10. That great inconvenience had been sustained by his Majesty's subjects inhabiting the provinces of Lower Canada and Upper Canada, 436 Constitutional Documents of Canada. [1791-1840 from the want of some adequate means for regulating and adjusting ques- tions respecting the trade and commerce of the said provinces, and divers other questions, wherein the said provinces have a common interest ; and it is expedient that the Legislature of the said provinces respectively be authorised to make provision for the joint regulation and adjustment of such their common interest. cxxv GOSFORD'S SPEECH TO THE LEGISLATURE, AUGUST, 1837 [Trans. : Christie, op. cit.] Gentlemen of the Legislative Council, Gentlemen of the House of Assembly, ****** The Reports of the Royal Commissioners on the several subjects which came under their investigation during their stay in Lower Canada, having been laid before the two Houses of Parliament, a series of resolutions, ten in number, were shortly afterwards introduced by the Ministers rela- tive to the affairs of this Province, copies of which I will communicate to you in the usual way at the earliest opportunity. The principal objects of these resolutions are to declare: 1st. That in the existing state of Lower Canada, it is unadvisable to make the Legislative Council elective, but that it is expedient to adopt measures for securing to that branch of the Legislature a greater degree of public confidence. 2ndly. That while it is expedient to improve the composition of the Executive Council, it is unadvisable to subject it to the responsibility demanded by the House of Assembly. 3rdly. That the legal title of the British American Land Company to the land they hold under their Charter, and an Act of the Imperial Parlia- ment, ought to be maintained inviolate. 4thly. That as soon as this Legislature shall make provision by law for discharging lands from feudal dues and services, and for removing any doubts as to the incidents of the Tenures of Land in free and common soc- cage, it is expedient to repeal the Canada Tenures Act, and the Canada Trade Act, so far as the latter relates to the Tenures of Land in this Province, saving, nevertheless, to all persons, the rights vested in them under or by virtue of those Acts. Sthly. That for defraying the arrears due on account of the establish- ment and customary charges of the Administration of Justice and of the Civil Government of the Province, it is expedient that after applying for that purpose such balance as should, on the 10th day of April last, be in the hands of the Receiver General, arising from the hereditary, territorial and casual revenues of the Crown, the Governor of the Province be em- powered to issue, out of any other monies in the hands of the Receiver General, such further sums as shall be necessary to effect the payment of such arrears and charges up to the 10th April last. 6thly. That it is expedient to place at the disposal of this Legislature the net proceeds of the hereditary, territorial and casual revenues arising within the Province, in case the said Legislature shall see fit to grant a Civil List for defraying the charges of the Administration of Justice, and for the maintenance and unavoidable expenses of certain of the principal officers of the Civil Government of the Province, and Lastly, that it is expedient that the Legislatures of Lower and Upper Canada respectively, be authorized to make provision for the joint regula- tion and adjustment of questions respecting their trade and commerce, and of other questions wherein they have a common interest. Having thus laid before you an outline of the measures contemplated by the resolutions which were passed after full discussion in the House of Commons by large majorities, and in the House of Peers without a 1791-1840] Constitutional Documents of Canada. 437 division, I proceed, in obedience to the Royal Commands, to assure you that it was with the deepest regret and reluctance that Her Majesty's Government yielded to the necessity of invoking the interference of Parlia- ment, in order to meet the pressing difficulties which other resources had failed to remove in the administration of the affairs of the Province. But with a view to abstain, as much as possible, from any interference which is not imperatively demanded by the force of existing circumstances, Her Majesty's Ministers have determined not to submit to the present Parlia- ment the Bills to be founded on the resolutions of which I have just spoken. Yet as they cannot overlook the necessity of making immediate provision for the discharge of the debt from the Civil Government of this Province, they have resolved to propose to the House of Commons that a vote of credit should be passed for the advance, by way of loan, from British Funds, of the sum required for the payment of the debt. Gentlemen of the House of Assembly, The accounts showing the payments that have been made since the close of the Session in March, 1836, out of the revenues at the disposal of the Crown, in part liquidation of the large arrears then due in respect of the civil establishment of the Province, shall, as soon as possible, be sub- mitted to you, with every explanation that you may desire, and I can supply. I have, likewise, in obedience to the injunctions I have received, directed that an account of the balance of arrears owing on the 10th April last for official salaries, and the other ordinary expenditure of the local Government, be made and laid before you, with an estimate for the current half year, and in recommending as I do most earnestly these matters to your early and favorable consideration, I am commanded to express to you, at the same time, the anxious hope that the Governor of this Province may not be compelled to exercise the power with which the Imperial Parliament has declared its intention of investing him, in order to dis- charge the arrears due in respect of public services, for the payment of which the faith of the Crown has been repeatedly pledged. The chief object, therefore, for which you are now called together, is to afford you an opportunity by granting the requisite supplies of rendering unnecessary, on the part of the Imperial Parliament, any further action on the 8th of the series of resolutions to which I have alluded ; and it will, I can assure you, be to me a matter of unmixed satisfaction, should you resolve to concede to the united voice of the British people, as expressed through the several branches of their Legislature, that which you have not thought it expedient to yield to the solicitation of the Executive Government alone. Gentlemen of the Legislative Council, Gentlemen of the House of Assembly, I am further commanded to express to you the earnest desire of Her Majesty's Government to co-operate with you in the removal of every obstacle to the beneficial working of the existing Constitution, and in the correction of every defect which time and experience have developed in the laws and institutions of the Province, or in the administration of its government; and I am, also to assure you of a prompt attention on the part of Her Majesty's Government to every representation which may proceed from you, tending to effect improvements of this nature, calculated to strengthen the connexion subsisting between Great Britain and Lower Canada, by the promotion of the welfare and interests of all classes of Her Majesty's subjects in this Province. At the time the summons was issued %>r assembling you on this day I had every reason to believe that it would have been in my power to an- nounce to you, as effected, those alterations which you may gather from the resolutions of which I have spoken, it is intended to effect in the composition of the Executive and Legislative Councils, but the interrup- tion occasioned by the demise of His late Majesty, to the progress of public business in the Imperial Parliament and the prospect of its early dissolution, have prevented the Ministers of the Crown from at once per- fecting the measures they have in contemplation. These measures, there- 438 Constitutional Documents of Canada. [1791-1840 fore, are not forsaken, but only unavoidably suspended for a session, and I trust I shall, at no very distant period, be enabled to appeal to the changes introduced into the two Councils, as well as to other salutary arrangements, as a proof of the sincerity with which Her Majesty's Government are disposed to carry into effect the intentions they have expressed on these points CXXVI ADDRESS OF ASSEMBLY OF LOWER CANADA, AUGUST, 1837' [Trans. : Christie, op. cit.] May it please Your Excellency. We, Her Majesty's faithful and loyal subjects, the Commons of Lower Canada in Provincial Parliament assembled, humbly thank your Excellency for your Speech from the Throne at the opening of the present session. We assure your Excellency that at whatever season we may 'be called upon to perform the duties entrusted to us by the people of the Province, no personal inconvenience will prevent our labouring, as our first and most important occupation, to ensure the liberties and happiness of our fellow subjects, to remove the evils which have pressed, and still continue in a more aggravated form to press upon them, and to protect them against the system which has corrupted the Provincial Government, and has been sufficiently powerful not only to cause the Mother Country to refuse all justice to the people with regard to their demands and ours for the im- provement of their political institutions, and for the reform of abuses, but to urge on the highest metropolitan authorities from whom we looked for justice and protection, to acts of violence, to a violation of the most sacred and best established rights of the Canadian people and of this Legislature, and to the destruction of the very foundations of Government. We are, then bound by our duty, frankly to declare to your Excellency, under the solemn circumstances in which we are placed, and after full and calm deliberation, that since the time when we were last called to meet in Provincial Parliament, we have seen in the conduct and proceedings of the Metropolitan Government, and of the Colonial Administration towards this country, nothing which could re-establish in the people the confidence and affection which the long and fatal experience of the past has almost destroyed ; but that, on the contrary, every recent event has tended to efface what remained of these feelings, and to consolidate, in opposition to the liberties, interests and wishes of the people, the Colonial Oligarchy factiously combined against them, and the hitherto unbridled and uncon- trolled sway of the Colonial Ministers in Downing Street. The avowal which it has pleased your Excellency to make to us, that the disposition of the authorities and of Parliament with regard to us, and the oppressive and unconstitutional measures which have been the result, are the consequences of the recommendations made by certain pre- tended authorities known by the name of the Royal Commissioners, has convinced us of the correctness of the opinions we have hitherto expressed with regard to this Commission, which, constituted and acting under no law, and without regard to law, and bound beforehand by its instructions to the partial views and narrow policy of the British Ministry in the gov- ernment of the colonies, could not possibly co-operate in doing justice to the inhabitants of this Province, and in establishing their institutions, their liberties and their prospects for the future, on the solid basis of their wishes and their wants, as well as on the principles of the constitution. We were therefore in nowise astonished at discovering in the productions of this pretended commission nothing but preconceived opinions, prejudices at variance with its mission and its duty, ideas of government founded on data utterly foreign to the country, or at finding it fomenting divisions and national distinctions, forgetful of constitutional principles, calumniating 1 Thi8 Address is the reply to No. CXXV. 1791-1840] Constitutional Documents of Canada. 439 the provincial representation, and practising deception towards this House and towards the people. We are bound especially to notice in the reports in question one essential and paramount contradiction which pervades every part of them, and forms their essence. It is, that, while they admit the reality of the greater portion of the abuses and grievances of which we have complained, the Commissioners do not recommend their removal and the destruction of the causes which have produced them, but an act of aggression against this House which has denounced them, and the absolute destruction of the representative government in the Province, by the illegal and violent spoliation of the public moneys of the people, by the Ministers or by the Parliament; whereas it was the duty of the Commission and of the Mother Country to assist this House in the entire removal of these evils, and in rendering their recurrence impossible, by constituting the second branch of the Legislature by means of the elective principle, by repealing all laws and privileges unjustly obtained, and by ensuring the exercise of the powers and legitimate control of this House over the in- ternal affairs of the Province, and over all matters relative to its territory and the wants of its inhabitants, and more especially over the public revenue raised therein. These remarks will render unnecessary a portion of those which we might have been led to make on the series of resolutions spoken of by your Excellency, and which being proposed by Lord John Russell, one of the Ministers of the Crown, were adopted by the two Houses of the Par- liament of the United Kingdom 1 . We perceive in this measure on the one hand, a formal and total refusal of the reforms and improvements de- manded by this House, and by the people, and on the other, an abuse of the powers of Parliament, for the purpose of destroying the laws and con- stitution of this Province by force, violating with regard to us the most sacred and solemn engagements, and of thereby establishing irremediably on the ruins of our liberties, and in place of the legitimate, efficient and constitutional control which this House, and the people through it, have a right to exercise over all the branches of the Executive Government, cor- ruption and intrigue, the pillage of the revenue, and the self-appropriation of the best resources of the country by the colonial functionaries and their dependents, the domination and ascendancy of the few, and the oppression and servitude of the mass of the inhabitants of this Province, without distinction of class or of origin. It is our duty, therefore, to tell the Mother Country, that if she carries the spirit of these resolutions into effect in the Government of British America, and of this Province in particular, her supremacy therein will no longer depend upon the feelings of affection, of duty and of mutual interest which would best secure it, but on physical and material force, an element dangerous to the governing party, at the same time that it subjects the governed to a degree of uncertainty as to their future existence and their dearest interests, which is scarcely to be found under the most absolute governments of civilized Europe. And we had humbly believed it impossible that this state of permanent jeopardy, of hatred and of division, could be wittingly perpetrated by England on the American continent; and that the liberty and welfare of every portion of the Empire were too dear to the independent body of the English people to allow them to prefer maintaining, in favor of the functionaries accused by the people of this Province, the system which has hitherto been its bane. If, even before the opening of the present session, we had been unde- ceived in this fond hope by public report, if we had little expectation that a sudden change in the councils of the Empire should place us at once in possession of the benefits of the constitutive reforms which we had de- clared to be essential, and such as would alone be sufficient, it was still natural that we should most anxiously look forward to our being called together in Parliament, because it was to be supposed, at least, that most important reforms had been effected in the administration of the Govern- ment, and that others were speedily to follow them : We have learned with 1 See No. CXXIV. 440 Constitutional Documents of Canada. [1791-1840 fresh regret from your Excellency's speech, that no such reform has been effected, or will be so at any near and determinate period : notwithstanding the so often repeated pledges of the Government. Your Excellency has been pleased to allude distantly to the improvement of the personal com- position of the Legislative and Executive Councils of this Province. With regard to the Executive Council, we shall here forbear any painful reflec- tions on the unmodified existence of that body, after it had been so solemnly repudiated by your Excellency in the name of the Crown, and on its co- operation with the other portions of the Provincial Executive in a system of premeditated coercion to effect the overthrow of the laws and constitu- tion, of incrimination, persecution, and arbitrary removals from office, directed against the mass of the people who remain faithful to the true principles of the British Constitution, and who have manifested their attachment to their assailed liberties. We further represent, that the present Executive, having, instead of performing its promises of justice and the removal of abuses and grievances, entered upon the dangerous and slippery path which has been the ruin of preceding administrations, and having utterly alienated from it the affection of an important portion of those of Her Majesty's subjects most devoted to the liberty and welfare of the country, in order to bestow its confidence and that of the Government partially, on those only who flatter it, no longer possesses in the person of . its Chief or in those of its other members the capability of effecting the reforms indispensably necessary as preliminaries to any arrangement be- tween the Government of the Mother Country and the colony, in a just, equitable, and impartial manner, adapted to satisfy this House and the people, and more especially to ensure between the several branches of the Legislature that co-operation and that uniformity of general views which we persist in believing to be absolutely requisite. We should have hoped that as a pledge of the security of the Government, the Legislative Council would have been so remodelled as to enable us to ascertain up to what point it had been rendered capable of legislating conformably with the wishes and wants of the people, and to act according to the conclusion to which we might have come on this important subject. This essential reform having been omitted, we are bound to declare that our duty towards the people by whom we are sent here, imperiously requires, us to follow, under existing circumstances, the course adopted by us in our Address of the thirteenth September, one thousand eight hundred and thirty-six ; we therefore persist therein, as well as in all the declarations and demands therin contained. The reforms which your Excellency announces as having been delayed, will, nevertheless, if effected, in a spirit of justice and harmony, become a powerful motive with us for examining whether the Legislative Council in its present form of constitution, could even for a time co-operate with us in a system of Legislation conformably to the interests of the people, and of thereby ascertaining whether it shall have been so remodelled as to induce us to manifest confidence in Her Majesty's Government. In our efforts to remove the evils which have pressed upon our coun- try, we have had recourse to none but constitutional means, founded on the most approved and best recognized principles. We have it so much at heart, to see the Government once more deserve the public confidence, that to assist it in attaining that confidence we should recoil before no sacrifice but that of the liberties or of the honor of the people. We have given proof of this disposition, even of late, whenever we have been able to entertain a hope that we were thereby aiding to advance the prosperity of the country. But we declare, that in the present conjuncture we have not been able to derive from your Excellency's speech, or from any other source, any motive for departing even momentarily from our determination to withhold the supplies until the grievances of the country are redressed. Your Excellency acknowledges that the chief object for which we are now convened, is to afford us an opportunity by granting the supplies, of preventing their being violently taken under an Act of the Imperial Parlia- ment founded on resolutions already adopted. In the absence of any other 1791-1840] Constitutional Documents of Canada. 441 motive for thus recurring to our authority, than the tardy consideration of the character of those resolutions as well as of the act of which they might form the basis, Her Majesty's Government might, we humbly conceive, have recollected that those resolutions are not our work, that we had already fully deliberated on the demand made to us by your Excellency, and that while we have not before us any act, or even any hope which can promise a mitigation of the evils under which the people are suffering, we should not be justifiable in placing in the hands of hostile powers the means of aggravating and perpetuating those evils. There could exist, then, no considerations but such as might be dic- tated by a servile fear foreign to our mandate and derogatory to the character of the people, to induce us to be wanting to do our duty in the present instance, by ratifying the violation of the rights of qur constituents, and of this House, by the British authorities, and by taking on ourselves of responsibility of the consequences which might result from it. We leave this responsibility to those who have assumed it, and strong in the justice of our cause, we rely, as we have heretofore done, on Providence, on the public and private virtues of all classes of the people, on their constancy, their perserevance, and their attachment to the principles of orfler and lib- erty which, following their example, we have unceasingly striven to main- tain. In thus expressing our wish that a commencement of reform had tended to re-establish confidence, we cannot have been misunderstood as to the motives which actuate us. We repeat, nevertheless, that we shall regard all administrative measures whatsoever as insufficient permanently and effectively to ensure the peace, security and happiness of the Province; and that the essential and constitutive reforms which we have demanded, and especially the application of the elective principle to the Legislative Council, the repeal of all undue privileges and monopolies, and of injurious laws passed in England, the free exercise of the rights and privileges of this legislature and of this House in particular, and the establishment of a popular and responsible government, are the only means by which the advantages herein before mentioned can be ensured, or the political con- nexion with Great Britain rendered beneficial to the people of Canada. It is, therefore, our ardent wish that the resolutions adopted by the two Houses of Parliament may be rescinded, as attacking the rights and liberties of this Province, as being of a nature to perpetuate bad Govern- ment, corruption and abuse of power therein, and as rendering more just and legitimate the disaffection and opposition of the people. If this return by the Government of the Mother Country to what we consider its duty towards this colony, should take place under the Reign of Her Most Gracious Majesty Queen Victoria, we are unable to express to your Excel- lency how warmly we should congratulate ourselves on having persevered in claiming justice for the people, notwithstanding the peculiar obstacles and difficulties which have tended to deter us. The special and local subjects pointed out by your excellency, and in particular the advances of public money made to relieve the distress in certain parts of the Province, and for other purposes, will form the subject of our deliberations as soon as circumstances will permit, and whenever we shall be no longer prevented from considering them. 442 Constitutional Documents of Canada [1791-1840 CXXVII ADDRESS OF THE CONSTITUTIONAL ASSOCIATION OF THE CITY OF MONTREAL TO THE INHABITANTS OF THE SISTER COLONIES, 13 DEC, 1837 [Trans. : Christie, op. cit.] When sedition and rebellion have boldly proclaimed themselves, in the most populous and prosperous portions of this once contented and appar- ently loyal Province, and when anarchy and confusion have set the laws at defiance, and outraged the harmony and quiet of social life, the question naturally arises ,to what circumstances of oppression, or to what unre- dressed grievances such a calamitous state of things is to be ascribed. The Constitutional Association of this city, has undertaken the import- ant duty of answering the enquiry, and of explaining to the inhabitants of our Sister Colonies, as succinctly as the nature of the subject will admit, the real cause of the discontent which has called into being the active disturbances at present, most unhappily, and at the same time most un- justifiably, existing in Lower Canada. At the conquest of the Province of Quebec by the British arms, the greater proportion of its inhabitants chose to remain in the Province, trusting to the generosity of their conquerors, rather than to return to the country of their ancestors; they became British subjects by the mere fact of their provincial residence, and subsequent civil and political benefactions conferred upon them, demonstrated their well-placed trust in the generosity of the British Government. The full exercise of their religious worship, the complete enjoyment of their ancient civil laws, and the undisturbed use of their native language, were among the number of civil and social privileges, guaranteed to them ; and political privileges, of equal extent to those enjoyed by the British provincial inhabitants, were, in addition, subsequently bestowed upon them. The uncongeniality of the French laws as a system of provincial civil jurisprudence, with the spirit and feelings of British settlers, and their expressed desire for a change from the petty tyranny of a Governor and Council to the freedom of a Representative Provincial Government pro- cured still greater advantage for the French Canadians. In the year 1791, the division of the Province of Quebec into the two separate Provinces of Lower Canada and Upper Canada, was carried into effect, and a Constitu- tion, essentially similar to that of the Parent State, was conferred upon each, whilst, at the same time, universal suffrage, was, in effect, granted to their inhabitants. It was conceived that this measure, by which one division should consist, as much as possible, of those who were well inclined to the English laws, and the other, of those who were attached to the French laws, was best adapted to put an end to all disputes of a legal sort to reconcile the jarring interests and opposite views of the provincial inhabitants to prevent a great degree of animosity and confusion, from their rooted opposition of interests and to obviate dissatisfaction from a great as- cendancy of one party over another in a united Legislature. Two objections to the measure were, however, neglected by the Min- ister of the day, that it fostered a population of foreigners in a British colony, and that it contained no provision, whereby the inhabitants of the British Islands should be totally excluded from settling themselves in Lower Canada. The experience of fifty years of separation between the Provinces, and the present insurrectionary and seditious spirit exhibited in Lower Canada, plainly show how far the advantageous results anticipated from that impolitic and undesired measure have been realized. The possession of the right of almost universal suffrage, and of a numerical popular majority of the provincial constituency, gave the com- plete command of the Representative branch of the Legislature to the 1791-1840] Constitutional Documents of Canada. 443 French Canadians, who soon exhibited a perfect knowledge of their advan- tage, and of that exclusive spirit which has since invariably actuated all their proceedings, and grown into a firm determination to accomplish their final purposes of the destruction of the interests and rights of the pro- vincial inhabitants of British and Irish origin, and of the provincial con- nexion subsisting with the Parent State. A cursory examination of the composition of the House of Assembly, from its establishment, will shew that, with scarcely an exception, no individual of British or Irish origin has been returned to serve as a mem- ber of that body by a French Canadian majority, unless as a pledged supporter of French Canadian principles; with scarcely an exception, no provincial law has been passed, how much soever required for the support of the interests or the protection of the rights of the inhabitants of British and Irish origin, and that even these legal exceptions were invariably of a temporary nature, and subject to the capricious pleasure of French Cana- dian majorities. The spirit of the legislation of that body will shew that its temporary character was adopted to render the Province the more com- pletely subject to their control, or to enable them the more easily to take advantage of their expected predominance, for the abrogation of those very temporary laws which they had been constrained to pass. The political principles of that body will shew a fixed opposition to British interests, not only in their aversion to or rejection of every measure, which would tend to the introduction of capital and of a British population into the Province, as, for example, an effectual system for the registration of mort- gages, and an abrogation of the feudal tenure ; but also in their positive introduction and adoption of every measure likely to tend to the privation of British and Irish rights, or to the destruction of British and Irish inter- ests, such as the existing county division of the Province, by which the British and Irish constituency in the seigniories has been completely swamped in the greater numbers of the French Canadians, and their de- feated attempt to deprive their fellow-subjects of British and Irish origin in the cities, tenants of leasehold property in copartnership, from a right of voting for Members of the Assembly. The claim of that body, for the sole management and disposal of the whole revenue of the Province, has constantly had in view the attraction into their own hands of the entire provincial authority, and the subjection of the Executive Government to their arbitrary will. From their first insidious attempt in 1795, to obtain the repeal of the permanent appropriation contained in the Act of 1774, for the support of the civil government and the administration of justice, thereby to subject the Executive Government to their good pleasure, for any further support than the pittance they then agreed to allow, through the whole course of the financial difficulties, which they have never allowed to slumber, by means of their annual supply bills, their difficulties as to the items of that supply, their resolution in 1822 not to grant permanent supplies, or supplies during the Sovereign's life, their delegations to Eng- land in 1828, and the whole category of their agitation upon the subject, down to the year 1831, when the full accomplishment of their long sought desires was obtained from the good faith of the British Government, by the repeal of the permanent appropriations; their first, last, great object was to obtain possession of the provincial revenues, well knowing that by this means the Government would be cast into their hands. Finally, the detail of the grievances of this body, as representing the opinions of their constituency, the so called great mass of the population, completes the evi- dence of their exclusive interests : in them will be found, the abrogation of the Charter granted to the British American Land Company, by means of which the Assembly sought to assume the management of the waste lands in the townships, and thereby to prevent the settlement therein of a British and Irish population; the repeal of the Tenures Act, by which a commutation of seigniorial tenure may be effected, from their apprehen- sion of its leading to the introduction into the Province of British capital; their indisposition to encourage the settlement of the townships of this Province, because they are principally inhabited by a British, Irish and 444 Constitutional Documents of Canada. [1791-1840 American population ; their unwillingness to co-operate with Upper Canada, in the extensive improvements in progress in that Province, by which its settlement and prosperity might be augmented, and like advantages might thereby accrue to the British and Irish inhabitants of Lower Canada; and their pertinacious endeavours to render the Legislative Council elective, because in it alone were to be found the means of opposing their exclusive pretensions, and of protecting British interests. The history of the House of Assembly in its composition, its legislation, its spirit, and political prin- ciple, fully .establishes the aim which its members have constantly kept in view, the aggrandizement of the population of French and the oppression of that of British origin. The recorded testimony of a French Canadian leader, and one of the delegates to England, in 1828, to represent the grievances of his fellow- countrymen, and since that time, their paid agent for similar purposes, corroborates the views taken by the Constitutional Association ; he de- clared, in his examination before the Canada Committee of the House of Commons, in 1828, that "the establishment of the English law as applicable to property held in the townships on the tenure of free and common soc- cage would be an infringement of the rights belonging to the French Cana- dians, if not done by the Legislature of Lower Canada ; that the French laws should be allowed to continue all over the country; that facilities should have been given to the French Canadians to settle in the Townships ; that the means of going there should have been given to them; that a system of education, according to the notions and ideas of the French Canadians, should have been followed ; that the desire of the French Cana- dians must necessarily be to keep up their own institutions, and to preserve their laws in every part of the country; that the Legislative Council should be composed of men who would side with the mass of the people, and, in effecting this latter arrangement, that its natural effect would be to secure the means of extending the French laws and the French Canadian system over Lower Canada." In the full and complete security of their persons and property, in the free and unrestricted enjoyment of their religious worship, their ancient civil laws, their native and beloved language, and of an equality of rights and privileges in the provincial representative government with their fel- low-subjects of British and Irish origin, in possession, moreover of a numerical popular majority, the French Canadians could have no sym- pathies in common with the people of another race and speaking another language, no inducement to divest themselves of prejudices dear to them alike from the associations of country and the recollections of life, or to abandon habits and customs which they cherished and to which they were firmly attached, for the questionable advantages to be obtained from assim- ilation with strangers, whom they were taught to disregard ; and the natural consequence has been, that, in proportion as the French Canadian population has increased, these evils have likewise increased, until the repugnance to British interest and British connexion has finally assumed the form of open and declared rebellion. The French Canadian population were thus not only nationally inclined to mark their active opposition to their fellow-subjects of British and Irish origin, but they have been taught to consider them as strangers and tress- passers upon their soil ; they have been taught to feel towards them none of those kindly sympathies which unite together subjects of the same country and possessors of the same rights ; they have in fine been taught to believe themselves oppressed by their fellow-subjects of British and Irish origin, and to imagine that they possessed the power of expelling their oppressors. Overlooking moral feebleness in physical capability, desperate men made an open livehood by influencing the population of French origin to acts of violence; missionaries of insurrection, by their own example, ostentatiously shewed to them the manner of setting the laws at defiance; and individuals loaded with every species of personal contempt, aggravated a local pressure into popular tumult, or embittered an unimportant grievance into bloodshed. In all cases, the object was 1791-1840] Constitutional Documents of Canada. 445 attained, active discontent was introduced into the passive population, and noon day meetings gradually ripened into sedition and rebellion. _ It is this exclusive French Canadian spirit alone which has given rise to all the discontent existing in this Province, it is this which has in fact made the question one of national origin and not of political party, in it is to be discovered the source of all the disturbances which have brought sedition and rebellion in their train, and in it alone is to be found a full and complete answer to the enquiry, to what causes the present unhappy condition of this Province is to be ascribed. This conclusion is borne out, by the text-book of the complaints of the French Canadian Representatives, adopted in 1834, the famous ninety- two Resolutions of the House of Assembly 1 , in which will be found a detail of grievances and abuses which that body knew to be either alto- gether redressed, or in active course of being so; reference is therein principally had to those which have been alluded to : the introduction of the elective principle into the composition of the Legislative Council, the abro- gation of the Tenure Act, and the disposal of the whole revenue of the Province ; the two former have been most widely refused, the latter as un- wisely granted. By their admission, therefore, no real oppression exists in the Province, and no real grievance, consistent with the preservation of British supremacy, remains unredressed. The French Canadian leaders have endeavoured to excite the sympathy of the citizens of the United States, and of the professed republicans in Upper Canada, in behalf of themselves and their fellow-countrymen, by constantly appealing to their assistance for the support of popular institu- tions and popular rights, as if their real views were republican, and as if that form of government were favoured by the French Canadian popula- tion. It is sufficient to meet this fallacious inference with a direct denial, as being contrary to fact, and to the habits, feelings and customs of that population, and as being altogether disproved by the evident principle of all the measures which have been proposed or approved by the French Canadian population, or its Representatives in Provincial Parliament assem- bled. These plainly shew that their views did not extend beyond the means of securing their own exclusive designs and intentions. Although hitherto the voice of supplication in favour of British and Irish provincial grievances has been unheeded, amidst the clamours of an insurrectionary faction, these loyal subject still confidently trust in the magnanimity of the Mother Country, and still anticipate from her justice, an entire redress of their unmerited and patiently endured grievances. It is in the midst of disorder and disturbance, that the Constitutional Association of this city presumes to claim the sympathies of the inhabitants of the Sister Colonies, and their assistance, if required, for the protection of the rights and privileges of British subjects, and the maintenance of the connexion of the Province with the Mother Country. PETER McGiLL, Chairman, WM. BADGLEY, Secretary. Montreal, Dec. 13, 1837. CXXVIII AN ACT TO MAKE TEMPORARY PROVISION FOR THE GOVERNMENT OF LOWER CANADA (1 & 2 Victoria, c. 9.) 10th February, 1838. Whereas in the present state of the Province of Lower Canada the House of Assembly of the said Province, constituted under the Act passed in the thirty-first year of his Majesty, King George the Third, intituled^ p 3 ' "An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's reign, intituled 'An Act for making more effectual provision for the Government of the Province of Quebec in North America,' and to iNo, CXJV. 446 Constitutional Documents of Canada. [1791-1840 make further provision for the Government of the said Province," cannot be called together without serious detriment to the interests of the said Province, by reason whereof the Government of the said Province cannot be duly administered according to the provisions of the said Act: And whereas it is expedient to make temporary provision for the Government of Lower Canada, in order that Parliament may be enabled, after mature deliberation, to make permanent arrangements for the Constitution and Government of the said Province, upon such a basis as may best secure the rights and liberties and promote the interests of all classes of her Majesty's subjects in the said Province: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, that from the proclamation of this Act* in the said Province as hereinafter provided, until the first day of tprwen November in the year one thousand eight hundred and forty, so much of Legislature of tne said Act of the thirty-first year of King George the Third, and of any- Lower Canada other Act or Acts of Parliament, as constitutes or provides for the consti- suspended. tution or calling of a Legislative Council or Legislative Assembly for the Province of Lower Canada, as confers any powers or functions upon the said Legislative Council and Legislative Assembly, or either of those bodies, shall cease and be of no force. Her Majesty II. And be it enacted that it shall be lawful for her Majesty, by any special" Coun* comm i ss i n or commissions to be from time to time issued under the Great cilforthe ' Seal of the United Kingdom, or by any instructions under her Majesty's affairs of signet or sign manual, and with the advice of her Privy Council, to con- Lower Canada. st j tute a S p ec j a i Council 2 for the affairs of Lower Canada, and for that purpose to appoint or authorize the Governor of the Province of Lower Canada to appoint such and so many special Councillors as to her Majesty shall seem meet, and to make such provision as to her Majesty shall seem meet for the removal, suspension, or resignation of all or any such Coun- Membersof cillors: Provided always that no member of the said special Council shall take a^okth ^ e permitted to sit or vote therein until he shall have taken and subscribed before the Governor of the Province of Lower Canada, or before some person authorized by the said Governor to administer such Oath, the same Oath which is now required to be taken by the members of the Legislative Council and Assembly before sitting or voting therein respectively. JndC*ouncli r HI; ^nd ^e ' lt en acted that from and after such proclamation as may make aforesaid, and until the first day of November in the year one thousand Laws or eight hundred and forty, it shall be lawful for the Governor of the Pro- forthecfov- v i c e of Lower Canada, with the advice and consent of the majority of eminent of the said Councillors present at a meeting or meetings to be for that pur- Lower Canada. pose from time to time convened by the Governor of the said Province, to make such laws or ordinances for the peace, welfare ,and good Govern- ment of the said Province of Lower Canada as the Legislature of Lower Canada, as now constituted, is empowered to make ; and that all laws or ordinances so made, subject to the provisions hereinafter contained for disallowance thereof by her Majesty, shall have the like force and effect as laws passed before the passing of this Act by the Legislative Council and Assembly of the said Province of Lower Canada, and assented to by her Majesty, or in her Majesty's name by the Governor of the said Province: (^proposed Provided always that no such law or ordinance shall be made unless the by the same shall have been first proposed by the said Governor for adoption by Governor. the Council, nor unless the said Governor and five at least of the said Councillors shall be actually present when such law or ordinance shall be made: Provided also, that no law or ordinance so made shall continue Limiting thr i n force beyond the first day of November in the year one thousand eight hundred and forty-two, unless continued by competent authority : Provided also, that it shall not be lawful by any such law or ordinance to impose any tax, duty, rate, or impost, save only in so far as any tax, duty, rate, or 1 This Act was proclaimed on 29th March, 1838, in the Quebec Gaselfe. 1 In accordance with this provision, Sir John Colborne appointed a Special Council. 1791-1840] Constitutional Documents of Canada. 447 impost which at the passing of this Act is payable within the said Province Proviso as to may be thereby continued: Provided also that it shall not be lawful, byJ2J? e s " ng any such law or ordinance, to alter in any respect the law now existing in the said Province respecting the constitution or composition of the Legisla- tive Assembly thereof, or respecting the right of any person to vote at the dinlnces not election of any member of the said Assembly, or respecting the qualifica- to affect the tions of such voters, or respecting the division of the said Province into existing laws counties, cities, and towns for the purpose of such elections; nor shall itrighfs^of 8 be lawful by any such law or ordinance to repeal, suspend, or alter any election, etc. provision of any Act of the Parliament of Great Britain or of the Parlia- ment of the United Kingdom, or of any Act of the Legislature of Lower Canada as now constituted, repealing or altering any such Act of Parlia- ment. IV. Provided always, and be it enacted, that it shall not be lawful by No law, etc., any such law or ordinance to appropriate any monies which now are or J? appropriate which shall hereafter be in the hands of the Receiver-General of the said hantFforVe- 11 Province of Lower Canada towards the repayment of any sum or sums of payment of money which shall have been issued out of the sum of one hundred an ^ j^l 1 ^ * forty-two thousand one hundred and sixty pounds, fourteen shillings, and ] es s on certi- sixpence, granted to her Majesty by an Act passed in the last session of ficate of Corn- Parliament for advances on account of charges for the administration of jjjissioners of justice and of the Civil Government of the Province of Lower Canada, to'alfamoun? 1 " unless upon a certificate from three or more of the Commissioners of her exceeding the Majesty's Treasury, setting forth the several sums which shall have been a ?P r P riation so advanced for any of the purposes aforesaid: Provided also, that, exclu- sive of any such repayment as aforesaid, no appropriation to be made by any such law or ordinance of the monies aforesaid in respect of the public service for any one year shall exceed the total amount of the sums appro- priated by law within the said Province for the public service thereof for the year one thousand eight hundred and thirty-two. .V And be it enacted that the Governor of the said Province is hereby finances may required, by the first convenient opportunity, to transmit to one of her be disallowed Majesty's Principal Secretaries of State an authentic copy of every law by Her or ordinance made under the authority of this Act; and that it shall be r^lncif m lawful, at any time within two years after such law or ordinance shall have been so received by such Secretary of State, for her Majesty, her heirs or successors, by her or their Order in Council, to declare her or their disallowance of such law or ordinance ; and that such disallowance, together with a certificate under the hand and Seal of such Secretary of State, testifying the day on which such law or ordinance was received as aforesaid, being signified by such Governor by proclamation within the said Province, shall make void and annul the same from and after the date of such signification. VI. And be it enacted that nothing herein contained shall be taken to ^ rh a i ffe \': t i a lot affect or invalidate any law, statute or ordinance now in force within the now i n force! said Province of Lower Canada, or in any part thereof, except in so far etc. as the same is repugnant to this Act. VII. And be it enacted that this Act shall be proclaimed by the Governor of the said Province of Lower Canada within the said Province, and shall commence and take effect within the said Province from the proclamation thereof. VIII. And be it enacted, that for the purposes of this Act any person ^Governor authorized to execute the commission of Governor of the Province of defined. Lower Canada shall be taken to be the Governor thereof. IX. And be it enacted that this Act may be altered or repealed any Act to be passed in the present session of Parliament. 448 Constitutional Documents of Canada. [1791-1840 CXXIX REPORT OF SELECT COMMITTEE OF HOUSE OF ASSEMBLY, UPPER CANADA, FEBRUARY 1838 1 [Trans. : Appendix Upper Canada House of Assembly Journals, 1837-8, pp. 257 ff.] ****** 1st. The first project deserving of notice, is the repeal of the Consti- tutional Act*, 31 Geo. 3rd, so far as the same relates to Lower Canada, and (with some slight variation as regards the imposition of duties and inter- course with Upper Canada), a return to the provisions of the Act* 14th Geo. 3rd, chap. 83. The objections that the inhabitants of Lower Canada, of French origin, might raise to this change in their form of Government, ought not to be considered of very great weight. In the first place, it is well known, that they violently opposed the introduction of the representative system at the time it was adopted, as being unsuited to their habits and opinions ; in the same manner, and probably for the same reasons, that they now oppose the introduction of Free and Common Soccage, instead of the Feudal Tenure ; and secondly, because they have abused this invaluable privilege of British Subjects, and have employed the power it gave them, to bring about revolt, and the entire overthrow of the Government. If however our fellow Sub- jects of British descent, should seriously oppose themselves to this change, the question would then be, whether such modifications might not be intro- duced into the measure, as would gain their acquiescence. Your Committee venture to suggest the following: Let the number of Legislative Council- lors be considerably encreased beyond the number authorized by the 14th Geo. 3rd : let these be taken in equal numbers from the inhabitants of Bri- tish, and Irish, and of French descent : and let the English language be the only language used in legal and legislative proceedings. In connection with this measure, let the boundary line between Upper and Lower Canada be so altered, as to give to the Upper Province all the territory lying on the south-west side of the River Ottawa, and of the Chambly Canal, including the Island of Montreal ; all of which should be governed according to the Constitution now existing. 2nd. The next project deserving notice, is one of a more important and complex character, viz. : a Legislative union of all the North Ameri- can Colonies. Your Committee see much in this measure to recommend it to favorable notice, and as one of the most important advantages that would immediately result from it, is the establishment of "BRITISH ASCEND- ANCY," without any change in the principles of the existing Constitution. There can be no reason now for feeling any delicacy or hesitation in speaking of visible and admitted facts, however ungracious or impolitic it might be to do so, under different circumstances. The Canadians of French descent in Lower Canada, are not loyal. The inhabitants of all the other North American Colonies, are loyal : as are also those of British descent in Lower Canada ; and they are so, not merely from the abstract sentiment of loyalty, or from interest, but because they glory in being British sub- 1 This Report was drawn up after the failure of the Mackenzie Rebellion, which it vividly describes as being ended "by the indignant frown of an insulted people." The earlier part of the Report, which covers many pages of the Journals, traces the history of British Canada and lays all the trouble at the door of the Imperial Govern- ment, owing to a weak policy of "concession" and "conciliation." The document is, however, remarkable for its suggestions towards the solution of Canadian difficulties, and those parts of it in which these suggestions are made are printed in fujl. The most remarkable of them is the suggestion for Canadian members in the British Par- liament. This suggestion had traditions behind it in Upper Canada, as it was made to the Under Secretary of State in 1822 by John Beverley Robinson (Memoir on Means to promote the Joint Interests of the Mother Country and her North American Colonies, pp. 39 ff.) The whole tone of the document is characteris^icallly "anti-demo- cratic," and reflects the regime of Sir Francis Head, for which high jpraise is forth- ng. At the same time tf No. LV. No. XXV. 1791-1840] Constitutional Documents of Canada. 449 jects; they feel that the safety and security of their lives and liberties de- pend on their repelling the encroachments of Democracy, which they de- test; and because they see and feel the superiority they have over the neighbouring Republic in being governed by British laws ; and they are convinced, that the stability of their institutions can be best secured, by maintaining the connection with the Mother Country. If, then, the whole of these Colonies were so far united as to be repre- sented in one Legislature, they would be enabled so to Sncrease and dis- tribute their resources for the benefit of all, that the abundance and facilities of national wealth would lead to and advance their common interest, and place them at once on a level with many powerful nations; their attitude also would be such as to constitute a salutary check on that system of self-government which placed in the hands of an irresponsible multitude, who disclaim obedience to any law that opposes their will, is now threatening in this Western hemisphere to overthrow all those barriers that have hitherto been regarded as necessary to the security of life, pro- perty, and that freedom which can only be called "glorious, when restrained by law." If this measure should be considered as the one to be preferred for a final settlement of the Government of these extensive Colonies, the Im- perial Parliament (through whose interposition alone it can be effected), should have its attention drawn to the necessity of considering, whether it would not be desirable to continue the Provincial Assemblies, with powers limited to the adoption of laws for their local and domestic gov- ernment, separate from the questions of Trade and Commerce, and such matters as must necessarily affect the interest of all the Colonies. Your Committee can only say, that they entertain a decided feeling in favor of retaining local Assemblies, and they urgently recommend the expression of a similar opinion on the part of your Honorable House. In connection with this point of inquiry, your Committee are strongly impressed with the conviction, that no act of our beloved Queen would give to her loyal and devoted Subjects in this remote part of her Domin- ions, more grateful evidence of Her Majesty's desire to perpetuate their allegiance, than incorporating in her Royal title, the distinct claim of Sovereignty over these Her Majesty's extensive and valuable possessions. Such an act would, your Committee firmly believe, have a powerful moral effect throughout this Continent, and serve more plainly and distinctly t6 draw the line between those sound, substantial, and we trust, enduring principles of Monarchy which may well boast their pre-eminence over the hollow and ever-varying fancies, that spring from a Democracy that is controlled by the un-English, unmanly, immoral and degrading system of vote by ballot, and the pernicious influence of Universal Suffrage. Your Committee will dismiss this part of the subject, with this one other recommendation, viz.: that the title of the person who may hence- forth be appointed to the Government of these Colonies, should be that of "VicE-Ror" and that combined with integrity and talent, such as will at once command confidence and respect, he should always be possessed of high rank and distinction, as a public man. There was a time when the Royal Dukes of the Kingdom did not consider the appointment of Captain General of British North America unworthy of their acceptance ; it should be made the object of their ambition now. 3rd. Your Committee next proceed to the question of a union of the Provinces of Upper and Lower Canada. Were it not that the inhabitants of Lower Canada of British origin regard this project with much favor, and appear to consider it as the best measure for relieving them from the oppression under which they have long suffered from the conduct of the dominant faction in their House of Assembly, your Committee would at once declare their unqualified dissent ; but we feel bound not to overlook or treat lightly any suggestion that offers a reasonable hope of relieving our loyal fellow subjects from their political embarrassments, which now, more than ever, claim our sympathy and consideration. Indeed we feel that unless a change takes place in the Constitution and system of Govern- cc 4$0 Constitutional Documents of Canada. [1791-1840 ment in Lower Canada, it is next to impossible that either that Province or this can advance one step in improvement, and that those who desire to continue to live under the British Crown, will be driven to seek some other place of residence. If however the union should be that measure which the Imperial Par- liament may ultimately determine upon, care must be taken that British ascendancy is securely established in both branches of the Legislature: upon no other terms can the measure be sanctioned by this Province; and this should be most clearly and positively stated to Her Majesty. In what manner this ascendancy call be secured, your Committee ab- stain from offering any positive opinion. A variety of modes, however, may be suggested, founded on a division of territory, and the tenure by which lands are held in the two Provinces, and by restraining Freeholders in Lower Canada, holding lands by conveyance, from voting, until their titles are registered, as in the Upper Province. The introduction of the laws of England, and the use of the English language in all Legislative and Judicial proceedings should also be insisted upon; and lastly, it should be stipulated as a sine qua non on the part of this Province, that the place selected for the seat of Government should be within its limits. Your Committee are sensible that there are many serious difficulties in the way of carrying the measure of the union into effect, in a satisfactory manner, arising from difference of religion, laws, language and general habits, in the two Provinces, but they believe these may be overcome, and general satisfaction in the end attained, by rendering them truly British Colonies, by the gradual influence of the changes necessary in the Institu- tions of Lower Canada, and the more general diffusion of education among the inhabitants. ****** 4th. The next measure which your Committee consider it necessary to remark upon, is the annexation of the Island of Montreal to Upper Canada, 1 which though last in their enumeration, they regard as far the most to be desired for the interests of this Province, and as they believe, for the benefit of the great body of the people in both Colonies. With respect to the claim of right on the part of Upper Canada to a Seaport, it may be fairly asserted, that no single argument or just reason can be urged against it. The division of the Provinces of Upper and Lower Canada in 1791, which left this Province without an independent outlet to the ocean, was unquestionably a great political error, and has been the cause of difficulties and dissentions between the two Colonies, that have led to much mischief and even estrangement, that would not otherwise have happened. The motive for the division, as has been stated in a preceding part of this report, was a generous regard for the feelings and prejudices of the inhabitants of Lower Canada, and it is probable that as provisions had been made for the ultimate payment of the expenses of the Civil Government of both Provinces, by the duties imposed by the Act of 14 Geo. 3, chap. 88 1 , that the question of revenue (always a delicate and intri- cate one), did not appear likely to create the embarrassments that have since occurred. The period, however, has arrived, when the condition of both Pro- vinces imperatively requires, that the error committed should be repaired, and with the utmost possible promptness. Upper Canada has now attained a population of 450,000 souls, and its increase within the last few years has been such as clearly to shew, that in a very short time it will number as many inhabitants as there are now in the Lower Province ; and that pro- ceeding in a like ratio of increase, it will soon outstrip the Sister Colony as greatly in population, as it already has in commerce and general improve- ment. It will not be considered as an exaggerated statement to assert, that four-fifths of the exports at the Port of Quebec, are supplied by Upper Canada that of the one thousand ships and vessels that annually enter from sea, nine hundred at least are supplied with freight from this 1 This proposal was frequently made during the contests between the two Provinces. No. XXVI. 1791-1840] Constitutional Documents of Canada. 451 Province and that our products constitute the chief articles of remittance made to the United Kingdom, in payment of the goods, imported and that of British manufactures, by far the greater portion brought to these Col- onies is consumed and paid for by Upper Canada. This statement of the comparative commerce of the two Provinces, founded on data which your Committee believe to be incontrovertible, in itself proves, that it is contrary to the plainest rules of justice, that all the Seaports through which this commerce flows, should be controlled by another Colony; but this is not the only evil of which this Province has to complain. The Legislature of Lower Canada has from time to time enacted laws and adopted regulations applying to the commerce of the Country, which have in effect greatly embarrased the trade of this Province such as imposing restraints in the export of its lumber, flour, potash, &c. and in some instances, by the levying of a direct tax, as in the case of emigrants from the United Kingdom (since expired) and on lumber passing down the St. Lawrence. The assumption of these powers has been objected to, and on different occasions protested against, by the Legislature of Upper Canada, as the unconstitutional exercise of power by one Colony to tax the productions of another, especially as in the instances mentioned, where the articles were merely in transitu to and from the Mother Country ; these remonstrances, however, have not been heeded by the Imperial Govern- ment, to whom they were addressed, and the Legislature of Lower Canada having ceased to exercise the functions for which it was created, redress from that quarter can no longer be expected. But by far the most painful motive for respectfully but earnestly urg- ing the immediate concession of the claim of this Province to a Seaport, independent of all other control, remains to be stated. Upper Canada confiding in the supremacy of the Institutions of both Provinces, and never supposing it possible that the state of anarchy into which Lower Canada has been thrown by the revolt of the disaffected there, and which so seriously affects every branch of commerce and all the sources of wealth and prosperity in both Provinces, could have occur- red, did not hesitate to incur a heavy debt for the accomplishment of internal improvements of vast magnitude and corresponding value and advantage to the country generally, fully relying on the continued increase of its revenue from imports at Quebec and Montreal, as well as its own internal revenue, to discharge the interest upon the loans contracted. It is now, however, sufficiently certain from the state of affairs in Lower Canada, that revenue from that quarter must be greatly diminished ; and in consequence Upper Canada finds herself reduced to the inevitable neces- sity of resorting to direct taxation, for the purpose of maintaining its faith with the public, unless it can obtain without delay, the concession of a plain and undeniable right, namely, a Seaport at which as in all other countries, the means of raising a revenue presents itself, free from the appearance of direct taxation, and where such a discrimination in the selection of articles for the imposition of duties can be made, as to cause whatever burdens may be created to fall on parties best able to bear them. Apart from the claim of right to a Seaport, which Upper Canada confidently and earnestly urges, your Committee conceive that in granting it, no portion of Her Majesty's subjects will have the slightest reason to complain of injustice. It is not asked for purposes of oppression, or to despoil any party of any single rip-lit that in equity belongs to them : on the contrary, every reflecting and dispassionate man must be convinced, that by the annexation of the Island of Montreal to Upper Canada, the ship navigation of the St. Lawrence would be immediately completed to that place that the improvement of the Ottawa, and other great channels of commerce, would be forthwith undertaken and carried into effect ; and that in short one of the most effectual and certain measures for restoring prosperity and contentment throughout the country, would be the instant compliance with this claim. Your Committee have no reason to doubt, indeed they have every reason to believe, that at least a large majority of the British population, 452 Constitutional Documents of Canada. [1791-1840 which the annexation of Montreal and the country lying south west of the Ottawa and the Chambly Canal, to Upper Canada, would bring within the influence of English Laws and English Institutions, would rejoice at the change that would be effected by the measure ; and it therefore remains with the Imperial Parliament to determine whether the entreaty of 450,000 loyal subjects in Upper Canada, to have a plain and indisputable natural right conceded to them, and the corresponding wishes of perhaps 50,000 of their fellow subjects of like character in Lower Canada, should be refused or for a moment neglected, upon the single ground (your Commit- tee can imagine no other) that the measure would be displeasing to a body of persons not exceeding one twentieth of the number of those who de- mand it persons, too, who have grossly and ungratefully forfeited all claim to indulgence, and who have proved themselves unworthy of retain- ing the ascendancy that has too long been intrusted to them. Your Committee have not hesitated, in remarking upon this all import- ant subject, to express themselves with firmness and decision not doubting but that our Gracious Sovereign and the Imperial Parliament will not ascribe the language they have employed to any factious or illiberal spirit, but to the single desire, with earnestness and sincerity, to point out the justice of their claim, and to prove that they are asking that which they know and feel to be their due, and which if withheld from them must be attended with the most disastrous consequences to their future peace and prosperity, and greatly diminish the value of these Provinces to the Bri- tish Crown. Having thus suggested their views upon the leading questions which they believe require consideration, in the adoption of measures for the restoration of these important Colonies, to a situation in which they may recover from the disastrous effects of recent rebellion, your Committee will advert to a very few points, not necessarily connected with either of the remedial measures remarked upon, but which in their opinion, are of importance in themselves, as tending to the strengthening and continuing of their connection with the Parent State. 1st. In the first place, it must now be manifest, that whatever policy may be adopted with respect to Lower Canada, whether by herself or in connection with any other Colony, an adequate Civil List must be provided, for the maintenance of the Civil Government, and the efficient administration of justice. Your Committee indeed have little hesitation in saying, that the relinquishment by the Crown of the power of paying its public servants, independently of an annual vote of the Assembly, is one, and probably the chief cause to which the recent rebellion in Lower Canada may be ascribed. 2nd. The granting of large sums of money upon the Address of the Assembly, at the commencement of each Session of the Legislature in Lower Canada, and which were asked for under the pretence that they were required to pay the necessary contingencies for carrying on the busi- ness of the House, when in fact it was well known that they were (at least to a large extent) to be employed in paying salaries to members of the Bri- tish Parliament, who did not hesitate to prostitute the high station they occupied to the promulgation of slander and falsehood against the local authorities, to gratify the malignant spirit of traitors was not only illegal and unconstitutional, but has, as is now too apparent, been productive of the most pernicious consequences, in corrupting the moral feeling of the people of that Province, and in giving encouragement to that spirit of re- volt, which has at length exhibited itself in open rebellion. ****** 3rd Your Committee now beg leave to draw the attention of your Honorable House to a subject to which they attach very great importance, and which is suggested in some degree by the observations contained in the preceding paragraph, viz. the representation of the North American Col- onies in the House of Commons, by Members chosen by themselves. The concession of this important point on the part of the Parent State, would, 1791-1840] Constitutional Documents of Canada. 453 your Committee are convinced, be attended with numerous and incalculable advantages. In the first place, it would strengthen the link that now binds the loyal inhabitants of these Provinces to the Mother Country, by giving to them a share in the deliberations of the Councils of the Kingdom by rendering more distinct and obvious the common interest that unites them, and by shewing that they are in reality a part of that Great Empire in which yet centres the hopes of mankind, for the preservation and protection of the civil and religious liberties of the world; their patriotic and praise- worthy pride would be encouraged, and their station would be exalted in their own estimation, as well as in that of the British Nation. In the next place, it would place within the reach of the Imperial Government and Parliament, the best and most satisfactory means of obtaining information upon subjects connected with the trade and general interests of these vast valuable and powerful Colonies. And among many other advantages that might be enumerated, it would supersede all pretence for continuing the baneful and unconstitutional prac- tice of employing agents, by whatever faction might be uppermost in the Representative branch of the Assembly of the respective Colonies, and afford opportunities for repelling the false and unauthorized statements of such Members of the House of Commons, as might venture upon declaiming upon the character and feelings of a people, who abhor their political senti- ments, and whose notions of Government are utterly at variance with those entertained by unauthorized and ignorant intermeddlers in their affairs. Should this suggestion be adopted by your Honorable House, and, ai your desire, by the Imperial Parliament as your Committee earnestly hope it may; they offer it as their opinion, that the representation of the Col onies should be limited to two from each of the Provinces of Upper and Lower Canada, Nova Scotia, and New Brunswick, and one from each of the Islands of Newfoundland and Cape Breton that they should be elected in joint Assembly by the Legislative Councils and Houses of Assem- bly of each Colony, at the commencement of every new Assembly, and continue Members for six months after the dissolution of the Assembly of the Colony for which they were elected. 4th. The next suggestion to which your Committee beg to draw the attention of your Honorable House, is the necessity (now too painfully obvious) of keeping up a respectable military force within both Provinces. ****** 5th. Your Committee feel that the duty that has been assigned to them by your Honorable House, would be imperfectly performed if they omitted notice of the inefficiency imputed by a large class of the most intelligent of our fellow subjects, to that department of Her Majesty's Government in England, to which the administration of the affairs of the Colonies are entrusted. In the observations your Committee may offer on this head of their enquiry, they cannot too distinctly disclaim any design to place on record a word or sentiment, that is not dictated by the single feeling of patriotism, and in that light they have no doubt your Honourable House will receive their opinions, and if adopted, transmit them to our Sovereign It appears to your Committee, that one of the chief causes of dissatis- faction with the administration of Colonial affairs, arises from the frequent changes in the Office of Secretary of State, to whom the Colonial Depart- ment is entrusted. Since the time the late Lord Bathurst retired from that charge, in 1827, your Committee believe there has been not less than eight Colonial Ministers, and that the policy of each successive Statesman has been more or less marked by a difference from that of his predecessor. This frequency of change in itself, almost inevitably entails two evils. First An imperfect knowledge of the affairs of the Colonies, on the part of the Chief Secretary, and the consequent necessity of submitting the direction of important details to the subordinate Officers of the Department ; and second the want of stability and firmness in the general policy of the Government, and which of course creates much uneasiness on the part of the Governors and other Officers of the Colonies, as to what measures may be approved. 454 Constitutional Documents of Canada. [1791-1840 But undoubtedly by far the greatest objection to the system is the impossibility it occasions, of any Colonial Minister, unaided by persons possessing local knowledge, becoming acquainted with the wants, wishes, feelings and prejudices, of the inhabitants of the Colonies, during his tem- porary continuance in office, and of deciding satisfactorily upon the con- flicting statements and claims that are brought before him. A firm, unflinch- ing resolution to adhere to the principles of the Constitution, and to main- tain the just and necessary power of the Crown, would do much towards supplying the want of local information ; but it would be performing more than can be reasonably expected from human sagacity, if any man, or set of men, should always decide in an unexceptionable manner, on subjects that have their origin thousands of miles from the seat of the Imperial Government where they reside, and of which they have no personal know- ledge whatever, and therefore wrong may be often done to individuals, or a false view taken of some important political question, that in the end, ma^ throw a whole community into difficulty and dissention ; not from the absence of the most anxious desire to do right, but from an imperfect knowledge of facts upon which to form an opinion. To these objections it may be answered, that although the Chief Sec- retary of State retires with a change of Ministers, the Under Secretaries (or at all events one of them), and the other subordinate Officers of the Department, remain and hold their offices permanently, and therefore infor- mation upon all subjects can be readily imparted to the superior by the gentlemen who are thus retained, and it may be admitted, that the know- ledge of this fact ought to lessen the force of the objections that rest on other grounds ; but it cannot be disguised that there is a growing impatience and unwillingness on the part of Colonists, especially in these extensive Provinces, to have the measures of Government, whether connected with their general system of Government, Legislation or patronage, controlled by persons who are utter strangers to them, not responsible in any way to themselves, or to the British Parliament, and who perhaps being advanced to their office from length of service, or other like cause, are not regarded as competent (perhaps unjustly) to manage and direct measures which they (the Colonies) deem of vital importance. Much of this feeling may be traced to pride but it is a pride that springs from an honorable and laudible feeling, and always accompanies self-respect, true patriotism, and love of country, and it therefore ought not to be disregarded, nor should any attempt be made to lessen or control it, if it were possible to do so. But the imperfection that exists in the system of Colonial Government that prevails in England, is rendered more apparent by the want of that confi- dence that ought to be reposed in the distinguished Officers who from time to time are commissioned as Governors to different Colonies, than by any other fact that can be distinctly pointed out. If the statements publicly made, and uncontradicted, be true, there are few Colonies from which Governors distinguished for eminent abilities and high character, have not been within a very short' time withdrawn, or who have not been compelled to resign their office, in consequence of some disagreement with the Colonial Secretary; but as your Committee are not possessed of any official information upon which they can venture to re- mark, on the causes of these disagreements in other Colonies, they will confine themselves to a mere reference to the recall of Sir John Colborne, and Sir Francis Head, in this Province, and they lament that there is too much reason to adopt the sentiments expressed by the other branch of the Legislature, that the connection of each of these distinguished Officers "with the Government of this Colony has seemed incapable of being pro- tracted, with satisfaction to themselves, beyond the period when it became evident that no submission would be made by them to a spirit of factious discontent, which nothing can appease but the destruction of British rule." But your Committtee forbear adding anything to the opinion they have already expressed in a previous part of this report, of the policy and jus- tice of these removals, further than to declare, that the measures lately taken with respect to this Province, and which have resulted in the resigna- 1791-1840] Constitutional Documents of Canada. 455 tion of the Government by Sir Farncis Head, have more than ever estab- lished the conviction, that to ensure confidence in the wisdom and justice of Her Majesty's Government, some change must be effected in the admin- istration of the affairs of the Colonial Department Your Committee conceive that this all important object would be best attained by first, granting representation to the more important Colonies in the British House of Commons, as has already been suggested; second, by placing the administration of the Colonial Department in the hands of a Board, to be composed of a President (who being a Cabinet Minister may be removable on a change of administration of the Government), assisted by gentlemen of known probity and talent, selected, if not altogether, at least in part, from the Colonies, and who should retain their offices, not- withstanding a change of Ministry : and, third, having selected gentlemen of undoubted ability and integrity, to fill the office of Governor, to extend to them a liberal and generous share of confidence to rely upon their honor, and follow their suggestions, and not deprive them of office so soon as they are found to differ with, or are unreasonably complained against by the faction that happens to be in the ascendant in the Assembly or put of it. Had this confidence been accorded from the time of Lord Dalhousie's administration to the present day, your Committee have no hesitation in declaring it to be their firm belief, that the hideous rebellion that has broken out in Lower Canada would never have occurred. ****** All which is respectfully submitted. HENRY SHERWOOD, Chairman. Committee Room, House of Assembly, February 8th, 1838. cxxx LORD DURHAM TO LORD GLENELG 1 [Trans.: Imperial Blue Books Relating to Canada (1839). Vol. X.] Castle of St. Lewis, Quebec, August 9, 1838. My Lord, The information which my residence here has enabled me to obtain as to the condition of the two Canadas is of such a nature as to make me doubt whether, if I had been fully aware of the real state of affairs in this part of the world, any considerations would have induced me to undertake so very difficult a task as is involved in my mission. I do not, however, wish it to be understood that I consider success impossible. On the con- trary, I indulge in a hope that if the difficulties and dangers that are now so apparent to me are appreciated by Her Majesty's Government, so as to lead to their adoption of measures sufficiently comprehensive and decided to meet the emergency, the objects of my mission may be accomplished. My sole purpose, therefore, in adverting to circumstances which threat- en a different result is to impress upon your Lordship my own conviction, which has been formed by personal experience, that even the best informed persons in England can hardly conceive the disorder or disorganization which, to the careful inquirer on the spot, is manifest in all things per- taining to Government in these colonies. Such words scarcely express the whole truth; not Government merely, but society itself seems to be almost dissolved; the vessel of the State is not in great danger only, as I had been previously led to suppose, but looks like a complete wreck. It is needless to point out the wide difference between this representa- 1 Durham succeeded Gosford as Governor-General, but when he arrived in Canada in May, 1838, he had large additional powers as High Commissioner. See Lucas, Lord Durham's Report, I., pp. 106 ff. 456 Constitutional Documents of Canada. [1791-1840 tion and the opinions on the subject which were, and probably still are, held by Her Majesty's Ministers; but since one who had the benefit of whatever information they possessed is nevertheless compelled to acknowl- edge that the truth, as it now appears to him, differs so much from his previous conceptions of it, what can he infer but that distance has pre- cluded them from acquiring an accurate knowledge of the whole subject? This is my belief, and it becomes, therefore, an imperative duty on my part to convey to your Lordship the exact impressions which I have derived from personal inquiry and observation. I will not shrink from the per- formance of that duty. On the present occasion, however, I propose to confine myself to a particular class of circumstances ; that is, to those which relate to the Lower Province, and are of the most unfavourable character; my object in making such a selection being to state without reserve, in a separate despatch, certain facts and opinions, as to which, as coming from me, it is most inexpedient that any publicity should be given for the present : this despatch will therefore be marked "Secret". The first point to which I would draw your attention, being one with which all others are more or less connected, is the existence of a most bitter animosity between the Canadians and the British, not as two parties holding different opinions and seeking different objects in respect to Gov- ernment, but as different races engaged in a national contest. This hatred of races is not publicly avowed on either side : on the contrary, both sides profess to be moved by any other feelings that such as belong to difference of origin ; but the fact is, I think, proved by an ac- cumulation of circumstantial evidence more conclusive than any direct testimony would be, and far more than sufficient to rebut all mere asser- tions to the contrary. If the difference between the two classes were one of party or principles only, we should find on each side a mixture of persons of both races, whereas the truth is that, with exceptions which tend to prove the rule, all the British are on one side, and all the Canadians are on the other. What may be the immediate subject of dispute seems to be of no consequence; so surely as there is a dispute on any subject, the great bulk of the Canadians and the great bulk of the British appear ranged against each other. In the next place, the mutual dislike of the two classes extends beyond politics into social life, where, with some trifling excep- tions again, all intercourse is confined to persons of the same origin. Grown-up persons of a different origin seldom or never meet in private society; and even the children, when they quarrel, divide themselves into Frnch and English like their parents. In the schools and the streets of Montreal, the real capital of the province, this is commonly the case. The ' station in life, moreover, of an individual of either race seems to have no influence on his real disposition towards the other race ; high and low, rich and poor, on both sides the merchant and the porter, the seigneur and the habitant though they use different language to express themselves, yet exhibit the very same feeling of national jealousy and hatred. Such a sentiment is naturally evinced rather by trifles than by acts of intrinsic importance. There has been no solemn or formal declaration of national hostility, but not a day nor scarcely an hour passes without some petty insult, some provoking language ,or even some serious mutual affront, occurring between persons of British and French descent. Lastly, it ap- pears, upon a careful review of the political struggle between those who have termed themselves the loyal party and the popular party, that the subject of dissension has been, not the connexion with England, nor the form of the constitution, nor any of the practical abuses which have affected all classes of the people, but simply such institutions, laws, and customs as are of French origin, which the British have sought to over- throw and the Canadians have struggled to preserve, each class assuming false designations and fighting under false colours the British professing exclusive loyalty to the Crown of England, and the Canadians pretending to the character of reformers. Nay, I am inclined to think that the true principles and ultimate objects of both parties, taken apart from the ques- 1791-1840] Constitutional Documents of Canada. 457 tion of race, are exactly the reverse of what each of them professes, or, in other words, that the British (always excluding the body of officials) are really desirous of a more responsible Government, while the Canadians would prefer the present form of Government, or even one of a less democratic character. I shall have more to say on this head presently, having mentioned the subject here only for the purpose of citing another fact which tends to prove the existence of a deep-rooted national sentiment on both sides. Such a contradiction between the real and avowed prin- ciples of each party could not have occurred if all the people had been of one race, or if every other consideration had not given way to the sentiment of nationality. This general antipathy of the Canadians towards the British, and of the British towards the Canadians appears to have been, as it were, pro- vided for at the conquest of the province, and by subsequent measures of the British Government. If Lower Canada had been isolated from other colonies, and so well peopled as to leave little room for emigration from Britain, it might have been right at the conquest to engage for the preser- vation of French institutions, for the existence of a "Nation Canadienne" ; but, considering how certain it was that, sooner or later, the British race would predominate in the country, that engagement seems to have been most unwise. It insured such a strife as has actually taken place; for, notwithstanding the division of Canada into two provinces, for the purpose of isolating the French, the British already predominate in French Canada, not numerically of course, but by means of their superior energy and wealth, and their natural relationship to the pov/ers of Government. It w^s long before the Canadians perceived that their nationality was in the course of being over-ridden by a British, nationality. When the Constitutional Act bestowed on them a representative system, they were so little conversant with its nature, and so blind to the probable results of British emigration, that they described the constitution as a "machine Anglaise pour nous taxer," and elected to the House of Assembly almost a majority of Englishmen. But with the progress of British intrusion they at length discovered, not only the uses of a representative system, but also that their nationality was in danger; and I have no hesitation in asserting that of late years they have used the representative system for the single purpose of maintaining their nationality against the progressive intrusion of the British race. They have found the British pressing upon them at every turn, in the possession of land, in commerce, in the retail trade, in all kinds of industrious enterprize, in religion, in the whole administra- tion of government, and though they are a stagnant people, easily satisfied and disinclined to exertion, they have naturally resisted an invasion which was so offensive to their national pride. The British, on the other hand, impeded in the pursuit of all their objects, partly by the ancient and barbarous civil law of the country, and partly by the systematic opposition of the Canadians to the progress of British enterprize, have naturally sought to remove those impediments, and to conquer, without much regard to the means employed, that very mis- chievous opposition. The actual result should have seemed inevitable. The struggle between the two races, conducted as long as possible according to the forms of the constitution, became too violent to be kept within those bounds. In order to preserve some sort of government, the public revenue was disposed of against the will of the Canadian people represented by their Assembly. The consequent rebellion, although precipitated by the British from an instinctive sense of the danger of allowing the Canadians full time for preparation, could not, perhaps, have been avoided; and the sentiment of national hostility has been aggravated to the uttermost, on both sides, by that excessive inflammation of the passions which always attends upon bloodshed for such a cause, and still more by this unusual circumstance that the victorious minority suffered extreme fear at the beginning of the contest, and that the now subdued majority had been led to hope everything from an appeal to force. There seems to me only one modification of this view of the subject. 458 Constitutional Documents of Canada. [1791-1840 The employment by the Canadians of constitutional and popular means for their national purpose, has taught some of them, consisting chiefly of the most active and able, higher political views than such as belong to the question of nationality. These men are not at heart friendly to the bar- barous institutions of their ancestors, but would readily adopt a more enlightened system, if they could do so without losing their own importance. Their necessary dependence on the prejudiced mass has alone restrained them from joining in many of the views for the improvement of the coun- try which are entertained by the British. They have also learned to estimate the practical abuses of Government which affect all classes, and to wish for many reforms without reference to Canadian nationality. They even had, to some extent, succeeded in disseminating their opinions amongst the mass of their countrymen, and they are not unlikely to play a valuable and distinguished part under any new system of government that may put an end to the strife between hostile races ; but unfortunately, their number is so small as scarcely to affect my opinion of the temper of the Canadian people. Supposing my view of that subject to be correct, your Lordship will readily understand that the bulk of the Canadian people are as disaffected as ever, and that the British part of the population regard the Canadians with vindictive jealousy. The Imperial Government is distrusted by both parties ; by the Canadians because they fear, or rather expect in gloomy silence, that advantage will be taken of their late rebellion to remove the very causes of dissension, by giving a British character to the institutions and laws of the province, so that there shall no longer be any serious im- pediment to British colonization and enterprize ; and by the British, on the other hand, because they doubt whether the Imperial Government will ever sufficiently understand the state of parties here, to approve of the great changes which must inevitably take place, if another period of legis- lative strive, and perhaps another rebellion, are to be averted. And here I must notice a fact of great importance. The more discern- ing of the Canadians are perfectly aware that if the authority of the United States should ever extend to this country, whether by means of war or of a peaceful union, the peculiar institutions, and even the language, of French Canada would be extinguished as soon as possible, yet are they willing, with the exception perhaps of a considerable portion of the clergy, to incur the loss of all that they have held most dear, in order to gratify the sentiment of vengeance that has now got possession of them. I would not exaggerate the amount of the sacrifice that they are willing to make for the sake of revenge. It is right to add, therefore, that, in my opinion, they almost despair, come what may, of preserving those ancient usages and that distinct nationality, in defence of which they have struggled so many years. But be this as it may, whether they are moved by a sentiment of mere vengeance, or by revenge mixed with despair, I am well convinced that an American invasion of this province would be highly acceptable to most of them. Satisfied of the disaffected temper of the Canadians as a people, I have naturally taken pains to acquire correct information as to the state of feeling in the United States as respects these colonies and the mother country. All reports concur in assuring me that the present government of the Union, and a vast majority of the American people, are decidedly adverse to a rupture with England. Having already conveyed this assurance to your Lordship, I need not dwell upon it here ; but there are points in the state of American feeling towards these colonies, and especially near the frontier, of so much moment as to require particular notice. In the first place, although some persons in the States, and the more so if they have visited this country, are aware of the true nature of the late rebellion, it is a common opinion in America that the contention in this province has been between the executive government on the one hand, supported by a minority, and the majority of the people, without distinc- 1791-1840] Constitutional Documents of Canada. 459 tion of race, on the other; and that the subject of disagreement has been, practical grievances and general principles similar to those which formed the matter of dispute between England and her old colonies in America. As their fathers rebelled in defence of those old English charters of local self-government, which placed local taxation and revenue at the sole disposition of popular assemblies, so they think that the Canadian majority was justified in withholding supplies, and in resisting by force the violation of their constitution by the British Parliament. They believe, in a word, that the majority in Lower Canada has con- tended for the maintenance of popular rights, and that arbitrary govern- ment is the aim of the minority. The mistake is easily accounted for: it is only on the spot that one learns how the subject of strife in Lower Canada has been a question of nationality ; everywhere else, the false professions and designations employed by both parties, combined with the plain fact that the contest has been between a majority and a minority, is apt to mis- lead the inquirer, by keeping out of view the distinction of races. If the whole subject were understood by Americans, they would probably sym- pathize with those who are of the same origin as themselves, who resemble them in numerous particulars, and who seek objects which, if this country were under American rule, would be unhesitatingly accomplished, as similar objects have been attained in the Dutch colony of New York, and the French colony of Louisiana. There is no people under the sun to whom the feudal institutions and most defective civil laws of the Canadians would be more intolerable, than to the Anglo-Saxon race of the United States. But they have misunder- stood the case. They have fallen into the not uncommon mistake of con- founding means with ends. Believing that the means employed by the Canadians, in the Assembly, were constitutional and popular, and seeing that the British, being in a minority, necessarily clung to the local executive and the imperial authority; above all, regardless of the accident (for so it may be termed with respect to the question of nationality) by which the Canadians happen to constitute a majority, Americans have supposed that the objects of both parties in the colony were of the same nature respec- tively, as the means on which each party has relied. An ever active senti- ment of national pride is, perhaps, the most remarkable feature in the American character. It might have been foreseen, therefore, that the Americans, proudly recollecting the origin and progress of their own revolutionary war with England, should sympathize with the Canadians or rather with the majority, who happen to be Canadians. Whether they may ever comprehend the false position assumed by both parties in this colony, I will not venture to predict ; but so long as their view of the subject shall remain unchanged, they will, I believe, continue to sympathize with that side which has the air of contending for democratic principles and popular objects, and to wish that it may prevail over the other, which appears in the light of an oppressive minority. Secondly: Having regard to the national pride of America, it is certain that the temper and tone of the British party towards that country tends to stir up angry passions throughout the Union, and especially near the frontier, where articles from the colonial newspapers are generally re- printed. Hitherto the national pride of America has not been deeply wounded by these means (and I do all in my power to mitigate the national influence of such affronts to it) ; but I am credibly informed that these unceasing attacks have not been without effect, and that they form a subject of growing irritation. Thirdly: By the existence of a state of things out of which it is easy to see that war might spring, the American mind becomes more and more familiar with the idea of war. Differing as the Americans do, from all other nations, in the universal diffusion of an active interest in public affairs, and in a habit which belongs to all ranks, of calculation as to the future, they are led, by the political state of these provinces, to discuss the subject of war hypothetically, if I may use the expression; they are reminded of the events of the last war, and one of them in particular, the 460 Constitutional Documents of Canada. [1791-1840 capture of Washington, which inflicted a deep wound on the national pride, and by frequently conversing on such exciting topics, they gradually approach that state of feeling under which the government, necessarily impelled by the people, would find it hard to maintain friendly relations with England. Fourthly: It is not to be denied that the distracted state of these colonies occasions no little inconvenience to the frontier states, and to the federal government ; it calls for an increase of the army, a sort of military array on the frontier, and the exercise of new powers by the executive, which are opposed to the habits, if not to the institutions, of the American people. All the expense and annoyance are attributed to the British Gov- ernment. A dispassionate American admits that his povernment is bound, at whatever cost, to prevent aggressions on the Canadian frontier, and he does not deny that the obligation has been inadequately fulfilled ; but when reminded of the inefficiency of the laws for that purpose, and the weakness of the American executive, he answers that the true source of every diffi- culty is the weakness of the British Government in Canada, which has not maintained order amongst its own subjects, nor is able to protect the United States from such a nuisance as arises from the conduct of British refugees within their territory. This retort, without stopping to examine its justice, suffices to show that, until order shall be restored in these colonies, a great cause of irritation in America will probably continue to operate with increasing force. Fifthly: The boundary question, being much mixed, as it unavoidably is in America, with considerations arising out of the state of these colonies, forms a more active element of hostile feeling than would otherwise have been the case. Lastly: It is certain that, amongst the frontier population of the United States, which, I should observe, has very greatly increased since the last war, there exists a numerous body of men, young, active, energetic, and self-relying, who, from various motives, long for an opportunity of invading Canada. Some of them are moved by an opinion, which it would not be easy to question, that if these colonies were laid open to American enterprize, a great impulse would be given to the industry and trade of that part of the States which now constitutes the frontier; some are in- fluenced by one or other of the circumstances to which I have already adverted ; some by that love of adventure merely which belongs to the American character; and some by a reasonable calculation of the gain and distinction which, in troubled times, usually fall to the most active and daring. The manner in which these people talk of invading the Canadas exemplifies the self-reliance of American citizens. They do not expect that the federal government should open the way for them by military operations ; they even avow their belief that, in a contest of troops only, the British would surely prevail ; but they reckon upon the friendly dispo- sition towards them of great numbers on this side, and upon swarming over the line in such numbers, and at so many places simultaneously, as to get possession of the country in spite of military obstacles. I do not pre- tend to weigh such calculations, but state them as they have been reported to me. If I am not misinfornted, it is well that I should remind Her Majesty's Government of the invasion of Texas by a body of American citizens, who, without the least aid from their government, have seized an extensive country, defeated armies, got possession of the soil, and estab- lished themselves, as a nation, with constitutional government, a judicial system and municipal institutions as complete as any in America. There is certainly no immediate danger of such an attack upon these colonies ; and I have mentioned the subject only for the purpose of indicating the probable character of the contest that would take place here, if all the causes now in operation should finally produce one. It was in consequence of all these important considerations that, during my late residence on the American frontier, I courted the most unreserved communication with all respectable Americans, for the purpose of impressing them with a more sound and accurate conception of the real state of things, with a more 1791-1840] Constitutional Documents of Canada. 461 just appreciation of our system of government, and its real objects; and with a due sense of the danger which would arise to themselves, if their government remained a passive spectator of all these proceedings, tending as they did, to destroy all confidence in its executive strength, and all reliance on the national honour. I am happy to say that my efforts have been successful, that a great change has taken place in public feeling on the American side, and that my exertions to restore tranquility and good order are encouraged and sup- ported by the most influential portions of the press and of society in the United States. Except as it has been noticed for the purpose of explaining the temper of the Canadians, and one of the causes of irritation in the United States, a most important subject yet calls for your Lordship's attention; I allude to certain feelings and views of the British section of Her Majesty's subjects in this province. Your Lordship is already informed of the general satisfaction ex- pressed by the British party at my having, when I assumed the Government, avoided connecting myself with the old body of officials. It may be sup- posed that the body in question did not participate in that sentiment. I very soon became aware therefore of the existence of some difference between the official body and the British in general. Subsequent observa- tion has convinced me that, except in their common hostility to the Cana- dians, there is no sympathy between these two classes. That this should be the case is really not surprising when one dis- covers how all the powers of Government have been neglected and abused for many years past in this colony. Not to go further back than the com- mencement of serious differences between the Canadians and British as such ; since, when the two branches of the legislature have neglected their proper functions to pursue the contest between races, a long time has passed without anything like beneficial legislation, and not a few of the many evils resulting from this perversion of legislative powers have, by a very natural mistake, been attributed to neglect and corruption in the Executive. At the same time it must be confessed, that the Executive has been both neglectful and corrupt. I need not remind your Lordship of those flagrant instances in which the Imperial Government has been led to interfere for the correction of administrative abuses, nor is this a fit occasion for entering on that subject in detail; but I am bound to add, that the Government of this province, including the administration of justice, has not obtained the respect of the people, and that, according to all my information, there has been ample ground for the distrust and suspicion with which authority is regarded. This leads to another feature in the disposition of that portion of the British inhabitants which may be termed 'independent'. Their main object, as I have before explained, has been to remove the obstacles which the ignorance, the apathy, and the ancient prejudices of the Canadians opposed to the progress of British industry and enterprize ; to substitute, in short for Canadian institutions, laws and practices, others of a British character. In this pursuit they have necessarily disregarded the implied, not to say precise, engagement of England to respect the peculiar institu- tions of French Canada. But the Imperial Government, on the contrary never quite forgetting that ancient pledge, has rather extended its pro- tection to the Canadians than espoused the cause of the British settlers. It were to be wished, perhaps, that this policy had been consistently pur- sued from the beginning, as in that case a British community might not have grown up here with feelings, wants, and a degree of power which make it simply impossible to pursue such a policy now. But it has not been consistently pursued. By a variety of measures, and especially by pro- moting emigration to this colony, the Imperial Government have really undermined the Canadian nationality which they perhaps intended to pre- serve. A similar contradiction may be observed in their treatment of the national struggle which has ended in civil war. Never taking a decided part, with either section in the colony, they have wavered between them, 462 Constitutional Documents of Canada. [1791-1840 now favouring the one and then the other, but neither decidedly, and finally displeasing both sections in about the same degree. Under such a system, if it may be called one, no governor could have pursued a con- sistent course, or have attached either the Canadians or the British to the Imperial Government I should not permit myself to say this reproachfully, even if there were room for an accusation, which in my humble opinion there is not ; but I mention it as a necessary result of the original false step, and for the purpose of explaining the present disposition of the British party. Deeply offended at every measure or decision of the Imperial Government which thwarted their own British or Anti-Canadian views, they are also wanting in that respect for the supreme authority which is sometimes felt by the discontented subjects of a decided and vigorous Government. Re- strained (though not entirely) from the public expression of their senti- ments by a hope that the Imperial Government may yet accomplish the object on which their heart is set, they have no such reserve amongst themselves, nor do they at all care who knows of the language commonly held by them when speaking of the Imperial Government, and the connexion between this colony and the mother country. I am assured that the leaders and their followers, one and all, are in the habit of declaring, that rather than be again subject to the French (meaning, rather than see another majority of Canadians in the Assembly), they shall find a way to take care of themselves. I should be sorry to report any idle conversation upon such a topic, but have no doubt that language of this kind is commonly uttered with an earnestness of manner which should prove its sincerity. And this is not all : for the sentiments expressed are enforced by deliberate arguments, such as that, considering the exasperation of the Canadians produced by late events, there can be no permanent safety for people of British descent except by rendering the colony thoroughly British ; and that if the Imperial Government should not provide for the security of its British subjects, the time will soon be past for obedience to any other law than that of selt preservation. That such views are currently expressed amongst the British party, there can be no doubt; and I am the more disposed to believe them sin- cerely entertained, because, having reference to a future contingency, they are not inconsistent with those loud professions of loyalty and attachment to England by which the British minority has hitherto sought to enlist the Imperial Government against the Canadian majority. At present, of course, such views are merely speculative, everything being held in sus- pense by the large powers awarded to me, and by the hope of a happy settlement of affairs upon my recommendation. Notwithstanding, however, the very unfavourable representations con- tained in this despatch, I am induced to hope with confidence, that success may ultimately attend the measures with respect to this country which have been recently adopted by the Imperial Government. My principal reason for this assurance is drawn from the good effect already produced by decided and vigorous action. The exercise of the very extensive powers placed in my hands seems to have operated as a sort of charm, like oil poured upon troubled waters. At this moment all is still. A stranger would hardly believe that the country had been recently distracted by civil war. Expectation for the future, is, I trust, taking the place of angry passions occasioned by the past. I must, however, conclude by assuring your Lordship, that whatever hopes I entertain of the future, depend alto- gether on the supposition that Her Majesty's Government and Parliament will not shrink from the adoption of permanent measures of remedy and prevention, proportioned to the greatness of the difficulties with which I have yet to contend, and will sanction such measures as will effectually provide for the abstraction of all legislation on British interests from the control of a French majority. I am of opinion that this great object can be legitimately effected without violence to Canadian rights, and in strict accordance with the soundest principles of constitutional government 1791-1840] Constitutional Documents of Canada. 463 The time is fast approaching when I shall be enabled to bring these measures under the consideration of Her Majesty's Government; and in the meantime I recommend to their serious attention the important points to which I have referred in the present communication. CXXXI THE INDEMNITY ACT, 1838 1 (1 & 2, Victoria, c. 112). An Act for indemnifying those who have issued or acted under certain parts of a certain Ordinance made under colour of an Act passed in the present session of Parliament, intituled "An Acf to make temporary Provision for the Government of Lower Canada." 16th August, 1838. Whereas an Act was made this present session of Parliament, intituled 1 Viet., cap. 9. "An Act to make temporary provision for the Government of Lower Canada" : And whereas a certain law or Ordinance hath been made and published by the Governor of the said Province, by and with the advice and consent of the Special Council, bearing date the twenty-eighth day of June last, intituled "An Ordinance to provide for the security of the Pro- vince of Lower Canada," which Ordinance cannot be justified by law, but was so much intended for the Security of the said Province that it is expedient that all persons advising or acting under or in obedience to so much of the same as relates to the sending of certain persons to Bermuda, who are stated in the same to have made certain confessions, and to the subjecting such persons to restraint, should be indemnified by Parliament in the manner and to the extent herein-after provided for: Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and con- sent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, that all personal i n d emn it y for actions and suits, indictments, informations, and all prosecutions and pro- persons ad- ceedings whatsoever, which have been or shall be prosecuted or com- vising or act- menced in any Court or before any tribunal in any part of her Majesty's ofdinance^f Dominions, against any person or persons for or by reason of any act, the Governor matter, or thing advised, commanded, appointed or done in relation to the* 1 " 1 Council of premises before the proclamation of this Act in the said Province of Lower of'th^sth'of 3 ' Canada and in the Islands of Bermuda respectively, or elsewhere, in man- June last, ner hereinafter provided, be, are, and shall be discharged and made void by virtue of this Act ; and that if any action or suit shall be prosecuted or commenced against any person or persons for any such act, matter or thing so advised, commanded, appointed, or done, he, she, or they may plead the general issue, and give this Act and the special matter in evidence ; and if the plaintiff or plaintiffs in any action or suit so to be prosecuted or commenced, except in that part of Great Britain called Scotland, after the first day of October next, shall become nonsuit, or forbear further prose- cution, or suffer discontinuance, or if a verdict pass against such plaintiff or plaintiffs, the defendant or defendants shall recover his, her or their double costs, for which he, she or they shall have the like remedy as in cases where costs by law are given to defendants ; and if any such action or suit as aforesaid shall be commenced or prosecuted after the first day of October next in that part of Great Britain called Scotland, the Court before whom such action or suit shall be commenced or prosecuted shall allow to the defender the benefit of the discharge and indemnity hereby 1 This Act was passed to indemnify those who had any share in issuing or acting under Lord Durham's Ordinance of 28 June, 1838 (Christie, V., pp. 166 ff.). For the history see Bourinot, Canada Under British Rule t pp. 136 ff. 2 See No. CXXVIII. 464 Constitutional Documents of Canada. [1791-1840 This Act to be proclaimed in Lower Canada and Bermuda re- spectively. provided, and shall further allow to him his double costs of suit in all such cases as aforesaid. II. And be it enacted that this Act shall be proclaimed in the said Province of Lower Canada and in the said Islands of Bermuda by the Governor, or by the person authorized to execute the Commission of Gov- ernor of the said Province and of the said Islands respectively, forthwith after he shall have received a copy of the same from one of her Majesty's Principal Secretaries of State. CXXXII LORD DURHAM TO LORD GLENELG [Trans. : Imperial Blue Books Relating to Canada, 1839. Vol. X.] (EXTRACT OF A DESPATCH FROM EARL OF DURHAM, G.C.B., TO LORD GLENELG) Dated Castle of St. Lewis, Quebec, 16 October, 1838. In my despatch (No. 68) which announced my intention of returning to England at an early period, for the purpose of resigning my commis- sions 1 , I explained the grounds on which I had formed that decision after mature deliberation. I felt that the moral power of my government was so completely destroyed, and the difficulties of my position so greatly aug- mented by the proceedings of Her Majesty's Ministers and the Imperial Parliament, that the attempt to conduct the government of these provinces on better principles than those which have hitherto been adopted was one which must be made by other hands than mine. I grieve to find that I did not by any means exaggerate the probable effect which would be pro- duced on the public mind on this continent by the occurrences in England. In the course of one week I have found the tone of the British inhabitants changed from the loudest professions of loyalty and attachment to the connexion with the mother country to a calm anticipation and discussion of the chances and consequences of separation. From the same mouths that a short while ago expressed the most passionate resentment of wrongs sup- posed to have been received from the people of the United States, I hear significant approval of the course which I have all along taken to conciliate the good-will of a kindred people, whose sympathies with the English race it is judged politic to cultivate. I have been startled at the rapid growth of this dangerous state of mind ; and when the mass of the British population of this city were assembled to present me with an address, expressive of the kindest feeling towards myself, and the strongest condemnation of the policy which severs the official connexion between us, I shrunk from any other than a formal and deliberate expression of my feelings, from fear lest an indiscreet word or gesture on my part, or any one of those unfor- seen accidents which carry large popular assemblies beyond the influence of human control, might lead to a general expression of the angry feeling that pervaded the excited numbers whom I beheld before me. A perfectly different feeling exhibited itself at first among the French Canadians. They naturally exulted in the victory which appeared to have been gained by those who put themselves forward as their especial advo- cates in the mother country, and the disaffected rejoiced at perceiving that the arm of authority was weakened. Since the receipt of the first news from home which might lead them to believe, on high authority, that I did not really possess the powers with which they once imagined me to be invested, I can have no doubt that the disposition to secret machinations 1 Duiham accidentally learned from an American newspaper of Sept. 19, 1838, that his Ordinance of June 28 had been disallowed. On October 9 he defended him- self in a proclamation, the tone of which so displeased the Colonial Office that he was recalled. His resignation had, however, been previously sent in, and the despatch recalling him did not reach Quebec before he sailed. On the history, see L. C. San- ders, Lord Melbourne's Papers (London, 1889), and W. M. Torrens, Memoirs of William, Viscount Melbourne (2 vols., London, 1878). 1791-1840] Constitutional Documents of Canada. 465 and preparations for insurrection, which had been for some time checked, has sprung into renewed activity; and though I do not feel much dread at the prospect of any unsupported attempts which the French population may make against the military force now in this country, I cannot doubt that there is now in existence an organization of the disaffected in this pro- vince, which may lend a most pernicious aid to any attack which may be made from without. I have already forwarded to your Lordship an address expressive of the feelings of the delegates from the lower provinces of British North America; and the accounts which I have recently had show that the same feelings have been generally expressed in those provinces in the calm manner in which their happy immunity from actual civil war enables their inhabitants still to express their political sentiments ; but throughout Upper Canada where the memory of recent suffering is fresh and vivid, and where the terror of near and visible peril constantly alarms the public mind, a more passionate and general feeling of regret and alarm has pervaded all classes. Unaccustomed to the state of feeling generated by actual insur- rection, I have been struck by the extent of that terror with which all parties and all classes see, in the disturbance of my policy, the harbinger of a winter similar in its political character to the last. The sudden unani- mity of all parties in that most divided province has been as alarming as extraordinary; for when those in power, and those who in attempting to snatch it from them advanced to the brink of rebellion, signed the same address, when the leaders of the reformers seconded the resolutions moved by the heads of the family compact, I could not but infer that an unanimity so strange must have been produced by the indication of sure and awful peril. Of what nature that danger is, the enclosed communications from Her Majesty's Ministers at Washington will inform your Lordship. I grieve to say, that all the information which I have received within these few days, from all quarters, confirms the alarming intelligence conveyed therein. I have no doubt that the numbers, means and projects of the conspirators are greatly exaggerated, but I have little doubt also, that there is a great reason to apprehend that there has been suddenly formed throughout the bordering states, among a population capable of such enterprises, a widely ramified conspiracy, bent on repeating in Canada the scenes of Texas, invading the British dominions with a horde of those lawless and daring adventurers, who are to be tempted by the promise of sharing in the plunder of private and public property in these ample and fertile provinces. It is of great importance that your Lordship and,your colleagues should know the present state of feeling, both in these provinces and in the neigh- bouring states, and that you should know it betimes. I take, therefore, the opportunity which is afforded me by the postponement of the Royal William's departure, to supply you, though in a hurried manner, with the information which has reached me. The mind of the British population throughout all the provinces has been deeply agitated by the prospect of a new change in the system of government. I am happy to be able to adduce the great number and the kind language of the addresses which I have received from all parts of the two Canadas, as proofs of the favourable feelings with which my policy has been regarded. Your Lordship must not imagine that I attach undue importance to documents so flattering to myself ; for I feel that these are expressions of a deeper and more serious feeling than any that regards my individual conduct or treatment. The expressions of regret at my resigna- tion, and of condemnation of the disallowance of my ordinance, proceed from those who disapproved of that part of my policy, just as much as from those who had most warmly supported it. The measures which I had adopted with a view to the disposal of the political prisoners had been a long time in operation ; and however freely they had been canvassed, however much a certain portion of the population had thought it ri^ht to censure them, that discussion had run its course, and all had acquiesced in ?. policy which they judged to be definitely adopted. The disturbance DD 466 Constitutional Documents of Canada. [1791-1840 of this settled policy by the acts of the home Government has been regretted and condemned, not more by those who most cordially approved of the particular course adopted by me, than by those who originally wished that I had acted with greater severity. Both equally condemn the precipitate interference, which has obviously been undertaken in utter ignorance of the state of these provinces. They see with dismay that the difficulties which my policy had succeeded in removing are again placed in the way of the Government; that the authority from which they expected at least vigour and steadiness is powerless to enforce its determinations and to maintain the course on which it has entered ; and that these unhappy pro- vinces are, during the trying emergencies which are generally anticipated, to be still subjected to the mischievous influence of that wavering and temporizing policy which has hitherto paralysed the efforts of their ener- getic and loyal inhabitants. Your Lordship will not be surprised to learn that regret is not the only feeling that has in consequence pervaded the British portion of the population, and that they have not beheld without anger their dearest in- terests thus made, as they express it, the sport of parties at home, who do not participate in either the danger or the desire to avert it. I have warned your Lordship, that the patience and the loyalty of our countrymen in these provinces may be tried overmuch; I have not been surprised, therefore, that their despair at the failure of that support which they had justly expected from home, has led them to think on what they can do for themselves ; but I do assure your Lordship that I was not prepared for the extent of the change which I cannot doubt that these events have produced in the public mind here. I am compelled abruptly to close this despatch, of the means of for- warding which, I received a very short notice. CXXXIII LORD DURHAM TO LORD GLENELG [Trans. : Imperial Blue Books Relating to Canada, 1839. Vol. X.] Castle of St. Lewis, Quebec, 20 October, 1838. My Lord, Since my despatch (No. 84) which I forwarded to your Lordship on the 16th inst, I have seen Sir John Colborne, and had the advantage of a good deal of communication with him on the present state of affairs. His information respecting the probability of serious disturbances during the ensuing winter, I am sorry to say, tallies very exactly with that which I have received from all quarters; and his opinion of the gloomy aspect of affairs is just as strong as that which I have lately endeavoured to impress on your Lordship. I am happy to say that the most perfect understanding continues to prevail between us. Looking on him as the person with whom the whole conduct and responsibility of the Government during the next six months will in all probability rest, I have thought it best for the public service that he should enter as speedily as possible on that course, by which he purposes to maintain the tranquility and the possession of these provinces. I have requested him at once to take whatever military precau- tions he may deem necessary for enabling him to carry out his own views for the security of the provinces, against foreign invasion, or internal dis- affection. He has readily availed himself of this offer, and is busily en- gaged in taking steps for calling out the volunteers and guarding the fron- tiers. The indications of mischief are so numerous and so urgent, that it is no longer possible to conceal, or advisable to attempt concealing, the consciousness of danger entertained by the Government ; its only course is openly and resolutely to proclaim and avert that danger. The early adoption of these measure of military precaution must of necessity entail 1791-1840] Constitutional Documents of Canada. 467 great expense on the Government. It will too clearly demonstrate to the province and to neighbouring states the melancholy condition of its internal and external relations; and it will in all probability produce a state of things in which the present exasperation of parties will be aggravated by fresh causes of irritation ; but these are evils which must be borne, if we mean to provide, as far as is in our power, for the retention of the two Canadas. While, therefore, I cannot but lament the necessity of them, I must approve the adoption, under existing circumstances, of these measures by the Commander of the Forces. The result of my communication with Sir John Colborne, as well as of fresh intelligence which I have received, has been a confirmation of the propriety of my relinquishing the government of these provinces. It is quite clear that at the present season it is useless for the Government to occupy itself with any schemes of extension and permanent amelioration. The sole object of its care must for the present be the retention of the province during the winter. As this must be attained by military means, the business of my pacific mission is, if not at an end, in abeyance; and it is best that for a while the civil and military authority of this province should be in the same hands. A civil governor here would, during the next six months, have no legitimate business, save that of rendering that sub- ordinate aid to the military authorities which will be better secured if the entire direction and responsibility be allowed to rest with the Commander of the Forces ; and this is also Sir John Colborne's view of the case. My only sphere of utility to these colonies must, I am more than ever con- vinced, be henceforth in the Imperial Parliament, where, if I can force on the knowledge of my countrymen the true state of these provinces, and the true policy to be adopted for their future good government, I may contri- bute towards rendering available the last opportunity which I believe will ever be afforded to Great Britain of maintaining an useful and honourable connexion with her possessions on the North American Continent. With this object in view, I think it my duty to return without any delay. I have therefore, with great regret, on public as well as private grounds, abandoned my intention of visiting the United States, where I hoped that my communications with the President might be of service. I now intend to sail from this port in Her Majesty's ship Inconstant, direct to England, on the 3rd of November. The nature and extent of the danger with which Sir John Colborne will probably have to contend, I endeavoured to point out to your Lordship in my despatch (No. 84), which I prepared at a few hours' notice, avail- ing myself of the postponed departure of the Royal William. Time and deliberation have not enabled me to supply your Lordship with more pre- cise information on the points on which I then touched, for the fresh intelligence which every day brings is of the same vague nature, and con- firms our belief in the existence of unknown perils, without informing us as to the time, the mode, and the extent to which we are to be exposed to them. There is great danger to be apprehended from the rapidly increasing familiarity with which the idea of separation from the British empire is expressed and canvassed by the British in these provinces. I do not mean to disparage their severly tried and well proved loyalty to the Crown and attachment to the British empire. Their preference of monarchical insti- tutions .their affection for the mother country, are as strong as ever; but their hope of maintaining either has been suddenly and materially weak- ened ; and in this state of feeling they naturally look with great anxiety to the form of government under which it is possible they may soon have to live, and to the connexions which they may be under the necessity of forming when the ties of their present dependence are severed. The chances and the desirableness of the different possible results are daily can- vassed among them ; their minds become familiarized with the thoughts, which a short time ago they held it a crime to entertain ; and however favourable the decision of their judgment may be, the strong feeling which 468 Constitutional Documents of Canada. [1791-1840 bound them to the British empire is weakened by the mere fact of its soundness becoming a matter of question. To what extent this feeling prevails, or how soon and in what form it may exhibit itself, it is impossible to say. It is one of no recent growth. Do not imagine, my Lord, that it owes its origin to my recall, or that it could be obviated by my retention of the government. Long lurking in the minds of even those inhabitants of these provinces in whom it had no! been openly manifested in the course of the late discontents and disturb- ances, it was in great measure removed by the apparent indications of a better policy, which were hailed in the appointment of a Governor armed with the extensive and sufficient powers which I was supposed to wield when I landed on these shores. This feeling has sprung into sudden and rapid growth from the hour in which the public mind was disabused as to the extent of my previously exaggerated powers by the weightiest authority in the British legislature, which deprived me of moral influence by assert- ing without contradiction, that I "possessed only the ordinary legal powers of a common Governor." From the same moment and from the same cause sprang the other feelings of which the wide diffusion among perfectly dif- ferent classes menaces even greater danger. The same cause called into renewed and vigorous action the hopes of the disaffected in both provinces. Of the designs of the disaffected within the Upper Province we know nothing. In this, the indications of conspiracy and dangerous designs are numerous and undeniable. A formidable organ- ization bound together by secret oaths and secret signs, undoubtedly exists, and extends over the French population, at least of the district of Montreal. The object of the oath does not appear to be specific; it merely binds the conspirators to be ready to obey whatever orders they may at any time receive from their chiefs. When this machinery is to be called into action does not appear. I am, on the whole, inclined to be of opinion, that there is nd intention of immediate outbreak in this province, unless in case of invasion from without; to that it is at all times ready to serve as a for- midable auxiliary ; but in the meantime it produces all the alarm which actual insurrection would occasion. Terrified by signs of this formidable and mysterious organization, and sometimes by secret menaces or warn- ings of murder and massacre, the loyal inhabitants of the country quit their exposed and isolated habitations, and either at first seek refuge in the towns, or at once secure their safety by quitting the British dominions. In both provinces alike this emigration, from utter insecurity of person and property, has taken place to an alarming extent ; and both provinces have thus been, to a great extent, deprived of the most valuable class of their inhabitants, of those whose peaceful energies contribute most to their improvement, and who most demand and deserve the steady protection of a parental government. The same cause has given life to the worst spirit among the bordering population of the United States, and extended, if not created, that for- midable secret combination, of which the existence has been announced to me, not only by a host of concurrent and consistent private communications, but by the most solemn warning which the government of the United States could give. I do not believe that this conspiracy is the result of that somewhat generous, but utterly misdirected, sympathy which last winter prompted our republican neighbours to interfere in behalf of a people whom they erron- eously imagined to be making a hearty struggle for liberty. It seems rather to result from the aspect of the weakness of the Government in these provinces, which has latterly been presented to the bordering population, and which offers to the ambition or avarice of the bold and lawless settlers of the American wilderness the ample and fertile lands which appear to invite occupation by the strongest. They think to repeat the conquest of Texas from a nobler foe, with proportionately greater means of aggression ; and if they know that they will have to contend with something more than a Mexican army, they count on an internal aid, which was not found in the solitary wilds of Texas. 1791-1840] Constitutional Documents of Canada. 469 That this is the nature of their views and plans I infer, not merely from the direct information which I have received, but from the fact that the first indications of these machinations were observed just at the period in which the first debates in the House of Lords convinced the ill-inten- tioned here, that they need not apprehend a vigorous and well-supported government in Canada. Such are the internal and external prospects of a country, respecting which, in my despatch of the 9th of August, I thus expressed myself: "The exercise of the very extensive powers placed in my hands seems to have operated as a sort of charm, like oil poured on troubled waters. At this moment all is still ; a stranger would hardly believe that the country had been recently distracted by civil war. Expectation for the future is, I trust, taking the place of angry passions occasioned by the past." This was, at the time, a true description ; I stated nothing but what correctly described the state of things in these provinces. I could not know that at that very hour events were passing at the other side of the Atlantic which would call into renewed and fearful activity the smothered embers of universal strife, and reverse the fair order of things which I had so diligently laboured to establish. CXXXIV LORD DURHAM TO LORD GLENELG [Trans. : Imperial Blue Books Relating to Canada, 1839. Vol. X.] Her Majesty's Ship Inconstant, at Sea, 10 November, 1838. My Lord, I have the honour to inform your Lordship that I had, on the morning of my departure for Quebec, an interview with Mr. Sheriff M'Donnell, who had arrived the night before from Kingston, Upper Canada, for the purpose of communicating to the government the alarming intelligence of the exist- ence of a great unwillingness on the part of the militia and volunteers of Upper Canada to tender their active services. Mr. M'Donnell informed me that the belief amongst them of the indif- ference of the British Government to their fate was so general, that they deemed it useless to make any exertions to maintain the connexion with the mother country. He also said that nothing but a declaration from me, of the intentions of the British Government having been misunderstood, would induce them to enrol themselves for the defence of the province this winter. I had no hesitation in assuring him that no trace of that indifference would be found in the measures adopted, or the precautions taken by the government over which I presided, and that I could not imagine the existence of a different feeling in the minds of the British Ministers. I trusted, therefore, that the same alacrity as was before manifested would be evinced by all classes in the Upper Province, in coming forward for the maintenance of the public security. Mr. M'Donnell stated himself to be perfectly satisfied with my declara- tion, and was to return to Kingston the same evening. I regret to state, with reference to this subject, that the feelings expressed by Mr. M'Donnell are also very generally entertained by the British population in Lower Canada. I have, etc. (Signed) DURHAM. 470 Constitutional Documents of Canada. [1791-1840 CXXXV REPORT OF THE COMMITTEE OF THE LEGISLATIVE COUNCIL OF UPPER CANADA ON LORD DURHAM'S REPORT [Trans. : Journals of Legislative Council of Upper Canada, App. G.G.] May 11, 1839. The Select Committee to whom was referred the Report 1 of the Right Honourable the Earl of Durham, Her Majesty's late Governor-in-Chief of British North America, Respectfully Submit the Following Report: In discussing the report of Her Majesty's late High Commissioner on the affairs of Upper Canada, your Committee are fully aware, that their observations cannot be understood by your Honourable House, as convey- ing any censure on Her Majesty's Commissioner, who commences by informing Her Majesty, that his information, respecting the state of Upper Canada, 2 had not been acquired in the course of his actual administration of the government of that Province, a fact to which the report itself bears ample testimony. His Lordship observes that, "it is very difficult to make out from the avowals of parties, the real objects of their struggles, and still less easy is it to discover any cause of such importance, as would account for its uniting any large mass of the people in an attempt to over- throw, by forcible means, the existing form of government." From the first part of this paragraph it appears, that the political parties into which the Province is said to be divided, have no very strong ground for com- plaint, otherwise some definite description thereof would doubtless have been given to his Lordship ; who, in the latter part of the same paragraph, insinuates that a large mass of the people of Upper Canada were desirous of overthrowing the government, a fact totally unknown in this Province, and already sufficiently refuted by the conduct of the people. His Lordship then informs Her Majesty, that Upper Canada "has long been entirely governed by a party commonly designated through the Province as the 'family compact,' " that, "there is in truth, very little of family connection among the persons thus united." Why then should his Lordship give his assistance in the dissemination of any such erroneous idea, as that title has been used to propagate? His Lordship does not appear to have under- stood, that the object of the Press in adopting the term of "family com- pact," as a name by which to designate "the Bench, the Magistracy, the holders of the high offices of the Episcopal Church, and a great part of the legal profession, the possessors of nearly the whole of the waste lands of the Province, the people all powerful in the charterd Banks, and sharing among themselves almost exclusively all offices of trust and profit," intend- ed to impress their readers with the idea, that a close family connection did exist among all the persons in authority throughout the Province, and that if it were not so understood the force of the epithet would be alto- gether lost ; for throughout his Lordship's Report "the family compact" is blazoned forth with studious pertinacity, although the inaptness of the title had been previously admitted. The High Commissioner next endeavours to show, that all persons of education, and more especially members of the learned professions, ought rather to settle in the United States than in Canada; a Surgeon, for in- stance, because he must show that he is duly qualified before he can be permitted to practise within this Province ; an Attorney, because he is not permitted to practise therein as a Barrister ; and a Barrister, because he is not allowed to act as an Attorney. Your Committee are of opinion, that in all these regulations the legis- lature has shown a proper and praiseworthy desire to prevent ignorant 1 The Report was officially communicated to Parliament on 11 February, 1838. 1 See Report, Vol. II (Lucas's Edition), pp. 145-193, where the report on Upper Canada is historically examined in the notes. 1791-1840] Constitutional Documents of Canada. 471 pretenders to medical and legal knowledge, disturbing the animal economy or social condition of Her Majesty's subjects. Then comes his Lordship's list of British grievances, which is altogether remarkable; he complains of the Banking system, in which he says the Canadian party are supreme (a large portion of the stock in the most ancient of the chartered Banks is, however, owned by persons residing in England) , and further asserts, that the influence of the Banks "is said to be employed directly as an instrument for upholding the political supremacy of the party" (Canadian) Your Committee happen to have the means of personally knowing, that the char- tered Banks have most studiously avoided political connection with all parties. 1 Your Committee find introduced as one of the grievances, "that under the system of selling land pursued by the government, an individual does not receive a patent for his land, until he has paid the whole of his purchase money." Why should a contrary course be pursued? That is not shown! The High Commissioner then wanders into Illinois, and gives a vivid description of the peculiar advantages to be derived by English folk, who may become domiciled in the republic. If indeed his Lordship had not qualified his opinions with the assertion that, "but few cases in which the departure of an Englishman from Upper Canada to the States, can be traced directly to any of these circumstances in particular," alluding to the British grievances before mentioned, your Committee would have sup- posed that the peculiar functions of Her Majesty's High Commissioner were not those detailed in his commission, the more especially, as these hitherto unheard of grievances are quoted as the cause of the decreased immigration from the Parent State; and throughout the Report, compari- sons are constantly drawn unfavourable to Her Majesty's possessions in North America. Your Committee having exposed a few of the inconsistencies in the first pages of his Lordship's Report, deem it unnecessary to enter more fully into its details, the conflicting character of which, as compared with his Lordship's other productions, is sufficiently set forth in the report of the Committee on the state of the Province, appointed by the House of Assem- bly: observing, however, that his Lordship sums up the Upper Canadian grievances in the great practical question of the Clergy Reserves. Your Honourable House, has, so recently, had this question under discussion, that your Committee refrain from any commentary on his Lordship's state- ments regarding it, but your Committee cannot avoid observing, that how- ever unintentional, his Lordship's remarks are evidently calculated to cast odium on the Established Church of England, which, like every other respectable body throughout the colony, has been constantly assailed by the party mis-named Reformers. Adverting, now, to his Lordship's great panacea for all political dis- orders, "Responsible Government," your Committee beg to observe, that a liberal minded Englishman, sincerely admiring the great principles of the British Constitution, would naturally be desirous of extending them, theor- etically and practically, to all people living under the dominion of the Crown ; and at the first view, would be apt to ascribe any evils which were found to exist in any portion of the Empire, to the absence of those poli- tical institutions, which he is bound to uphold in the administration of public affairs, in the metropolitan and supreme government. It is in this manner we must account for the adoption, at first sight, by many statesmen, of the principle, that the officers administering the government should be under the same popular control in colonies, as the like persons necessarily are in those societies, where powers of supreme legislation, by means of popular administration, are found to exist; but it is to the practical impossibility of preserving colonial relations on such a plan, that we must attribute the fact, that notwithstanding all the changes produced by the struggles of party, or the alternations of conservative or liberal politics in England, no statesman, armed with the authority, has, as 1 See Shortt, Early History cf Canadian Banking. 472 Constitutional Documents of Canada. [1791-1840 yet, attempted to introduce the principle of responsibility of government to the people, into the colonial system. After an attentive and disinterested consideration of this subject, your Committee are led to the conclusion, that the adoption of the plan pro- posed by the Earl of Durham, in which this is the prominent feature, must lead to the overthrow of the great colonial empire of England. The control exercised by the popular will, over the administration of affairs in Great Britain, and over the choice of persons by whom the gov- ernment shall be conducted, is founded, not upon theory, but upon the practical necessity of carrying on a' government according to the will of that power in the constitution, which, right or wrong, can most effectually control it. Simple responsibility of the executive functionaries, and their liability to answer for misdemeanors or mistakes, existed in England long before the popular branch of the legislature assumed its present powers ; and in fact, the trial and punishment of ministers, or in other words, their actual responsibility was much more frequently exhibited when the Sover- eign was independent of the people, than since the British constitution has been, by the necessities of the Crown, moulded into its present form. This latter responsibility the colonists have: it is now proposed to bestow on them the former. No one can be blind to the fact, that it is amongst those who advocate the doctrine, that colonies are useless and burdensome, that responsibility of the government to the people finds its warmest supporters. Lord Dur- ham holds a contrary opinion, and yet he advocates popular government ! That the colonial possessions of England are of immense importance, and essential to the continuance of her greatness and prosperity, few, we believe, are prepared to deny. In support of that opinion, your Committee will, however, quote a favourite expression of the Earl of Durham, after his lordship had seen the Canadian possessions of the Crown, and become sensible of their value "England, if she lose her North American colonies, must sink into a second-rate power." According to the present system, the governor of a colony exercises roost of the royal functions, under the general direction of the ministers of the crown; he is strictly accountable for his conduct, and for the use he makes of the royal authority he recommends for office persons in the colony, or appoints those selected by the minister : and he endeavours to conduct his government according to the policy of the imperial cabinet, with a view to the present prosperity and future greatness of a country in which England has a deep interest ; and above all things, with the inten- tion of preserving, against all opposition, the unity of the empire. To enable him to fulfil these great duties, it is obviously his interest, and that of his advisers, to keep on his side the popular voice of the colony, and to avoid giving occasion to discontent redressing real, and dissipating, by temperate discussion, all imaginary grievances. According to the system proposed by the Earl of Durham, the advisers of the Lieutenant Governor would not be officers who, in accordance with the policy of the home government, endeavour to aid the Lieutenant Gover- nor in conciliating the affections of the people ; but they must be the crea- tures of the prevailing faction or party in the Assembly advising the Governor altogether with the view to the wishes of the House for the moment, regardless of the opinions of the supreme Parliament, or those of the Imperial Cabinet and having (though nominally subordinate) the power of forcing all their measures upon the Governor. The colonial Governor must, in this case, be left without discretion or responsibility, and follow whatever changes may occur; in his* colony he could take no directions from the minister of the crown, nor, indeed, communicate with the supreme government, unless in the terms dictated by his responsible advisers, to whose directions he must submit, far more com- pletely than the Sovereign to the advice of the cabinet. The real Sovereign, and the supreme cabinet, are lost sight of and forgotten, in the adminis- tration of public affairs in the colony: and thus the responsibility to Parlia- ment, which in England is produced by, and consistent with the powers 1791-1840] Constitutional Documents of Canada. 473 of supreme legislation, being introduced into a colony where the supremacy in the legislative body does not exist, the weaker body, in fact, is, by a political fiction, made the stronger. The dependency of the colony is at an end ; and while the Sovereign no longer possesses a confidential servant in the colony, the ministers of the crown, who are responsible for the preser- vation of colonial connection, lose all authority to fulfil the duties of their office. Either this must be the course pursued by a Governor, with responsible advisers, or he must think for himself, independently of those advisers: and, as a matter of course, throw himself for information and advice, upon irregular and unknown sources. In such an event, the responsible advisers resign they have, perhaps, a majority in the Provincial Parliament; but they may, notwithstanding, be very wrong. Then comes a dissolution of the Provincial Parliament, and, perhaps, an expression of public opinion, by a bare majority, against the government and probably, inimical to the interests of the empire. Who, then, is to yield? The government must, in fact, retire from the contest, whether right or wrong, or carry on public affairs without any advisers or public officers. This cannot be done: so that, after all, the governor of the colony must be responsible to the prevailing party in the colony; and, so far as the empire is concerned, he becomes the sovereign of an independent realm having no discretion, and therefore no responsibility. Under such a system, colonial dependence would practically be at an end. If it be resolved, then, to force upon us an independence not yet courted, why subject the colonies to the few miserable years of transition from monarchy to democracy, which must inevitably follow? Why subject the colony to the dissensions of party? Is it to foster a spirit of undying enmity among a people disposed to dwell together in harmony and peace? Far better would it be to unite them at once to an empire which, though rival, and perhaps inimical to England, would, in such case .interfere suffi- ciently between contending parties, to save them from each other. If England withdraw her influence, and leave her governors to be the shuttle between colonial parties, no loyalty now existing among any of these parties will prevent their seeking another influence in the neigh- bouring republic, to replace the one needlessly withdrawn ; and as the French of Lower Canada sought the alliance of their ancient enemies, the Anglo-American population of the neighbouring States, to give them the means of overwhelming the British population for the time left without the countenance or support of the British government so will the losing party, in either colony, seek some external influence to aid their cause. England refuses the umpirage, and there can be no doubt but that it will be readily offered, before many years, to the United States. Ireland and Scotland had once independent legislatures; but never, when under the British crown, had they anything approaching to govern- ments responsible to their respective people yet the government of them became impracticable, the moment it approached to a participation of equal political rights, and they were united with England . because government in the different parts of an empire, must be conducted with a view to some supreme ruling power, which is not practicable with several separate and independent legislatures. The plan of the Earl of Durham is to confine the functions of the local legislatures to affairs strictly colonial, but this limitation of powers is not practicable under his Lordship's system. It is perfectly true that it is not for the interest of England to main- tain a continual struggle with the local legislature, for the purpose of upholding any class of persons in the colonies, as the servants of the Crown; but it is no less true, that the honour and interests of the Empire are intimately involved with local administration, and that if Governors of colonies are to be left unsupported by the Imperial Government, and to have their advisers chosen for them by the prevailing party, the usefulness of the Governors must be at an end, there must either by continual col- lision between them and the other public servants in the colonies, or the 474 Constitutional Documents of Canada. [1791-1840 Governors must yield up their judgments and consciences to the keeping of the factions which agitate the countries they are appointed to govern. In small communities, the future is continually sacrificed to present convenience, but the very temporary nature of the interests which influence the politics of a country like this, with a changing population, with no barriers between the inception of public will and its expression the com- paratively little personal influence held by any, from considerations of property, or personal attachment the ephemeral character of the topics which sway elections and elevate men for the moment into public favour, with almost a certainty of sinking with the reflux of the wave which lifted them into view, operate against the growing up of that steady influence cap- able of giving stability to politics, or of defining the views of party. The peo- ple are individually essentially free free from landlords free from employ- ers free from the influence of great wealth, as well as from that of high station in the few ; every man does as it seems best in his own eyes. The consequence is, that it is scarcely possible to know, for any continuance, what the views of the prominent parliamentary men are, except on a few questions: no considerable number of them think alike, and all, by turns, find themselves in a minority many times during a parliamentary session. This state of things does not arise from any modification of political institutions, but from the individual independence of the population caused by the ease with which landed property is acquired. In England, political leaders think for the people : in America, the people think for the members of Parliament; and as the people is not bound to consistency, like individuals of note, its appetite for change, and for the proposal and attempt to carry absurd and extravagant measures, is, and must be gratified from time to time, "none obstante" the consistency of politicians. The same course of politics is found in the United States, where the President, the Senate, and the House of Representatives constantly find their measures negatived by each other, and where members are constantly instructed by their constituents, according to the popular whim of the hour. We therefore do not find what is strictly called Executive responsi- bility, or necessity of continual accordance of government with the popular voice; and measures have, even between the short intervals of the Presi- dential elections, time to be popular and unpopular, two or three times over. The French Canadian party form, perhaps, the only political combination in America with consistency of principle, and this is because they have leaders who direct the general opinion. They are consequently the only party whose representatives could by any possibility lay down any tangible prin- ciples upon which they would conduct a government. In this Province, as in the United States, popular will must influence the conduct of govern- ment in all things not essentially wrong or chimerical, and in these the government must be strong enough to resist, and be known to have the power of resistance for a sufficient time, to permit more cool and quiet consideration on the part of the constituency. A curious example of this species of legislation is found in a discus- sion, which has occupied a great part of the present session, on the absorb- ing topic of the Clergy Reserves. It has been taken up and discussed upon principles of liberality and concession, on all sides; the parties, unable to agree upon any mode of appropriation, have, as a final measure, referred the issue to the Imperial Parliament. It would be almost impossible to enumerate the various modes of dis- tribution proposed, with and without the approbation of government, on this question, which would undoubtedly, in English politics, be considered one upon which the existence of a ministry must depend. Suffice it to say that, almost every member had a plan of his own ; some had two or three plans fresh from their constituents yet, strange to say, the house could not agree, that is to say, there was a number sufficient to negative every plan proposed, and to prevent the reference of the matter to England, up to the last day of the session. In this paradoxical state of affairs, which of the contending parties should form the colonial cabinet? 1791-1840] Constitutional Documents of Canada. 475 This, or something approaching to it, not being an unusual condition of politics, it may easily be supposed that few, if any persons, possess sufficient influence to conduct affairs; and from this state of things, it is to be presumed, has arisen the practice in all colonial governments with legislatures, of the governors standing as mediators between parties, yield- ing and leaning to the popular voice, but resisting it with the authority of their office, when it was manifestly in error. It must be supposed that had the system proposed by the Earl of Dur- ham been long since adopted, the popular will would have prevailed to a far greater extent than heretofore, and yet most of the practical evils found in the colonies have arisen from measures popular at the time of their enactment. The preservation of the French language, laws, and institutions, and the consequent perpetuation of the contest between the races, so strongly deprecated by the Earl of Durham, was a popular measure, and must have prevailed even more injuriously, and even destructively, under a responsible government. The concessions of public lands to U. E. Loyalists and their children, to militia, and other grantees not resident upon the lands, which now form an acknowledged public grievance, were popular measures : the persons who benefited by them being the population of the country, and those who com- plain of them not being yet arrived. The parliamentary grants for local works, and the disposal of funds by commissioners named by the legislature, and the abuse of this patron- age are evidently founded upon, and rising out of, the parliamentary influence sought to be made supreme, and are evils which might have been greatly exaggerated, but could not have been lessened by responsible Gov- ernment. In fact they prove that governors should oftener take the respon- sibility of resisting the popular voice than they have been hitherto accus- tomed. The very change in political sentiments, produced by the constant intro- duction of new population from Great Britain, shows that legislation in these colonies ought to be conducted with some view to the interests of those not represented in the legislature, but who may soon form the great mass of the subjects of the Crown in America. A responsible cabinet must, however, look exclusively to the party of the day, and in its favour neglect the great future interests of the Province. In short, local and sectional interests are felt too strongly and directly in elective bodies, in small communities, to permit of consistent legislation on general principles, and the objects to be gained during the short period for which the majority hold their influence, are of too much consequence, compared with distinct general results, to permit of the perfectly unchecked course which would result from responsible government. Although the points are few in which it is the interest of England directly to interfere with local and internal affairs in the colonies, your Committee are at a loss to conceive how, in a government so independent as this is proposed to be made of England, these few points can by any means be excluded from the control of the local parliament a disagree- ment with the cabinet and legislature on the subject of foreign trade .immi- gration, disposal of lands, or any of the excluded topics, will just as readily induce a stoppage of the supplies, with all the consequences, as any of the questions within the range of local legislature, and if we can suppose cases in which the interests of the empire and that of the colony should be dif- ferent, it is vain to expect that any set of public servants who should espouse the general interests could continue in authority. Even in the question of peace and war, excluded alike from local legis- lation in the several states of America, as in the colonies, we have seen how nearly in the states of Michigan, New York, and Maine, the prevalence of popular opinion produced a terrible national war : how the arm of gov- ernment was paralysed, and the licentious and outrageous conduct of the populace encouraged by local authorities, because of the influence of this excluded and forbidden question upon the elections of local governors and 476 Constitutional Documents of Canada. [1791-1840 local legislatures : and it cannot be questioned that little more exacerba- tion of the public mind in Upper Canada, would have caused such a desire for reprisal and retaliation, as would have placed any local responsible cabinet, desirous to maintain peace on the border, in direct collision with the popular voice. A stronger instance of the necessity for interference in local affairs than the recommendation of the British Government for a merciful course towards the prisoners presented, could scarcely have occurred, for it has justly been observed, that the honour of England would suffer, if life were taken unnecessarily. But to prevent its being taken to a much greater extent than has been permitted, required much firmness in the advisers of the government, and much reliance on their part on the Imperial authorities for support in the humane course recommended by them. To conclude this subject, your Committee would observe, that so long as England' holds sway in the colonies, there will be a majority seeking for power in the Provinces; and a minority for justice and protection, and impartial government. The moment the provincial magnates are made .supreme by the proposed system, interference to do justice will be a breach of faith ; and let it be recollected, that if England refuse the umpirage between contending parties, there is a power at hand, ready and anxious to join with either, and watching for the favourable opportunity. From these reasonings, it appears evident, that the expenses of mili- tary defence in Canada are not to be avoided by a partial independence, or by anything short of abandonment. These expenses have not been incurred in consequence of any want of popular concessions : they have been caused by the unprincipled and outrageous conduct of the border Americans, which can only be held in check by military defences, or by the influence of Bri- tish power, upon the American people, through their government. Referring to the causes of the late insurrection, your Committee would observe, that it is not to be contended, that the influence over the public mind, caused by Sir Francis Head having placed the question at issue in such a light as to show political evils arising from the reform system so strongly as to produce the change in the elections of 1836, could either produce or excuse rebellion. The question at issue involved consequences of vital importance : nor could the rebellion be produced or excused by comparisons made by the public, to the disadvantage of the Reformers. The only pretence amongst all those urged, having any colour of argument, is the alleged corruption at the elections, and the influence then obtained by government. But this pretext seems, upon examination, as unfounded as the others: a people who will permit themselves, in a country in which the elective franchise is so widely diffused, to be bribed or influenced into returning an overwhelming majority to parliament, are not the most likely, therefore, to rise in rebellion against their own decision ; and as to the fact of corruption on the part of the government, so far from there being any means of attempting such a course, it is with great difficulty that the government can find the means of carrying on itself, without any such expensive interference with the rights of electors. If the assertion were not too absurd for dispute upon it, reference might be had to the returns from the public offices, and to the proceedings in the Assembly, in which the reformers were invited, in vain, to sustain any one of these accusations, as a full refutation of the charge of corrupt interference influencing the elections. That dissatisfaction prevailed amongst the defeated party, as in all other cases, is admitted and that the elected members did not possess the confidence of those who voted against them, was to be expected ; but that the successful majority were thereby driven into despair of good govern- ment, or were discontented with their own mode of putting members of their own choice into power, is not only contradicted by the argument that the remedy would always be in their own hands, but by the fact of the enthusiastic loyalty with which the populace of the country, chiefly those who formed the majority in the late elections, rallied round the very men and the governor, by whom, according to the complaint of the reformers, 1791-1840] Constitutional Documents of Canada. 477 they had been disappointed and betrayed. Your Committee are of opinion, that the proximity of the American frontier the wild and chimerical notions of civil government broached and discussed there the introduction of a very great number of border Americans into this Province as settlers who, with some most respectable and worthy exceptions, formed the bulk of the reformers, who carried these opinions so far as disaffection to- gether with the existence of actual rebellion, and the expectation of a general rising in Lower Canada, emboldened a portion of the minority to rise in rebellion in this Province, in the hope of achieving the overthrow of the Government with foreign assistance. Is it because reformers, or a portion of them, can command the sym- pathies of the United States, and of Lower Canadian rebels, that the inter- nal affairs of a British colony must be conducted so as to please them? Where would the colonial government have looked for support and de- fence ,in its time of real danger, had proscription, and discouragement, and disregard, been the portion of those who had shown, at the elections, that they were willing to sacrifice a portion of popular influence, to the great object of retaining British connection? How painfully must such mien be excited ,at reading, in Lord Durham's Report, what appears to be a justification of the course taken by the dis- affected, without one word of approval of those who risked and endured so much in defence of British supremacy. In what manner, we ask, did the dominant party make use of the occasion, to persecute or disable the whole body of their political opponents? Who were the numbers of per- fectly innocent men thrown into prison, and who suffered in person, pro- perty, and character? And what severe laws were passed in Upper Canada, under colour of which individuals very generally esteemed, were punished without any form of trial? That some unauthorized individuals were prone to insult those whom they viewed, at the moment, as a fallen enemy, must have been the case. That the individuals, thus insulted, may have felt themselves aggrieved and annoyed, cannot be doubted that a great many were thrown into prison (against whom the clearest proof of high treason was in the hands of the magistracy), but who were released without trial, a mercy which they most thankfully accepted, can easily be proved. That they were perfectly inno- cent, could only have been placed beyond dispute by a trial, but in the cases of the great number of individuals arrested, there were not only good grounds of suspicion, but means of proof of guilt, and it would be far, indeed, from being the interests of the parties themselves to provoke an inquiry. It is true, that magistrates, sometimes looking to the circumstances of their own immediate neighbourhoods, rather than to the policy of the Government at large, proceeded with more zeal and strictness than the case demanded ; but what good reason for complaint has the criminal, arrested for high treason, in the discovery, that the magistrate, by whose authority he is arrested, has a political leaning different from himself? It is stated, in Lord Durham's Report, that it was generally believed, that the pardon of Samuel Lount, and Peter Matthews, 1 was solicited by no less than thirty thousand of their countrymen. The number of petitioners men and women who petitioned for these criminals, appear, upon exam- ination, to be four thousand, five hundred, and seventy-four ; such exag- gerations necessarily refute themselves. It is one of the most distressing effects of the publication of the Earl of Durham's Report, that His Lordship thus seems to condemn the execu- tion of these men. If they really ought to have been spared, the publica- tion of such a sentiment, from one in high authority, cannot restore them, but it must give rise to feelings, on the part of their friends, and their political party (who may never have imagined such a possibility as the escape from punishment of every one of the leaders of a rebellion, which inflicted so much calamity upon the Province), but who will now thinlt 1 Samuel Lount and Peter Matthews took an active part in the Mackenzie Rebel- lion. They were executed in April, 1838. 478 Constitutional Documents of Canada. [1791-1840 that, had the Earl of Durham been in this Province, high treason would have been considered much in the same light as a riot at an election. Your Committee having animadverted on the principal topics in the report of the High Commissioner, beg, ere they conclude, to observe that, as regards Upper Canada, Lord Durham could not possibly have any per- sonal knowledge, the period of his sojourn in that Province being of such very short duration. Your Committee regret that His Lordship should have confided the task of collecting information to a person, who, be he whom he may, has evidently entered on his task, with the desire to exalt the opponents of the colonial government in the estimation of the High Commissioner, and to throw discredit on the statements of the supporters of British influence, and British connection that he should, in such an attempt have laid himself open to severe censure, was to be expected. Your Committee have, however, through a feeling of respect for Her Majesty's Commissioner, refrained from commenting on his Report, in the terms which they honestly avow they think it merits, confident that their forbear- ance will meet the desires of your Honourable House, and be equally in accordance with the wishes of the family compact hereinbefore mentioned. All which is respectfully submitted. J. S. MACAULAY, Chairman. Committee Room, Legislative Council llth day of May, 1839. CXXXVI LORD JOHN RUSSELL ON CANADIAN AFFAIRS, JUNE, 1839 1 [Trans.: J. H. Chisholm, The Speeches and Public Letters of Joseph Howe (2 vols., 1909).] There is another question upon which I am now going to state an opinion, which question, I think, is of the very greatest importance and upon which Lord Durham has expressed an opinion contrary to that enter- tained by this House I mean the question with respect to the responsibility of the individual holding office of Governor in the Province. Lord Durham has stated that an analogy existed between the representative of the Crown in the Colony and the constitutional responsibility of the ministers in this country. He states that as soon as the ministers of the Crown have lost the confidence of the House of Commons in this country they cease to be ministers, and that they could not go on with the government with a con- stant minority. He adds that it is certainly a most unusual case for a ministry to go on for several months in a minority, and he then attempts to apply that principle to the government of Canada. Now, the resolution of this House on this subject was in these terms: "Resolved, That while it is expedient to improve the commission of the Executive Council of Lower Canada, it is unadvisable to subject it to that responsibility de- manded by the House of Assembly of that Province*." This House upon my motion came to that resolution, and I must own that there is nothing in this report which has at all, in my mind, shaken the argument by which at the time I supported that resolution. It does not appear to me that you can subject the Executive Council of Canada to the responsibility which is fairly demanded of the ministers of the executive power in this country. In the first place, there is an obvious difference in matter of form with regard to the instructions under which the Governor of a colony acts. The Sovereign in this country receives the advice of the ministers and acts 1 This speech was delivered on the introduction of the Act of Union, 3 June, 1839. It led to the famous open letters addressed to Lord John Russell (see Nos. CXXXVII- CXL). which are invaluable in the literature of English political thought. See No. CXXIV. 1791-1840] Constitutional Documents of Canada. 479 by the advice of those ministers, and indeed there is no important act of the Crown for which there is not some individual minister responsible. There responsibility begins and there it ends. But the Governor of Canada is acting, not in that high and unassailable position in which the Sovereign of this country is placed. He is a Governor receiving instructions from the Crown on the responsibility of a Secretary of State. Here, then, at once, is an obvious and complete difference between the Executive of this country and the Executive of a colony. The Governor might ask the Executive Council to propose a certain measure. They might say that they could not propose it unless the members of the House of Assembly would adopt it, but the Governor might reply that he had received instruc- tions from home commanding him to propose that measure. How, in that case, is he to proceed? Either one power or the other must set set aside, either the Governor or the House of Assembly; or else the Governor must become a mere cipher in the hands of the Assembly and not attempt to carry into effect the measure which he is commanded by the home Govern- ment to do. But if we endeavour to carry out this analogy, there is one case that all the world allows is a case in which it could be applied I mean the case of foreign affairs. If the Assembly of New Brunswick in the late collision carried on a dispute with the North American States (Here some interruption occurred which gave rise to cries of "Order, Order.") The subject (continued the noble Lord) is certainly a very important one, and although I may express myself in very inadequate terms yet I do conceive that it is in my opinion one of the most important points contained in Lord Durham's report and one on which I differ with him. I ought to state the grounds of that difference. I say if the Assembly of New Bruns- wick had been disposed to carry the point in dispute with the North American States hostilely and the Executive Council had been disposed to aid them, in my opinion the Governor must have said that his duty to the Crown of this country and the general instructions which he had re- ceived from the minister of the Crown, did not permit him to take that course, and, therefore, he could not agree with the Executive Council to carry into effect the wish of the majority of the Assembly. That is allowed. Does not then this very exception destroy the analogy you wish to draw, when upon so important a point as that of foreign affairs, it cannot be sustained? Again neither could this analogy be maintained with regard to trade between Canada and the mother country or Canada and any other foreign country; how then can you adopt a principle from which such large exceptions are to be made? If you were to do so you would be con- tinually on the borders of dispute and conflict; the Assembly and the Executive on the one hand requiring a certain course to be pursued, while the Governor on the other hand would be as constantly declaring that it was a course he could not adopt; so that instead of furnishing matter of content and harmony in these Provinces, you would be affording new mat- ter for dispute and discontent, if you were to act upon this supposed analogy. But supposing you could lay down this broad principle and say that all external matters should be subject to the home Government and all internal affairs should be governed according to the majority of the Assembly, could you carry that principle into effect? I say we cannot abandon the responsibility which is cast upon us as ministers of this great empire. I will put a case, one merely of internal concern, that occurred only the other day. Let us suppose that a officer of Militia in Upper Canada after an action, was to order that the persons taken in that action should be put to death on the field. I can conceive it possible, in a state of exasperation and conflict with the people of a neighbouring state, that the Assembly might applaud that conduct and might require that it should be the rule, and not the exception, that all invaders of their territory should be treated in that manner and that the parties should be put to death with- out trial. Supposing that to be the case, could the Government of this country adopt such a rule? Could the Secretary of State for the Colonies sanction such a rule, and not decide, as his honourable friend the Under Secretary had done, that such a practise would meet with his decided 480 Constitutional Documents of Canada. [1791-1840 reprehension ? It is quite impossible to allow it to be laid down as a general principle that any part of the government of this country, conducted by ministers having the sanction of this House shall be overruled by a colony, and that such colony shall not be subject to the general superintending authority of the Crown of these realms. I can conceive, sir, and I think that it would be the part of wisdom and justice to say, that there are matters affecting the internal affairs of these Provinces, that there are matters in which neither the Imperial Parliament nor the general Govern- ment need interfere and on which they should be anxious to consult the feelings of the people of the colonies. It seems to me, sir, as much a rule of sense as of generosity, that there are some questions on which it would not be desirable that, on the opinion of the Secretary of State for the Colonies, the opinion of the House of Assembly should be put on one side. I know no reason why the Legislative Assembly, whether of each separately, or of both Provinces united, should not be listened to with deference; but I am not prepared to lay down as a principle a new prin- ciple for the future government of the colonies, that we ought to subject the Executive there to the same restrictions as prevail in this country. Resolved, That it is the opinion of this House that it is expedient to form a legislative union of the Provinces of Upper and Lower Canada, on the principles of a free and representative government, in such manner as may most conduce to prosperity and contentment of the people of the united Province. Resolved, That it is expedient to continue till 1842 the powers vested in the Governor and special Council of Lower Canada by an Act of last session, with such alterations of those powers as may be deemed advisable. CXXXVII JOSEPH HOWE'S LETTERS TO LORD JOHN RUSSELL 1 [Trans. : J. H. Chisholm, op. cit.] Halifax, Nova Scotia [Sept. 18, 1839]. My Lord, I beg your Lordship to believe that no desire to seek for notoriety beyond the limited sphere in which Provindence has placed me, tempts me to adress these letters to you. Born in a small and distant Province of the empire, and contented with the range of occupation that it affords, and with the moderate degree of influence which the confidence of some portion of its population confers, I should never have thought of intruding upon your Lordship, had not the occupations of my past life, and the devotion to them of many days of toil and nights of anxious inquiry led me to intertain strong opinions upon a subject which your Lordship has undertaken recently to discuss ; and which, while it deeply concerns the honour and the interests of the empire, appears to be, by Her Majesty's present ministers, but little understood. Whether or not the Anglo-Saxon population, upholding the British flag on this side of the Atlantic, shall possess the right to influence, through their representatives, the Govern- ment under which they live, in all matters touching their internal affairs (of which their fellow-subjects living elsewhere know nothing and with which they have no right to interfere) is a question, my Lord, that involves their happiness and freedom. To every Nova Scotian it is no light matter that the country of his birth, in whose bosom the bones of a hardy and loyal ancestry repose, and whose surface is possessed by a population in- ferior in none of the physical, moral, or mental attributes which distinguish his race, to any branch of the great British family, should be free and happy. I share with my countrymen their solicitude on this subject; I and my children will share their deep disgrace, if the doctrines decently attri- buted to your Lordship are to prevail to the utter exclusion of us all from 1 For the history of Responsible Government in the Maritime Provinces, see J. H. Chisholm. op. cit., Hannay, Tht Life and Times of Sir Leonard Tilley; J. W. Longley, Joseph Howe; W. L. Grant, The Tribune of Nova Scotia. 1791-1840] Constitutional Documents of Canada. 481 the blessings and advantages of responsible government, based upon the principles of that Constitution which your Lordship's forefathers laboured to establish and ours have taught us to revere. To the consciousness of social and political degradation which must be my portion, if the future government of North America is arranged upon the principles recently avowed by the ministry, I am reluctant that the reflection should be added that the colonists were themselves to blame in permitting a great question, without ample discussion and remonstrance, to be decided upon grounds which they knew to be untenable and untrue. In addressing your Lordship on such a topic, it is gratifying to reflect that your past life is a guarantee that the moment that you are satisfied that a greater amount of freedom and happiness can be conferred on any portion of your fellow-subjects than they now enjoy, without endangering the welfare of the whole when once convinced that the great principles of the British Constitution can be more widely extended, without peril to the integrity of the empire you will not hesitate to lend the influence of your great name and distinguished talents to the good old cause "for which Hampden died in the field and Sidney on the scaffold." Lord Durham's Report on the affairs of British North America appears to have produced much excitement in England. The position which his Lordship occupies as a politician at home naturally draws attention to whatever he says and does ; and the disclosures made in the Report must appear so strange to many and the remedies suggested so bold and original to many more, that I am not surprised at the notice bestowed by friends and foes on this very important document. From what I have seen, how- ever, it is evident that his Lordship is paying the penalty of party connec- tion ; and that his opinions on Canadian affairs, instead of being tried on their merits, are in many cases applauded or opposed, as his views of British or Irish politics happen to be relished or condemned. It is almost too much to expect that my feeble voice will be heard amidst the storm of praise and censure that this Report has raised ; and yet there may be some, who, disliking this mode of estimating a state paper, or distrusting the means of judging possessed by many who express opinions, but whose practical experience of the working of colonial constitutions has been but slight if indeed they have had any may feel disposed to ask, What is the thought of the Report in the colonies? Are its leading features recognized as true to nature and experience there? Are the remedies suggested ap- proved by the people whose future destinies they are to influence and control? The Report has circulated for some months in the colonies, and I feel it a duty to state the grounds of my belief that his Lordship in attributing many if not all of our colonial evils and disputes to the absence of respon- sibility in our rulers to those whom they are called to govern, is entirely warranted by the knowledge of every intelligent colonist; that the remedy pointed out, while it possesses the merits of being extermely simple and eminently British, making them so responsible, is the only cure for those evils short of arrant quackery; the only secure foundation upon which the power of the Crown can be established on this continent, so as to defy internal machination and foreign assault. It appears to me that a very absurd opinion has long prevailed among many worthy people, on both sides of the Atlantic, that the selection of an Executive Council, who, upon most points of domestic policy, will differ from the great body of the inhabitants and the majority of their repre- sentatives, is indispensable to the very existence of colonial constitutions ; and that if it were otherwise, the colony would fly off, by the operation of some latent principle of mischief, which I have never seen very clearly defined. By those who entertain this view, it is assumed, that Great Britain is indebted for the preservation of her colonies, not to the natural affection of their inhabitants to their pride in her history, to their par- ticipation in the benefit of her warlike, scientific or literary achievements, but to the disinterested patriotism of a dozen or two persons, whose names are scarcely known in England, except by the clerks in Downing Street; EE 482 Constitutional Documents of Canada. [1791-1840 who are remarkable for nothing above their neighbours in the colony, except perhaps the enjoyment of offices too richly endowed ; or then zealous efforts to annoy, by the distribution of patronage and the manage- ment of public affairs, the great body of inhabitants, whose sentiments they cannot change. I have ever held, my Lord, and still hold to the belief, that the popula- tion of British North America are sincerely attached to the parent State ; that they are proud of their origin, deeply interested in the integrity of the empire and not anxious for the establishment of any other form of govern- ment here then that which you enjoy at home; which, while it has stood the test of ages and purified itself by successive peaceful revolutions, has so developed the intellectual, moral, and natural resources of two small Islands, as to enable a people, once comparatively far behind their neighbours in influence and improvement, to combine and wield the energies of a dominion more vast in extent and complicated in all its relations than any ether in ancient or modern times. Why should we desire a severance of old ties that are more honourable than any new ones we can form? Why should we covet institutions more perfect than those which have worked so well and produced such admirable results? Until it can be shown that there are forms of government, combining stronger executive power with more of individual liberty; offering nobler incitements to honourable am- bition, and more security to unaspiring ease and humble industry; why should it be taken for granted, either by our friends in England, or our er-emies elsewhere, that we are panting for new experiments ; or are dis- posed to repudiate and cast aside the principles of that excellent Constitu- tion, cemented by the blood and the long experience of our fathers and upon which the vigorous energies of our brethren, driven to apply new principles to a field of boundless resources, have failed to improve? This suspicion is a libel upon the colonist and upon the Constitution he claims as his inheritance; and the principles of which he believes to be as appli- cable to all the exigencies of the country where he resides, as they have proved to be to those of the fortunate Islands in which they were first developed. If the conviction of this fact were at once acknowledged by the intelli- gent and influential men of all parties in Britain, colonial misrule would speedily end and the reign of order indeed commence. This is not a party question. I can readily understand how the Duke of Wellington and Sir Robert Peel may differ from your Lordship or the Earl of Durham as to whether measures should be carried, which they believe would impair, and you feel will renovate, the Constitution ; but surely none of these distin- guished men would wish to deny the Constitution itself to large bodies of British subjects on this side of the water, who have not got it, who are an- xious to secure its advantages to themselves and their children ; who, while they have no ulterior designs that can by any possibility make the concession dangerous, can never be expected to be contented with a system the very reverse of that they admire; and in view of the proud satisfaction with which, amidst all their manly struggles for power, their brethren at home survey the simple machinery of a government, which we believe to be, like the unerring principles of science, as applicable to one side of the Atlantic as to the other, but which we are nevertheless denied. Many persons, not familiar with the facts, may wonder how this occurs, and may be disposed to doubt the correctness of my assertion. It seems strange that those who live within the British Empire should be governed by other principles than those of the British Constitution; and vet it is true, notwithstanding. Let me illustrate the fact, by a few refer- ences to British and Colonial affairs. In England the government is invari- ably trusted to men whose principles and policy the mass of those who possess the elective franchise approve and who are sustained by a majority in the House of Commons. The Sovereign may be personally hostile to them; a majority of the House of Lords may oppose them in that august assembly; and yet they govern the country until, from a deficiency of talent, or conduct, or from ill fortune, they find their representative majority 1791-1840] Constitutional Documents of Canada. 483 diminished, and some rival combination of able and influential men in condition to displace them. If satisfied that the Commons truly reflect the opinions of the constituency, they resign; if there is any doubt, a dis- solution is tried, and the verdict of the country decides to which party its destinies are to be confided. You, in common with every Englishman living at home, are so familiar with the operation of this system, and so engrossed with a participation in the ardent intellectual competition it occasions, that perhaps you seldom pause to admire what attracts as little attention as the air you breathe. The cabman who drives past St. Paul's a dozen times a day, seldom gazes at its ample outline or excellent proportions ; and yet tney impress the colonist with awe and wonder and make him regret that he has left no such edifice in the west. As a politician, then, your Lordship's only care is, to place or retain your party in the ascendant in the House of Commons. You never doubt for an instant that if they are so, they must influence the policy and dis- pense the patronage of the Government. This simple and admirable prin- ciple of letting the majority govern, you carry out in all your corporations, clubs, and public companies and associations; and no more suspect that there is danger in it or that the minority are injured when compelled to submit, than you see injustice in awarding a cup at Epsom or Doncaster to the horse that has won rather than to the animal which has lost the race. The effects of this system are perceptible everywhere. A peer of France, under the old regime, if he lost the smiles of the court suffered a sort of political and social annihilation. A peer of England, if unjustly slighted by the Sovereign, retires to his estate, not to mourn over an irreparable stroke of fortune, but to devote his hours to study, to rally his friends, to connect himself with some great interest in the state, whose accumulating strength may bear him into the counsels of his Sovereign, without any sacrifice of principles or diminution of self-respect. A commoner feels, in England, not as commoners used to feel in France, that honours and influ- ence are only to be obtained by an utter prostration of spirit, the foulest adulation, the most utter subserviency to boundless prerogatives, arbitrarily exercised, but, that they are to be won in open arenas, by the exercise of those manly qualities which command respect; and by the exhibition of the ripened fruits of assiduous intellectual cultivation, in the presence of an admiring nation, whose decision ensures success. Hence there is a self- poised and vigorous independence in the Briton's character by which he strangely contrasts with all his European neighbours. His descendants in the colonies, notwithstanding the difficulties of their position, still bear to John Bull, in this respect, a strong resemblance ; but it must fade if the system be not changed; and our children, instead of exhibiting the bold front and manly bearing of the Briton, must be stamped with the lineaments of low cunning and sneaking servility, which the practical operation of colonial government has a direct tendency to engender. From some close observation of what has occurred in Nova Scotia and in the adjoining colonies, I am justified in the assertion, that the English rule is completely reversed on this side of the Atlantic. Admitting that in Lower Canada, in consequence of the state of society which Lord Durham has so well depicted, such a policy may have been necessary ; surely there is no reason why the people of Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland, should, on that account, be deprived of the application of a principle which is the corner-stone of the British Constitution the fruitful source of responsibility in the Govern- ment, and of honourable characteristics in the people. If the Frenchmen in one Province do not understand, or cannot be entrusted with this valu- able privilege, why should we, who are all British or of British descent, be deprived of what we do understand and feel that we can never be pros- perous and happy without? Your Lordship asks me for proofs. They shall be given. Looking at all the British North American Colonies, with one single exception, so far as my memory extends, although it has sometimes hap- pened that the local administration has secured a majority in the Lower 484 Constitutional Documents of Canada. [1791-1850 House, I never knew an instance in which a hostile majority could displace an Executive Council, whose measures it disapproved; or could, in fact, change the policy or exercise the slightest influence upon the administrative operations of the Government. The case which forms the exception was, that of the Province of New Brunswick; but there the struggle lasted as long as the Trojan war through the existance of several Houses of Assembly; and was at length concluded by an arrangement with the auth- orities at home after repeated repeals and two tedious and costly delega- tions to England. But the remedy applied, even in that case, though satisfactory for the time, can have no application to future difficulties or differences of opinion. Let us suppose that a general election takes place in that Province next year and that the great body of the people are dissatis- fied with the mode in which the patronage of the Government has been distributed and the general bearing of the internal policy of its rulers. If that colony were an English incorporated town, the people would have the remedy in their own hands; if they were entrusted with the power which as British subjects of right belongs to them, they would only have to return a majority of their own way of thinking; a few men would change places; the wishes of the majority would be carried out, and by no possibility could anything occur to bring the people and their rulers into such a state of collision as was exhibited in that fine Province for a long series of years. But under the existing system, if a hostile majority is returned what can they do? Squabble and contend with a executive whom they cannot influence ; see the patronage and favour of Government lav- ished upon a minority who annoy, but never outvote them ; and, finally, at the expiration of a further period of ten years, appeal by delegation to England; running the hazard of a reference to a clerk or a secretary whose knowledge of the various points at issue is extremely limited who has no interest in them, and who, however favourably disposed, may be displaced by some change in the position of the parties at home before the negotia- tions are brought to a close. In 1836, a general election took place in Nova Scotia; and when the Legislature met for the despatch of business, it was found that the local government had two-thirds of the members of the representative branch against them. A fair-minded Englishman would naturally conclude that the local cabinet, by a few official changes and a modification of its policy, would have at once deferred to the views and opinions of so large a majority of the popular branch. Did it do so? No. After a fierce struggle with the local authorities, in which the revenue bills and the appropriations for the year were nearly lost, the House forwarded a strong address to the foot of the throne, appealing to the Crown for the redress of inveterate grievances, the very existence of which our colonial rulers denied, or which they refused to remove. To give your Lordship an idea of the absurd anomalies and ridiculous wretchedness of our system up to that time, it is only necessary to state, that a Council of twelve persons administered the government, and at the same time formed the upper branch of the Legislature, sitting invariably with closed doors. Only five of these twelve gentlemen were partners in on private bank, five of them were relations, two of them were heads of departments, and one was the Chief Justice, who in one capacity had to administer the law he had assisted to make, and then in a third to advise the Governor as to its execution. To heighten the absurdity of the whole affair, it is hardly necessary to add, that only nine of these twelve men were members of a particular Church, which, however, useful or respectable only embraced one-fifth of the whole population of the Province. To the passage of certain measures for the regulation of our currency, the de- rangement of which was supposed to be profitable to those who dealt in money, the bankers were said to have opposed their influence. Any attempt at reduction of the expense of the revenue departments, the heads of which sat at the board, was not likely to prevail ; while the patronage of the Government was of course distributed by the nine Churchmen, in a way not very satisfactory to the four-fifths of the people who did not happen 1791-1840] Constitutional Documents of Canada. 485 to belong to that communion. Such a combination as this never could have grown up in any colony where the English principle of responsibility had been in operation. Indeed, there was something so abhorrent to British feeling and justice in the whole affair that Lord Glenelg at once decided that it was "too bad"; and, while in Her Majesty's name he thanked the Commons for the representation they had made, he directed the Governor to dissolve the old Council and form two new ones free from the objec- tions which the Assembly had urged. Had the instructions given been fairly carried out, there is little doubt thai in Nova Scotia, as in New Brunswick, the people and their representa- tives would have been contented for a time; and would have felt that, in extreme cases, an appeal from their local rulers to the Colonial Secretary w;uld be effectual. The existing machinery of government might have been supposed to be adequate to the necessities of the country, with perhaps an entire revision and repair at the hands of the master workmen at home once in ten years, or whenever the blunders of subordinates in the colony had completely clogged its operations. But mark the result. The Governor was instructed to call into the new Councils those who "possess the confidence of the country." Now, you in England are simple enough to believe, that when the Whigs have, in a house of six hundred and sixty-eight members, a majority of eight or ten, they possess the confidence of the country; and if their majority should happen to be double that number, you would think it droll enough if they were excluded from political influence, and if the new creations of peers and selections for the Cabinet should all be made from the ranks of their opponents. This would be absurd at home, and yet it is the height of wisdom in the colonies. At the time these commands were sent out, the party who were pressing certain economical and other reforms in Nova Scotia were represented by two-thirds of the members of the popular branch. The relative numbers have occasionally varied during the past three sessions. At times, as on the recent division upon a delegation, the reformers have numbered thirty-three to eleven, in a House of forty-six. On some questions the minority has been larger, but two-thirds of the whole may be fairly taken as the numerical superiority on all political ques- tions, of the reformers over their opponents. It will scarcely be believed, then, in England, that in the new appointments, by which a more popular character was to be given to the Councils, six gentlemen were taken from the minority and but two from the ranks of the majority. So that those who had been thanked for making representations to the Queen and who were pressing for a change of policy, were all passed over but two ; while those who had resisted and opposed every representation, were honoured by appointments and placed in situations to render any such change utterly hopeless. The Executive Council, the local cabinet or ministry, therefore, contained one or two persons of moderate views, not selected from the House; one from the majority, and eight or ten others, to render his voice very like that of the "man crying in the wilderness." He held his seat about half a year and then resigned; feeling that while he was sworn to secrecy and compromised by the policy he had not approved he had no influence on the deliberations of the Cabinet or the distribution of patron- age. Things were managed just as much in accordance with the royal instructions with respect to the Legislative Council. The p*ack was shuffled, the game was to remain the same. The members of the majority, as I have said before, were all omitted in the new creation of peers, but one; while from the House and beyond it some of the most determined sup- porters of old abuses were selected ; and among them, a young lawyer who had shown a most chivalrous desire to oppose everything Her Majesty so graciously approved ; and who, in the excess of his ultra zeal, had, upon the final passage of the address to the Crown, when almost all his friends deserted him, voted against the measure in a minority of four. Here, then, your Lordship has a practical illustration of the correctness of Lord Durham's observations, and may judge of the chance the present system offers of good colonial government, even when the people have the 486 Constitutional Documents of Canada. [1791-1840 Queen and the Colonial Secretary on their side. Such policy would wither all hope in the Nova Scotians, if they did not confide in the good sense and justice of their brethren within the four seas. -We do not believe that the Parliament, press, and the people of England, when rightly informed, will allow our local authorities "to play such tricks before high heaven" or force us to live under a system so absurd, so anti-British, so destructive of every manly and honourable principle of action in political affairs. The House of Assembly, as a last resort, after ample deliberation, determined to send two members of that body as delegates to England, to claim the rights of Englishmen for the people of this country. Your Lordship's declaration tells me, that on this point they will be unsuccessful ; but patient perseverence is a political characteristic of the stock from which we spring. You ask me for the remedy. Lord Durham has stated it distinctly : the Colonial Governors must be commanded to govern by the aid of those who possess the confidence of the people, and are supported by a majority of the representative branch. Where is the danger? Of what consequence is it to the people of England, whether half-a-dozen persons, in whom that majority have confidence, but of whom they know nothing and care less, manage our local affairs ; or the same number, selected from the minority, and whose policy the bulk of the population distrust? Suppose there was at this moment a majority in our Executive Council who think with the Assembly, what effect would it have upon the funds? Would the stocks fall? Would England be weaker, less prosperous or less respected, because the people of Nova Scotia were satisfied and happy? But, it is said, a colony being part of a great empire must be governed by different principles from the metropolitan state. That, unless it be handed over to the minority it cannot be governed at all ; that the majority, when they have things their own way, will be discontented and disloyal ; that the very fact of their having nothing to complain of will make them desire to break the political compact, and disturb the peace of the empire. Let us fancy that this reasoning were applied to Glasgow, or Aberdeen, or to any other town in Britain, which you allow to govern itself. And what else is a Province, like Nova Scotia, than a small community, too feeble to interfere with the general commercial and military arrangements of the Government; but deeply interested in a number of minor matters, which only the people to be affected by them can wisely manage ; which the minis- try can never find leisure to attend to, and involve in inextricable confusion when they meddle with them? You allow a million of people to govern themselves in the very capital of the kingdom; and yet Her Majesty lives in the midst of them without any apprehension of danger, and feels the more secure, the more satisfaction and tranquillity they exhibit. Of course, if the Lord Mayor were to declare war upon France, or the Board of Aldermen were to resolve that the duties on brandy should no longer be collected by the general revenue officers of the kingdom, everybody would laugh, but no one would apprehend any great danger. Should we, if Lord Durham's principles be adopted, do anything equally outre, check us, for you have the power ; but until we do, for your own sakes for you are as much interested as we are for the honour of the British name, too often tarnished by these squabbles, let us manage our own affairs, pay our own officers, and distribute a patronage, altogether beneath your notice, among those who command our esteem. The Assembly of Nova Scotia asked, in 1837, for an elective Legislative Council, or for such other reconstruction of the local government as would ensure responsibility. After a struggle of three years we have not got either. The demand for an elective upper branch was made under the impression, that two Houses chosen by the people would sufficiently check an Executive exempt from all direct colonial accountability. From what has occurred in the Canadas ; from the natural repugnance which the House of Peers may be supposed to entertain upon this point; from a strong desire to preserve in all our institutions the closest resemblance to those of our mother country ,a responsible Executive Council, as recom- mended by Lord Durham, would be preferred. Into the practicability of 1791-1840] Constitutional Documents of Canada. 487 his Lordship's plan of a union of all the colonies under one government, I do not intend to enter ; that is a distinct question ; and whenever it is formally propounded to the local Legislatures, will be gravely discussed upon its own merits ; but whether there be union or not, the principle of responsibility to the popular branch must be introduced into all the colonies, without delay. It is the only simple and safe remedy for an inveterate and very common disease. It is mere mockery to tell us that the Governor himself is responsible. He must carry on the government by and with the few officials whom he finds in possession when he arrives. He may flutter and struggle in the net, as some well-meaning Governors have done, but he must at last resign himself to his fate; and like a snared bird be content with the narrow limits assigned him by his keepers. I have known a Governor bullied, sneered at, and almost shut out of society, while his obstinate resistance to the system created a suspicion that he might not become its victim ; but I never knew one, who, even with the best intentions and the full concurrence and support of the representative branch, backed by the confidence of his Sovereign, was able to contend on anything like fair terms, with the small knot of functionaries who form the Councils, fill the offices, and wield the powers of the Government. The plain reason is, because, while the Governor is amenable to his Sovereign, and the members of Assembly are controlled by their constituents, these men are not respon- sible at all ; and can always protect and sustain each other, whether assailed by the representatives of the Sovereign or the representatives of the people. It is indispensable, then, to the dignity, to the independence, to the useful- ness of the Governor himself, that he should have the power to shake off this thraldom, as the Sovereign does if unfairly hampered by faction; and by an appeal to the people, adjust the balance of power. Give us this truly British privilege, and colonial grievances will soon become a scarce article in the English market. The planets that encircle the sun, warmed by its heat and rejoicing in its effulgence, are moved and sustained, each in its bright but subordinate career, by the same laws as the sun itself. Why should this beautiful example be lost upon us? Why should we run counter to the whole stream of British experience; and seek, for no object worthy of the sacrifice, to govern on one side of the Atlantic by principles the very reverse of those found to work so admirably on the other. The employment of steamers will soon bring Halifax within a ten days' voyage of England. Nova Scotia will then not be more distant from London than the north of Scotland and the west of Ireland were a few years ago. No time should be lost, there- fore, in giving us the rights and guards to which we are entitled; for depend upon it the nearer we approach the mother country, the more we shall admire its excellent constitution, and the more intense will be the sorrow and disgust with which we must turn to contemplate our own. CXXXVIII JOSEPH HOWE TO LORD JOHN RUSSELL [Trans.: J. H. Chisholm, op. cit.} My Lord, I have read the speech delivered by your Lordship on the 3rd of June, as reported in The Morning Chronicle, several times ; and beg your Lordship's attention to what I conceive to be the rational solution of the difficulties raised in that speech to the concession of the principle of local responsibility Had your Lordship been more familiar with the prac- tical workings of the existing colonial constitutions, and with the feelings of the people who smart under the mischiefs they produce, you would not, perhaps, have fallen into some errors by which that speech is disfigured ; nor have argued the question as one in which, the obvious, manifold, and vital interests of the colonists were to be sacrificed to fear of some vague and indefinite injury that might be sustained by imperial interests, if execu- 488 Constitutional Documents of Canada. [1791-1840 tive power were taken from the ignorant and given to the well-informed if it passed from the hands of officers to whom but a nominal responsibility can attach, into those of men subject to constant scrutiny, and, whenever they fail in their duty, liable to exposure and disgrace. Lord Durham recommends that the English rule, by which those who conduct public affairs resign when they have lost the confidence of the Commons, should be applied to the Executive Councillors in North Amer- ica. Yord Lordship denies the existence of the analogies upon which Lord Durham's views are based : "It does not appear to me that you can subject the Executive Council of Canada to the responsibility which is fairly demanded of the ministers of the executive power in this country. In the first place, there is an obvious difference in matter of form with regard to the instructions under which the Governor of the colony acts. The Sovereign in this country receives the- advice of the ministers, and acts by the advice of those min- isters ; and indeed there is no important act of the Crown for which there is not some individual minister responsible. There responsibility begins, and there it ends. But the Governor of Canada is acting, not in that high and unassailable position in which the Sovereign of this country is placed. He is a Governor receiving instructions from the Crown on the responsi- bility of a Secretary of State. Here then, at once, is an obvious and com- plete difference between the executive of this country and the executive of a colony." 1 Now, my Lord, let me beg your Lordship's attention to a few of the reasons why I conceive that such an argument as this ought not to stand in the way of the permanent peace, prosperity, and happiness of a million and a half of human beings. "The Sovereign in England receives the ad- vice of the ministers and acts by the advice of those ministers ;" but are there no limits assigned by law, within which those advisers are bound to keep? and is not the Sovereign bound to know and to apprise the country when they over-step them? What is the question at issue now between the Whigs and Tories? Is it not, whether, according to the spirit and practice of the Constitution, Sir Robert Peel had or had not a right to advise the changes in Her Majesty's household, upon which he insisted, before he would consent to form an administration? Suppose the present Cabinet were to advise Her Majesty to cut off Sir Robert's ears, or to bombard the city of London, would she obey, or would she not say, "Gen- tlemen you are exceeding your powers, and unless you conduct yourselves with more discretion, you must resign?" It is plain, therefore, that there are bounds beyond which even in the mother country, neither the advisers nor the monarch can pass; and none who seek colonial responsibility are so mad as to require, that corresponding restrictions shall not be binding here; that there shall not be a limit beyond which no Executive Councillor can pass, and over which no representative of Majesty will consent to be driven? These bounds must be clearly defined in the Act of Parliament which establishes the new system, or in the instructions sent to the Gov- ernors, to be communicated to the Legislatures ; and which they may, if they see fit, embody in a bill, which, so long as it exists, shall be, to all intents and purposes, the Constitution of the Colony. But, your Lordship says : "The Governor is acting, not in that high and unassailable position in which the Sovereign of this country is placed." Why should he not occupy a position nearly as independent; and be per- fectly unassailable, so long as he does not interfere (as the Sovereign would not dare to do) with matters for which others are responsible ; nor allow himself, or his Council, to overstep those boundaries which British subjects on both sides of the Atlantic, for the protection of their mutual rights and interests, have established; and for a jealous recognition of which he, in case bad advice be given him, is alone responsible? The Queen's position is unassailable only so long as she does no act which the Constitution does not permit to be done. The Governor, if assailed, would in like manner turn to the Constitution of the colony Committed to his 1 See No. CXXXVI. 1791-1840] Constitutional Documents of Canada. 489 care; and show that on the one hand he had neither trenched upon the rights essential to the security of colonial liberty, nor, on the other, timor- ously yielded aught which the laws for the protection of imperial interests made it criminal to yield. Your Lordship is mistaken, therefore, in supposing that the Sovereign is divested of all responsibility; although I admit it is much more difficult to call him or her to an account than it would be the Governor of a colony. If the Queen were to deprive Sir Robert Peel of his ears or open a few batteries upon London, an emeute or a revolution would be the only remedy; but a Governor, if he consented to an act which shut out British manufacturers, or was tempted to levy war upon a friendly state, could be called to account without difficulty or delay ; and, hence, I argue, that the facility and certainty of inflicting punishment for offences of this sort would prevent their commission ; and operate as a sufficient guard to the imperial interests, which your Lord.ship seem to anxious to protect. If it be said that the people in a colony may sustain councillors who give uncon- stitutional advice, my answer is, that the same thing may occur in England. When it does, a peaceful modification of the Constitution, or a revolution follows ; but these cases are not so frequent as to excite alarm, nor is there any reason to believe that they will be more so in the colonies, whose power to enforce improper demands is so questionable. "He is a Governor receiving instructions from the Crown, on the responsibility of a Secretary of State." This passage suggests some reflec- tions which I feel it my duty respectfully to press upon your Lordship's attention. One of the evils of the existing system, or rather haphazard mode of government, devoid of all system, is the various readings given to the medley of laws, usages, and Colonial Office despatches, by which we are at present ruled. An excellent illustration of the difficulty of obtaining an interpretation of these, about which there can be no mistake which he who runs may read may be furnished by contrasting the views put forth by your Lordship with those acted upon by Sir Francis Head 1 ; and which, after a bloody rebellion, brought on to prove the value of his theory, he still avows in every succeeding edition of his Narrative, with a consistency and complacency worthy of all praise. "The responsibility," says your Lordship, "rests on the Secretary of State." "The responsibility," says Sir Francis Head, in every act of his government and in every page of his book, "rests on me." From the moment of his entering into Upper Canada, he threw overboard all the instructions from the Colonial Secretary (who, according to your Lordship ought to have been obeyed, for he was alone responsible); he struck out a course of policy entirely new; commenced "putting the padlock on the mind," to be followed by some hundreds of handcuffs on the wrists, and padlocks on the body. His language to Lord Glenelg throughout was, "You must support me," "The fear is that I will not be supported at the Colonial Office." In fact, from first to last, Sir Francis gave instructions to, instead of receiving them from, the Secretary of State; and finding that Lord Glenelg would not permit him to try his experiments in government, and combat the fiery dragon of democracy in the bosom of a British Province, at the cost of a good deal of blood and treasure, and the prospects of a foreign war, without occasion- ally offering a little advice, the worthy Baronet resigned; and has ever since been publishing his complaints to the world and claiming its sympathy, as a sufferer for conscience 1 sake, in upholding the only correct reading of colonial constitutions, and which the Secretary of State, and the Whig Government of which he was a member, did not understand. The doctors in this case differed; and the patient was left prostrate, mangled, bleeding and exhausted, listening to their altercations, but suffering from every gash made to convince each other at her expense ; and there she lay, until recently; when, beginning to suspect that both had been talking nonsense and trying absurd experiments, she lifted her languid head, stretched out 1 Head was Lieutenant-Governor of Upper Canada from January, 1836, to March, 1838. He published a highly characteristic account of his rule entitled A Narrative (3rd Edn., London, 1839). 490 Constitutional Documents of Canada. [1791-1840 her wounded limbs, and began to fix her eyes upon the only remedy by which health could be restored. Let us, in order to convince ourselves that the conclusion to which Upper Canada is coming after all her sufferings is a sound one, examine the two prescriptions and modes of treatment ; and ascertain whether either contains anything which ought to rescue it from the oblivion that invariably closes over the nostrums by which the science of politics, like the science of medicine, is often disfigured for a time. A colony where the Governor is akme responsible is Sir Francis Head's interpretation of the system under which we live. It is one very much affected by colonial Governors everywhere. Unlimited power within a wide Province is a beautiful idea for an individual to indulge, especially when it is attended with but little risk and only nominal responsibility. Of all the British colonial Governors who have wielded this vast authority ; plumed themselves upon the possession of these plenary powers; and, in the exercise of them, vexed, distracted, and excited to disaffection one Province after another, how many have been tried and punished? How many have met with even a reprimand from the ministry, or a cold look from the Sovereign whose authority they had abused? I leave your Lord- ship, whose historical reading has been much more extensive than mine, to point out the instances ; I have searched for them in vain. It is true that debates in Parliament occasionally arise upon such subjects; but these, judging by their practical effect, can hardly be taken into account. A Gov- ernor knows well that, so long as he holds office, the ministry by whom he was appointed will defend him; that their majority in the Commons pre- cludes the possibility of a vote of censure being passed against him; that the Duke, under whom he probably served, having a majority in the Upper House, he is perfectly safe, so long as he commits no act so flagrant as to outrage the feelings of the nation; and which, coming home to the heart of every man and woman in England, would make it unsafe for any parliamentary combination to attempt to protect him. Thus fenced in during his administration, what are his perils when he retires? The colon- ists, too happy when rid of the nuisance to be vindictive, and hoping better things from a successor, of whom they are unwilling to suspect any evil, cease to complain ; his Excellency is removed to another Province, with a larger salary, to act the same farce over there; or retires to his estates in the mother country, to form one of that numerous body of ex-Governors who live upon the consciousness of having, once within their lives at least, wielded powers within a wide range and over the destinies of many thou- sands of their fellow-beings, such as are never permitted to be wielded by any individual, however high his rank or widely extended his influence, without full and ample responsibility, within the British Islands themselves. These men, whether they go into Parliament or not, always sympathize with Governors abroad acting upon their darling theory; and, as they are often consulted by ministers who know perhaps a little less than them- selves, they are always at hand to stifle the complaints of the colonists when appeals are made to England. Your Lordship will perceive, therefore, that when a Governor declares as did Sir Francis Head, that the responsibility rests on him, he merely means that he is about to assume extensive powers, for three or four, perhaps for eight or ten years, without the shadow of a chance of his ever being called to account for anything he may do or leave undone. To enable you to form some idea of the peace, prosperity and satisfaction likely to be diffused over a Province, by a Governor acting upon these principles and exercising these powers, let me request your Lordship to imagine that, after twenty or thirty years of military service, by which I have become disciplined into a contempt for civil business and a fractious impatience of the opinions of all beneath me in rank, Her Majesty has the right, and graciously deigns to exercise it, of making me Mayor of Liverpool. Fancy that, up to the moment when the information is conveyed to me, though I have heard the name of that city several times and have some vague notion that Liverpool is a large commercial port in England ; yet that I neither 1791-1840] Constitutional Documents of Canada. 491 know on what river or on which side of the island it is situated, nor have the least knowledge of its extent, population, requirements or resources ; the feelings, interests, prejudices or rights of its inhabitants. Within a month, having had barely sufficient time to trace out the situation of the place upon a map, read a book or two about it, hear an under-secretary talk an hour or two of what neither he nor I understand; receive a packet of instruc- tions of which half-a-dozen different readings may be given and be- come thoroughly inflated with my own consequence, I find myself in Liverpool ; and feel that I am the great pivot upon which all its civil admin- istration, its order and defence, its external relations with the rest of the empire and the rest of the world turns : the fountain from which its internal patronage is to flow ; and to which all, for a long period of years, must look for social and political ascendency, if they have no merit; and, if they have, for a fair consideration of their claims. Your Lordship will readily believe, that a man thus whisked away from the pursuits which have occupied his thoughts for years and plunged into a new scene, surrounded by human beings not one of whose faces he ever saw before ; called to the consideration of a thousand topics, with almost any one of which the assiduous devotion of half a life would be required to make him familiar; and having to watch over vast interests, balance conflicting claims, decide on the capacity of hundreds, of whose characters, talents and influence he is ignorant; to fill offices, of the duties of which he has not the slightest conception; that a man so situated, must either be very vain or very able, if he is not appalled at the extent of the responsibility he has assumed ; and must be an angel of light indeed, if he does not throw the good city of Liverpool into confusion. This, my Lord, is no fancy sketch ; no picture, highly colored to produce effect, but which on close examination, an artist would cast aside as out of drawing; it is a faithful representation of what occurs in some British colony almost every year. But it may be said, all this is granted, and yet there is the Legislature to influence and instruct. Liverpool shall still serve for illustration, and we will presently see to what extent the representative branch operates on the conduct of a gentleman who assumes the responsibility and is placed in the circumstances described. Let us suppose that the city charter gives me for my advisers, from the moment I am sworn in, ten or a dozen indi viduals, some of them heads of departments, enjoying large salaries and much patronage ; others, perhaps, discarded members of the popular branch; and not a few selected by no rule which the people can clearly understand, but because they happened to flatter the vanity of one or other of my predecessors, or to be connected with the families, or favourable to the views or interests of some of those by whom they were advised. This body, be it observed, by usage never departed from, hold their situations as Councillors for life; the people have no control over them, neither have I ; they are sworn not to inform upon each other, nor is it necessary that they should ; because, as I have assumed the responsibility, and they for their own interest favour the theory, if anything goes wrong they can lay the blame on me. This body then, which owes no allegiance to the people of Liverpool; which often, in fact, has an interest the very reverse of theirs ; which, suspected of usurpation and improper influence, pays back the imputation with unmeasured contempt; and hardly one-fifth of whose number could, by any possibility, be thus honoured if their seats depended on popular selection ; this body I am compelled to call around me in order that my administration may commence, for without some such assistance, I am unable to take a single step. They come ; and there sit, at the first council board, the responsible Mayor, who knows nothing and nobody, and his irresponsible advisers, who, if they do not know everything and they are seldom greater witches than their neighbours know their friends, a lean minority of the citizens, from their enemies, the great majority; and are quite aware that, for their interest, it is necessary that I should be taught, as soon as possible, to despise the latter and throw myself into the arms of the former. Will any sensible man, calmly viewing the relative 492 Constitutional Documents of Canada. [1791-1840 situations, opportunities and powers of the parties, believe that any act of administration done, or any appointment made for the first six months, is my act or my appointment? I may choose between any two or three persons whose names are artfully set before me, when an office is to be filled, and if determined to show my independence may choose* the worst; but I must choose from the relatives and friends of my advisers, or from the small minority who support them in the hopes of preferment; for to that section the whole of the city patronage must be religiously confined ; and it is of course so managed, that I scarcely know or have confidence in anybody else. Can your Lordship believe that such a state of things would give satisfaction to the citizens? Would they not begin to grumble and complain, to warn, to remonstrate, and to expose the machinations and manoevures of the monopolists? It would be very odd, and they would be very strange Englishmen if they did not. But as I have come to Liverpool to demon- strate the beauties of this system of city government, which I highly ap- prove ; as I have assumed the whole responsibility and become inflated with the consciousness of my extensive powers ; and, above all, as I am taught by my advisers to look upon every complaint of the system as a libel upon my judgment and an insult to my administration I very soon begin to dislike those who complain; to speak and write contemptuously of them in private and in public ; to denounce any who have the hardihood to suggest that some alterations are required, by which the opinions and rights of the majority shall be respected, as men dangerous to the peace of the city and disaffected towards Her Majesty's person and government; until, in fact, Liverpool becomes very like a town, in the olden time, in which the in- habitants generally being hostile to their rulers, the latter retire to the citadel, from which they project every sort of missile and give every species of annoyance. By-and-by the time arrives for the legislative branches of the city government to assemble. One of these being elected at short periods, under a low franchise, which includes the greater body of the independent citi- zens, may be taken as a fair reflection of all their great interests, their varied knowledge, passions and prejudices; the other is a body of life legislators, selected by my advisers from among their own relatives and friends; with a few others, of a more independent character, to save ap- pearances, but in which they always have a majority of faithful and deter- mined partisans. The business commences; the great majority of members in the representative branch speaking the matured opinions of the people complain of the system a*nd of the advisers it has placed around me; expressing the fullest confidence in me, whom they cannot suspect of wish- ing to do them harm, but asking my co-operation towards the introduction of changes without which, they assure me, the city never can prosper. But my advisers having a few of their adherents also in this body, they are instructed to declare any change unnecessary; to throw every obstruction m the way; to bully and defame the most conspicuous of those who expose the evils of the existing system; and to denounce them all as a dangerous combination, who, with some covert design, are pressing, for factious ob- jects, a series of frivolous complaints. Of course, as the minority speak the sentiments which I have imbibed and put themselves forward as my per- sonal champions on all occasions, they rise in my esteem exactly in the same proportions as the other party are depressed, until they become special pets ; and, from their ranks, as opportunities occur, all vacancies are sup- plied, either in the list of irresponsible advisers who in my name carry on the government, or in the number of life legislators, who do their bidding in the upper branch. I respectfully beg your Lordship to ponder over these passages, which I assure you are true to nature and to experience; and ask yourself, after bringing home such a state of affairs to the bosom of any British city, how long it would be uncomplainingly endured? or how long any ministry, duly informed of the facts, would wish it to continue? Look back, my Lord, and you will find in every rotten corporation, swept away by the immortal 1791-1840] Constitutional Documents of Canada. 493 act of which your Lordship was one of the ablest defenders, a resemblance to our colonial governments as they at present stand, too strong to be mis- taken ; and let me venture to hope, that the man who did not spare corrup- tion so near the national centre of vitality, who did not hesitate to combat these hydra-headed minorities, who swarming over England, everywhere asserted their right to govern the majorities, will not shrink from applying his own principles the great principles of the Constitution to these more distant, but not less imporant portions of the empire. Your Lordship will, perhaps, urge that Sir Francis Head succeeded in pleasing the people and getting the majority on his side. Admitting the full force that the worthy Baronet gives to this case, it is after all but the exception to the general rule. The true history of events in Upper Canada, I believe to have been this : A small but desperate minority had determined on a violent revolution ; this party might have contained some men so wicked that a love of mischief and a desire for plunder were the governing principles, and others, moved by an attachment to republican institutions ; but small as it was, the greater number of those found in its ranks had been driven there by the acts of another equally small and equally desperate min- ority, who had long monopolized, and, under the present system, may and will monopolize for a century to come the whole power and patronage of the government, dividing among them the revenues of the country. The great mass of the people of Upper Canada belonged to neither of these bands of desperadoes. They were equally determined with the one, to uphold British connection ; and as equally determined with the other, to get rid of a wretch- ed system of irresponsible administration, under the continuance of which they well knew the Province could never prosper. When Sir Francis Head arrived, he entered the colony if we are to believe his own account of the matter almost as ignorant as my imaginary Mayor of Liverpool. Sir Francis admits his ignorance, but denies the consequences that must be deduced from it: that he was led and influenced, in the first acts of his administration, until the compact found him ripe for their own purposes and embroiled even with the moderate men on the other side. Then commenced that extraordinary flight of proclamations, addresses and declamatory ap- peals ; which, winged with the ready pen of a professional author and shot from the long bow of the family compact, created so much false excite- ment, and carried so much misrepresentation into every corner of the Province. In these the great question at issue in Upper Canada which was one between the interests of the family compact and the principles of the British Constitution was winked out of sight; and the people, not only of that, but of the surrounding colonies, were made to believe that they were to choose between British and republican institutions ; that Sir Francis and the family compact (Archdeacon Strachan with the Clergy Reserves, one-seventh of the Province; and Attorney-General Hagerman, with the corrupt patronage and influence of administration, under their arms) represented the former; and Mackenzie, and his band of desper- adoes, the latter. Thus appealed to, the British population everywhere, as the cunning men at Sir Francis' elbow well knew they would, said, with one voice: "If that is the question, then we are for the British Constitution; and hurrah for Sir Francis Head !" Mackenzie was an outlaw in a week ; his small band of desperadoes was scattered by the energy of the people, the great mass of whom never dreamed of breaking the connection with the mother country. Then came the period in which the compact glorified themselves and Sir Francis; the fever of loyal excitement in which the miserable minority of officials feeling strong in the success of their manoeuvres and still stronger in the strength of British thousands pro- fusely spent, regiments of militia to be officered, equipped and paid began to wreak their vengeance upon every man who had been known to be hostile to their monopoly ; and to identify opinions, not more extreme when thoroughly understood, than those held by the most moderate section of the Whigs in England, with "privy conspiracy and rebellion." But the period was fast approaching when this unnatural excitement was to subside ; when hundreds of thousands of British subjects, looking steadily through 494 Constitutional Documents of Canada. [1791-1840 the mists that had been raised around them were to ask of each other: "Has this case been decided upon the true issue ? Was that the question ?" For evidence of the solemnity with which this inquiry has been put and the all-pervading unanimity with which it has been answered, I refer your Lordship to the meetings which have been held in every section of the Province ; to the opinions boldly expressed by every newspaper with a few, chiefly venal exceptions printed in Upper Canada ; to the bold and determined stand taken by many of the bravest and ablest men who crushed Mackenzie's rebellion and beat back the sympathizers on the frontier; to the extraordinary union of Orangemen and Catholics, Methodists, Baptists, Churchmen and Presbyterians; whose watchwords are British connection and British responsibility, and down with the compact, and the absurd idea cherished by Sir Francis Head, of a government in which the whole respon- sibility rests on the Governor. If your Lordship doubts the utter explosion of your theory, even in this Province, where for a time I admit it seemed to flourish, the approaching general elections will furnish evidence enough, and even Sir Francis, if he were to come out again with another sheaf of proclamations and addresses, and preach this Unitarian doctrine of respon- sibility, would no longer be listened to by the Upper Canadians, who have embraced a higher and purer faith. Haying, as I conceive, then, shown your Lordship that the idea of a colony in which nobody is responsible but the Governor, while his respon- sibility is only nominal, however delightful it may appear in the eyes of those who have been or hope to be Governors, is one that never can be a favourite with the colonists and has been repudiated and rejected by those of them among whom, for a limited period and under a system of delusion, it seemed to flourish ; let me turn your Lordship's attention for a few moments to the doctrine maintained by Lord Glenelg against Sir Francis Head and now put forth by your Lordship in opposition to the Earl of Durham that the Colonial Secretary is alone responsible, and that the Governor is an agent governing the Province by instructions from him. Whatever new readings may be given of our unwritten constitutions, this is the one which has always been and always will be the favourite with Colonial Secretaries and undersecretaries, and by which every clerk in Downing Street, even to the third and fourth generation yet to come, will be prepared to take his stand. And why? Because to deprive them ot this much-talked-of responsibility, which means nothing, would be to de- prive theni'Of the power to which they cling; and of the right of meddling interference with every petty question and every petty appointment in thirty-six different colonies. While things remain as they are, the very uncertainty which reigns over the whole colonial system invests the Secre- tary of State with a degree of power and influence, the dim and shadowy outline of which can scarcely be measured by the eye; but which, from its boundless extent and multiform and varied ramifications and relations, possesses a fascination which few men have been born with patriotic moderation to resist. Though a Secretary of State may occasionally have to maintain, in a particular Province, a doubtful struggle for the whole responsibility and the whole of the power, with some refractory Governor like Sir Francis Head ; yet even there he must exercise a good deal of authority and enjoy a fair share of influence; while in all others his word is law and his influence almost supreme. A judge, a crown officer, a secre- tary, or a land surveyor cannot be appointed without his consent; a silk gown cannot be given to a lawyer without his sanction ; while his word is required to confirm the nomination of Legislative Councillors for life and irresponsible Executive Councillors, in every Province, before the Queen's mandamus is prepared. The very obscurity in which the real character of colonial constitutions is involved of course magnifies the importance and increases the influence of the gentleman who claims the right to ex- pound them. More than one-half the colonists who obtain audiences in Downing Street are sent there by the mystifications in which the principles of the system are involved ; while the other half are applicants for offices, which under a system of local responsibility would be filled up, as are the 1791-1840] Constitutional Documents of Canada. 495 civic offices in Manchester and Glasgow, by the party upon whose virtue and ability the majority of the inhabitants relied. Adopt Lord Durham's principle, and above all, give to each colony a well-defined constitution based upon that principle and embodied in a bill, and "the office" will be- come a desert. The scores of worthy people with spirits weary of the anomalous and cruel absurdities of the system and sincerely laboring to remove them, now daily lingering in the ante-rooms, would be better em- ployed elsewhere, in adorning and improving the noble countries which gave them birth, and whose freedom they are labouring to establish; while at least an equal number of cunning knaves, whose only errand is to seek a share of the plunder, had much better be transferred to the open arenas in which, under a system of responsibility, public honours and official emolument could only be won. But then the office of Colonial Secretary would be shorn of much power, which, however unwisely exercised, it is always delightful to possess; and the dim but majestic forms of authority which now overshadow half the world would be chastened into reasonable compass ; with boundaries, if less imposing and picturesque, for all prac- tical purposes more simple and more clearly defined. Nor would under- secretaries and clerks have so many anxious and often fawning visitors, soliciting their patronage, listening to their twaddle, wondering at their ignorance, and yet struggling with each other for their smiles. The mother country would, it is true, hear less of colonial grievances; Parliament would save much time now devoted to colonial questions; and the people of England would now and then save a few millions sterling, which are required to keep up the existing system by force of arms. But these are small matters compared with the dignity of a Secretary of State. Here, then, my Lord, you have the reason why your reading of our constitutions is the favourite one in Downing Street. Let us see now whether it is more or less favourable to rational freedom and good govern- ment in the colonies, than that advocated by Sir Francis Head. Your authority and that of Lord Glenelg is with me in condemning his, which I have -done, as deceptive and absurd ; he will probably join me in denouncing yours, as the most impracticable that it ever entered into the mind of a statesman to conceive. The city of Liverpool shall again serve us for the purposes of illustra- tion. Turn back to the passages in which I have described a Mayor, ignorant of everything, surrounded by irresponsible but cunning advisers, who for their own advantage, embroil him with a majority of the citizens, while his countenance and the patronage created by the taxes levied upon the city are monopolized by a miserable minority of the whole ; and in- sulted and injured thousands, swelling with indignation, surround him on every side. After your Lordship has dwelt upon this scene of heartburning and discontent of general dissatisfaction among the citizens of miserable intrigue and chuckling triumph, indulged by the few who squander the resources and decide upon the interests of the many, but laugh at their murmurs and never acknowledge their authority let me beg of you to reflect whether matters would be made better or worse, if the Mayor of Liverpool was bound, in every important act of his administration, to ask the direction of, and throw the responsibility on another individual, who never saw the city, who knows less about it than even himself, and who resides, not in London, at a distance of a day's coaching from him, but across the Atlantic, in Halifax, Quebec, or Toronto, and with whom it is impossible to communicate about anything within a less period than a couple of months. Suppose that this gentleman in the distance possesses a veto upon every important ordinance by which the city is to be watched, lighted and improved by which docks are to be formed, trade regulated, and one-third of the city revenues (drawn from sources beyond the con- trol of the popular branch) dispensed. And suppose that nearly all, whose talents or ambition lead them to aspire to the higher offices of the place, are compelled to take, once or twice in their lives, a voyage across the Atlantic to pay their court to him to solicit his patronage and intrigue for the preferment, which under a better system would naturally result 496 Constitutional Documents of Canada. [1791-1840 from manly competition and eminent services within the city itself. Your Lordship is too keen-sighted and I trust too frank, not to acknowledge that no form of government could well be devised more ridiculous than this ; that under such no British city could be expected to prosper ; and that with it no body of Her Majesty's subjects, within the British Islands them- selves, would ever be content. Yet this, my Lord, is an illustration of your own theory; this is the system propounded by Lord Normanby 1 as the best the present Cabinet can devise. And may I not respectfully demand why British subjects in Nova Scotia, any more than their brethren in Liverpool, should be expected to prosper or be contented under it; when experience has convinced them that it is miserably insufficient and decep- tive, repugnant to the principles of the constitution they revere, and but a poor return for the steady loyalty which their forefathers and themselves have maintained on all occasions? One of the greatest evils of the colonial constitution as interpreted by your Lordship is, that it removes from a province every description of responsibility, and leaves all the higher functionaries at liberty to lay every kind of blame at the door of the Secretary of State. The Governor, if the colonists complain, shrugs his shoulders and replies that he will explain the difficulty in his next despatch, but in the meantime his orders must be obeyed. The Executive Councillors, who under no circumstances are responsible for anything, often lead the way in concentrating the ire of the people upon the Colonial Secretary, who is the only person they admit their right to blame. It is no uncommon thing to hear them, in Nova Scotia, sneering at him in public debate ; and in Canada they are accused of stand- ing by while Lords Glenelg and Melbourne were hanged in effigy and burned in the capital, encouraging the populace to pay this mark of respect to men, who, if your Lordship's theory is to be enforced, these persons at all events should have the decency to pardon, if they cannot always defend. I trust, my Lord, that in this letter I have shown you that in contem- plating a well-defined and limited degree of responsibility to attach to Executive Councillors in North America, I have more strictly followed the analogies to be drawn from the constitution, than has your Lordship, in supposing that those officers would necessarily overstep all bounds ; that in divesting the Governor of a vague and deceptive description of respon- sibility, which is never enforced, and of a portion of authority which it is impossible for him wisely to exercise, and yet holding him to account for what does fall within the scope of his character as Her Majesty's repre- sentative the constitutional analogy is still preserved, his dignity left unimpaired, and the difficulties of his position removed. I trust also that I have proved to your Lordship that the colonial constitutions, as they at present stand, are but a medley of uncertainty and confusion ; that those by whom they are administered do not understand them; and lastly, that whether Sir Francis Head's interpretation, or your own be adopted, neithei offers security for good government; the contest between them merely involving a difference of opinion as to who is to wield powers that neither governors nor secretaries can usefully assume, and which of these officers is nominally to bear the blame of blunders that both are certain to commit. 1 Russell's predecessor and Glenelg's successor in the Colonial Office. 1791-1840] Constitutional Documents of Canada. 497 CXXXIX JOSEPH HOWE TO LORD JOHN RUSSELL [Trans.: J. H. Chisholm, op. cit.] My Lord, The next passage of the Speech of the 3rd of June, which I am bound to notice, is that in which you say: "The Governor might ask the Executive Council to propose a certain measure They might say that they could not propose it unless the members of the House of Assembly would adopt it, but the Governor might reply that he had received instructions from home commanding him to propose that measure. How, in that case, is he to proceed? Either one power or the other must be set aside ; either the Governor or the House of Assembly ; or else the Governor must become a mere cipher in the hands of the Assembly, and not attempt to carry into effect the measures which he is commanded by the Home Government to do." This objection is based upon the assumption, that the interests of the mother country and those of the colonies are not the same ; that they must be continually in a state of conflict ; and that there must be some course of policy necessary for the Imperial Government to enforce, the reasons for which cannot be understood in the colonies, nor its necessity recognized This may have been the case formerly in the West Indies, where the con- flict was one between the ideas engendered by a^state of slavery and a state of freedom; but it is not true of the North American Provinces, to the condition and claims of which my observations are chiefly confined. Of all the questions which have agitated or are likely to agitate Nova Scotia, New Brunswick, or Prince Edward Island, how few, when rightly understood, can be said to involve any Imperial interests ; or trench upon any principle dear to our brethren at home, or the concession of which could disturb the peace of the Empire? Have any of these colonies claimed the right to regulate the foreign trade or foreign policy of the Empire? Have they ever interfered, except to carry out the views of Her Majesty's Government, with any of the military or naval operations? Have they exposed a grievance, the continued existence of which is indispensable to the well-being of the British Islands ; or demanded a right, the concession of which would not be serviceable to themselves, without doing the least injury to the people of Britain? For what have they asked? For the control of their own revenues and the means of influencing the appointment and acts of the men who are to dispense them ; and who are, besides, to distribute hundreds of petty offices, and discharge functions manifold and various within the Colony itself? The people of England have no know- ledge of these matters, nor any interest in them, to give them the right to interfere. Interference does much mischief to the Colonists, and can do no good to their brethren across the water. If British statesmen would let these things alone and it is over these only that we claim to enforce responsibility and confine themselves to those general arrangements affect- ing the whole Empire, of which we admit them to be the best judges, and in the conduct of which we never asked to take a part, it would be impos- sible to conceive how such a case could arise as that supposed by your Lordship, or how the Governor could be charged with "a measure which his Executive Council would not dare to propose." Admitting that there might be some subjects requiring discussion in the Provinces, but which the Colonists were not prepared to adopt, surely an Executive Councillor could be got, even if he were opposed to the views of the ministers, to submit the measure and explain those views to the popular branch ; or might there not be "open questions" in the Colonies as at home? The conclusion at which my mind arrives, then, after the best atten- tion that I can give to this branch of the subject, is, that if the duties and responsibilities of government are fairly and judiciously divided be- tween the Imperial and Colonial authorities, no such case as that assumed by your Lordship can occur; and, if it should, surely the good sense of all FF 498 Constitutional Documents of Canada. [1791-1840 parties concerned may safely be trusted, to avoid any violent or unpleasant collision. But did it never occur to your Lordship to inquire, whether the very evil anticipated, as an insuperable objection to the new system, does not dis- figure and annually occur under the old? What else were the Executive Councillors in Upper and Lower Canada doing for a series of years but "pro- posing certain measures," to be as certainly rejected by the popular branch? What else are they about now in Newfoundland? What but this were they doing in New Brunswick, down to the close of Sir Archibald Campbell's Administration? In all these Provinces a state of constant collision be- tween the Executive and the popular branch, which could by no possibility arise under the system I contemplate, would answer the objection, even if the difficulty suggested could be fairly taken into account. If it be said that the Councillors now do not refuse to propose measures, I answer, But if the Legislatures invariably reject them, does government gain anything, or is public business advanced by the system? What a figure did the Executive cut in Nova Scotia, in 1838, when the Councillor who brought down from the Governor a grave proposition, led the opposition against it? And how stand things in this Province now? Are not all the Councillors selections from a lean minority of the commons, in which body almost every debate terminates in a vote of implied want of confidence in them ; and where the Governor they surround has, on several occasions, only been saved from an insulting vote of censure by the good temper and modera- tion of the majority? This is a state of things too ridiculous to be long continued. To me it seems essential that Her Majesty, in every colony, should be represented by an Executive not only willing "to attempt" but "able to carry" any measures that it may be necessary to propose. The next objection taken by your Lordship to the introduction of Pro- vincial responsibility, one eminently calculated to have weight with the body you addressed, and to alarm the timid everywhere, was drawn from an application of the principle, to the management of foreign affairs. "If," says your Lordship, "the. Assembly of New Brunswick had been disposed to carry the point in dispute with the North American States hostilely, and the Executive Council had been disposed to aid them, in my opinion the Governor must have said that his duty to the Crown of this country, and the general instructions which he had received from the minister of the Crown, did not permit him to take that course, and, therefore, he could not agree with the Executive Council to carry into effect the wish of the Assembly. That is allowed. Does not, then, its very exception destroy the analogy you wish to draw, when, upon so important a point as that of foreign affairs, it cannot be sustained?" Your Lordship, in delivering this passage, of course, was not aware that, without the alteration of a single syllable, you answered the very objection that yourself had raised. If the Executive Council of New Brunswick advised Sir John Harvey to declare war upon the State of Maine, "he must have said that his duty to the Crown and his instructions did not permit him to take that course." Most certainly he would, if a measure so ridiculous had been attempted in New Brunswick, which nobody, who knows anything of that Province, could for a moment imagine. I do not believe that there are ten men in it, cer- tainly there are not fifty in all the lower Provinces put together, who do not know that the Sovereign alone has the right to declare war upon for- eign powers; and who are not willing that, upon all the relations of the Colonies with these, and with each other, the Imperial Government shall decide. A few of the New Brunswickers blamed Sir John Harvey for not acting upon Her Majesty's instructions to maintain exclusive jurisdiction over the disputed territory, notwithstanding the advice received from the Minister at Washington; but, if those instructions had not existed, and had not been positive, no one would have been idiot enough to suppose tha' Sir John Harvey would have been bound to make war, on a point of honour or policy newly discovered by his Executive Council, and upon which Her Majesty^ government had had no opportunity to decide. Suppose, when Parliament was granting a charter to Hull, it was objected that the Mayor might be advised to make war upon Sweden (and, in the case of an elec- 1791-1840] Constitutional Documents of Canada. 499 tive officer, the danger would be greater than if he were appointed by the Crown,) would not the same House of Commons that thought it unsafe to let a Colony manage its internal affairs for fear it would engage in foreign wars, laugh at the possibility of such an absurdity being committed by any body of Englishmen out of Bedlam? Why then should it be taken for granted that we are not English in our habits and opinions, our education and training, our capacity to discern the boundaries of authority; and that therefore it would be unsafe to depend upon our wisely exercising powers, which, in the British Islands, millions exercise for their own security and without danger to the state? In the case of Hull, if the objection were gravely urged, the ready answer would be, "No greater powers can be exercised than are granted in the bill; and if there is the least danger of the the city authorities doing anything so ridiculous, put in a clause that shall restrain them." And I say after soberly protesting that the very suspicion of such an attempt is an insult to the understanding, and an imputation upon the character of our population, which they do not deserve that if you wish "to make assurance doubly sure," put a clause into the bill which concedes the principle of responsibility so far as relates to domestic affairs, and by which all such belligerent Councillors shall be expressly restrained. Whether this point were or were not thus defined, that any Executive Council, merely because they were responsible to the people, would, after receiving such an answer as your Lordship admits a British Governor must give, proceed in defiance of his authority, to levy war upon a friendly state, I cannot for a moment believe. If they did, they would certainly so completely fail, and render themselves so supremely ridiculous, that the attempt would not be likely to be repeated, at least for a century to come. Let us suppose the case to have occurred in New Brunswick: that the Executive Council being responsible, had advised Sir John Harvey to pro- ceed hostilely ; and that, on his declining, they had levied war. In the first place, as all the regular troops were at Sir John's disposal, as Commander- in-Chief within the Province, and not merely as civil Governor, they not only could not have moved a soldier, but would have had the whole military force of that and the adjoining Provinces against them. As the Governor's order to the colonels and officers commanding the militia is indispensable before a single step can be taken, under the laws by which that force is embodied, of course no hostile order would have been given, nor could those laws have been modified or changed without Sir John's assent. And if it be urged, that volunteers would have flocked to the aid of the Execu- tive Council, may I not inquire where they would have obtained arms and ammunition, when all the military munitions and stores were deposited in military warehouses, under the care of commissaries and officers of ord- nance responsible only the Crown? Oh! no, my Lord, whatever effect such imaginary cases as these may have on men at a distance, unacquainted with the state of society in British America and the general intelligence which prevails; here they are laughed at, as the creations of a fertile imagination taxed to combat political improvements that were feared without being understood. If, even under the federative government of the United States, in which each state is much more independent of the central author- ity than any Colony would be under the system I contemplate, this right of private war has only been once asserted, by a single State, in more than half a century, and then was scouted all over the Continent, is it to be sup- posed that British subjects will pay less respect to the authority of thei " Queen than do republican Americans to that of their President? There is one bare possibility, which your Lordship has not suggested, in opposition to the new system, and yet it is scarcely more ridiculous than some that have been urged ; that the Colonial Councillors might claim the control of the squadron upon the North American coast, as well as of the land forces, in their anxiety to engage in foreign wars. The danger in this case would be nearly as great as in the other ; for, in modern warfare, a fleet is nearly as necessary as an army ; and yet, it is certain that the admiral upon the station would know how to treat such a claim, should it 500 Constitutional Documents of Canada. [1791-1840 be preferred by a Council, who, in the wanton exercise of authority, were disposed to transgress all bounds? The next objection which I am bound to notice, is given in the repart: "Let us suppose that an officer of the militia in Upper Canada, after an action, was to order that the persons taken in that action should be put to death on the field. I can conceive it possible, in a state of exasperation and conflict with the people of the neighbouring States, that the Assembly might applaud that conduct, and might require that it should be the rule and not the exception, that all invaders of their territory should be treated in that manner, and that the parties should be put to death without trial. Supposing that to be the case ; could the Government of this countty adopt such a rule? Could the Secretary of State for the Colonies sanction such a rule, and not decide, as my honourable friend the under-secretary has done, that the practice should meet with his decided reprehension?" Now, my Lord, admitting that such a case might occur once in half a century, under the new system, let me remind your Lordship that it has already occurred under the old. If it is to have any weight, the fact of its occurrence in a Province in which the Executive Council is irresponsible and the Colonial Secretary is in the exercise of his full powers, makes in favour of my argument ; while I have a right to deny, until proof is furnished, that it could occur, if matters were more wisely ordered, and a more rational system established, by which all temptations to foreigners to make inroads into British Provinces, speculating upon the disaffection of the people, would be removed. But, my Lord, life has been taken under your system "death" has been inflicted "without trial," illegally, as you infer and has any punishment followed? Have the laws been vindicated? No!. Then why not? Simply, I presume, because your beautiful mode of government has produced such a state of things in a British Province, that the ministers of the Queen dare not bring the man charged with this high offence to trial. Under a system of responsibility, by which the popu- lation were left to manage their domestic affairs, I hold that no such viola- tion of law would be likely to ocurr, and, that if it did, investigation would be as safe, and punishment as certain, as though a crime had been com- mitted in Middlesex, or Surrey. I have thus disposed, my Lord, of the military questions; and, as I have left Her Majesty and her representatives in full control of the army and navy and of the militia force of British America, and have asserted no claim of the Colonists to interfere with foreign treaties and diplomatic arrangements affecting the empire at large; I think, if peace be not main- tained with foreign states, the punishment for offences strictly military be not awarded, the blame will not rest with the Executive Councillors, who are to exercise no jurisdiction over these matters, and cannot be responsible if others fail in their duty. Let me now turn to another class of objections, arising out of our Col- onial and foreign trade. "Again," says your Lordship, "neither could this analogy be maintained with regard to trade between Canada and the mother country, or Canada and any other country. How then can you adopt a principle from which such large exceptions are to be made? If you were to do so, you would be continually on the borders of dispute and conflict; the Assembly and the Executive, on the one hand, requiring a certain course to be pursued, while the Governor, on the other hand, would be as constantly declaring that it was a course he could not adopt ; so that, in- stead of furnishing matter of content and harmony in these Provinces, you would be affording new matter for dispute and discontent if you were to act upon this supposed analogy." Now, my Lord, I feel it my duty to state, that you may take from any part you please to select, of England, Ireland, or Scotland, two hundred thousand persons, and among them you will not find a larger number than are to be found in Nova Scotia, well informed as to the degree of authority in matters of trade, which, for the good of the whole empire and the preservation of the advantages in which all are to participate, it is necessary to confide to the care of the Sovereign and the 1791-1840] Constitutional Documents of Canada. 501 wisdom of the Imperial Parliament. The great corporations of London, of Bristol, and of Liverpool, do not presume to interfere with these, except by petition and remonstrance, neither do we. Each of these cities has the right to levy small duties within their own limits, for matters of internal regulation ,or to aid public improvements; and these rights they exercise, in common with us, when they do not contravene any British statutes necessary for the protection of the trade of the empire. But, if it can be shown that a law bears unequally upon London or Halifax, and that a flagrant case of hardship exists; or if the industry of any portion of the people, either in England or the Colonies is taxed, while no corresponding advantage is reaped by any other portion ; or that ,if reaped, it is an unfair and illegitimate advantage, an appeal is made to Parliament. We have hitherto been contented, although not directly represented in that Assem- bly, to abide the result of that appeal; or to pass bills, taking our chance of their being assented to in England. The same thing would occur, even if the Executive Council was responsible ; for, upon this point, there is no part of our population prepared to set up absurd or irrational claims. If Parliament should undertake to legislate directly against our interests; to cut up our commerce, and prevent the growth of domestic industry ; and, after fair notice and ample proof of injury, were to persist in such a course; why then a state of things would arise, which similar policy pro- duced elsewhere, in other times, and upon the results of which either responsible or irresponsible Councils would exercise but little influence. But, as political economists at home are every day becoming convinced that the more liberty they afford to the Colonist to conduct his commercial oper- ations the greater will be his demand for British manufactures; and as, un- der the guidance of this enlightened policy, the laws of trade and naviga- tion are annually becoming less restrictive, it is not probable that difficulties, which were never insuperable, will all of a sudden admit of no rational remedy; or that the boundaries of Colonial and Imperial authority, now so well understood, and the recognition of which is so easily enforced, will often be called in question on either side. If the Colonists assert rights which do not belong to them, and persist in their contumacy, disturbing solemn treaties and setting acts of Parliament at naught; why then they have broken the social compact, it is a case of rebellion and they must be put down. Let us reduce the difficulty to practice, for the purpose of illustration. Suppose that both branches of the Legislature pass a law by which a heavy duty is laid on British broadcloths, and those from the United States are admitted duty free ; and that the Executive Council, being responsible, advise the Lieutenant-Governor to assent to it. Such an absurd piece of bad faith as this could never be attempted in the lower Provinces ; for pub- lic opinion would never sanction any interference with the general laws, not intended to remedy abuses, or that struck at Colonial without promot- ing British prosperity; nor would any changes be popular which violated the fraternal comity by which British subjects everywhere are bound to encourage and protect each other. But I have supposed the law passed and presented. The Governor would say in this case, as he now invariably says as your Lordship admits he must say, if urged to provoke a foreign war: "Gentlemen, you are exceeding your powers. To legislate for your own advantage is one thing; to legislate directly against your brethren at home, for the advantage of foreigners, is another. This bill must be either modified or rejected, or reserved for Her Majesty's assent before it can go into operation." If the parties urging it persisted, a dissolution might be tried, and an appeal to British subjects, in a case where the Governor was clearly right and his advisers wrong, would never be made in vain ; particularly when aided by the Constitutional opposition, which, under a system of responsibility and manly competition, would exist in every Colony. But if it failed"; and such an almost impossible thing were upon the cards, as that a majority could be found in Nova Scotia to sustain such an act, or anything bearing a resemblance to it, then a case would have occurred for the interference of the Imperial authorities, who should 502 Constitutional Documents of Canada. [1791-1840 say to us frankly: If you will come into unnatural and hostile collision, the weakest has the most to fear. Had your Lordship been as familiar with the mode of dealing with such subjects as most Colonists are who have watched the proceedings of Colonial Assemblies, you would have been satisfied that no danger was to be apprehended from violent collisions about matters of trade. When a new duty is proposed in Nova Scotia or a reduction suggested, the first question asked on all sides is, Will the proposition violate the letter or does it even run counter to the spirit of the Imperial Acts? If it does, fn eight cases out of ten, the person bringing the measure forward drops it, on being assured of the fact. In the ninth case, where a doubt exists as to the policy and wisdom of Imperial legislation it is found, on inquiry, that the clause which seemed to press upon us, originated in a wide view over the whole field of commerce, which British statesmen, often better than others whose positions afford fewer advantages, are enabled to take and that its repeal would inflict an injury and not confer a benefit. The tenth case is perhaps one in which the Imperial Parliament, either from haste, or prejudice, or insufficient information, has committed an error in poli- tical economy, or inflicted a wound upon Colonial without benefiting British industry. In this case (and they only occur once in a great while) no one ever dreams, that, as your Lordship expresses it, the Imperial Legislature is to be "overruled" by that of the colony. We never doubt but that an appeal to the good sense and the justice of our brethren over the water will be successful. A bill is passed, perhaps, to meet the difficulty; and an explanation of the facts and reasoning in which it originated, is sent with it, in the form of an address to the throne, and in most cases is found to be successful. This is the mode at present. What reason is there to suppose that it would be much changed, if we had an Executive Council, whose powers and responsibilities did not extend to matters of general commerce, already provided for by Imperial legislation? If we are so fond of violent con- flicts and factious opposition, what hinders us from indulging our propen- sities now? Shall we be less considerate the more kindly we are treated? Shall we have less respect for Imperial legislation, when we see that it leaves us the entire management of our domestic affairs and only deals with those great interests which transcend our authority and are beyond our control? Suppose twelve Nova Scotians, who are not responsible to any authority under Heaven, are made accountable to the rest of their countrymen, shall we have a man the more for forcible resistance than we have now or a gun.a pike, a bomb, or a barrel of powder? I have thus, my Lord, gone over the arguments urged by your Lordship in the speech of the 3rd of June. I have omitted none that appear to me to have the slightest bearing upon the great question at issue, and I trust I have given to each a fair and satisfactory answer. I have written not only under a solemn sense of duty, but with a full assurance that sophistry, woven around this question, either on one side of the Atlantic or the other, would be torn to shreds in the conflict of acute and vigorous minds now engaged in its discussion. Had your Lordship, in announcing the decision of the Cabinet, forborne to state the reasons upon which that decision was founded, I might, like counsel at the bar under similar circumstances, have .felt myself compelled to acquiesce in a judgment, neither the justice nor the policy of which I could fathom. But when the arguments were stated, and when I saw a question involving the peace and security of six extensive Provinces, and the freedom and happiness of a million and a half of British subjects, disposed of by a mode of reasoning which I knew to be deceptive and unsound, when I saw, in fact, that the parties claiming their rights were to be turned out of court, with all the arguments and all the evidence on their side, I felt that to remain silent would be to deserve the social and political degradation which this unjust decision was to entail on my countrymen and myself; to earn the Helot mark of exclusion from the blessings of that Constitutional freedom, which our forefathers struggled to bequeathe ; and which we should never 1791-1840] Constitutional Documents of Canada. 503 cease to demand, as a patrimony that runs with our blood, and cannot be rightfully severed from our name JOSEPH HOWE. CXL JOSEPH HOWE TO LORD JOHN RUSSELL [Trans. : J. H. Chisholm, op. "/.] My Lord, The business of factious demagogues of all parties is to find fault with everything, to propose nothing practical, to op- pose whatever is suggested, to misrepresent and to defame. The object of honest and rational politicians ought to be to un- derstand each other to deal frankly, abhoring concealment, that mistakes may not be made about facts, terms or intentions ; to deal fairly, giving credit for a desire to elicit truth, and a wish to weigh in a just balance both sides of every question. Having put before you such evidence as I hope will lead your Lordship's mind to the conclusion that the system by which the North American Colonies are at present governed, must be abandoned, it is not improbable that your Lordship may inquire what it is that we are desirous to substitute for that system? The demand is a rea- sonable one. The party who seek this change are bound to prove that they have a safe and intelligable remedy for the evils of which they complain. If I cannot show your Lordship that, without endangering the authority of the mother country over her Provinces, weakening the constitutional powers of the Crown, or trenching on the high privileges and wide range of duty assigned to the Imperial Parliament, a better form of government than that which I am anxious to overturn one more nearly conforming to the practice and spirit of the Constitution, as understood at home to the wants and peculiar situation of these Colonies, and less repugnant to the feelings and prejudices of Englishmen everywhere, can be established, then I must quit the field of argument, and cannot complain if your Lord- ship adheres to your own opinions. From what has been already written, it will be seen that I leave to the Sovereign, and to the Imperial Parliament, the uncontrolled authority over the military and naval force distributed over the Colonies ; that I carefully abstain from trenching upon their right to bind the whole empire, by treaties and other diplomatic arrangements, with foreign states ; or to regu- late the trade of the Colonies with the mother country ,and with each other. I yield to them also the same right of interference which they now exercise over Colonies and over English incorporated towns ; whenever a desperate case of factious usage of the powers confided, or some reason of state, affecting the preservation of peace and order, call for that interference. As the necessity of the case, the degree and nature of this interference, would always be fully discussed by all parties concerned, I am not afraid of these great powers being often abused, particularly as the temptations to use them would be much lessened if the internal administration were im- proved. The Colonial Secretary's duties should be narrowed to a watchful supervision over each Colony, to see that the authority of the Crown was not impaired, and that Acts of Parliament and public treaties were honestly and firmly carried out; but he should have no right to appoint more than two or three officers in each Province, and none to intermeddle in any in- ternal affair, so long as the Colonial Government was conducted without conflict with the Imperial Government and did not exceed the scope of its authority. This would give him enough to do, without heaping upon him duties so burdensome and various that they cannot be discharged with honour by any man, however able ; nor with justice or safety to the millions whose interests they affect. His responsibility should be limited to the extent of his powers; and as these would be familiar to every Englishman, 504 Constitutional Documents of Canada. [1791-1840 exposure and punishment would not be difficult, in case of ignorance, incapacity or neglect. I have shown, in the illustration drawn from the city of Liverpool, that most Governors come out to Colonies so ignorant of their geography and topography, climate, productions, commerce, resources and wants ; and above all, of the parties, passions and prejudices which divide them; and of the character, talents and claims of the men by whom the population are influenced and led, that for the first six or twelve months they are like overgrown boys at school. It is equally clear, that while the business of government must move on, and the administration commence from the day on which the new Governor arrives, the schoolmasters, from whom all his facts are derived from whom he gathers his views of internal affairs, and his impressions, not only of different parties, but of individuals in each party, are the irresponsible Executive Councillors, whom the present sys- tem calls around him; and who, possessed of such advantages, rarely fail, before he can by any possibility escape from their toils, to embroil him with the popular branch of the Legislature, and the mass of the people by whom it is sustained. Now let us suppose, that when a Governor arrives in Nova Scotia, he finds himself surrounded, not by this irresponsible Council, who represent nothing except the whims of his predecessors and the interests of a few families (so small in point of numbers, that but for the influence which office and the distribution of patronage give them, their relative weight in the country would be ridiculously diminutive), but by men who say to him : "May it please Your Excellency, there was a general election in this Province last month, or last year, or the year before last, and an adminis- tration was formed on the results of that election. We, who compose the Council, have ever since been steadily sustained by a majority of the com- mons and have reason to believe that our conduct and policy have been satisfactory to the country at large." A Governor thus addressed, would feel that at all events he was surrounded by those who represented a majority of the population; who possessed the confidence of an immense body of the electors, and who had been selected by the people who had the deepest interest in his success, to give him advice and to conduct the administration. If he had doubts on this point if he had reason to believe that any factious combination had obtained office improperly, and wished to take the opinions of the country; or if the Executive Council sought to drive him into measures not sanctioned by the charter ; or exhibited a degree of grasping selfishness which was offensive and injurious, he could at once dissolve the Assembly and appeal to the people : who here, as in England, would relieve him from doubt and difficulty ; and, fighting out the battle on the hustings, rebuke the Councillors if they were wrong. This would be a most important point gained in favour of the Governor; for he is now the slave of an irresponsible Council, which he cannot shake off; and is bound to act by the advice of men, who, not being accountable for the advice they give, and having often much to gain and nothing to lose by giving bad advice, may get him into scrapes every month, and lay the blame on him. The Governors would, in fact, have the power of freeing themselves from thraldom to the family compacts, which none of them can now escape by the exercise of any safe expedient known to our existing Constitutions. It will be seen, too, that by this system, whatever sections or small parties might think or say, the Governor could never, by any possibility, become, what British Governors have of late been everywhere, embroiled with the great body of the inhabitants over whom he was sent to preside. The Governor's responsibility would also be narrowed to the care of the Queen's prerogative, the conservation of treaties, the military de- fence, and the execution of the Imperial Acts ; the local administration being left in the hands of those who understand it, and who were respon- sible. His position would then be analogous to that of the Sovereign he could do no wrong in any matter of which the Colonial Legislature had the right to judge; but would be accountable to the Crown, if he betrayed the Imperial interests committed to his care. 1791-1840] Constitutional Documents of Canada. 505 Executive Councillors now are either heads of departments, or mem- bers of the two branches who are generally favourable to the policy of these, and disposed to leave their emoluments intact. One or two persons, of more independent character, and slightly differing from the others upon a few points are sometimes admitted ; but a vast preponderance in favour of the views of the official compact, is always, as a matter of course, main- tained. The heads of departments are always very well paid for their trouble in governing the country, by the enormous official salaries they receive; their colleagues are either looking for office, or have means of providing for their relatives and friends ; while, if it should so happen, that such a thing as a Colonial Executive Councillor can be found for any length of time, in office, who has not served himself or his friends, the title, and consciousness of possessing for life the right to approach and advise every Governor, and give a vote upon every important act of admin- istration, without a possibility of being displaced or called to account for anything said or done, is no mean reward for the small amount of labour and time bestowed. Formerly, these people, in addition to other benefits, obtained for themselves and their friends immense tracts of crown land. This resource is now cut off, by the substitution, of sales for free grants ; but, looking at the Executive Council, or Cabinet, as it exists in any of the North American Provinces at present, we find a small lot of individuals, responsible neither to the Queen, the Secretary of State, the Governor nor the people ; who owe their seats to neither, but to their relatives and friends through whose influence and intrigues they have been appointed ; and who, while they possess among them some of the best salaries and nearly all the patronage of the country, have a common interest in promoting extrava- gance, resisting economy, and keeping up the system exactly as it stands. It will be perceived, that such a body as this may continue to govern a Colony for centuries ; like the Old Man of the Mountain, who got upon Sinbad's back, ordinary exertions cannot shake it off. To understand more clearly how un-English, how anti-constitutional, how dangerous this body is, it is only necessary to contrast it with what it ought to resemble, but never does. In England, the government of the country is invariably carried on by some great political party, pledged to certain principles of foreign or domestic policy, which the people for the time approve ; but the cabinet in a Colony is an official party, who have the power for ever to keep themselves and their friends in office, and to keep all others out, even though nineteen out of every twenty of the population are against them. What would the people of England say, if some twenty families, being in possession of the Treasury, Horse Guards, Admiralty, Colonial Office, had the power to exclude Whigs, Tories, and Radicals; to laugh at hostile votes in the Commons, and set the country at defiance ; to defend each other against the crown and the people ; to cover ignorance, incapacity, corrup- tion, and bad faith Would they bear such a state of things for a week? And yet your Lordship seems to think that we should bear it, for an indefinite period, with patience. Now for this body I propose to substitute one sustained by at least a majority of the Electors; whose general principles are known and ap- proved ; whom the Governor may dismiss, whenever they exceed their powers ; and who may be discharged by the people whenever they abuse them; who, instead of laying the blame, when attacked, upon the Gov- ernor, or the Secretary of State, shall be bound, as in England, to stand up and defend, against all comers, every appointment made and every act done under their administration. One of the first results of this change would be to infuse into every department of the administration a sense of accountability, which is now nowhere found to give a vigorous action to every vein and artery now exhibiting torpidity and languor and to place around the Governor, and at the head of every department of public affairs, the ablest men the Colony could furnish ; men of energy and talent, instead of the brainless sumphs, to whom the task of counselling the Governor, or administering the affairs of an extensive department, is often committed under the present system. In England, whether Whigs, Tories 506 Constitutional Documents of Canada. [1791-1840 or Radicals are in, the Queen is surrounded, and the public departments managed, by some of the ablest men the kingdom can produce. But sup- pose a mere official faction could exclude all these great parties from power, how long would the government possess the advantage of superior abilities to guide it? Would it not at once fall far below the intellectual range which it now invariably maintains? But, it may be asked, would not the sudden introduction of this system work injustice to some who have taken offices, in the expectation of holding them for life? Perhaps it might, but even if this were unavoidable, the interests of individuals should give way to the public good. The Borough- mongers had the same objections to the Reform Act, recorders and town- clerks to that which cleansed the corporations. This, like all minor diffi- culties, might easily be provided for; and I am sure that there are but few of those seeking to establish responsible government who desire to over- turn even a bad system in a spirit of heartless vindictiveness. The Colonies, having no hereditary peerage, the Legislative Council has been constructed to take it place. From the difficulty of making it harmon- ize with the popular branch, some politicians in Lower Canada and it was said that the Earl of Durham, at first, inclined to the opinion thought it might be abolished. I think there is no necessity for this ; first, because it would destroy the close resemblance which it is desirable to maintain be- tween our Institutions and those of the mother country; and again, because a second legislative chamber, not entirely dependent upon popular favour, is useful to review measures and check undue haste or corruption in the popular branch. Besides, I see no difficulty in maintaining its independence, and yet removing from it the character of annual conflict with the repre- sentative body, by which it has been everywhere distinguished. The main object of the Executive Council being the preservation of a system by which they enjoy honours, office and patronage, uncontrolled and uninfluenced by the people; and they having the nomination of Legis- lative Councillors, of course, they have always selected a majority of those whose interests and opinions were their own, and who could help them to wrestle with, and fight off the popular branch. Hence the constant col- lision, and general outcry against the second chamber. The simple remedy for all this appears to be, to introduce the English practice: let the people be consulted in the formation of the Executive Council ; and then the appointments to the Legislative will be more in accordance with the public sentiment and general interest, than they are now. I should have no objection to the Legislative Councillors holding their seats for life, by which their independence of the Executive and of the people would be secured, provided they were chosen fairly by those to whom, from time to time, the constituency, as at home, entrusted the privilege; and not as they are now selected, to serve a particular purpose, and expressly to wrangle, rather than to harmonize with the popular branch. The House of Lords includes men selected by all the administrations which the people of Britain have called into power. The Houses of Lords, in the Colonies, have been created by all the administrations which the people never could influence or control. Some members of the second branch should, of course, have seats in the Executive Council, because in that Chamber also, the acts and the policy of the government would require to be explained ; but here, as in England, though very desirable, it would not be essential that the admin- istration should always be sustained by a majority in the Upper House. One of the first effects of a change of system would be a decided improvement in the character of all the Colonial Assemblies. The great centre of political power and influence would in the Provinces, as at home, be the House of Commons. Towards that body the able, the industrious, the eloquent, and the wealthy, would press with ten times the ardour and unanimity which are now evinced; because then, like its great prototype in Britain, it would be an open and fair arena, in which the choice spirits of the country would battle for a share in its administration, a participation in its expenditure, and in the honour and influence which public employ- 1791-1840] Constittuional Documents of Canada. 507 ment confers. Now a bon vivant, who can entertain an aide-de-camp; a good looking fellow, who dances with a Governor's lady; or a cunning one, who can wheedle a clerk or an under-secretary in Downing Street, may be called to take a part in governing a Province for the period of his natural life. Then, these disreputable and obscure channels of advance- ment would be closed; and the country would understand the reason, and feel the necessity for every such appointment; and the population would be driven to cultivate those qualities which dignify and adorn our nature, rather than debase it. Now, any wily knave or subservient fool feels that his chance is as good as that of the most able and upright man in the Colony; and far better if the latter attempts to pursue an independent course ; then, such people would be brought to their proper level, and made to win their honours fairly before they were worn. Another improvement would be the placing of the government of a Colony, as it always is in England, in a majority in the Commons, watched, controlled, and yet aided by a constitutional opposition. Under the present system, the government of a colony is the opposition of the Commons and often presents in that body the most unseemly and ridiculous figure. Num- berless instances might be given of this. The three Executive Councillors who sit in the Assembly of Nova Scotia have been resisting, in miserable minorities, on a dozen divisions during the last two sessions, votes by which the Commons recorded a want of confidence in them and their party ; and, in fact, the government, instead of taking the lead in public measures with the energy and ability which should belong to a govern- ment, cannot take a single step in the Assembly without the sanction of its opponents. Every emergency that arises and for which an administration ought to be secure of a majority, presents some absurd illustration of the system. When the border difficulties with the State of Maine occurred last winter, the Government of Nova Scotia had not the power to move a single man of the militia force (the laws having expired), or to vote a single shilling, until the majority came forward, as they always have done, in the most honourable manner, and, casting aside all political differences, passed laws for embodying the militia, and granted 100,000 to carry on the war. But, will your Lordship believe, will it be credited in England, that those who voted that money; who were responsible to their constitu- ents for its expenditure, and without whose consent (for they formed two- thirds of the Commons) a shilling could not have been drawn, had not a single man in the local cabinet by whom it was to be spent, and by whom, in that trying emergency, the Governor would be advised. Nor are things better when the Legislature is not in session. In consequence of the estab- lishment of steam navigation, a despatch was sent out this spring, after the House was prorogued, requiring the Governor of this Province to put the main roads in thorough repair. Of course he had no means to accom- plish the object, nor could his Executive Council guarantee that a single shilling thus expended would be replaced or that a vote of censure would not be passed upon him if he spent one ; and to obviate the difficulty, they were seen consulting and endeavouring to propitiate the members of the majority, whose places, upon such terms, they were contented to occupy and to which, as far as I am concerned, if such humiliations are to be the penalty, they are heartily welcome. It has been objected to the mode proposed, that it would lead to the rotation of office, or extensive dismissals of subordinates, practised in the United States. But no person abhors that system more than myself, nor has it found any favour in the Colonies, where the British practice is preferred, of removing the heads of departments only. To those who are afraid of the turmoil and excitement that would be produced, it is only necessary to say, that if upon the large scale on which the principle is applied at home, there is no great inconvenience felt, how much less have we to fear where the population is not so dense, the competition not so active, nor the prizes so gigantic. A ministry that in England lasts two or three years is supposed to fulfil its mission; and a quadrennial bill is considered unnecessary, because Parliament, on the average, seldom sits 508 Constitutional Documents of Canada. [1791-1840 longer than three or four years. As, under a system of responsibility, the contest for power would be fought out here as it is in England, chiefly on the hustings; an administration would, therefore, last in Nova Scotia until the quadrennial bill was passed, for six years certainly two years more than the Governor, unless specially continued, is expected to hold his ap- pointment; and if it managed judiciously, there would be nothing to pre- ment it from holding the reins for twenty or thirty years. Of course, an Executive Council in the Colonies should not be expected to resign upon every incidental and unimportant question connected with the details of government; but, whenever a fair and decisive vote, by which it was evident that they had lost the confidence of the country, was registered against them, they should either change their policy, strengthen their hands by the accession of popular talents and principles, or abandon their seats and assume the duties and responsibilities of opposition. If there was any doubt as to what the nature of such votes should be, the Parliamentary usage would be the guide on this as on all minor matters. One of the greatest evils of the present form of government is, that nothing like system or responsibility can be carried into any one branch of the public service. There are, exclusive of military and road commis- sions, nearly nine hundred offices to be filled, in the Province of Nova Scotia alone ; all essential to the administration of internal affairs, not one of them having anything to do with Imperial interests. And will it be believed in England, that the whole of this patronage is in the hands of a body whom the people can never displace? that the vast majority in the Commons have not the slightest influence in its distribution? while the greatest idiot who gives his silent and subservient vote in the minority, is certain of obtaining his reward? But the evil does not stop here. It is utterly impossible for the people either to bring to punishment or to get rid of a single man of the whole nine hundred, if the local government chooses to protect him. Perhaps the most cruel injury that the system inflicts on the Colonists, arises from the manner in which they are compelled to conduct their in- ternal improvements. This has been noticed by Lord Durham. But per- haps his Lordship did not fully comprehend the reasons which render the mode however anomalous and injurious in some degree acceptable to the constituency, in order that other evils may be prevented, which might be a great deal worse. It will be perceived that the nine hundred offices already referred to, are generally distributed by the irresponsible official party in such a way as to buy their peace or to strengthen their influence in the country. Let us see how this operates in practice. Suppose a county sends to the Assembly four representatives, all of whom support the local government; the patronage of that county is of course at their disposal, to strengthen their hands, and to keep down all opposition ; but should the whole be hostile to the compact, then it is used to foster opposition and create a party to displace them. If there is a division of sentiment among the members, those who support are always aided in mortifying and get- ting rid of those who attack the Government. Though but one of the four is an adherent of the compact, every man in the county knows, that his influence is worth much more than that of the other three; that, while one can obtain any favour that he wants for a friend or partisan, the others cannot, unless by the barter of a corrupt vote or the sacrifice of principle, even obtain justice. Now, if besides these nine hundred offices, about five hundred commissions for the expenditure of the surplus revenues of the country upon roads, bridges and internal improvements, were given over to be disposed of in the same way, the hands of the compact would be so much strengthened that it would be still more easy to create a party in a county, to endanger the seat of any member who ventured to give an inde- pendent vote. To obviate this risk, which was seen at an early period to menace the independence of the Commons, it was determined that the members from each county should recommend the commissioners for the expenditure of moneys within it ; and this, being acquiesced in by the Governors for some time before its political bearing was much regarded bj 1791-1840] Constitutional Documents of Canada. 509 the compact, has grown into usage which they have not ventured openly to attack; although, as they still contend that the right of appointment is in the Executive they seldom fail to show their power and vent their feel- ings, by petty alterations almost every year. The advantages of this ai rangement are that the majority of the constituency and not the minority, as in every other case distribute the patronage under this branch of ex- penditure ; and, as the members who name commissioners have a great deal of local knowledge, and are, moreover, responsible to the people, they can be called to account if they abuse this trust. But still, from the very nature of things, it is liable to abuse. Road commissions may be multiplied and sums unwisely expended to secure votes at the next election ; or to reward, not a good road maker but a zealous partisan. The Executive has not the control it would have if these men were selected by the Government ; and the legislative power, which should be used to unmask corruption, is some- times abused to afford it shelter. The remedy which our compacts always suggest, like all their remedies for political discrepancies, aims at the ex- tension of their own influence and the firmer establishment of their own power. They are loud, upon all occasions, in denouncing the corruption of the road system. The minority in the Assembly are eloquent on the same theme; while, through the columns of some newspaper in their pay, they are always pouring forth complaints, that the roads are wretchedly bad and that they will never be better until the expenditure is placed in their hands. It will be perceived, however, that to follow their advice, would be to make what is admitted on all hands to have its evils, a great deal worse ; because, if these nominations are taken from those who pos- sess local information, and given to men who have little or none, who will not be .advised by those who have, and who can be called to account by no power known to the Constitution ; besides a great deal more of blun- dering being the result, the partial responsibility, which now makes the system barely tolerable, would be entirely removed. Political partisans would still be rewarded ; but, instead of all parties in the country sharing the patronage (for members of the minority, as well as of the majority, make these appointments), it would be confined only to those who sup ported the compact; and who, however imbecile, ignorant or corrupt, would then be, as every other officer in the Colony is now, independent of any description of public control. If any doubt could be entertained as to whether the public would lose or gain by the change, evidence enough might be gathered; for some of the vilest jobs and most flagrant cases of mismanagement that disgrace the history of the road service in Nova Scotia, have been left as monuments of the ignorance or folly of the com- pact, whenever they have taken these matters into their own hands. But, make the Governor's advisers responsible to the Assembly, and the representatives would at once resign to them the management of such affairs. It would then be the business of the Executive, instead of leaving the road service to the extemporaneous zeal or corrupt management of individuals, to come prepared, at the commencement of each session, with a general review of the whole system; and. supported by its majority, to suggest and carry a comprehensive and intelligible scheme, embracing the whole of this service, accounting for the previous year's expenditure and appointments, and accepting the suggestions of members as to the plans of the current year. We should then have an Executive to which every commissioner would be directly accountable ; to which he could apply for instructions from January to December; and which, being itself responsible, would be careful of its proceedings ; and yet, being more independent than individual members are in dealing with their own constituents, would be more firm and unyielding where it was right. This is the simple, and I am satisfied that the only safe remedy for the abuses of the road system. To take the distribution of commissions from fifty men, possessed of much local knowledge and partially responsible ,to give it to twelve others having less information and subject to no control, would be an act of madness. For- tunately, in this, as in all other cases, we have no occasion to seek for new theories, or try unsafe experiments; let us adopt the good old practices of 510 Constitutional Documents of Canada. [1791-1840 our ancestors and of our brethren ; let us "keep the old paths," in which, while there is much facility, there is no danger. My Lord, there is an argument used against the introduction of Execu- tive responsibility, by Sir Francis Head, which it may be well to notice, because it has been caught up by shallow thinkers everywhere, and is often urged with an air of triumph, that, to those who look beyond the surface, is somewhat ridiculous. It is said, that if this principle had been in operation, Papineau and Mackenzie would have ministers in the respec- tive Provinces they disturbed! But, do those who urge this objection ever stay to inquire whether, if there had been responsibility in the Canadas, either of these men could have assumed so much consequence as to be able to obstruct the operations of Government and to create a rebellion in a British Province? Nothing made a dictator tolerable in ancient Rome but a sense of common danger arising out of some unusual and disastrous posture of affairs, which rendered it necessary to confide to an individual extraordinary powers to raise one man far above all others of his own rank to substitute his will for the ordinary routine of administration, and to make the words of his mouth the laws of the land. When the danger passed away, the dictator passed away with it. Power, no longei combined in one mighty stream, the eccentric violence of which, though useful might be destructive, was distributed over the surface of society, and flowed again through a thousand small but well-established channels, everywhere stimulating and refreshing, but nowhere exciting alarm. In poli- tical warfare, this practice of the ancients has been followed by the moderns with good success. O'Connell in Ireland, and Papineau and Mackenzie in Canada grew into importance, from the apparent necessity which existed for large masses of men to bestow upon individuals unlimited confidence, and invest them with extraordinary powers. I wish that the two latter, instead of provoking the maddest rebellions on record, had possessed the sound sense and consummate prudence which have marked every important step in the former's extraordinary career. But, who believe that, if Ireland had had "justice" instead of having it to seek, that ever such a political phenomenon as the great agitator would have appeared to challenge our admiration and smite the oppressors with dismay? And who dreams that, but for the wretched system upheld in all the Colonies, and the entire absence of responsibility, by which faction or intrigue were made the only roads to power, either of the Canadian demagogues would ever have had an induce- ment, or been placed in a position to disturb the public peace? I grant that even under the forms that I recommend, such men as Papineau and Mac- kenzie might have existed ; that they might have become conspicuous and influential ; and that it is by no means improbable that they would have been Executive Councillors of their respective Provinces, advising the Governors and presiding over the administration of their internal affairs But suppose they had ; would not even this have been better than two rebellions the scenes at Windsor, St. Charles and St. Eustache the fron- tier atrocities and the expenditure of three million sterling, which will be the cost before the accounts are closed? Does any man in his senses believe, if Mackenzie or Bidwell could have guided the internal policy and dispensed the local patronage according to the British mode, that either of them would have been so mad as to dream of turning Upper Canada into a Republic; when, even if they succeeded, they could only hope to be Governors for a few years, with powers very much more restricted and salaries not more ample than were theirs for life or as long as they pre- served their majority? Possessed of honours and substantial power, (not made to feel that they who could most effectually serve the Crown, were excluded by a false system from its favour, that others less richly endowed might rise upon their ruins), would these men have madly rushed into rebellion with the chances before them of expatriation or of an ignominious death? You well know, my Lord, that rebels have become exceedingly scarce at home, since the system of letting the majority govern has become firmly established; and yet they were as plentiful as blackberries in the good old 1791-1840] Constitutional Documents of Canada. 511 -times, when the sovereigns contended, as Sir Francis Head did lately, that they only were responsible. Turn back and you will find that they began to disappear altogether in England about 1688, and that every political change that makes the Executive more completely responsible to the Legis- lature and the Legislature to the country at large, renders the prospects of a new growth, "small by degrees and beautifully less." And yet, my Lord, who can assure us, that if the sovereigns had continued, as of old, alone responsible; if hundreds of able men all running the same course of honourable ambition, had not been encouraged to watch and control each other; and if the system of governing by the minority and not by the majority, and of excluding from power all who did not admire the mode, and quarrelled with the court, had existed down to the present day ; who, I ask, will assure us, that Chatham and Fox, instead of being able ministers and loyal men, might not have been sturdy rebels? Who can say that even your Lordship, possessed of the strong attachment to liberty which dis- tinguishes your family, might not, despairing of all good government under such a system, instead of using your influence to extend by peaceful improvements the happiness of the people, be at this moment in the field at their head and struggling, sword in hand, to abate the power of the Crown? So long as the irresponsibility principle was maintained in Scot- land, and the viceroys and a few bishops and courtiers engrossed the administration, there were such men as Hume and Lindsay, and such things as assemblies in Glasgow, general tables in Edinburgh, and armed men in every part of that noble country, weakening the Government, and, resisting the power of the Crown; and up to the period when Lord Normanby, assumed the government of Ireland and it became a principle of admin- istration that the minority were no longer to control the majority and shut them out from all the walks of honourable ambition, what was the attitude in which Mr. O'Connell stood towards the Sovereign? Was it not one of continual menace and hostility, by which the latter was degraded and the former clothed with a dangerous importance? And what is his attitude now? Is it not that of a warm-hearted supporter of the Queen, whose smiles are no longer confined to a faction but shed over a nation, every man of which feels that he is free to obtain, if he has the ability and the good fortune to deserve, the highest honours in her power to bestow? Daniel O'Connell (and perhaps it may be said that his tail suggested a comparison) is no longer a political comet blazing towards the zenith and filling the terror-stricken beholders with apprehensions of danger and a sense of coming change; but a brilliant planet revolving in an orbit with the extent of which all are familiar, and reflecting back to the source of light and honour the beams which it is proud to share. Who any longer believes that O'Connell is to shake the empire and overturn the throne? And who doubts, had he despaired of justice, but he too might have been a rebel ; and that the continued application to Ireland of the principles 1 denounce, would have revived the scenes and sufferings through which she passed in 1798? If, my Lord, in every one of the three great kingdoms from which the population of British America derive their origin, the evils of which we complain were experienced and continued until the principles we claim as our birthright became firmly established, is it to be expected that we shall not endeavour to rid ourselves, by respectful argument and remonstrance, of what cost you open and violent resistance to put down? Can an English- man, an Irishman or a Scotchman, be made to believe, by passing a month upon the sea, that the most stirring periods of his history are but a cheat and a delusion ; that the scenes which he has been accustomed to tread with deep emotions are but mementoes of the folly, and not, as he once fondly believed, of the wisdom and courage of his ancestors ; that the principles of civil liberty, which from childhood he has been taught to cherish and to protect by forms of stringent responsibility, must, with the new light breaking in upon him on this side of the Atlantic, be cast aside as useless incumbrance? No, my Lord, it is madness to suppose that these men, so remarkable for carrying their national characteristics into every part of 512 Constitutional Documents of Canada. [1791-1840 the world where they penetrate, shall lose the most honourable of them all, merely by passing from one part of the empire to another. Nor is it to be supposed that the Nova Scotians, New Brunswickers and Canadians a race sprung from the generous admixture of the blood of the three foremost nations of the world proud of their parentage and not unworthy of it, to whom every stirring period of British and Irish history, every great principle which they teach, every phrase of freedom to be gleaned from them, are as familiar as household words, can be in haste to forget what they learnt upon their parents' knees ; what those they loved and honoured clung to with so much pride, and regarded as beyond all price. Those who expect them thus to belie their origin, or to disgrace it, may as soon hope to see the streams turn back upon their fountains. My Lord, my countrymen feel, as they have a right to feel, that the Atlantic, the great highway of communication with their brethren at home, should be no barrier to shut out the civil privileges and political rights, y which more than anything else, make them proud of the connection; and they feel also, that there is nothing in their present position or their past conduct to warrant such exclusion. Whatever impression may have been made b> the wholesome satire 1 wherewith one of my countrymen has endeavoured to excite the others to still greater exertions ; those who fancy that Nova Scotians are an inferior race to those who dwell upon the ancient home- stead or that they will be contended with a less degree of freedom, know little of them. A country that a century ago was but a wilderness and is now studded with towns and villages, and intersected with roads, even though more might have been done under a better system, affords some evidence of industry. Nova Scotian ships, bearing the British flag into every quarter of the globe, are some proofs of enterprise ; and the success of the native author, to whom I have alluded, in the wide field of intellec- tual competition, more than contradicts the humorous exaggeration by which, while we are stimulated to higher efforts, others may be for a moment misled. If then our right to inherit the Constitution be clear; it our capacity to maintain and enjoy it cannot be questioned; have we done anything to justify the alienation of our birthright? Many of the original settlers of this Province emigrated from the old Colonies when they were in a state of rebellion not because they did not love freedom, but because they loved it under the old banner and the old forms ; and many of their descendants have shed their blood, on land and sea, to defend the honour of the crown and the integrity of the empire. On some of the hardest fought fields of the Peninsula, my countrymen died in the front rank, with their faces to the foe. The proudest naval trophy 2 of the last American war was brought by a Nova Scotian into the harbour of his native town ; and the blood that flowed from Nelson's death wound in the cockpit of the Victory mingled with that of a Nova Scotian stripling* beside him struck down in the same glorious fight. Am I not then justified, my Lord, in claiming for my countrymen that Constitution, which can be withheld from them by no plea but one unworthy of a British statesman the tyrant's plea of power? I know that I am; and I feel also, that this is not the race that can be hoodwinked with sophistry, or made to submit to injustice without complaint. All suspicion of disloyalty we cast aside, as the pro- duct of ignorance or cupidity; we seek for nothing more than British subjects are entitled to; but we will be contended with nothing less. My Lord, it has been said, that if this system of responsibility were established, it would lead to a constant struggle for office and influence, which would be injurious to the habits of our population and corrupt the integrity of the public men. That it would lead to the former I admit ; but that the latter would be a consequence I must take leave to deny, until it can be shown, that in any of the other employments of life, fair com- 1 Chief Justice Haliburton's 5am Slick. (See Professor Pelham Edgar's article on Canadian Literature in The Cambridge History of English Literature.) 1 The American frigate Chesapeake, captured off Boston by the Shannon, was brought into Halifax on 6 June, 1813, by Lieutenant, afterwards Admiral Sir Provo Walhs, a native of Nova Scotia. 1 Midshipman G. A. Westphal. 1791-1840] Constitutional Documents of Canada. 513 petition has that effect. Let the bar become the bar only of the minority, and how long would there be honour and safety in the profession? Let the rich prizes to be won in commerce and finance be confined to a mere fragment, instead of being open to the whole population; and I doubt whether the same benefits, the same integrity, or the same satisfaction would grace the monopoly, that now spring from an open, fair and manly competition, by which, while individuals prosper, wealth and prosperity are gathered to the State. To be satisfied that this fair competition can with safety, and the greatest advantage be carried into public as well as into private affairs, it is only necessary to contrast the example of England with that of any Continental nation where the opposite system has been pursued. And if, in England, the struggle for influence and office has curbed corruption and produced examples of consistency and an adherence to principle extremely rare in other countries, and in none more so than in the Colonies, where the course pursued strikes at the very root of manl> independence, why should we apprehend danger from its introduction or shrink from the peaceful rivalry it may occasion? But, my Lord, there is another view that ought to be taken of this question. Ought not British statesmen to ask themselves, is it wise to leave a million and a half of people, virtually excluded from all participation in the honourable prizes of public life? There is not a weaver's apprentice or a parish orphan in England, that does not feel that he may, if he has the talent, rise through every grade of office, municipal and national, to hold the reins of govern ment and influence the destinies of a mighty empire. The Queen may be hostile, the Lords may chafe, but neither can prevent that weaver's appren- tive or that parish orphan from becoming Prime Minister of England. Then look at the United States, in which the son of a mechanic in the smallest town, of a squatter in the wildest forest, may contend, on equal terms, with the proudest, for any office in twenty-eight different States; and having won as many as contents him, may rise, through the national grades, to be President of the Union. There are no family compacts to exclude these aspirants ; no little knot of irresponsible and self-elected councillors, to whom it is necessary to sell their principles, and before whom the manliness of their nature must be prostrated, before they can advance. But. in the Colonies, where there are no prizes so splendid as these, is it wise or just to narrow the field and confine to little cliques of irresponsible politicians, what prizes there are? No, my Lord, it is neither just nor wise. Every poor boy in Nova Scotia (for we have the feelings of pride and ambition common to our nature) knows that he has the same right to the honours and emoluments of office as he would have if he lived in Britain or the United States ; and he feels, that while the great honours of the empire are almost beyond his reach, he ought to have a chance of dispensing the patronage and guiding the administration of his native country without any sacrifice of principle or diminution of self-respect. My Lord, I have done. If what has been written corrects any error into which your Lordship or others may have fallen, and communicates to some, either in Britain or the Colonies, information upon a subject not generally understood, I shall be amply repaid. Your Lordship will perhaps pardon me for reminding you, that, in thus eschewing the anonymous and putting my name to an argument in favour of Executive responsibility foi the North American colonies, I am acting under a sense of deep respon- sibility myself. I well know that there is not a press in the pay of any of the family compacts, that will not misrepresent my motives and pervert my language ; that there is not an over-paid and irresponsible official, from Fundy to the Ottawa, whose inextinguishable hostility, I shall not have earned for the remainder of my life. The example of your Lordship will, however, help me to bear these burdens with patience. You have lived and prospered, and done the State good service, and yet thousands of corrupt boroughmongers and irresponsible corporators formerly misrepresented and hated you. Should I live to see the principles for which I contend, oper- ating as beneficially over British North America, as those immortal acts, which provoked your Lordship's enemies, do in the mother country, I shall GG 514 Constitutional Documents of Canada. 11791-1840 The Special Council to consist of not less than twenty mem- bers, and no business to be transacted unless eleven be present. Repeal of pro- vision of 1 and 2 Viet., cap. 9, pre- venting the making of permanent laws ; but all permanent laws to be laid for thirty days before Parliament previous to be- ing confirmed. be gratified by the reflection, that the patriotic and honourable men now contending for the principles of the British Constitution, and by whose side, as an humble auxiliary, I am proud to take my stand, whatever they may have suffered in the struggle, did not labour in vain. I have the honour to be, with the highest respect, your Lordship's humble admirer, and most obedient servant, JOSEPH HOWE. CXLI AN ACT TO AMEND AN ACT OF THE LAST SESSION OF PARLIAMENT FOR MAKING TEMPORARY PROVISION FOR THE GOVERNMENT OF LOWER CANADA 1 (2 & 3 Victoria, c. 53.) 17th August, 1839. Whereas, an Act was passed in the thirty-first year of the reign of his Majesty, King George the Third, intituled "An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's reign, intituled 'An Act for making more effectual provision for the Government of the Pro- vince of Quebec in North America,' and to make further provision for the Government of the said Province," whereby among other things it was enacted that there should be within each of the Provinces of Upper Canada and Lower Canada respectively a Legislative Council and an Assembly, to be constituted in manner therein described, and with such powers and authorities as therein mentioned: And whereas an Act was passed in the last session of Parliament, intituled "An Act to make temporary Provision for the Government of Lower Canada," whereby it was enacted that from the proclamation of the Act until the first day of November one thousand eight hundred and forty so much of the said Act of the thirty-first year of the reign of his Majesty, King George the Third, and of any other Act or Acts of Parliament, as provides for the Constitution or calling of a Legis- lative Council or Assembly for the Province of Lower Canada, or confers any powers or functions upon them or either of them should cease ; and by the said Act now in recital provision is made in the meantime for the appointment by his Majesty of a Special Council for the affairs of Lower Canada, and for the making of laws or ordinances for the Government of the said Province by the Governor thereof, with the advice and consent of the majority of the Councillors present at any meeting of the Council: And whereas it is expedient that some of the provisions contained in the said lastly-recited Act should be altered : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that the number of Council- lors forming the Special Council in manner provided by the said Act passed in the last session of Parliament shall not be less than twenty, and that no business shall be transacted at any meeting of the said Special Council at which there are not present at least eleven Councillors. II. And be it enacted that from and immediately after the passing of this Act so much of the said recited Act passed in the last Session of Par- liament as provides that no law or ordinance made by the Governor of the said Province of Lower Canada, with such advice and consent as therein mentioned, shall continue in force beyond the first day of November, one thousand eight hundred and forty-two, unless continued by competent authority, shall be and the same is hereby repealed: Provided always that every law or ordinance which by the terms and provisions thereof shall be made to continue in force after the said first day of November, one thou- sand eight hundred and forty-two, shall be laid before both Houses of 1 This Act was passed after the Act of Union was withdrawn in 1839 (see No. CXLII, note), pending Poulett Thomson's report on Canadian affair*. 1791-1840] Constitutional Documents of Canada. 515 Parliament within thirty days after a copy thereof shall be received by one of her Majesty's Principal Secretaries of States, under the provisions of the said Act of the last Session of Parliament, if Parliament shall be then sitting, or otherwise within thirty days after the then next meeting of Par- liament ; and no such law or ordinance shall be confirmed or declared to be left to its operation by her Majesty until such law or ordinance shall first have been laid for thirty days before both Houses of Parliament, or in case either House of Parliament shall, within the said thirty days, address her Majesty to disallow any such law or ordinance. III. And be it enacted that from and immediately after the passing Repeal of the of this Act so much of the said recited Act passed in the last Session of provision of Parliament as provides that it shall not be lawful, by any such law or * n pp^? 4 " ordinance as therein mentioned to impose any tax, duty, rate, or impost, hibiting taxa- save only in so far as any tax, duty, rate, or impost, which at the passing tion; but no of that Act was payable within the said Province of Lower Canada, might {evTelfexcept be continued, shall be and the same is hereby repealed : Provided always for public that it shall not be lawful for the said Governor with such advice and con- works and sent as aforesaid, to make any law or ordinance imposing, or authorizing Jn > t }rricip < al the imposition of any new tax, duty, rate, or impost, except for carrying government; into effect local improvements within the said Province of Lower Canada, and such or any district or other local division thereof, or for the establishment or ^" "p*? at maintenance of police, or other objects of municipal government, within e d by Gov- any city or town or district or other local division of the said Province : eminent. Provided also that in every law or ordinance imposing or authorizing the imposition of any such new tax, duty, rate, or impost, provision shall be made for the levying, receipt, and appropriation thereof by such person or per- sons as shall be thereby appointed or designated for that purpose, but that no such new tax, rate, duty, or impost shall be levied by or made payable to the Receiver-General or any other public officer employed in the receipt of her Majesty's ordinary revenue in the said Province; nor shall any such law or ordinance as aforesaid provide for the appropriation of any such new tax, duty, rate or impost by the said Governor, either with or without the advice of the Executive Council of the said Province, or by the Com- missioners of her Majesty's treasury, or by any other officer of the Crown employed in the receipt of her Majesty's ordinary revenue. IV. And be it enacted that from and after the passing of this Act Repe! of the so much of the said recited Act passed in the last session of Parliament as iJd S 2vlct! provides that it shall not be lawful for any such law or ordinance as therein cap. 9, prohi-' mentioned to repeal, suspend, or alter any provision of any Act of the b j tin K! he Parliament of Great Britain, or of the Parliament of the United Kingdom, ActJoTpar". or of any Act of the Legislature of Lower Canada, as then constituted, liament; but repealing or altering any such Act of Parliament, shall be and the same is n l aw ob hereby repealed: Provided always, that it shall not be lawful for the said [J* Temporal* Governor, with such advice and consent as aforesaid, to make any law or or Spiritual ordinance altering or affecting the Temporal or Spiritual rights of the rights of . Clergy of the United Church of England and Ireland, or of the Ministers ^thTuw of any other religious communion, or altering or affecting the tenure of of tenure. land within the said Province of Lower Canada, or any part thereof, save so far as the tenure of land may be altered or affected by any law or ordinance which may be made by the said Governor, with such advice and consent as aforesaid, to provide for the extinction of any Seignorial rights and dues now vested in or claimed by the Ecclesiastics of the Seminary of Saint Sulpice at Montreal within the said Province, or to provide for the extinction of any Seignorial rights and dues vested in or claimed by any other person or persons or body or bodies corporate or politic, within the Island of Montreal, or the island called Isle Jesus, within the said Province. V. And be it enacted that every law or ordinance to be made by the said Governor, with such advice and consent as aforesaid, shall, before the in passing or enactment thereof, be published at length in the public Gazette of the said Province of Lower Canada DefiBition ef VI. And be it enacted that for the purposes of this Act the person Governor. 516 Constitutional Documents of Canada. [1791-1840 authorized to execute the Commission of Governor of the Province of Lower Canada shall be taken to be the Governor thereof. amended ^t ^^' ^ n ^ ^ e '* enacted that this Act may be amended or repealed by " any Act to be passed during the present session of Parliament. CXLII LORD JOHN RUSSELL TO THE RIGHT HON. C. POULETT THOMSON 1 [Trans.: Imperial Blue Books relating to Canada, Vol. XIII.] Downing Street, 7th September, 1839. Sir, The Queen having been pleased to confide to you the Govern- ment of the British provinces in North America, I now transmit to you the various Commissions under the Great Seal, which authorize you to assume and execute that office. The intimate knowledge which, as one of Her Majesty's confidential advisers, you have acquired, of the progress of Cana- dian affairs during the last few years, and of the views of Her Majesty's Government on that subject, relieves me from the necessity of entering on various explanations, which it would otherwise have been my duty to afford you. But it is fit that I should on the present occasion record for your guidance the intentions of the Ministers of the Crown on the principal topics of Canadian policy, on which you will be called, as the governor of those provinces, to co-operate with them. The Bill introduced into the House of Commons during the present session of Parliament, embodied, as you are aware, the results of deliberate reflection on the various suggestions contained in the reports of the Earl of Durham. The hope of passing that measure into a law before the Par- liamentary recess was defeated by various circumstances which occurred, and especially by the intelligence which, in the commencement of the month of June reached us from the Lieutenant-Governor of Upper Canada, of the state of public opinion in that colony, as expressed by the resolutions of the Council and Assembly. We have never concealed from ourselves that the success of any plan for the settlement of Canadian affairs must depend on the concurrence and support of the provinces themselves. To learn their deliberate wishes, and to obtain their co-operation by frank and unre- served personal intercourse, will therefore be the first and most important of the duties which you will be called upon to perform. In our anxiety thus to consult, and as far as may be possible, to defer to public opinion in the Canadas on the subject of constitutional changes, Her Majesty's Government must be understood as entertaining a very strong conviction in favour of the policy of the measure which they have proposed for the adoption of Parliament. Attaching minor importance to the subordinate details of that Bill, we have found no sufficient reason for distrusting the principles on which it proceeds. These are a legislative Union of the two provinces a just regard to the claims of either province in adjusting the terms of that Union the maintenance of the three estates of the provincial legislature the settlement of a permanent civil list for securing the independence of the judges, and to the executive government that freedom of action which is necessary for the public good and the establishment of a system of local government by representative bodies, freely elected in the various cities and rural districts. From any of these ' The union of the two Provinces was decided on as a result of Durham's Report. In 1838 a bill for that purpose was introduced, but withdrawn by the Government, owing to the protest from Upper Canada. It can be read in Public Bills, 1839, Vol. I. The new Governor-General, Charles Poulett Thomson, afterwards Lord Sydenham, was instructed to gather further information on Canadian affairs and to forward it to England. He reached Quebec September 17, 1839, and his work in Canada is illus- trated in the following documents, which also throw light on the growing changes in British Colonial policy. For Sydenham's rule in Canada see A. Shortt, Lord Sydenham. 1791-1840] Constitutional Documents of Canada. 517 principles Her Majesty's Government would be most reluctant to recede. After a full investigation of every other plan which has been suggested they have not been able to discover in any but this, the reasonable hope of a satisfactory settlement. It will, therefore, be your first duty to endeavour to obtain for that measure, such an assent in its general principles, and such a correction of its details, as may render it acceptable to the provinces, and productive of permanent advantage. There are various modes by which this object may be accomplished, and in giving an outline of them, Her Majesty has commanded me to express to you her reliance upon your judg- ment, to be formed upon the spot, as to the employment of such as may be most conducive to the contentment and advantage of her Canadian sub- jects. I. You may appoint, by authority of the executive, a certain number of persons of weight and experience, selected from each province, to frame articles of Union, to be afterwards proposed to the legislature of Upper Canada. 2. You may assemble the legislature of Upper Canada, and propose to them the appointment of a certain number of Commissioners, to confer with others named by the special Council of Lower Canada. 3. If you find that your overtures to the assembly of Upper Canada are not met in a fair, conciliatory, and reasonable spirit, you may proceed to dissolve the present assembly, and appeal to the sense of the inhabitants of the Province. But in the late unsettled state of the province, in the presence of repressed disaffection, with the necessity of a second dissolu- tion before the assembly of the united province can meet this step must not be resorted to, without the gravest deliberation. In whatever method you may proceed, Her Majesty's Government wit! expect to receive from you, founded on competent authority, such a plan of representation, with a division into cities and districts, as may enable them to lay the scheme before Parliament with confidence in the data on which it has been formed, and in the justice of the general arrangement. I will not now argue on a further supposition, viz., that from difficulty of detail, or mutual disinclination, the plan of Union may be found alto- gether impracticable. Should you find, after all your efforts, that such is the result, you will lose no time in communicating to me, for Her Majesty's information, the grounds of your opinion, and the nature of any alterna- tive which may seem to you more conductive to the general good. But above all things, it is important to avoid unnecessary delay. The discussion, which has already been protracted at the expense of so much evil, and still greater hazard to the interests of the Canadian provinces, and of this kingdom, cannot be too speedily brought to a close. Her Majesty's Government will, therefore, anxiously await the result of your inquiries as to the state of public opinion in the Canadas respecting the proposed Union, and the terms on which in your opinion it should be effected. I earnestly trust that it may be received in this country by a period sufficiently early to enable us to communicate it to Parliament at the commencement, or soon after the commencement, of the session of 1840, and then to proceed at once with such measures as may be required to meet the exigencies of the case. The intelligence which has reached me from Upper Canada, makes it probable that you may be called upon for some explanation of the views of the Ministers of the Crown, on a question respecting which the Bill to which I have referred is necessarily silent. I allude to the nature and extent of the control which the popular branch of the united legislature will be admitted to exercise over the conduct of the executive government, and the continuance in the public service of its principal offi- cers. But it is evidently impossible to reduce into the form of a positive enactment a constitutional principle of this nature. 1 The importance of maintaining the utmost possible harmony between the policy of the 1 For illustrations of Russell's dictum in connexion with the various constitutions of the self-governing parts of the Empire, see Jenkyns, British Rule and Jurisdiction beyond the Seas, pp. 61 ff. (Oxford, 1902.) 518 Constitutional Documents of Canada. [1791-1840 legislature and of the executive government admits of no question, and it will of course be your anxious endeavour to call to your counsels and to employ in the public service those persons who, by their position and char- acter, have obtained the general confidence and esteem of the inhabitants of the province. 1 The military defence of the Canadas is another subject of common interest to both provinces, on which it is necessary that you should be apprized of the views of Her Majesty's Government. In the correspond- ence between Lord Glenelg and Sir John Colborne, and especially in the despatches of the latter, you will find a full discussion of the plans which have been devised for that purpose. Amongst 'them is a scheme for extended fortifications, to be erected and maintaind at an expense, which it is not evident will be compensated by any equivalent advantage. For the present, at least, notwithstanding the deference so justly due to the opinions of that distinguished Officer, the Ministers of the Crown cannot recommend the adoption of this scheme. On the other hand, the plan suggested from this country and sanctioned by Sir John Colborne, of creating military settle- ments on the frontier, on the principle of veteran battalions, appears to the Ministers of the Crown as at once the most effective and the most econo- mical plan of defence which could be pursued. Measures will be taken, with the least possible delay, for carrying it into effect ; and in the mean- time you will discourage and prevent, as far as may be compatible with the public safety, either the augmentation, or the continuance on foot of the volunteers, or the sedentary corps, which were embodied during the last winter as a reinforcement to the regular army. On all subjects of this nature, however, you will consult Sir Richard Jackson, 2 whose judgment and military knowledge will be of the greatest service to you. The only topic which it remains to notice, as affecting the two Cana- dian provinces alike, is that of raising an emigration fund from the pro- ceeds of the sales of the Crown lands. Unfortunately, the very elaborate report communicated to me by Lord Durham on this subject, serves but to confirm, and to place in a still clearer light, the difficulties by which, as we were previously aware, the promotion of this most important object is obstructed. Such is the extent of land alienated, and so inconsiderable the proportion which still remains vested in the Crown, that the hope of ren- dering any effectual aid to emigration by the sale of such lands, cannot at present be reasonably entertained. The necessary preliminary to the intro- duction of any such system, would be the resumption of the large tracts of land held by grantees in a barren and unprofitable state. This could be effected only by the imposition of a tax on uncleared land, and by enact- ments for the collection of that tax, to insure the due execution of the law. In the Lower Province there exists, at the present time, no authority by which such a tax could be imposed. In the Upper Province it is hardly to be expected that, in the present state of affairs, the difficulties which encompass the subject will be effectually overcome. Amongst the benefits to be anticipated from the union of the provinces, it is not the least import- ant that the united legislature would be able to act upon subjects of this nature with a great comparative freedom from the undue bias of local interests, and with a large view to the permanent improvement of the provinces. Such being the principal subjects of common interest to the two pro- vinces, to which your attention will be immediately called, I have next to notice those which will relate exclusively to the province of Lower Canada. The Act 3 which has been passed in the last session of Parliament, in amendment of the Act of the first yea r of Her Majesty's reign, providing for the temporary administration of the Government of Lower Canada, will relieve you and the Special Council from many of the impediments by which your immediate predecessor has been encountered in the attempt to promote the internal interests of the province. Sir John Colborne's de- 1 See No. CLII. J Sir Richard Downes Jackson, Commander-in-Chief of the force*. 'See No. CXLI. 1791-1840] Constitutional Documents of Canada. 519 spatches, 1 and especially that of the 15th of March, 1839, have pointed out very clearly many objects of great public utility, which he was unable to advance, in consequence of the restrictions under which the legislative powers confided to him and to the Special Council were exercised. To these your attention will of course be given. Much as the suspension of constitutional government in Lower Canada is to be regretted, it will not be without a very considerable compensation, if, during the interval, arrangements should be maturely and wisely made for securing to the people at large the benefit of those social institutions from which, in former times, the thoughts of the local legislature were diverted, by the contro- versies which then agitated the. provincial society. The establishment of Municipal Institutions for the management of all local affairs, will be among the most important of the subjects to which your attention will be called. On this subject I would refer you to the report of the Earl of Durham, and the Appendix marked C, by which it is accompanied. Althought the commissioners whom his Lordship appointed to investigate the question were unable, from the shortness of the time, to submit to him any conclusive recommendations respecting it, the informa- tion which they collected will prove of much advantage to you. On the importance of such institutions I need not enlarge. Your acquaintance with the system of municipal government in this country, will point out to you that there is no mode in which local affairs can be so properly adminis- tered, and that they form, at the same time, the most appropriate and effectual means of training the great body of the people to the higher branches of legislation. The promotion of education among all classes of the people will also engage your earnest attention. On this subject I can add nothing to the information afforded by the reports of the Earl of Gosford, and his col- leagues, and the Earl of Durham. It will afford Her Majesty's Govern- ment the most sincere satisfaction to co-operate with you in any measures which you may adopt for the furtherance of this important object. In any view which can now be taken of the affairs of British North America, it is obvious that those of Upper Canada must occupy a very prominent place. I am persuaded that the zeal for the public good, and the superiority to considerations of a nature merely personal, by which the present Lieutenant-Governor has been distinguished during his long career of public service, will obviate the risk of any dissatisfaction being enter- tained by him, if you should find it necessary, for a time, to assume in person the administration of the government of Upper Canada, and during that period, to supersede him in the discharge of his functions. In the prosecution, therefore, of your endeavour to obtain as much agreement as possible in the plan to be hereafter submitted to the Imperial Parliament, you will not hesitate to repair to Toronto. When there, you would, of course, avail yourself of the experience which Sir George Arthur has acquired, and of the assistance which he will have both the ability and the disposition to afford you. The first topic which will engage your attention in Upper Canada is the present financial state of the province. This has been most elaborately explained in the Lieutenant-Governor's recent despatches. Embarrassing as the immediate state of the question is, it is yet gratifying to learn from those communications, that the difficulties in which the provincial treasury is involved, originate in causes which do not affect the wealth^ or the ulti- mate resources of the province. Having undertaking great internal im- provents, especially those of the Welland and Rideau canals, with inade- quate resources, the works have been very imperfectly completed, and the returns are absorbed in a succession of repairs, which would not have been required if the canals had been originally formed with a greater command of capital. These works having also been effected by borrowed money, the loans have been raised at a higher rate of interest than would have been required if the credit of the province had not been diminished by the ab- 1 These despatches are in Imperial Blue Books relating to Canada and in British Parliamentary Papers, 1839, Vol. XXXII; 1840, Vol. XXXI. 520 Constitutional Documents of Canada. [1791-1840 sorption of its revenues in such undertakings. Further, it appears that the provincial treasury might have been recruited with no perceptible addition to the public burdens, if it had been possible to increase, to a moderate extent, the duties of import on goods introduced for consumption. But, under the combined influence of these causes, the expenditure has at length far exceeded the receipt ; and some measures for reinstating the provincial treasury in a secure condition have become indispensable. Her Majesty's Government willingly acknowledge the great advantage which will arise from extending to Upper Canada such aid as the revenue of Great Britain could afford, consistently with a due regard to the interest of this kingdom, and of the other members of the empire at large. This is, however, a subject for distinct consideration. For the present I shall con- fine my attention to the remedial measures adopted by the local legislature in their last session. Of these, the first was the raising a loan by Government debentures, which was sanctioned by a Bill, entitled "An Act to afford further facilities to negotiate debentures for the completion of certain works." This Bill was reserved for the signification of Her Majesty's pleasure, and has been confirmed by the Queen in Council. The second financial measure of the year was the enactment of a Bill, authorizing the issue of treasury notes to the amount of 250,000 sterling, for 1 each. This Bill has also been reserved for the signification of Her Majesty's pleasure. I regret to state that Her Majesty cannot be advised to confirm it. The issue of such an amount of small inconvertible paper money, as a resource for sustaining the public credit, is not to be justified even by the present exigency of public affairs. The effect of the measure on the currency and monetary transactions of Upper Canada, and on the value of private property throughout the province, must be such as to counterbalance any advantage which could be obtained from this temporary relief. If the credit of the country can be made available to sustain for a time the transactions of the local treasury in a less hazardous and objec- tionable form, you will accede to any plan of that nature. It is only as a temporary expedient that any such resource will be requisite; and it is of great importance to the future welfare of the province, that the scheme devised to meet the pressure of the passing day should not be such as to preclude the early return to a more salutary course of financial operations. A third measure of the same general character has been adopted by the local legislature, to provide for the indemnity of the sufferers by hostile incursions from the United States. The Bill for this purpose, entitled "An Act to ascertain and provide for the payment of all just claims arising from the late rebellion and invasions of this province," has also been reserved for the signification of Her Majesty's pleasure. I fear that Her Majesty's assent to this Bill, in its present form, cannot be given. The objection is not to the measure itself, in the propriety of which Her Majesty's Government entirely concur; but we think it impossible to advise the Queen to assent to an Act, which, if so sanctioned, would, by the terms of the preamble, convey a pledge from Her Majesty that the charge of this indemnity should be ultimately borne by the British treasury. The principle involved in this declaration is of too much importance to be thus inci- dentally recognised, even supposing it to be right that it should be admitted at all. Neither could Her Majesty properly affirm, in so solemn a manner, her acquiescence in this claim on the revenue of this country, nnless it had been previously sanctioned by Parliament, a sanction which has not been, and which could not hitherto have been, obtained. If a similar Bill should be passed, with the omission of the preamble, you will readily concur in the enactment of it 1 The Legislature of Upper Canada have also passed a Bill, which has in like manner been reserved, for settling a civil list on Her Majesty in exchange for the Crown revenues of the province. It is with sincere 1 The Legislature of Canada passed an Act in its first Session dealing with Rebel- lion losses as far as the old Province of Upper Canada was concerned. For Lower Canada, see No. CLXV. 1791-1840] Constitutional Documents of Canada. 521 regret that I am compelled to announce that this is also a measure from which, in its present form, the assent of the Crown must be withheld. The effect of it is to exclude from the protection of- the grant the clergy, who at present derive their maintenance from the Crown revenue, and of whom the great majority have resorted to Upper Canada on the assurance that their stipends would be thus secured to them. Now as this charge has been lawfully fixed upon the Crown revenue, and as the Crown has no other resource from which it could be paid, it is impossible to accept the proposed civil list on such terms. Anxious as Her Majesty's Government are to defer to the representatives of the people of Upper Canada in all matters connected with the internal government of that province, they cannot consent to a measure which would practically involve a violation of the pledged faith of the Crown. We cannot decline the obligation of maintaining the rights of the clergy in question; and I can only express my hope that the local legislature may concur with the Ministers of the Crown as to the propriety of re-enacting this Bill, with the addition of the charge necessary for the maintenance of those rights. The burthen will cease with the lives of the present incumbents, and is now in the course of a progressive diminution. The last of the reserved Bills of the late Session has reference to the long controverted subject of the clergy reserves. To this Bill the Royal assent could not have lawfully been given, until it had been laid for 30 days before either House of Parliament. It was not until the 15th August that I received from the Lieutenant-Governor the document necessary to enable me to fulfil the requisition of the Constitutional Act of 1791. It was, therefore, impossible that the Bill should be finally enacted by the Queen in Council until after the commencement of the Parliamentary Session of 1840. But had this difficulty not arisen, there were other motives which would have effectually prevented the acceptance of this measure by Her Majesty. Parliament delegated to the local legislature the right of appro- priating the clergy reserves, and the effect of the Bill is to retransfer this duty from the local legislature to Parliament, with a particular restriction. I am advised by the law officers of the Crown that this is an unconstitu- tional proceeding. It is certainly unusual and inconvenient. Her Majesty cannot assume that Parliament will accept this delegated office, and if it should not be so accepted the confirmation of the Bill would be productive of serious prejudice, and of no substantial advantage. It would postpone indefinitely the settlement of a question which it much concerns the wel- fare of the provinces to bring to a close ; besides I cannot admit that there exist in this country greater facilities than in Upper Canada for the adjust- ment of this controversy; on the contrary, the provincial legislature will bring to the decision of it an extent of accurate information as to the wants and general opinions of society in that country, in which Parliament is unavoidably deficient. For all these reasons Her Majesty will decline to give her assent to this Bill. 1 I have thus adverted to the principal topics which will engage your attention as Governor-General of British North America, in reference to the two Canadas, omitting many minor questions which will form the sub- ject of future correspondence, and passing by for the present all that relates to the affairs of New Brunswick, Nova Scotia, and Prince Edward Island. I reserve these for consideration hereafter. Finally, I am commanded to direct that in all the provinces of British North America you will inculcate upon the minds of The Queen's subjects Her Majesty's fixed determination to maintain the connexion now subsist- ing between them and the United Kingdom, and to exercise the high 1 In 1853 the British Parliament recognized that the Parliament of Canada had the right to settle the question of the Clergy Reserves, provided that respect was given to all vested interests. In 1854, the Canadian Parliament passed a measure (18 Vic- toria, c. 2), under the guidance of Attorney-General John A. Macdonald, by which the existing claims of the clergy were made a first charge on the funds, the balance being divided among the municipalities according to population. (See Legislative Assembly Journals, Canada, 1854-5, pp. 193 ff.) 522 Constitutional Documents of Canada. [1791-1840 authority with which She has been invested by the favour of Divine Pro- vidence, for the promotion of their happiness and the security of her dominions. I have, etc., (Signed) J. RUSSELL. CXLIII RUSSELL TO POULETT THOMSON [Trans.: Imperial Blue Books relating to Canada, Vol. XIII.] Downing Street, 14th October, 1839. Sir, It appears from Sir George Arthur's despatches that you may encounter much difficulty in subduing the excitement which prevails on the question of what is called "Responsible Government." I have to instruct you, how- ever, to refuse any explanation which may be construed to imply an acquiescence in the petitions and addresses upon this subject. I cannot better commence this despatch than by a reference to the resolutions of both houses of Parliament, of the 28th April and 9th May, in the year 1837. The Assembly of Lower Canada having repeatedly pressed this point, Her Majesty's confidential advisers at that period thought it necessary not only to explain their views in the communications of the Secretary of State, but expressly called for the opinion of Parliament on the subject. The Crown and the two houses of Lords and Commons having thus decisively pronounced a judgment upon the question, you will consider yourself precluded from entertaining any proposition on the subject. It does not appear, indeed, that any very definite meaning is generally agreed upon by those who call themselves the advocates of this principle, but its very vagueness is a source of delusion, and if at all encouraged, would prove the cause of embarrassment and danger. The constitution of England, after long struggles and alternate success, has settled into a form of government in which the prerogative of the Crown is undisputed, but is never exercised without advice. Hence the exercise only is questioned, and however the use of the authority may be condemned, the authority itself remains untouched. This is the practical solution of a great problem, the result of a contest which from 1640 to 1690 shook the monarchy, and disturbed the peace of the country. But if we seek to apply such a practice to a colony, we shall at once find ourselves at fault. The power for which a minister is responsible in England, is not his own power, but the power of the Crown, of which he is for the time the organ. It is obvious that the executive councillor of a colony is in a situation totally different. The Governor under whom he serves, received his orders from the Crown of England. But can the colonial council be the advisers of the Crown of England? Evidently not, for the Crown has other advisers, for the same functions, and with superior authority. It may happen .therefore, that the Governor receives at one and the same time instructions from the Queen, and advice from his executive council, totally at variance with each other. If he is to obey his instruc- tions from England, the parallel of constitutional responsibility 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. There are some cases in which the force of these objections is so mani- fest, that those who at first made no distinction between the constitution of the United Kingdom, and that of the colonies, admit their strength. I allude to the questions of foreign war, and international relations, whether of trade or diplomacy. It is now said that internal government is alone intended. But there are some cases of internal government, in which the honour 1791-1840] Constitutional Documents of Canada. 523 of the Crown or the faith of Parliament, or the safety of the state, are so seriously involved, that it would not be possible for Her Majesty to dele- gate her authority to a ministry in a colony. I will put for illustration some of the cases which have occurred in that very province where the petition for a responsible executive first arose I mean Lower Canada. During the time when a large majority of the assembly of Lower Canada followed M. Papineau as their leader, it was obviously the aim of that gentleman to discourage all who did their duty to the Crown within the province, and to deter all who should resort to Canada with British habits and feelings from without. I need not say that it would have been impossible for any minister to support, in the Parliament of the United Kingdom, the measures which a ministry, headed by M. Papineau, would have imposed upon the Governor of Lower Canada; British officers pun- ished for doing their duty; British emigrants defrauded of their property; British merchants discouraged in their lawful pursuits would have loudly appealed to Parliament against the Canadian ministry, and would have demanded protection. Let us suppose the Assembly as then constituted, to have been sitting when Sir John Colborne suspended two of the judges. Would any coun- cillor, possessing the confidence of the Assembly, have made himself responsible for such an act? And yet the very safety of the province depended on its adoption. Nay, the very orders of which your Excellency is yourself the bearer, respecting Messrs. Bedard and Panet, would never be adopted, or put in execution by a ministry depending for existence on a majority led by M. Papineau. Nor can anyone take upon himself to say that such cases will not again occur. The principle once sanctioned, no one can say how soon its application might be dangerous, or even dishonourable, while all will agree that to recall the power thus conceded would be impossible. While I thus see insuperable objections to the adoption of the principle as it has been stated, I see little or none to the practical views of colonial government recommended by Lord Durham, as I understand them. Tha Queen's Government have no desire to thwart the representative assemblies of British North America in their measures of reform and improvement. They have no wish to make those provinces the resource for patronage at home. They are earnestly intent on giving to the talent and character of leading persons in the colonies, advantages similar to those which talent and character, employed in the public service, obtain in the United King- dom. Her Majesty has no desire to maintain any system of policy among her North American subjects which opinion condemns. In receiving the Queen's commands, therefore, to protest against any declaration at vari- ance with the honour of the Crown, and the unity of the empire, you are at the same time instructed to announce Her Majesty's gracious intention to look to the affectionate attachment of her people in North America, as the best security for permanent dominion. It is necessary for this purpose that no official misconduct should be screened by Her Majesty's representative in the provinces; and that no private interests should be allowed to compete with the general good. Your Excellency is fully in possession of the principles which have guided Her Majesty's advisers on this subject; and you must be aware that there is no surer way of earning the approbation of The Queen, than by maintaining the harmony of the executive with the legislative authorities. While I have thus cautioned you against any declaration from which dangerous consequences might hereafter flow, and instructed you as to the general line of your conduct, it may be said that I have not drawn any specific line beyond which the power of the Governor on the one hand, and the privileges of the Assembly on the other, ought not to extend. But this must be the case in any mixed government. Every political constitu- tion in which different bodies share the supreme power, is only enabled to exist by the forbearance of those among whom this power is distributed. In this respect the example of England may well be imitated. The sove- 524 Constitutional Documents of Canada. [1791-1840 reign using the prerogative of the Crown to the utmost extent, and the House of Commons exerting its power of the purse, to carry all its resolu- tions into immediate effect, would produce confusion in the country in less than a twelve-month. So in a colony : the Governor thwarting every legitimate proposition of the Assembly; and the Assembly continually recurring to its power of refusing supplies, can but disturb all political relations, embarrass trade, and retard the prosperity of the people. Each must exercise a wise moderation. The Governor must only oppose the wishes of the Assembly where the honour of the Crown, or the interests of the empire are deeply concerned; and the Assembly must be ready t<> modify some of its measures for the sake of harmony, and from a reverent attachment to the authority of Great Britain. I have, etc., (Signed) J. RUSSELL. CXLIV RUSSELL TO POULETT THOMSON [Trans.: Imperial Blue Books relating to Canada, Vol. XIII.] Downing Street, 16th October, 1839. Sir, I am desirous of directing your attention to the tenure on which public offices in the gift of the Crown appear to be held throughout the British Colonies. I find that the governor himself and every person serving under him are appointed during the royal pleasure, but with this important dif- ference. The Governor's commission is, in fact, revoked whenever the interests of the public service are supposed to require such a change in the administration of local affairs. But the commissions of all other public officers are very rarely indeed recalled, except for positive misconduct. I cannot learn that during the present or the two last reigns, a single in- stance has occurred of a change in the subordinate colonial officers, except in cases of death or resignation, incapacity or misconduct. This system of converting a tenure at pleasure into a tenure for life, originated probably in the practice, which formerly prevailed, of selecting all the higher class of colonial functionaries from persons who, at the time of their appoint- ment, were resident in this country ; and, amongst other motives which afforded such persons a virtual security for the continued possession of their places, it was not the least considerable, that, except on those terms, they were unwilling to incur the risk and expense of transferring their residence to remote, and often to unhealthy climates. But the habit which has obtained of late years of preferring, as far as possible, for places of trust in the colonies, persons resident there, has taken away the strongest motive which could thus be alleged in favour of a practice to which there are many objections of the greatest weight. It is time, therefore, that a different course should be followed, and the object of my present com- munication is to announce to you the rules which will be hereafter ob- served on this subject in the province of Lower Canada. You will understand, and will cause it to be made generally known, that hereafter the tenure of colonial offices held during Her Majesty's pleasure, will not be regarded as equivalent to a tenure during good beha viour; but that not only will such officers be called upon to retire from the public service as often as any sufficient motives of public policy may suggest the expediency of that measure, but that a change in the person of the governor will be considered as a sufficient reason for any alterations which his successor may deem it expedient to make in the list of public functionaries, subject of course to the future confirmation of the sovereign. These remarks do not extend to judicial offices, nor are they meant to apply to places which are altogether ministerial, and which do not devolve upon the holders of them duties, in the right discharge of which the char- 1791-1840] Constitutional Documents of Canada. 525 acter and policy of the government are directly involved. They are in- tended to apply rather to the heads of departments than to persons serving as clerks or in similar capacities under them. Neither do they extend to officers in the service of the Lords Commissioners of the Treasury. The functionaries who will be chiefly, though not exclusively, affected by them, are the Colonial Secretary, the Treasurer, or Receiver-General, the Sur- veyor-General, the Attorney and Solicitor-General, the Sheriff or Provost Marshal, and other officers, who, under different designations from these are entrusted with the same or similar duties. To this list must also be added the members of the council, especially in those colonies in which the Legislative and Executive Councils are distinct bodies. The application of these rules to officers to be hereafter appointed will be attended with no practical difficulty. It may not be equally easy to enforce them in the case of existing officers, and especially of those who may have left this country for the express purpose of accepting the offices they at present fill. Every reasonable indulgence must be shown for the expectations which such persons have been encouraged to form. But even in these instances it will be necessary that the right of enforcing these regulations should be distinctly maintained in practice, as well as in theory, as often as the public good may clearly demand the enforcement of them. It may not be unadvisable to compensate any such officers for their dis- appointment, even by pecuniary grants, when it may appear unjust to dis- pense with their services without such an indemnity. I have, etc., (Signed) J. RUSSELL. CXLV POULETT THOMSON TO RUSSELL [Trans.: Imperial Blue Books Relating to Canada, 1839-40, Vol. XII. J Government House, Montreal, 18th November, 1839. My Lord, I have the honour to inform your Lordship, that having summoned the Special Council by proclamation to meet on Monday, the llth instant, I then submitted to them the question of the re-union of the two provinces of Upper and Lower Canada, and solicited their opinion respecting it. On Thursday, the 14th instant, I received from that body the address of which, and of my answer, I have the honour to enclose copies; and I likewise transmit an extract from the journals, from which your Lordship will learn their proceedings. I beg your Lordship to remark, that the members composing the Special Council remain the same as during the administration of my pre- decessor. It may be necessary hereafter, in the exercise of my discretion, to make some alterations, with a view to increase the efficiency of that body; but I felt, that as the opinions of Her Majesty's Government in regard to the union are well known, it was extremely desirable that I should, if possible, submit the consideration of that important question to a Council in whose selection I had myself had no voice. It appeared to me that to secure due weight in the mother country to the judgment of a body so constituted, it was indispensable to avoid even the possibility of an imputation that I had selected for its members those only whose opinions coincided with my own. I had moreover every reason to believe, from the motives which guided my predecessor in his choice, that the Council contains a very fair repre- sentation of the state of feeling in the different districts of the province. For these reasons I determined on making no alteration whatever; and it is with great satisfaction that I can now refer to the opinions of this body adopted almost unanimously. Their views as to the urgency of the union, and the advantages likely to result from it to the province, are set 526 Constitutional Documents of Canada. [1791-1840 forth in their address in terms so forcible as to leave me nothing to say with reference to their opinion. But I must add, that it is my decided conviction, grounded upon such other opportunities as I have enjoyed since my arrival in this country of ascertaining the state of public feeling, that the speedy adoption of that measure by Parliament is indispensable to the future peace and prosperity of this province. All parties look with extreme dissatisfaction at the present state ot government. Those of British origin, attached by feeling and education to a constitutional form of Government, although they acquiesced at the time in the establishment of arbitrary power, as a refuge from a yet worse despotism, submit with impatience to its continuance, and regret the loss, through no fault of their own, of what they consider as their birthright. Those of the French Canadians who remained loyal to their Sovereign and true to British connexion share the same feelings. Whilst among those who are less well-affected or more easily deceived, the suspension of all constitutional rights affords to reckless and unprincipled agitators a con- stant topic of excitement. All parties therefore, without exception, demand a change. On the nature of that change there exists undoubtedly some difference of opinion. In a country so lately convulsed, and where passions are still so much excited, extreme opinions cannot but exist; and accordingly, while some persons advocate an immediate return to the former constitution of this province, others propose either the entire exclusion from political privil- eges of all of French origin, or the partial dismemberment of the province, with the view of conferring on one portion a representative system, while maintaining in the other a despotism. I have observed, however, that the advocates of these widely different opinions have generally admitted them to be their aspirations, rather than measures which could practically be adopted, and have been unable to sug- gest any course except the union, by which that at which they aim, namely, constitutional government for themselves, could be permanently and safely established. There exists, too, even amongst these persons, a strong and prevailing desire that the Imperial Legislature should take the settlement of Canadian affairs at once into its own hands rather than that it should be delayed by a reference to individual opinions, or to the schemes which may be put forward by different sections of local parties. The large majority, however, of those whose opinions I have had the opportunity of learning, both of British and French origin, and of those, too, whose character and station entitle them to the greatest authority, advocate warmly the establishment of the union, and that upon terms of perfect fairness, not merely to the two provinces, but to the two races within this province. Of the extent to which this feeling, with regard to the upper province is carried, your Lordship will find a most conclusive proof in the resolution of the Special Council respecting the debt of Upper Canada. By this resolution a large sum, owing by that province on account of public works of a general nature, is proposed to be charged on the joint revenues of the United Province. Upon other details of the arrangement the same feeling prevails. It would be, however, useless for me to trouble your Lordship with respect to them, until I have had the opportunity of ascertaining the views and opinions entertained by the people of Upper Canada. If, however, as I trust, the principle of re-union should meet with their assent, I am of opinion that it can only be in consequence of demands of an unwarrantable character upon their part, that difficulty will arise in settling the principal terms. I have, etc., (Signed) C. POULETT THOMSON. ENCLOSURE I To his Excellency the Right Honourable Charles Poulett Thomson, one of Her Majesty's most Honourable Privy Council, Governor-Genera! of British North America, .and Captain-General, and Governor-in-Chief, in and over the Provinces of Lower Canada and Upper Canada, Nova 1791-1840] Constitutional Documents of Canada. 527 Scotia, New Brunswick, and the Island of Prince Edward, and Vice- Admiral of the same. May it please your Excellency, We, Her Majesty's dutiful and loyal subjects, the Special Council for the affairs of Lower Canada, at a meeting convened by your Excellency, under the authority and in pursuance of the statute in this behalf provided, beg leave respectfully to return to your Excellency our thanks for youi considerate care of the interests of this province, in having called our attention to Her Majesty's gracious message to both Houses of the Imperial Parliament, relative to the reunion of the provinces of Upper and Lower Canada, upon which important subject your Excellency has been pleased to desire the opinion of the Special Council. In conformity with the desire of your Excellency, we have applied our deliberate consideration to the various complex interests and objects in- volved in the measure of reuniting the two provinces, and we most heartily express our humble gratitude to Her Majesty, for having granted her high sanction to a measure, which from our local knowledge and the experience we have had of the government of these provinces, and of their past and present political state, we deem to be essential to their future peace and welfare, and for the good, constitutional, and efficient government of them, under the protecting care and authority of Her Majesty, and the adoption of which we are intimately convinced has become of indispensable and urgent necessity. In considering this contemplated measure, we have directed our atten- tion to a few of the more prominent and important provisions, fit, as we conceive, to be embraced in it; and the views entertained by us on them, as well as on the measure itself, we have embodied in certain resolutions, which we have now the honour humbly to submit to your Excellency, as containing our opinion on the important subject, respecting which it has pleased your Excellency to consult us. (Signed) J. STUART, Chairman. Special Council, Montreal, 14th November, 1839. ENCLOSURE II Special Council, Wednesday, 13th November, 1839. Resolved That under existing circumstances, in order to provide adequately for the peace and tranquillity, and the good, constitutional, and efficient government of the provinces of Upper and Lower Canada, the reunion of these provinces under one legislature, in the opinion of this Council, has become of indispensable and urgent necessity. Resolved That the declared determination of Her Majesty, conveyed in Her gracious message to Parliament to reunite the provinces of Upper and Lower Canada, is in accordance with the opinion entertained by this Council, and receives their humble and ready acquiescence. Resolved That among the principal enactments, which, in the opinion of this Council, ought to make part of the Imperial Act for reuniting the provinces, it is expedient and desirable that a suitable civil list should be provided for securing the independence of the judges, and maintaining the executive government in the exercise of its necessary and indispensable functions. Resolved That regard being had to the nature of the public debt of Upper Canada, and the objects for which principally it was contracted, namely, the improvement of internal communications, alike useful and beneficial for both provinces, it would be just and reasonable, in the opinion of this Council, that such part of said debt, as has been contracted for this object, and not for defraying expenses of a local nature, should be charge- able on the revenues of both provinces. Resolved That the adjustment and settlement of the terms of the reunion of the two provinces, may, in the opinion of this Council, with all confidence be submitted to the wisdom and justice of the Imperial Parlia- 528 Constitutional Documents of Canada. [1791-1840 mcnt, under the full assurance that provisions of the nature of those already mentioned, as well as such others as the measure of reunion may require, will receive due consideration. Resolved That in the opinion of this Council, it is most expedient with a view to the security of Her Majesty's North American provinces, and the speedy cessation of the enormous expense now incurred by the parent state for the defence of Upper and Lower Canada, that the present tem- porary legislature of this province should, as soon as practicable, be suc- ceeded by a permanent legislature, in which the people of these two provinces may be adequately represented, and their constitutional rights exercised and maintained. CXLVI POULETT THOMSON TO A FRIEND [Trans. : G. Poulett Scrope, Memoir of the Life of the Rt. Honourable Charles, Lord Sydenham, (2nd Edn., London, 1844.] Toronto, November 20th and December 8th, 1839. I have succeeded in Lower Canada in far less time and with greater ease than I could have expected from Sir John Cplborne's account to me of the state of feeling, especially in his own council. The fact is, that his council ran riot, and did not know how to proceed. I have given them my opinion strongly, at the same time that I expressed my willingness to hear and give due weight to theirs. This course has shortened business (for there is a strong wish to be guided by the Home Government), and pro- duced unanimity. So far, therefore, as the Lower Province is concerned, I look upon the Union as settled. The decision, too, I have reason to know, gives the greatest satisfaction to the Province generally ,and nearly all are prepared to accept the measure, if it can be carried through Parliament, with the utmost cordiality. The fact is, that all parties there are dead-sick of the present state of things, and desire a return to Constituional Govern- men. Of course the extremes have their different crotchets for arriving at this end. The ultra-French desire an immediate return to the old Con- stitution. The ultra-British the disfranchisement of the French Canadians. But even they have been satisfied, I believe, by a little management and a good deal of firmness, that both were equally out of the question, and have now joined with the great mass who hold the middle opinion in favour of the Union measure. The "Canadian" and the "Montreal Herald" lie down together upon this point. In short, the unanimity is wonderful. I have now the Upper Province to deal with, which will, I fear, be a more difficult matter. But I do not despair ; and certainly, so far as all the real interests of the country are concerned, the Union is far more necessary to Upper Canada than to the other. If it were possible, the best thing for Lower Canada would be a depotism for ten years more; for, in truth the people are not yet fit for the higher class of self-government scarcely indeed, at present, for any description of it ; and by carrying one- self the measures which a House of Assembly will probably never carry, one might gradually fit them for both, and at all events, leave them an amount of good institutions which the United Legislature, when it came, could not destroy. But in Upper Canada the case, as it appears to me, is widely different. The state of things here is far worse than I had expected. The country is split into factions animated with the most deadly hatred to each other. The people have got into the habit of talking so much of separation, that they begin to believe in it. The Constitutional party is as bad or worse than the other, in spite of all their professions of loyalty. The finances are more deranged than we believed even in England. The deficit, 75,000 a year, more than equal to the income. All public works suspended. Emigration going on fast from the province. Every man's pro- perty worth only half what it was. When I look to the state of Govern- ment, and to the departmental administration of the province, instead of 1791-1840] Constitutional Documents of Canada. 529 being surprised at the condition in which I find it, I am only astonished it has been endured so long. I know that, much as I dislike Yankee insti- tutions and rule, I would not have fought against them, which thousands of these poor fellows, whom the Compact call rebels, did, if it were only to keep up such a Government as they got. The excitement upon "Responsible Government" is great. Not that I believe the people understand what they are clamouring for by that word ; but that they feel the extreme uneasiness of their situation, owing to the financial embarrassments ,and hate the dominant party in the Government with intense hatred. I do not wonder at the cry for Responsible Government, when I see how things have been managed. Then the Assembly is such a House ! Split into half a dozen different parties. The Government having none and no one man to depend on ! Think of a House in which half the members hold places, yet in which the Government does not command a single vote; in which the placemen generally vote against the Executive ; and where there is no one to defend the Government when attacked, or to state the opinion or views of the Governor! How, with a popular assembly, Government is to be conducted under such circumstances is a riddle to me. I am now more than ever satisfied that the Union affords the only chance of putting an end to the factions that distract the country; the only means of recruiting its finances by persuading Great Britain to help the Upper Canada Exchequer; the only means by which the present abominable system of government can be broken up, and a strong and powerful administration, both departmental and executive, be formed. And unless the people will assent to the general outline of it, and Parliament will then carry the details, upon which they would never agree, with a high hand, the province is lost. From all that I can hear or see, I would not give a year's purchase for our hold of it, if some great stroke is not given which shall turn men's thoughts from the channel in which they now run, and give a fresh impetus to public works, emigration, and the practical improvement of the country's resources. It is indeed a pity to see this province in such a state. It is the finest country I ever knew, even what I have seen of it in a circle of thirty or forty miles from here; and by the accounts I receive the upper part is even superior. Lower Canada is not to be named in comparison. The climate, the soil, the water-power, and facilities of transport, finer than anything in North America. Whether in their present state of violent excitement I shall be able to persuade the people to come to reasonable terms, I cannot venture to say; but I am sure it is the last and only chance. After having brought and to think that the French Canadians ought to have their full share of the representation, I shall not despair of anything. But what I hear, and have as yet seen, of the House of Assembly, is not encouraging. If they are not willing, however, I shall appeal to the people without hesitation; for the state of things admits of no delay, and no half measures. CXLVII POULETT THOMSON'S MESSAGE TO LEGISLATURE OF UPPER CANADA [Trans.: Christie, op cit. Vol. V.] December 7th, 1839. In pursuance of the intention expressed in his speech from the throne, the Governor General desires now to bring under the consideration of the House of Assembly, the subject of the re-union of this Province with Lower Canada, recommended by Her Majesty in her gracious message to both Houses of Parliament on the third of May last. For several years the condition of the Canadas has occupied a large portion of the attention of Parliament. That they should be contented and HH 530 Constitutional Documents of Canada. [1791-1840 prosperous that the ties which bind them to the parent state should be strengthened that their administration should be conducted in accordance with the wishes of the people, is the ardent desire of every British states- man and the experience of the last few years amply testifies that the Imperial Parliament has been sparing neither of the time it has devoted to the investigation of their affairs, nor of the expenditure it has sanctioned for their protection. The events which have marked the recent history of Lower Canada, are so familiar to the House of Assembly, that it is unnecessary for the Gov- ernor General further to allude to them. There, the constitution is sus- pended, but the powers of the Government are inadequate to permit of the enactment of such permanent laws as are required for the benefit of the people. Within this Province the finances are deranged public improvements are suspended private enterprise is checked the tide of emigration so essential to the prosperity of the country and to the British connexion, has ceased to flow while by many, the general system of Government is de- clared to be unsatisfactory. After the most attentive and anxious consideration of the state of these Provinces, and the difficulties under which they respectively labour, Her Majestys' advisers came to the conclusion, that by their re-union alone could those difficulties be removed. During the last session of the Imperial Legislature they indeed refrained from pressing immediate legislation, but their hesitation proceeded from no doubt as to the measure or its necessity. It arose solely to ascertain more fully the opinions of the Legislature of Upper Canada, and to collect information from which the details might be rendered more satisfactory to the people of both Provinces. ^ The time then is now arrived beyond which a settlement cannot be postponed. In Lower Canada it is indispensable to afford a safe and prac- ticable return to a constitutional government, and so far as the feelings of the inhabitants can be there ascertained, the measure of the re-union meets with approbation. In Upper Canada it is no less necessary, to enable the Province to meet her financial embarrassments, and to proceed in the development of her natural resources. There are evidently no means in this Province of ful- filling the pecuniary obligations which have been contracted, but by a great increase in the local revenues. But so long as Lower Canada remains under her present form of Government, neither Province possesses any power over the only source from which that increase can be drawn. Nor even, were it possible to restore a representative constitution to Lower Canada, unaccompanied by the union, would the position of this Province be much improved; since past experience has shown the difficulty of pro- curing assent to any alteration of the customs laws suggested from hence. This Province has engaged in undertakings, which reflect the highest honour on the enterprise and industry of her inhabitants. The public works which she has completed or commenced, have been conceived in a spirit worthy of a successful result. But additional means are indispens- able to avert the ruin of some, and secure the completion of others. Nor will that alone suffice ; Lower Canada holds the key to all those improve- ments. Without her co-operation, the navigation for which nature has done so much and for which this Province has so deeply burthened itseff, must remain incomplete, and a barrier be opposed to the development of those great natural resources which the hand of Providence has so lavishly bestowed on this country. With a view to remove all those difficulties: to relieve the financial embarrassments of Upper Canada: to enable her to complete her public works and develop her agricultural capabilities: to restore constitutional government to Lower Canada: to establish a firm, impartial, and vigorous government for both ; and to unite the people within them in one common feeling of attachment to British institutions and British connexion, the union is desired by Her Majesty's Government ; and that measure alone, if based upon just principles, appears adequate to the occasion. 1791-1840] Constitutional Documents of Canada. 531 Those principles, in the opinion of Her Majesty's advisers, are, a just regard to the claims of either Province in adjusting the terms of the union the maintenance of the three estates of the Provincial Legislature ; the settlement of a permanent civil list for securing the independence of the judges and to the executive government that freedom of action which is necessary for the public good, and the establishment of a system of local government adapted to the wants of the people. It was with great satisfaction then that Her Majesty's Government learnt that upon the question of the union itself the House of Assembly had pronounced their decided judgment during their last session ; and it will only remain for the Governor General now to invite their assent to the terms upon which it is sought to be effected. Their decision was indeed accompanied by recommendations to which the government could not agree ; but the Governor General entertains no doubt that, under the altered circumstances, they will no more be renewed. It will be for the Imperial Parliament, guided by their intimate knowledge of constitutional law, and, free from the bias of local feelings and interests, to arrange the details of the measure. The first of the terms of re-union, to which the Governor General desires the assent of the House of Assembly, is equal representation of each Province in the united legislature. Considering the amount of the population of Lower Canada, this proposition might seem to place that Province in a less favourable position than Upper Canada; but, under the circumstances in which this Province is placed, with the increasing popu- lation to be expected from immigration, and having regard to the com- mercial and agricultural enterprise of its inhabitants, an equal apportion- ment of representation appears desirable. The second stipulation to be made is the grant of a sufficient civil list. The propriety of rendering the judicial bench independent alike of the Executive .and the Legislature, and of the furnishing the means of carrying on the indispensable services of the government admits of no question, and has been affirmed by the Parliament of Upper Canada in the acts passed by them for effecting those objects. In determining the amount of the civil list, the House of Assembly may be assured that the salaries and expenses to be paid from it will be calculated by Her Majesty's Govern- ment with a strict regard to economy and the state of the provincial finances. Thirdly, the Governor General is prepared to recommend to Parlia- ment, that so much of the existing debt of Upper Canada, as has been con- tracted for public works of a general nature, should, after the union, be charged on the joint revenue of the United Province. Adverting to the nature of the works for which this debt was contracted, and the advantage which must result from them to Lower Canada, it is not unjust that that Province should bear a proportion of their expenses. On these principles, the Governor General is of opinion that a re-union of the two Provinces may be effected equitable and satisfactory in its terms, and beneficial in its results to all classes. He submits them to the consideration of the House of Assembly, in the full conviction of their importance, and in the hope that they will receive the assent of that House. Fortified by the expression of their opinion, Her Majesty's Government and Parliament will be able at once to apply themselves to the full develop- ment of the scheme, and to the consideration of the provisions by which it may be carried into effect with the greatest advantage to the people of both Provinces. If in the course of their proceedings, the House of Assembly should de- sire any information which it is in the power of the Governor General to afford, they will find him ready and anxious to communicate with them frankly and fully, and to aid, by all the means in his power, that settlement on which he firmly believes that the future prosperity and advancement of these Colonies mainly depend. 532 Constitutional Documents of Canada. [1791-1840 CXLVIII POULETT THOMSON TO A FRIEND [Trans. : Scrope, op. cit.] December 12th, 1839. I am not a bit afraid of the responsible government cry. I have already done much to put it down in its inadmissible sense ; namely, the demand that the council shall be responsible to the assembly, and that the governor shall take their advice, and be bound by it. In fact, this demand has been made much more for the people than by them. And I have not met with anyone who has not at once admitted the absurdity of claiming to put the council over the head of the governor. It is but fair, too, to say that every thing has in past times been done by the different governors to excite the feelings of the people on this question. First, the executive council has generally been composed of the persons most obnoxious to the majority of the assembly. And next, the governor has taken extreme care to make executive council. So the people have been carefully taught to believe that every act of his own go forth to the public on the responsibility of the the governor is nobody, and the executive council the real power, and that by the governor himself. At the same time they have seen that power placed in the hands of their opponents. Under such a system it is not to be won- dered at if our argument founded on the responsibility of the governor to the home government falls to the ground. I have told the people plainly that, as I cannot get rid of my responsibility to the home government, I will place no responsibility on the council ; that they are a council for the governor to consult, but no more. And I have yet met with no "responsible government" man who was not satisfied with the doctrine. In fact there is no other theory which has common sense. Either the governor is the sovereign or the minister. If the first, he may have ministers, but he can- not be responsible to the government at home, and all colonial government becomes impossible. He -must therefore be the minister, in which case he cannot be under the control of men in the colony. CXLIX RESOLUTIONS OF LEGISLATIVE COUNCIL OF UPPER CANADA 1 [Trans.: Imperial Blue Books relating to Canada, Vol. XII.] December 14, 1839. Resolved, 1 That the events which have lately marked the history of Lower Canada the consequent necessity for a suspension of her constitu- tion, and the inadequacy of the powers of Government existing there, for the enactment of permanent laws, such as are required for the benefit of the people, present a state of public affairs in the sister Province, deeply to be deplored by this house, as well from a disinterested anxiety for the welfare of a people so nearly connected with Upper Canada, as in con- sideration of the injurious consequences resulting to this community, from a continuance of the unsettled political condition of the Lower Province. Resolved, 2 That the present derangement of the finances of Upper Canada the total suspension of her public improvements the paralyzed condition of private enterprise the cessation of immigration, and the apparent impossibility of the removal of these evils, without the united efforts of both the Canadian Provinces make the adoption of some great measure necessary, which will restore prosperity to the Canada** and renew confidence at home and abroad in the stability of their political institutions. 1 These Resolutions were carried by a "large majority." They were sent to England with the document which follows in an explanatory despatch from Thomson. 1791-1840] Constitutional Documents of Canada. 533 Resolved, 3 That considering the hopelessness arising from past experience, and from a view of the political condition of Lower Canada, of ever realizing, in separate legislatures, the unity of feeling or action in measurs effecting equally the interests of both provinces, on which the prosperity or safety of either may essentially depend, a re-union of the Provinces of Upper and Lower Canada has, in the opinion of this house, become indispensable for the restoration of good government within these colonies, and for the preservation of their institutions in connexion with the parent state. Resolved, 4 That for these urgent reasons, the assent of this house be expressed to the enactment of the important measure of re-union of the Provinces of Upper and Lower Canada, recommended by Her Majesty to both Houses of Parliament, and to the houses of the Provincial Legisla- ture by His Excellency the Governor General ; and that such assent, on the part of this house, be given on the following terms : First That there be an equal representation of each Province in the United Legislature. Secondly That a sufficient permanent civil list be granted to Her Ma- jesty, to enable Her Majesty to render the judicial bench independent alike of executive power and popular influence, and to carry on the indispensable services of government. Thirdly That the public debt of this Province, contracted for public works of a general nature, shall, after the union, be charged on the joint revenue of the united Province. Resolved, 5 That in yielding this ready concurrence to the measure of the re-union of the provinces, strongly recommended by Her Majesty, the Legislative Council of Upper Canada rely upon the wisdom and justice of their most gracious Sovereign, and of Her Majesty's Parliament, for devis- ing the details of the plan of re-union, and for the establishment of such a system of government in the united Province, as will tend to the develop ment of its natural resources, and enable it, with the blessing of Divine Providence to pursue steadily, and free from distractions by which the country has lately been divided, the course of prosperity and happiness, which the best interests of the people of Canada, and of the empire, alike require not to be longer impeded. CL RESOLUTIONS OF THE HOUSE OF ASSEMBLY OF UPPER CANADA [Trans. : Imperial Blue Books relating to Canada, Vol. XII.] December 23rd, 1838. Resolved That the House Assembly, at its last session, declared that, in their opinion, a United Legislature for the Canadas, on certain terms, was indispensable, and that further delay must prove ruinous to their best interests, and that His Excellency the Governor General, by his message to this house, has announced, that with a view to remove the difficulties of these Provinces, to relieve the financial embarrassments of Upper Canada, to enable her to complete her public works, and develop her agricultural capabilities, to restore constitutional government to Lower Canada, to estab- lish a firm, impartial, and vigorous government for both, and to unite the people within them in one common feeling of attachment to British insti- tutions and British connexion ; the legislative union of Upper and Lower Canada has been recommended by Her Majesty to the Imperial Parlia- ment; and His Excellency the Governor General has invited the assent of this house to certain specified terms, upon which the union may be estab- lished. It, therefore, becomes the duty of the representatives of the people of this Province carefully to consider the provisions by which this measure may be carried into effect, with the greatest security to their future peace, 534 Constitutional Documents of Canada. [1791-1840 welfare and good government, and the permanent connexion of these Colonies with the British empire. Resolved, That this house concur in the proposition that there be an equal representation of each province in the United Legislature. Resolved, That this house concur in the proposition, that a sufficient civil list be granted to Her Majesty, for securing the independence of the judges and to the Executive Government that freedom of action which is ncessary for the public good. The grant for the person administering the Government, and for the Judges of the several Superior Courts to be per- manent, and for the officers conducting the other departments of the public service, to be for the life of the sovereign, and for a period of not less than ten years. Resolved, That the public debt of this Province shall after the union, be charged on the joint revenue of the United Province. CLI ADDRESS FROM THE HOUSE OF ASSEMBLY OF UPPER CANADA 1 [Trans. : Imperial Blue Books relating to Canada, Vol. XII.] January 13, 1840. Most Gracious Sovereign : We your Majesty's most dutiful and loyal subjects the Commons of Upper Canada, in Provincial Parliament assembled, beg permission to approach your Majesty with renewed expression of our unwavering attach- ment to your Majesty's royal person and government. During the present session of your Provincial Parliament, a subject more important than any that has ever engaged the attention of the repre- sentatives of the people, has been brought under their consideration in pur- suance of the commands of your Majesty, by your Majesty's Governor General of these Provinces, namely, the legislative re-union of Upper and Lower Canada. In the message of His Excellency to the two branches of the legislature, they are informed that "after the most attentive and anxious consideration of the state of these Provinces, and of the difficulties under which they respectively labour, your Majesty's advisers came to the con- clusion that by their re-union alone could these difficulties be removed: that during the last session of the Imperial Legislature they refrained from pressing immediate legislation, but their hesitation proceeded from no doubt as to the principle of the measure, or its necessity; it arose solely from the desire to ascertain more fully the opinions of the legislature of Upper Canada, and to collect information from which the details might be rendered more satisfactory to the people of both Provinces." The House of Assembly deeply feel this additional proof of your Majesty's solicitude for their happiness and prosperity; and it will ever be held by them in grateful remembrance. In pursuance of the message referred to, the House of Assembly lost no time in taking into consideration three distinct propositions submitted by your Majesty's Governor General as the basis on which the re-union might be established, namely : First equal representation of each Province in the United Legislature: Secondly the grant of a sufficient civil list; and thirdly that the public debt of this Province be charged on the joint revenue of the United Province. In the discussion of these propositions, it happened that some of the members of this house apprehending the greatest danger to our civil and political institutions, and even to our connexion with the parent state, were 1 This Address was sent to England by Thomson in a covering despatch dated 18 January, 1840. The Governor-General explained that it was to be interpreted rather "as some suggestions" and not as overriding the consent already given to the union of the Provinces. 1791-1840] Constitutional Documents of Canada. 535 opposed to the union on any. terms, wmle of those who supported the measure, there were many who were not wholly free from apprehensions as to the result, and who regarded it as a hazardous experiment, unless in addition to terms submitted by the Governor General, certain details cal- culated to secure their connexion with the Imperial crown, should accom- pany their concurrence with the terms proposed. A majority, however, gave their unconditional assent to the propositions above mentioned, in the fullest confidence, that your Majesty, in calling the attention of the Imperial Parliament to the union, would at the same time recommend the adoption of every necessary safeguard to the maintenance of British interests and British supremacy. It is in this confidence that we now humbly submit to your Majesty's most gracious consideration the following propositions, which, in the opinion of this house, are calculated to secure the great end, in expectation whereof the assent to the union was given : And first, we respectfully entreat your Majesty, that the use of the English language in-till judicial and legislative records be forthwith intro- duced; and that at the end of a space of a given number of years, after the union, all debates in the Legislature shall be in English. And as a matter of justice to your Majesty's subjects in Upper Canada, we earnestly and confidently appeal to your Majesty, to admit their right to have the seat of the Provincial Government established within this Province. It cannot be denied to the people of this Colony, that if favour is to be shewn to either Upper or Lower Canada, their claim stands pre-eminent ; inde- pendent of which, the moral and political advantages of the consession are too obvious and undeniable to admit of dispute. It is with the most sincere satisfaction that this house has received from your Majesty's representative the assurance that the bill introduced into the House of Commons during the last session of the Imperial Legis- lature, is not to be "considered as embodying the provisions which may hereafter be adopted by the Imperial Parliament." And, "that it His Excellency's intention to recommend to Her Majesty's Government, in the new measure that must be introduced, to adhere as much as possible to existing territorial divisions for electoral purposes, and to maintain the principle of the constitutional act of 1791, with regard to the tenure of seats in the Legislative Council." We would further respectfully submit the necessity of providing that the members of the legislature should possess a stake in the country equal to that now required by the laws of this Province, that, to the call of public duty, that of private interest may be added, as an inducement to wise and careful legislation ; and for this purpose we trust that a sufficient qualifica- tion in real estate will be required from any person holding a seat in the legislature. We would also respectfully suggest to your Majesty the paramount subject of emigration from the British Isles, which we consider the best calculated to render the United Province British in fact as well as in name. No time, in our humble opinion, should he lost, in the establishment and vigorous prosecution of a well organized system of emigration, cal- culated to afford every possible facility to the settlement of that extensive domain, the proceeds of which have been proposed to be surrendered to the control of the Provincial Legislature, upon certain terms and conditions, which in Upper and Lower Canada is at present in right of the crown, at your Majesty's disposal. We have no desire to interfere unnecessarily in questions of detail, which more immediately affect the sister Province; but we cannot omit respectfully soliciting your Majesty's attention to the introduction of a system of municipal government into Lower Canada, in order to provide for local taxation, and under local management, on the same principles as have obtained in Upper Canada, where the system established by the Pro- vincial Legislature, after repeated and careful revision, has in its operation proved highly satisfactory to the people. We would, lastly, desire humbly to assure your Majesty, that to the principles on which our constitution has been established, to the representa- 536 Constitutional Documents of Canada. [1791-1840 tive mode of government under a monarchy, and to a permanent connexion with the British empire, and a dutiful allegiance to our Sovereign, the people of Upper Canada most faithfully and firmly adhere. It is only from apprehensions of danger on these most important mat- ters, that doubt or difficulty has been felt in assenting to the union ; and we therefore now humbly trust that your Majesty, fully acquainted with our situation, will not confine your royal consideration to the claims that are referred to in this address, or in any other proceeding of this house, but that continuing to us that gracious and generous protection we have hither- to experienced from your Majesty and the British nation, your Majesty will add such future safeguards as in your wisdom may be thought neces- sary and desirable to protect your faithful subjects in the peaceful enjoy- ment of their laws and liberties, and to perpetuate their connexion with your Majesty's crown and empire. ALLAN N. MACNAB, Speaker. 13th January, 1840. CLII POULETT THOMSON TO HOUSE OF ASSEMBLY OF UPPER CANADA [Trans.: Legislative Assembly of Canada, Journals (1841), App. BB.] In answer to the address from the House of Assembly of the 13th De- cember, respecting communications received from her Majesty's principal Secretary of State on the subject of Responsible Government, the Governor General regrets that it is not in his power to communicate to the House of Assembly the despatches upon the subject referred to. The Governor General has received Her Majesty's commands to ad- minister the Government of these Provinces in. accordance with the well understood wishes and interests of the people, and to pay to their feelings, as expressed through their representatives, the deference that is justly due to them. 1 These are the commands of Her Majesty, and these are the views with which Her Majesty's Government desire that the administration of these Provinces should be conducted; and it will be the earnest and anxious desire of the Governor General to discharge the trust committed to him, in accordance with these principles. CLIII THE UNION ACT. 1840 s (3 & 4, Victoria, c. 35.) An Act to re-unite the Provinces of Upper and Lower Canada, and for tht government of Canada. 23rd July, 1840. Whereas it is necessary that provision be made for the good govern- ment of the Provinces of Upper and Lower Canada, in such manner as 1 On 13 December, 1839, the House of Assembly of Upper Canada asked Thomson for copies of Russell's despatches on "responsible government." This document is the reply to that address. Thomson merely quotes the despatch printed_ above (see No. CXLII). On August 17, 1841, in reply to an address from the Legislative Assembly of Canada, he laid copies of Russell's despatches before the House. They are printed in Legislative Assembly of Canada, Journals (1841), App. BB. I have collated the copies found in the Imperial Blue Books with those in the Journals. 1 Poulett Thomson sent home a Bill for Union differing from the Bill of 1838 (see pp. 551 ft. This Bill with some changes was passed 23 July, 1840. The Union came into operation by a proclamation issued Feb. 5, 1841, and in the following June the first Parliament of Canada met at Kingston. Sydenham died in the following Sep- tember. 1791-1840] Constitutional Documents of Canada. 537 may secure the rights and liberties and promote the interests of all classes of her Majesty's subjects within the same: And whereas to this end it is expedient that the said Provinces be reunited to form one Province for the purposes of executive government and legislation: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by authority of the same, that it shall Declaration be lawful for her Majesty, with the advice of her Privy Council, to declare, of Union, or to authorize the Governor-General of the said two Provinces of Upper and Lower Canada to declare by proclamation that the said Provinces upon, from, and after a certain day in such proclamation to be appointed, which day shall be within fifteen calendar months next after the passing of this Act, shall form and be one Province under the name of the Province ot Canada, and thenceforth the said Provinces shall constitute and be one Province under the name aforesaid upon, from and after the day so ap- pointed, as aforesaid. II. And be it enacted that so much of an Act 1 passed in the session AcTs^si'G 3 of Parliament held in the thirty-first year of the reign of George the Third, c. 3l! intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, intituled 'An Act for making more effectual Provision for the Government of the Province of Quebec in North Amer- ica,' and to make further Provision for the Government of the said Pro- vince," as provides for constituting and composing a Legislative Council and Assembly within each of the said Provinces respectively, and for the making of laws; and also the whole of an Act 2 passed in the session of Parliament held in the first and second years of the reign of her present 1 ^^ 2 Viet., Majesty, intituled "An Act to make Temporary Provision for the Govern- ' ment of Lower Canada;" and also the whole of an Act 3 passed in the session of Parliament held in the second and third years of the reign of her 2 and 3 Vic., present Majesty, intituled "An Act to Amend an Act of the last Session of c- ^ 3- Parliament for making Temporary Provision for the Government of Lower Canada;" and also the whole of an Act 4 passed in the session of Parliament held in the first and second years of the reign of his late Majesty, King William the Fourth, intituled "An Act to amend an Act of the fourteenth ^ ^ d ' year of His Majesty, King George the Third, for establishing a fund towards defraying the Charges of the Administration of Justice and the Support of the Civil Government in the Province of Quebec in America ;" 14 G - 3 > c - 88 - shall continue and remain in force until the day on which it shall be de- clared by proclamation, as aforesaid, that the said two Provinces shall constitute and be one Province as aforesaid, and shall be repealed on, from and after such day: Provided always that the repeal of the said several Acts of Parliament shall not be held to revive or give any force or effect to any enactment which has by the said Acts, or any of them, been repealed or determined. III. And be it enacted that from and after the reunion of the said^^P w two Provinces there shall be within the Province of Canada one Legislative Legislature. Council and one assembly to be severally constituted and composed in the manner herein-after prescribed, which shall be called "The Legislative Council and Assembly of Canada;" and that within the Province of Canada her Majesty shall have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, welfare, and good government of the Province of Canada, such laws not being repugnant to this Act, or to such parts of the said Act passed in the thirty-first year of the reign of his said late Majesty as are not hereby repealed 5 , or to any Act of Parliament made or to be made and not hereby repealed, which does or shall by express enactment or by necessary intend- ment extend to the Provinces of Upper and Lower Canada, or to either 91 1 Constitutional Act, 2-32. (See No. LV). 2 See No. CXXVIII. 3 See No. CXLI. 4 See No. CX. 5 i.e. Constitutional Act of 1791. (See No. LV.) 538 Constitutional Documents of Canada. [1791-1840 Appointment of Legislative Councillor*. Qualification of Legislative Councillors. Tenure of office of Councillor. Resignation of Legislative Councillor. Vacating seat by absence. Trial of questions. Appointment of Speaker. them, or to the Province of Canada ; and that all such laws being passed by the said Legislative Council and Assembly and assented to by her Majesty, or assented to in her Majesty's name by the Governor of the Province of Canada, shall be valid and binding to all intents and purposes within the Province of Canada. IV. And be it enacted that for the purpose of composing the Legis- lative Council of the Province of Canada it shall be lawful for her Majesty, before the time to be appointed for the first meeting of the said Legis- lative Council and Assembly, by an instrument under the sign manual, to authorize the Governor in her Majesty's name, by an instrument under the Great Seal of the said Province, to summon to the said Legislative Council of the said Province such persons, being not fewer than twenty, as her Majesty shall think fit; and that it shall also be lawful for her Majesty from time to time to authorize the Governor in like manner to summon to the said Legislative Council such other person or persons as her Majesty shall think fit, and that every person who shall be so sum- moned shall thereby become a member of the Legislative Council of the Province of Canada: Provided always, that no person shall be summoned to the said Legislative Council of the Province of Canada who shall not be of the full age of twenty-one years, and a natural-born subject of her Majesty, or a subject of her Majesty naturalized by Act of the Parliament of Grea^t Britain, or by Act of the Parliament of the United Kingdom of Great Britain and Ireland, or by an Act of the Legislature of either of the Provinces of Upper or Lower Canada, or by an Act of the Legislature of the Province of Canada. V. And be it enacted that every member of the Legislative Council of the Province of Canada shall hold his seat therein for the term of his life, but subject nevertheless to the provisions hereinafter contained for vacating the same. VI. And be it enacted that it shall be lawful for any member of the Legislative Council of the Province of Canada to resign his seat in the said Legislative Council, and upon such resignation the seat of such Legis- lative Councillor shall become vacant. VII. And be it enacted that if any Legislative Councillor of the Province of Canada shall for two successive sessions of the Legislature of the said Province fail to give his attendance in the said Legislative Council, without the permission of her Majesty or of the Governor of the said Province signified by the said Governor to the Legislative Council, or shall take any oath or make any declaration or acknowledgment of alle- giance, obedience, or adherence to any foreign prince or power, or shall do, concur in, or adopt any Act whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any foreign state or power, or shall become bankrupt, or 'take the benefit of any law relating to insolvent debtors, or become a public defaulter, or be attainted of trea- son, or be convicted of felony or of any infamous crime, his seat in such Council shall thereby become vacant. VIII. And be it enacted that any question which shall arise respecting any vacancy in the Legislative Council of the Province of Canada, on occa- sion of any of the matters aforesaid, shall be referred by the Governor of the Province of Canada to the said Legislative Council, to be by the said Legislative Council heard and determined: Provided always that it shall be lawful, either for the person respecting whose seat such question shall have arisen, or for her Majesty's Attorney-General for the said Province on her Majesty's behalf, to appeal from the determination of the said Council in such case to her Majesty, and that the judgment of her Majesty, given with the advice of her Privy Council thereon, shall be final and conclusive to all intents and purposes. IX. And be it enacted that the Governor of the Province of Canada shall have power and authority from time to time, by an instrument under the Great Seal of the said Province, to appoint one member of the said Legislative Council to be Speaker of the said Legislative Council, and to remove him and appoint another in his stead. 1791-1840] Constitutional Documents of Canada. 539 X. And be it enacted that the presence of at least ten members of Quorum, the said Legislative Council, including the Speaker, shall be necessary to constitute a meeting for the exercise of its powers; and that all questions Division, which shall arise in the said Legislative Council shall be decided by a majority of voices of the members present other than the Speaker, and Casting vote when the voices shall 'be equal the Speaker shall have the casting vote. XI. And be it enacted that for the purpose of constituting the Legis- Convoking the lative Assembly of the Province of Canada it shall be lawful for the A8SCmbly - Governor of the said Province, within the time hereinafter mentioned and thereafter from time to time as occasion shall require, in her Majesty's name and by an instrument or instruments under the Great Seal of the said Province, to summon and call together a Legislative Assembly in and for the said Province. XII. And be it enacted that in the Legislative Assembly of the Pro- ^"fo^each vince of Canada, to be constituted as aforesaid, the parts of the said Province. Province which now constitute the Provinces of Upper and Lower Canada respectively, shall, subject to the provisions hereinafter contained, be repre- sented by an equal number of representatives to be elected for the places and in the manner hereinafter mentioned. XIII. And be it enacted that the County of Halton in the Province County of of Upper Canada shall be divided into two ridings, to be called respectively Halton - the East Riding and the West Riding; and that the East Riding of the said County shall consist of the following townships, namely: Trafalgar, Nelson, Esquesing, Nassagaweya, East Flamborough, West Flamborough, Ering, Beverley ; and that the West Riding of the said County shall consist of the following townships, namely : Garaf raxa, Nichol, Woolwich, Guelph, Waterloo, Wilmot, Dumfries, Puslinch, Eramosa ; and that the East Riding and West Riding of the said County shall each be represented by one mem- ber in the Legislative Assembly of the Province of Canada. XIV. And be it enacted that the County of Northumberland in the "thumber Province of Upper Canada shall be divided into two ridings, to be called i a d. "' respectively the North Riding and the South Riding ; and that the North Riding of the last-mentioned County shall consist of the following town- ships, namely: Monaghan, Otonabee, Asphodel, Smith, Douro, Dummer, Belmont, Methuen, Burleigh, Harvey, Emily, Gore, Ennismore; and that the South Riding of the last-mentioned County shall consist of the follow- ing townships, namely : Hamilton, Haldimand, Cramak, Murray, Seymour, Percy; and the North Riding and South Riding of the last-mentioned County shall each be represented by one member in the Legislative Assem- bly of the Province of Canada. XV. And be it enacted that the County of Lincoln in the Province of County of Upper Canada shall be divided into two ridings, to be called respectively ' the North Riding and the South Riding; and that the North Riding shall be formed by uniting the First Riding and Second Riding of the said County, and the South Riding by uniting the Third Riding and Fourth Riding of the said County; and that the North and South Ridings of the last-mentioned County shall each be represented by one member in the Legislative Assembly of the Province of Canada. XVI. And be it enacted that every county and riding, other than those Other county herein-ibefore specified, which at the time of the passing of this Act was ^ I ^ tl ^ nc ' r by law entitled to be represented in the Assembly of the Province of Upper Canada. Canada, shall be represented by one member in the Legislative Assembly of the Province of Canada. XVII. And be it enacted that the City of Toronto shall be represented^?""^ by two members, and the towns of Kingston, Brockville, Hamilton, Corn- Upper Canada, wall, Niagara, London, and Bytown shall each be represented by one mem- ber in the Legislative Assembly of the Province of Canada. XVIII. And be it enacted that every county which before and at the st^ifcy "/ time of the passing of the said Act of Parliament 1 , intituled "An Act to Lower Canada, make temporary provision for the Government of Lower Canada" was * nd 2 Viet., entitled to be represented in the Assembly of the Province of Lower Can- c ' 9 ' * See No. CXXVIII. 540 Constitutional Documents of Canada. [1791-1840 Further pro- vision as to constitu- ency of stituency of Lower Canada. cities and towns to be settled by the Governor. ada, except the Counties of Montmorency, Orleans, L'Assomption, La Chesnaye L'Acadie, Laprairie, Dorchester and Beauce hereinafter men- tioned, shall be represented by one member in the Legislative Assembly of the Province of Canada. XIX. And be it enacted that the said counties of Montmorency and Orleans shall be united into and form one county to be called the County of Montmorency; and that the said Counties of L'Assomption and La Lower Canada, ^esnaye shall be united into and form one county to be called the County of Leinster; and that the said Counties of L'Acadie and Laprairie shall be united into and form one county to be called the County of Huntingdon ; and that the Counties of Dorchester and Beauce shall be united into and form one county to be called the County of Dorchester; and that each of the said Counties of Montmorency, Leinster, Huntingdon, and Dorchester shall be represented by one member in the Legislative Assembly of the said Province of Canada. Town con- XX. And be it enacted that the Gties of Quebec and Montreal shall each be represented by two members, and the Towns of Three Rivers and Sherbrooke shall each be represented by one member in the Legislative Assembly of the Province of Canada. Boundaries of XXL And be it enacted that for the purpose of electing their several representatives to the said Legislative Assembly, the cities and towns here- inbefore mentioned shall be deemed to be bounded and limited in such manner as the Governor of the Province of Canada, by letters patent under the Great Seal of the Province to be issued within thirty days after the union of the said Provinces of Upper Canada and Lower Canada shall set forth and describe; and such parts of any such city or town (if any), which shall not be included within the boundary of such city or town respectively by such letters patent for the purposes of this Act, shall be taken to be a part of the adjoining county or riding for the purpose of being represented in the said Legislative Assembly. XXII. And be it enacted that for the purpose of electing the mem- bers of the Legislative Assembly of the Province of Canada it shall be lawful for the Governor of the said Province from time to time to nominate proper persons to execute the office of Returning Officer in each of the said counties, ridings, cities, and towns, which shall be represented in the Legislative Assembly of the Province of Canada, subject nevertheless to the provisions hereinafter contained. XXIII. And be it enacted that no person shall be obliged to execute the said office of Returning Officer for any longer term than one year, 01 oftener than once, unless it shall be at any time otherwise provided by some Act or Acts of the Legislature of the Province of Canada. XXIV. And be it enacted that writs for the election of members to serve in the Legislative Assembly of the Province of Canada shall be issued by the Governor of the said Province within fourteen days after the sealing of such instrument, as aforesaid, for summoning and calling together such Legislative Assembly ; and that such writs shall be directed to the returning officers of the said counties, ridings, cities and towns respectively ; and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall it any time be otherwise provided by any Act of the Legislature of the said Province ; and that writs shall in like manner and form be issued for the election of members in the case of any vacancy which shall happen by the death or resignation of the person chosen, or by his being summoned to the Legislative Council of the said Province, or from any other legal cause ; and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall be at any time otherwise provided by any Act of the Legislature of the said Province; and that in any case of any such vacancy which shall happen by the death of the person chosen, or by reason of his being so summoned as aforesaid, the writ for the election of a new member shall be issued within six days after notice thereof shall have been delivered to or left at the office of the proper officer for issuing such writs of election. Returning Officers. Term of office of Returning Officer. Writs of election. 1791-1840] Constitutional Documents of Canada. 541 XXV. And be it enacted that it shall be lawful for the Governor o f Tilnea d the Province of Canada for the time being to fix the time and place ofg *" it fJ holding elections of members to serve in the Legislative Assembly of the elections, said Province, until otherwise provided for as hereinafter mentioned, giving not less than eight days' notice of such time and place. XXVI. And be it enacted that it shall be lawful for the Legislature Power to of the Province of Canada, by any Act or Acts to be hereafter passed, to *f 'represent! alter the divisions and extent of the several counties, ridings, cities, andtion. towns which shall be represented in the Legislative Assembly of the Pro- vince of Canada, and to establish new and other divisions of the same, and to alter the appointment of representatives to be chosen by the said counties, ridings, cities, and towns respectively, and make a new and different apportionment of the number of representatives to be chosen in and for those parts of the Province of Canada which now con- stitute the said Provinces of Upper and Lower Canada respectively, and in and for the several districts, counties, ridings, and towns in the same, and to alter and regulate the appointment of returning officers in and for the same, and make provision in such manner as they may deem expedient for the issuing and return of writs for the election of members to serve in the said Legislative Assembly, and the time and place of holding such elections; Provided always that it shall not be lawful to present to the proviso - Governor of the Province of Canada for her Majesty's assent any bill of the Legislative Council and Assembly of the said Province by which the number of representatives in the Legislative Assembly may be altered, unless the second and third reading of such bill in the Legislative Council and Legislative Assembly shall have been passed with the concurrence of two-thirds of the members for the time being of the said Legislative Council, and of two-thirds of the members for the time being of the said Legislative Assembly respectively, and the assent of her Majesty shall not be given to any such bill unless addresses shall have been presented by the Legislative Council and the Legislative Assembly respectively to the Gov- ernor, stating that such bill has been so passed. XXVII. And be it enacted that until provisions shall otherwise be 2ectFon*Uw9 made by an Act or Acts of the Legislature of the Province of Canada al) o f the two the laws which at the time of the passing of this Act are in force in the Provinces to Province of Upper Canada, and all the laws which at the time of the {' ntl1 passing of the said Act of Parliament 1 , intituled "An Act to make tempor- ary provision for the Government of Lower Canada" were in force in the Province of Lower Canada, relating to the qualification and disqualification d2 Vlct- of any person to be elected, or to sit or vote as a member of the Assembly m the said Provinces respectively, (except those which require a qualifica- tion of property in candidates for election, for which provision is herein- after made), and relating to the qualification and disqualification of voters at the election of members to serve in the Assemblies of the said Provinces respectively and to the oaths to be taken by any such voters, and to the powers and duties of returning officers, and the proceedings at such elec- tions, and the period during which such elections may be lawfully con- tinued, and relating to the trial of controverted elections and the proceedings incident thereto, and to the vacating of seats of members, and the issuing and execution of new writs in case of any seat being vacated otherwise than be a dissolution of the Assembly, shall respectively be applied to elections of members to serve in the Legislative Assembly of the Province of Canada for places situated in those parts of the Province of Canada for which such laws were passed. XXVIII. And be it enacted that no person shall be capable of being elected a member of the Legislative Assembly of the Province of Canada who shall not be legally or equitably seised as of freehold, for his own use and benefit, of lands or tenements held in free and common soccage, or seised or possessed, for his own use and benefit, of lands or tenements held in fief or in roture, within the said Province of Canada, of the value of five hundred pounds of sterling money of Great Britain, over and above 1 See No. CXXVIII. 542 Constitutional Documents of Canada. [1791-1840 for election. Persons mak- ing false declaration liable to the penalties of perjury. Place and times of holding Parliament. all rents, charges, mortgages, and incumbrances charged upon and due and payable out of or affecting the same ; and that every candidate at such election, before he shall be capable of being elected, shall, if required by any other candidate, or by any elector, or by the returning officer, make the following declaration : Declaration "/ A.B., do declare and testify that I am duly seised at law or in ?nr C *i"rtf*n e8 "^"'ty a * of freehold, for my own use and benefit, of lands or tenements "held in free and common soccage [or duly seised or possessed for my own "use and benefit, of lands or tenements held in fief or in roture (as the "case may be], in the Province of Canada, of the value of five hundred "pounds of sterling money of Great Britain, over and above all rents, "mortgages, charges and incumbrances charged upon, or due and payable "out of, or affecting the same; and that I have not collusively or colourably "obtained a title to or become possessed of the said lands and tenements, "or any part thereof, for the purpose of qualifying or enabling me to be "returned a member of the Legislative Assembly of the Province of "Canada." XXIX. And be it enacted that if any person shall knowingly and wilfully make a false declaration respecting his qualification as a candidate at any election as aforesaid, such person shall be deemed to be guilty of a misdemeanor, and being thereof lawfully convicted shall suffer the like pains and penalties as by law are incurred by persons guilty of wilful and corrupt perjury in the place in which such false declaration shall have been made. XXX. And be it enacted that it shall be lawful for the Governor of the Province of Canada for the time being to fix such place or places within any part of the Province of Canada, and such times for holding the first and every other session of the Legislative Council and Assembly of the said Province as he may think fit, such times and places to be afterwards changed or varied as the Governor may judge advisable and most con- sistent with general convenience and the public welfare, giving sufficient notice thereof ; and also to prorogue the said Legislative Council and Assembly from time to time, and dissolve the same, by proclamation on otherwise, whenever he shall deem it expedient. XXXI. And be it enacted that there shall be a session of the Legis- Lative Council and Assembly of the Province of Canada once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the Legislative Council and Assembly in one session and the first sitting of the Legislative Council and Assembly in the next session ; and that every Legislative Assembly of the said Province hereafter to be summoned and chosen shall continue for four years from the day of the return of the writs for choosing the same, and no longer, subject nevertheless to be sooner prorogued or dissolved by the Governor of the said Province. XXXII. And be it enacted that the Legislative Council and Assembly of the Province of Canada shall be called together for the first time at some period not later than six calendar months after the time at which the Provinces of Upper and Lower Canada shall become reunited as aforesaid. XXXIII. And be it enacted that the members of the Legislative Assembly of the Province of Canada shall, upon the first assembling after every general election, proceed forthwith to elect one of their number to be Speaker; and in case of his death, resignation, or removal by a vote of the said Legislative Assembly, the said members shall forthwith proceed to elect another of such members to be such Speaker; and the Speaker so elected shall preside at all meetings of the said Legislative Assembly. XXXIV. And be it enacted that the presence of at least twenty members of the Legislative Assembly of the Province of Canada, including the Speaker, shall be necessary to constitute a meeting of the said Legis- lative Assembly for the exercise of its powers ; and that all questions which shall arise in the said Assembly shall be decided by the majority of voices of such members as shall be present, other than the Speaker, and when the voices shall be equal the Speaker shall have the casting voice. Duration of Parliament. First calling together of the Legislature. Election of the Speaker. Quorum. Division. Casting rote. 1791-1840] Constitutional Documents of Canada. 543 XXXV. And be it enacted that no member, either of the Legislative N member Council or of the Legislative Assembly of the Province of Canada, shall Sifuhehw* be permitted to sit or vote therein until he shall have taken and subscribed taken the fol- the following oath before the Governor of the said Province, or before lowin s? atl1 some person or persons authorized by such Governor to administer such alle K' ance - oath: "/, A.B., do sincerely promise and swear that I will be faithful odO ath . of "bear true allegiance to her Majesty, Queen Victoria, as lawful Sovereign Kl * ace ' "of the United Kingdom of Great Britain and Ireland, and of this Province "of Canada, dependent on and belonging to the said United Kingdom; and "that I will defend her to the utmost of my power against all traitorous "conspiracies and attempts whatever, which shall be made against her pcr- "son, crown, and dignity; and that I will do my utmost endeavour to dis- "close and make known to her Majesty, her heirs and successors, all "treasons and traitorous conspiracies and attempts which I shall know to "be against her or any of them; and all this I do swear without any equi- "vocation, mental evasion, or secret reservation, and renouncing all pardons "and dispensations from any person or persons whatever to the contrary. "SO HELP ME GOD." XXXVI. And be it enacted that every person authorized by law to Affirmation make an affirmation instead of taking an oath may make such affirmation instead of in every case in which an oath is hereinbefore required to be taken. XXXVII. And be it enacted that whenever any bill which has been G i v vj? g .< passed by the Legislative Council and Assembly of the Province of ]sent to'SSls. Canada shall be presented for her Majesty's assent to the Governor of the said Province, such Governor shall declare according to his discretion, but subject nevertheless to the provisions contained in this Act, and to such instructions as may from time to time be given in that behalf by her Majesty, her heirs or successors, that he assents to such bill in her Majesty's name, or that he withholds her Majesty's assent, or that he reserves such bill for the signification of her Majesty's pleasure thereon. XXXVIII. And be it enacted that whenever any bill, which shall Disallowance have been presented for her Majesty's assent to the Governor of the sa 'd^|||* dt Province of Canada, shall by such Governor have been assented to in her Majesty's name, such Governor shall by the first convenient opportunity transmit to one of her Majesty's principal Secretaries of State an authentic copy of such bill so assented to; and that it shall be lawful at any time within two years after such bill shall have been so received by such Secre- tary of State, for her Majesty by Order in Council to declare her disallow- ance of such bill ; and that such disallowance, together with a certificate under the hand and seal of such Secretary of State certifying the day on which such bill was received as aforesaid, being signified by such Governor to the Legislative Council and Assembly of Canada by speech or message to the Legislative Council and Assembly of the said Province, or by pro- clamation, shall make void and annul the same from and after the day of such signification. XXXIX. And be it enacted that no bill which shall be reserved for Assen^o bills the signification of her Majesty's pleasure thereon shall have any force re! or authority within the Province of Canada until the Governor of the said Province shall signify, either by speech or message to the Legislative Council and Assembly of the said Province, or by proclamation, that such bill has been laid before her Majesty in Council and that her Majesty has been pleased to assent to the same ; and that an entry shall be made in the journals of the said Legislative Council of every such speech, message, or proclamation, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept amongst the records of the said Province; and that no bill which shall be so reserved as aforesaid shall have any force or authority in the said Province unless her Majesty's assent thereto shall have been so signified as aforesaid within the space of two years from the day on which such bill shall have been presented for her Majesty's assent to the Governor as aforesaid. 544 Constitutional Documents of Canada. [1791-1840 XL. Provided always, and be it enacted that nothing herein contained shall be construed to limit or restrain the exercise of her Majesty's pre- rogative in authorizing, and that, notwithstanding this Act and any other Act or Acts passed in the Parliament of Great Britain, or in the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of the Province of Quebec, or of the Provinces of Upper or Lower Canada respectively, it shall be lawful for her Majesty to authorize the Lieutenant- Governor of the Province of Canada to exercise and execute, within such parts of the said Province as her Majesty shall think fit, notwithstanding the presence of the Governor within the Province, such of the powers, [unctions, and authority, as well judicial as other, which before and at the time of passing of this Act were and are vested in the Governor. Lieutenant-Governor, or person administering the Government of the Pro- vinces of Upper and Lower Canada respectively, or of either of them, and which from and after the said reunion of the said two Provinces shall be- come vested in the Governor of the Province of Canada; and to authorize the Governor of the Province of Canada to assign, depute, substitute and appoint any person or persons, jointly or severally, to be his deputy or deputies within any part or parts of the Province of Canada, and in that capacity to exercise, perform and execute during the pleasure of the said Governor such of the powers, functions, and authorities, as well judicial as other, as before and at the time of the passing of this Act were and are vested in the Governor, Lieutenant-Governor or person administering the Government of the Provinces of Upper and Lower Canada respectively, and which from and after the union of the said Provinces shall become vested in the Governor of the Province of Canada, as the Governor of the Province of Canada shall deem to be necessary or expedient: Provided always, that by the appointment of a deputy or deputies as aforesaid the power and authority of the Governor of the Province of Canada shall not be abridged, altered, or in any way affected otherwise than as her Majesty shall think proper to direct. XLI. And be it enacted that from and after the said reunion of the said two Provinces, all writs, proclamations, instruments for summoning and calling together the Legislative Council and Legislative Assembly ot the Province of Canada and for proroguing and dissolving the same, and all writs of summons and election, and all writs and public instruments whatsoever relating to the said Legislative Council and Legislative Assem- bly or either of them, and all returns to such writs and instruments, and all journals, entries, and written or printed proceedings of what nature soever of the said Legislative Council and Legislative Assembly and each of them respectively, and all written or printed proceedings and reports of committees of the said Legislative Council and Legislative Assembly respectively, shall be in the English language only: Provided always, that this enactment shall not be construed to prevent translated copies oi any such documents being made, but no such copy shall be kept among the records of the Legislative Council or Legislative Assembly, or be deemed in any case to have the force of an original record. 1 XLI I. And be it enacted that whenever any bill or bills shall be passed by the Legislative Council and Assembly of the Province of Canada containing any provisions to vary or repeal any of the provisions now in force contained in an Act 2 of the Parliament of Great Britain passed in the fourteenth year of the reign of his late Majesty King George the Third, intituled "An Act for making more effectual provision for the Government 14 G. 3, c. 83. of the Province of Quebec in North America," or in the aforesaid Act of Parliament passed in the thirty-first year of the same reign, respecting the accustomed dues and rights of the clergy of the Church of Rome; or to vary or repeal any of the several provisions contained in the said last 1 Lord John Russell explained that this section only dealt with English as the language of "original record." There is nothing, however, in this section against French as the language of debate, and indeed it was used as such from the time of first Union Parliament. For the repeal of this section, see No. CLXXIII and note. * No. XXV. Ecclesiastical and Crown rights. 1791-1840] Constitutional Documents of Canada. 545 mentioned Act respecting the allotment and appropriation of land for the support of the Protestant clergy within the Province of Canada, or respect- ing the constituting, erecting or endowing of parsonages or rectories within the Province of Canada, or respecting the presentation of incumbents or ministers of the same, or respecting the tenure on which such incumbents or ministers shall hold or enjoy the same; and also that whenever any bill or bills shall be passed containing any provisions which shall in any manner relate to or affect the enjoyment or exercise of any form or mode of religious worship, or shall impose or create any penalties, burdens, dis- abilities, or disqualifications in respect of the same, or shall in any manner relate to or affect the payment, recovery, or enjoyment of any of the accus- tomed dues or rights hereinbefore mentioned, or shall in any manner relate to the granting, imposing, or recovering of any other dues, or stipends, or emoluments to be paid to or for the use of any minister, priest, ecclesiastic, or teacher according to any form or mode of religious worship, in respect of his said office or function; or shall in any manner relate to or affect her Majesty's prerogative touching the granting of waste lands of the Crown within the said Province; every such bill or bills shall, previously to any declaration or signification of her Majesty's assent thereto, be laid before both Houses of Parliament 1 , of the United Kingdom of Great Britain and Ireland; and that it shall not be lawful for her Majesty to signify her assent to any such bill or bills until thirty days after the same shall have been laid before the said Houses, or to assent to any such bill or bills in case either House of Parliament shall within the said thirty days address her Majesty to withhold her assent from any such bill or bills; and that no such bill shall be valid or effectual to any of the said purposes within the said Province of Canada unless the Legislative Council and Assembly of such Province shall, in the session in which the same shall have been passed by them have presented to the Governor of the said Province an address or addresses specifying that such bill or bills contains provisions for some of the purposes hereinbefore specially described, and desiring that, in order to give effect to the same such bill or bills may be transmitted to England without delay, for the purpose of its being laid before Parlia- ment previously to the signification of her Majesty's assent thereto. XLIII. And whereas by an Act 2 passed in the eighteenth year of the Colonial reign of his late Majesty King George the Third, entitled "An Act for taxat removing all Doubts and Apprehensions concerning Taxation by the Par- liament of Great Britain in any of the Colonies, Provinces, and Plantations in North America and the West Indies ; and for repealing so much of an 18 G. 3, c. 12. Act made in the seventh year of the reign of his present Majesty as imposes a duty on Tea imported from Great Britain into any Colony or Plantation in America, or relating thereto," it was declared that "the King and Par- liament of Great Britain would not impose any duty, tax, or assessment "whatever, payable in any of his Majestv's Colonies, Provinces, and Planta- tions in North America or the West Indies, except only such duties as it "might be expedient to impose for the regulation of commerce, the net "produce of such duties to be always paid and applied to and for the use "of the Colony, Province, or Plantation in which the same shall be respec- tively levied, in such manner as other duties collected by the authority of "the respective General Courts or General Assemblies of such Colonies, "Provinces, or Plantations were ordinarily paid and applied" : And whereas it is necessary for the general benefit of the Empire that such power of regulation of commerce should continue to be exercised by her Majesty and the Parliament of the United Kingdom of Great Britain and Ireland, subject nevertheless to the conditions hereinbefore recited with respect to the application of any duties which may be imposed for that purpose ; be it therefore enacted that nothing in this Act contained shall prevent or affect the execution of any law which hath been or shall be made in the Parlia- ment of the said United Kingdom for establishing regulations and pro- hibitions, or for the imposing, levying, or collecting duties for the regula- 1 For repeal of this enactment, see No. CLXXIV. s Sec No. XXXIII. n 546 Constitutional Documents of Canada. [1791-1840 tion of navigation, or for the regulation of the commerce between the Province of Canada and any other part of her Majesty's Dominions, or between the said Province of Canada or any other part thereof and any foreign country or state, or for appointing and directing the payment of drawbacks of such duties so imposed, or to give to her Majesty any power or authority, by and with the advice and consent of such Legislative Council and Assembly of the said Province of Canada, to vary or repeal any such law or laws, or any part thereof, or in any manner to prevent or obstruct the execution thereof: Provided always, that the net produce of all duties which shall be so imposed shall at all times hereafter be applied to and fir the use of the said Province of Canada, and (except as hereinafter pro- vided) in such manner only as shall be directed by any law or laws which may be made by her Majesty, by and with the advice and consent of the Legislative Council and Assembly of such Province. A U eai pro XLIV. And whereas by the laws now in force in the said Province ba P te^Quccn's f Upper Canada the Governor, Lieutenant-Governor, or person adminis- Bench and tering the Government of the said Province, or the Chief Justice of the Chancery in gajj Province, together with any two or more of the members of the ad P a P ; C and an Executive Council of the said Province, constitute and are a Court of Court of Appeal for hearing and determining all appeals from such judgments or Appeal in sentences as may be lawfully brought before them: And whereas by an a 'Act of the Legislature of the said Province of Upper Canada, passed in the thirty-third year of the reign of his late Majesty King George the Third, intituled "An Act to establish a Court of Probate in the said Pro- (Laws of vince, and also a Surrogate Court in every District thereof," there was and 33 P G ei 3 Canada> ' s esta blished a Court of Probate in the said Province, in which Act it Sess. 2,' c.8.) was enacted that the Governor, Lieutenant-Governor, or person adminis- tering the Government of the said last mentioned Province should preside, and that he should have the powers and authorities in the said Act speci- fied: And whereas by an Act of the Legislature of the said Province of Upper Canada Upper Canada, passed in the second year of the reign of his late Majesty 2 W. 4, c. 8.) 'King William the Fourth, intituled "An Act respecting the Time and Place of Sitting of the Court of King's Bench," it was amongst other things enacted that his Majesty's Court of King's Bench in that Province should be holden in a place certain ; that is, in the city, town or place which should be for the time being the seat of the Civil Government of the said Province, or within one mile therefrom: And whereas by an Act of the Legislature (Laws of O f the sa jd Province of Upper Canada passed in the seventh year of the 7 \$ e 4,c an 2 a ) reign of his late Majesty King William the Fourth, intituled "An Act to establish a Court of Chancery in this Province," it was enacted that there should be constituted and established a Court of Chancery to be called and known by the name and style of "The Court of Chancery for the Province of Upper Canada," of which Court the Governor, Lieutenant-Governor, or person administering the Government of the said Province should be Chan- cellor; and which Court, it was also enacted, should be holden at the seat of Government in the said Province, or in such other place as should be appointed by proclamation of the Governor, Lieutenant-Governor, or per- son administering the Government of the said Province: And whereas by (Laws of an Act of the Legislature of the Province of Lower Canada, passed in ada W 34G3) f he thirty-fourth year of the reign of his late Majesty George the Third, intituled, "An Act for the Division of the Province of Lower Canada, for amending the Judicature thereof, and for repealing certain Laws therein mentioned," it was enacted that the Governor, Lieutenant-Governor, or person administering the Government, the members of the Executive Coun- cil of the said Province, the Chief Justice thereof and the Chief Justice to be appointed for the Court of King's Bench at Montreal, or any five of them, the Judges of the Court of the District wherein the judgment ap- pealed from was given excepted, should constitute a Superior Court of Civil Jurisdiction or Provincial Court of Appeals, and should take cog- nizance of, hear, try, and determine all causes, matters, and things appealed from all civil jurisdictions and Courts wherein an appeal is by law allowed, be it enacted that until otherwise provided by an Act of the Legislature ot 1840-1867] Constitutional Documents of Canada. 547 the Province of Canada, all judicial and ministerial authority which before and at the time of passing this Act was vested in or might be exercised by the Governor, Lieutenant-Governor, or person administering the Govern- ment of the said Province of Upper Canada, or the members or any numbei of the members of the Executive Council of the same Province, or was vested in and may be exercised by the Governor, Lieutenant-Governor, or the person administering the Government of the Province of Lower Can- ada, and the members of the Executive Council of that Province, shall be vested in and may be exercised by the Governor, Lieutenant-Governor, or person administering the Government of the Province of Canada, and in the members or the like number of the members of the Executive Council of the Province of Canada respectively; and that until otherwise provided by Act or Acts of the Legislature of the Province of Canada the said Court of King's Bench, now called the Court of Queen's Bench of Upper Canada, shall from and after the Union of the Provinces of Upper and Lower Canada be holden at the City of Toronto, or within one mile from the municipal boundary of the said City of Toronto: Provided always, that until otherwise provided by Act or Acts of the Legislature of the Province of Canada, it shall be lawful for the Governor of the Province of Canada, by and with the advice and consent of the Executive Council of the same Province, by his proclamation to fix and appoint such other place as he may think fit, within that part of the last-mentioned Province which now constitutes the Province of Upper Canada, for the holding of the said Court of Queen's Bench. XLV. And be it enacted that all powers, authorities, and functions Powers to be which by the said Act passed in the thirty-first year of the reign of his late ?? er " 8ed by Majesty, King George the Third, or by any other Act of Parliament, or by witj^the^' any Act of the Legislature of the Provinces of Upper and Lower Canada Executive respectively, are vested in or are authorized or required to be exercised by c u p cil> the respective Governors or Lieutenant-Governors of the said Provinces, or with the advice or with the advice and consent of the Executive Council of such Provinces respectively, or in conjunction with such Executive Council or with any number of the members thereof, or by the said Governors or Lieutenant-Governors individually and alone, shall, in so far as the same ire not repugnant to or inconsistent with the provisions of this Act, be vested in and may be exercised by the Governor of the Province of Canada, with the advice or with the advice and consent of or in conjunction as the case may require with such Executive Council, or any members thereof, as may be appointed 'by her Majesty for the affairs of the Province of Canada, or by the said Governor of the Province of Canada individually and alone in cases when the advice, consent, or concurrence of the Execu- tive Council is not required. XLVI. And be it enacted that all laws, statutes, and ordinances which Existing it the time of the union of the Provinces of Upper and Lower Canada laws saved - shall be in force within the said Provinces or either of them or any part of the said Provinces respectively, shall remain and continue to be of the same force, authority, and effect in those parts of the Province of Canada which now constitute the said Provinces respectively as if this Act had not been made, and as if the said two Provinces had not been united as afore- said, except in so far as the same are repealed or varied by this Act, or in so far as the same shall or may hereafter by virtue and under the authority of this Act be repealed or varied by any Act or Acts of the Legislature of the Province of Canada. XLVII. And be it enacted that all the courts of civil and criminal Courts of jurisdiction within the Provinces of Upper and Lower Canada at the time J st ce . Com- of the union of the said Provinces, and all legal commissions, powers, and ojfaers%tc. authorities, and all officers, judicial, administrative, or ministerial, within the said Provinces respectively, except in so far as the same may be abol- ished, altered, or varied by or may be inconsistent with the provisions of this Act, or shall be abolished, altered, or varied by any Act or Acts of the Legislature of the Province of Canada, shall continue to subsist within those parts of the Province of Canada which now constitute the said two 548 Constitutional Documents of Canada. [1791-1840 Provisions temporary Acts. Repeal of Provinces respectively, in the same form and with the same effect as if this Act had not been made, and as if the said two Provinces had not been reunited as aforesaid. XLVIII. And whereas the Legislatures of the said Provinces of Upper and Lower Canada have from time to time passed enactments, which enactments were to continue in force for a certain number of years after the passing thereof, "and from thence to the end of the then next ensuing session of the Legislature of the Province in which the same were passed" ; be it therefore enacted that whenever the words, "and from thence to the end of the then next ensuing session of the Legislature," or words to the same effect, have been used in any temporary Act of either of the said two Provinces which shall not have expired before the reunion of the said two Provinces, the said words shall be construed to extend and apply to the next session of the Legislature of the Province of Canada. XLIX. And whereas by a certain Act passed in the third year of the 4, re j gn Q f h j s j ate Majesty, King George the Fourth, intituled, "An Act to regulate the Trade of the Provinces of Upper and Lower Canada, and for other purposes relating to the said Provinces," certain provisions were made for appointing arbitrators with power to hear and determine certain claims of the Province of Upper Canada upon the Province of Lower Canada, and to hear any claim which might be advanced on the part of the Province of Upper Canada to a proportion of certain duties therein mentioned, and for prescribing the course of proceeding to be pursued by such arbitrators ; be it enacted that the said recited provisions of the said last-mentioned Act, and all matters in the same Act contained, which are consequent to or dependent upon the said provisions or any of them, shall be repealed. etwoPro- L> And he it enacted that upon the union of the Provinces of Upper vinces to form an d Lower Canada, all duties and revenues over which the respective a Consolidated Legislatures of the said Provinces before and at the time of the passing of *his Act h*d and have power of appropriation, shall form one consolidated revenue fund to be appropriated for the public service of the Province of Canada in the manner and subject to the charges hereinafter mentioned. Consolidated LI. And be it enacted that the said consolidated revenue fund of the ttfbe chanted P rovmce f Canada shall be permanently charged with all the costs, with expense charges, and expences incident to the collection, management, and receipt thereof, such costs, charges, and expences, being subject nevertheless to be reviewed and audited in such manner as shall be directed by any Act of the Legislature of the Province of Canada. ^11. And ^ e '* ena cted that out of the consolidated revenue fund of the Province of Canada there shall be payable in every year to her Majesty, her heirs and successors, the sum of forty-five thousand pounds for def ray- Fund"" 6 of collection, etc - f ramed per- 6 manently for the Services A and e *30 C ooo ' ng ^ e ex P ence * the several services and purposes named in the Schedule for the life' following for those in Schedule B. marked A to this Act annexed 1 ; and during the life of her Majesty, and for of Her five years after the demise of her Majesty, there shall be payable to her Majesty, her heirs and successors, out of the said consolidated revenue fund, a further sum of thirty thousand pounds, for defraying the expence of the several services and purposes named in the Schedule marked B. to ^jg Act anncxc( j ; the said sums of forty-five thousand pounds and thirty thousand pounds to be issued by the Receiver-General in discharge of such warrant or warrants as shall be from time to time directed to him under the hand and seal of the Governor; and the said Receiver-General shall account to her Majesty for the same, through the Lord High Treasurer or Lords Commissioners of her Majesty's Treasury, in such form and manner as her Majesty shall be graciously pleased to direct. How the LIII. And be it enacted that, until altered by any Act of the Legis- appropriation lature of the Province of Canada, the salaries of the Governor and of the granted may Judges shall be those respectively set against their several offices in the be varied. said Schedule A. ; but that it shall be lawful for the Governor to abolish any of the offices named in the said Schedule B., or to vary the sums 1 It has not been thought necessary for the purpose of this volume to reprint the two Schedules of the Act. 1791-1840] Constitutional Documents of Canada. 549 appropriated to any of the services or purposes named in the said Schedule B. ; and that the amount of saving which may accrue from any such altera- tion in either of the said schedules shall be appropriated to such purposes connected with the administration of the Government of the said Province as to her Majesty shall seem fit; and that accounts in detail of the expendi- ture of the several sums of forty-five thousand and thirty thousand pounds hereinbefore granted, and of every part thereof, shall be laid before the Legislative Council and Legislative Assembly of the said Province within thirty days next after the beginning of the session after such expenditure shall have been made: Provided always that not more than two thousand pounds shall be payable at the same time for pensions to the judges out of the said sum of forty-five thousand pounds, and that not more than five thousand pounds shall be payable at the same time for pensions out of the said sum of thirty thousand pounds; and that a list of all such pensions and of the persons t whom the same shall have been granted, shall be laid in every year before the said Legislative Council and Legislative Assembly. LIV. And be it enacted that during the time for which the said Surrender of several sums of forty-five thousand pounds and thirty thousand pounds Revenues of are severally payable the same shall be accepted and taken by her Majesty the Crown. by way of Civil List, instead of all territorial and other revenues now at the disposal of the Crown, arising in either of the said Provinces of Upper Canada or Lower Canada, or in the Province of Canada, and that three- fifths of the net produce of the said territorial and other revenues now at the disposal of the Crown within the Province of Canada shall be paid over to the account of the said consolidated revenue fund ; and also during the life of her Majesty and for five years after the demise of her Majesty the remaining two-fifths of the net produce of the said territorial and other revenues now at the disposal of the Crown within the Province of Canada shall be also paid over in like manner to the account of the said consol- idated revenue fund. LV. And be it enacted that the consolidation of the duties and Charges al- revenues of the said Province shall not be taken to affect the payment 31 of the said consolidated revenue fund of any sum or sums hereto fore Province. charged upon the rates and duties already raised, levied, and collected to and for the use of either of the said Provinces of Upper Canada or Lower Canada, or of the Province of Canada, for such time as shall have been appointed by the several Acts of the Legislature of the Province by which such charges were severally authorized. LVI. And be it enacted that the expences of the collection, manage -The order of ment, and receipt of the said consolidated revenue fund shall form thethe^orLsoli- first charge thereon; and that the annual interest of the Public Debt of dated Fund to the Provinces of Upper and Lower Canada, or of either of them, at the be: 1st, time of the reunion of the said Provintes shall form the second charge collection * thereon; and that the payments to be made 'to the clergy of the United 2nd, Interest Church of England and Ireland, and to clergy of the Church of Scotland, of the debt; and to ministers of other Christian denominations, pursuant to any law or usage whereby such payments before or at the passing of this Act were^jjjP^"*'? or are legally or usually paid out of the public or Crown revenue of either of the Provinces of Upper and Lower Canada, shall form the third charge4th and 5th, upon the said consolidated revenue fund; and that the said sum of forty'^VT'VHf*' five thousand pounds shall form the fourth charge thereon; and that the chargesaf- said sum of thirty thousand pounds, as long as the same shall continue to ready made be payable, shall form the fifth charge thereon; and that the other charges on the Public upon the rates and duties levied within the said Province of Canada here- inbefore reserved shall form the sixth charge thereon, so long as such charges shall continue to be payable. LVII. And be it enacted that, subject to the several payments hereby subject to the charged on the said Consolidated Revenue Fund, the same shall be appro- bove charges, priated by the Legislature of the Province of Canada for the public service ' SS soH ~ in such manner as they shall think proper: Provided always that all bills FundtobT" 1 for appropriating any part of the surplus of the said consolidated revenue appropriated 550 Constitutional Documents of Canada. [1791-1840 by the Pro- vincial Legis- lature, by bills, etc. Townships to be con- stituted. Powers of Governor, now to oe exercised. Magdalen Islands may be annexed to the Island of Prince Edward. Interpretation clause. Act may be amended, etc. fund, or for imposing any new tax or import, shall originate in the Legis- lative Assembly of the said Province of Canada: Provided also that it shall not be lawful for the said Legislative Assembly to originate or pass any vote, resolution, or bill for the appropriation of any part of the surplus of the said consolidated revenue fund, or of any other tax or impost, to any purpose which shall not have been first recommended by a message of the Governor to the said Legislative Assembly during the session in which such vote, resolution, or bill shall be passed. LVIII. And be it enacted that it shall be lawful for the Governor, by an instrument or instruments to be issued by him for that purpose under the Great Seal of the Province, to constitute townships' in those parts of the Province of Canada in which townships are not already constituted, and to fix metes and bounds thereof, and to provide for the election and appointment of township officers therein, who shall have and exercise the like powers as are exercised by the like officers in the townships already constituted in that part of the Province of Canada now called Upper Canada ; and every such instrument shall be published by proclamation, and shall have the force of law from a day to be named in each case in such proclamation. LIX. And be it enacted that all powers and authorities expressed in this Act to be given to the Governor of the Province of Canada shall be exercised by such Governor in conformity with and subject to such orders, instructions, and directions as her Majesty shall from time to time see fit to make or issue. LX. And whereas his late Majesty King George the Third, by his Royal Proclamation, 2 bearing date the seventh day of October in the third year of his reign, was pleased to declare that he had put the coast of Labrador from the River St. John to Hudson's Straits, with the islands oi Anticosti and Madelaine and all other smaller islands lying on the said coast, under the care and inspection of the Governor of Newfoundland; And whereas by an Act passed in the fourteenth year of the reign of his said late Majesty, intituled "An Act for making more effectual provision for the Government of the Province of Quebec in North America," all such territories, islands, and countries, which had sirrce the tenth day of February in the year one thousand seven hundred and sixty-three been made part of the Government of Newfoundland, were during his Majesty's pleasure annexed to and made part and parcel of the Province of Quebec as created and established by the said Proclamation ; be it hereby declared and enacted that nothing in this or any other Act contained shall be con- strued to restrain her Majesty, if she shall be so pleased, from annexing the Magdalen Islands in the Gulf of St. Lawrence to her Majesty's Island of Prince Edward. LXI. And be it enacted that in this Act, unless otherwise expressed therein, the words "Act of the Legislature of the Province of Canada" are to be understood to mean "Act of her Majesty, her Heirs or Successors, enacted by her Majesty, or by the Governor on behalf of her Majesty, with the advice and consent of the Legislative Council and Assembly of the Province of Canada"; and the words "Governor of the Province of Can- ada" are to be understood as comprehending the Governor, Lieutenant- Governor, or person authorized to execute the Office or the functions of Governor of the said Province. LXII. And be it enacted that this Act may be amended or repealed by any Act to be passed in the present session of Parliament. 1 For the history, see H. P. Biggar. The Growth of Municipal Institutions in On- tario; A. Shortt, The Beginnings f Municipal Government in Ontario; and compare Nos. CLIV, CLVI, CLV1I1. 2 See No. IV. 1791-1840] Constitutional Documents of Canada. 551 CUV POULETT THOMSON TO RUSSELL [Trans.: Imperial Blue Books relating to Canada, 1841-43, Vol. XIV.j Toronto, 16th September, 1840. My Lord, I have the honour to acknowledge the receipt of a copy of the Act for re-uniting the Provinces of Upper and Lower Canada, and for the Government of Canada. I have carefully perused the Act, and I observe with regret that some alterations have been made from the original plan which I transmitted, which will create difficulty and embarrassment here, especially the restric- tions introduced in the schedule for the Civil list, to which I before called your attention. There is nothing, however, in those changes which will, I believe, offer any insuperable obstacle to the working of the Act. But it is with the deepest mortification that I find that the whole of the system for the establishment of local government has been omitted from the Bill, and that Her Majesty's Government and Parliament have contented themselves with the simple legislative re-union of the two Pro- vinces, without providing any machinery by which they can be satisfactorily governed when united, or guarding against those evils which have been so severely felt from the absence of local government, and the consequent assumption by the assemblies of functions which did not properly belong to them, evils which will now be increased tenfold, after the two provinces shall have been placed under one government and one legislature. I need scarcely recall to your Lordship's attention the circumstances connected with this measure. In the year 1839, when the affairs of the Canadas were under the consideration of Her Majesty's Government, and it was determined, upon the recommendation of the Earl of Durham, to re-unite the provinces, the Cabinet was so deeply impressed with the truth of his declaration, of the absolute necessary of the establishment by Parlia- ment of a system of local government simultaneously with the measure for the union, that the plan then submitted and embodied in the Bill of that year, proceeded altogether upon that principle. Five districts were created apart from the central legislature, and the whole frame of the measure was erected in accordance with it. I need not either remind your Lordship that whilst this was the unanimous opinion of the Cabinet, those members of it who really took a deep interest in Canadian matters entertained so strongly the opinion of the necessity of enforcing this principle, that they would not have assented to any plan which involved its exclusion. The Bill of 1839 was withdrawn, and I was deputed to obtain the assent of the people and legislature of the two Canadas to the union, and to transmit a plan for effecting it, and for the future government of the two provinces. But in the instructions with which I was honoured with a view to my pro- ceedings, I was emphatically told that one of the most important principles to be kept in view in any measures for the future government of the Canadas was "the establishment of a system of local government by repre- sentative bodies freely elected in the various cities and rural districts." "That after a full investigation of every other plan which has been sug- gested, Her Majesty's Government have not been able to discover in any but this the reasonable hope of a satisfactory settlement." "That attaching minor importance to the details," "they cannot depart from these prin- ciples." Accordingly, in pursuance of the duty assigned to me, and having obtained the assent of the legislators of the two provinces to the terms of the union as they affected each in its relation to the other, or to the Crown, I transmitted such a plan for local government as, whilst it entire- ly established the principle for which Her Majesty's Government contended, and the adoption of which they and I deemed indispensable, altogether removed the defects of the scheme of last year, and was generally ac- 552 Constitutional Documents of Canada. [1791-1840 ceptable to the people. This plan received the cordial approbation of Her Majesty's Government. Your Lordship did not indeed deem it expedient to introduce to Parliament the clauses for carrying out the provisions for the system which I transmitted to you, but you did more, for you called upon Parliament to enable me to provide all the necessary machinery myself, subject to the leading principles which I had recommended. Under such circumstances I should have been far less surprised to find the Union Bill abandoned altogether by the Government, than this most essential part of it withdrawn. I should certainly have infinitely preferred that the Bill should have been deferred, rather than deprived of what ren- dered it safe, or gave a fair chance of its being advantageous. For if, before my better acquaintance with these colonies, the informa- tion which I could acquire from the reports of others and from general reasoning, had satisfied me of the necessity, to use the words of Lord Durham, "of making the establishment of good municipal institutions for the whole country a part of the colonial constitution ;" the opportunity I have now had of studying the state of the British North American pro- vinces of observing the social condition of the people, and the working of the constitutions under which they have been governed has convinced me that the cause of nearly all the difficulty in the government of every one of them, is to be found in the absence of any well organized system of local government. Owing to this, duties the most unfit to be discharged by the general legislature are thrown upon it; powers equally dangerous to the subject and to the Crown are assumed by the Assembly. The people receive no training in those habits of self-government which are indispensable to enable them rightly to exercise the power of choosing representatives in Parliament. No field is open for the gratification of ambition in a narrow circle, and no opportunity given for testing the talents or integrity of those who are candidates for popular favour. The people acquire no habits of self-dependence for the attainment of their own local objects. Whatever uneasiness they may feel whatever little improvement in their respective neighbourhoods may appear to be neglected, affords grounds for complaint against the executive. All is charged directly upon the Government, and a host of discontented spirits are ever ready to excite these feelings. On the other hand while the Government is thus brought directly in contact with the people, it has neither any officer in its own confidence in the different parts of these extended provinces from whom it can seek informa- tion, nor is there any recognized body enjoying the public confidence with whom it can communicate, either to determine what are the real wants and wishes of the locality, or through whom it may afford explanation. Hence the readiness with which a demand for organic changes in the constitution has been received by the people. Upon every consideration, therefore, I am of opinion that it was our duty to seize the first opportunity of supplying, through the Imperial Legis- lature, this capital ommission in the constitution of these colonies, by the establishment of a good system of local government; and although the Act would, in fact, only have extended to the Canadas, I entertain no doubt that with such an authority before them, similar provisions would have been adopted by the legislatures in Nova Scotia and New Brunswick, where the defect is no less glaring. But it may be said, why not trust to the provincial legislatures for the establishment of such institutions if they are needed? Lord Durham has given the reply which certainly appeared last year conclusive to Her Majesty's Government, and the correctness of which I can now confirm "That it is vain to expect that such a sacrifice of power will be voluntarily made by a representative body;" and to this I may also add, that although, after a considerable time and much excitement, the people might compel their representatives to establish such a system, it is so easy to mislead them by representations against taxation ; although no more is in fact intended than to give the power of taxation by themselves for their own local objects: and the argument in favour of its being the duty 1791-1840] Constitutional Documents of Canada. 553 of the Government to find money for all their wants, is so specious and popular, that it would probably be some time before the people exerted themselves strenuously for this purpose ; and when they did, I greatly doubt whether it would be possible to obtain those checks against abuse without which the system would fail; and which it was my object to intro- duce in the manner submitted by me to Her Majesty's Government and approved by them. With reference, therefore, to the future interests of all Her Majesty's North American possessions, I deeply deplore the determination which has been taken ; whilst with regard to the immediate and practical matter before me namely, the government of the two Canadas under the Union Act, I confess that I am almost at a loss to conceive how it is proposed that it should be conducted. Under the provisions of the Union Act, not only will the general affairs of a country 1,200 miles long be placed under the direction of one executive authority, thus distant from places where it may be called upon to act ; but the local concerns of every district, and even village, through that vast extent of territory must be more or less under its superintendence, and that too in matters of which it can know little or nothing. The provision by which the initiative of all money votes is confined to the Governor, is a most valuable and important change in the Constitution of these provinces ; but it places a responsibility on the executive which can only be exercised under a system which relieves the public funds from demands for every little paltry expenditure, and confines their application to matters of general utility. As the Act now stands, the executive government will be called upon to propose every grant of 5 or 10 for a road or a bridge 600 or 700 miles from the seat of government; of the merits of which it can know nothing, and of which it can learn nothing, except through representations which it has no opportunity of testing. If it acts, therefore, it will prob- ably act wrong; if it does not, it is at once exposed to the reproach of having neglected the interest of the locality which it was bound to consider and advance. Whilst these duties are imposed upon it, too, no means what- ever are afforded by which it can acquire information, or exercise the slightest control. In Upper Canada it is true that there is some machinery in the different districts now established by law, which will prevent the executive from being wholly powerless. There is an organization in each district of sheriffs, grand juries, etc. a'nd the magistrates possess under the provincial laws certain powers which, although defective, still afford the means of going on. But in Lower Canada this is entirely wanting; and the division there for judicial purposes is of a character which affords no assistance whatever with respect to the rural districts of the province. The hand of the Government is entirely unknown and unfelt throughout them. If I had to seek for information from any place from 10 to 150 miles from Quebec or Montreal, I possess no means whatever of obtaining it, except from the authorities called into existence by the rebellion, and for whose permanency there is no security whatever. If the executive seeks to know the opinion of the people with regard to any improvement, there is no one to whom application can be made. In a word, every country district throughout the whole of the vast province of Lower Canada, is as completely cut off from any connection with the executive, as if it were on the other side of the Atlantic, and under a different form of government. I certainly was impressed with the opinion that the existence of this state of things must be fully known to Her Majesty's government, and that after the deliberate judgment that had been arrived at last year, and the instructions I had received, it was, therefore, unnecessary for me to have repeated any statement, or have furnished any fresh argument in support of the principle of local government. It remains for me, however, now only to consider the course which I can pursue under the determination which has been arrived at. Entertaining so strongly as I do the conviction that the principal advantages intended by the Union Act are defeated by the omission of this part of the scheme, I confess that I should strongly incline to defer acting 554 Constitutional Documents of Canada. [1791-1840 upon the powers conferred by it, and proclaiming the Union at all, until Parliament had again had an opportunity of reconsidering these clauses. But I must acknowledge that the delay which would thus arise, and the reopening the Canada question in England, where unfortunately, all that relates to this country is so little understood, would be probably attended with greater evils, and I cannot, therefore, take on myself the responsibility of recommending that course. But failing this, it would be far more grateful to me, with the opinions I hold on this subject, that Her Majesty's Government should confide the attempt to work out this new measure to other hands than mine, and nothing but the anxiety which I feel to discharge my duty to the Queen to the last, and the deep interest which I now take in what concerns these provinces, would lead me to attempt the task under circumstances which I consider almost hopeless. I am willing, however, if required, to yield to that consideration, and, above all, to the feelings of the people here, of whose confidence I have lately received so many and such flattering proofs, and I shall endeavour to work out the Act as it stands, by such means as I possess. For Upper Canada it is out of my power to make any provision. In Lower Canada, however, I shall, with the assistance of the Special Council, provide such a system as may supply a part at least of what was intended to be given under the provisions of the Bill ; at all events to the extent which is necessary to carry out fully the different ordinances of that body which have already passed, and provide for some local organization for the wants of the country districts. The Council will, under any circum- stances, meet the middle of next month, to complete its labours preparatory to the Union ; and I shall then propose to them measures to this effect. I shall then be able to proclaim the Union at the earliest period at which, looking to the time when the elections could be held, and to the financial concerns of both provinces, it would be possible, namely at the beginning of January. The elections will take place as soon afterwards as they conveniently can, and when the united Parliament meets, I shall propose to them, on the part of the Government, to adopt for the whole province a system of local government which will already have been in operation here, with such additions as may appear necessary 1 . CLV RUSSELL TO SYDENHAM [Trans.: Imperial Blue Books relating to Canada, 1841-1843, Vol. XIV. J Downing Street, 25th October, 1840. My Lord, I have received your Lordship's Despatch, No. 160, of the 16th Sep- tember, pointing out the injurious consequences which you anticipate from the departure in the Act for the reunion of Canada from the Bill which you had proposed, and more particularly from the omission of legislative provision for local government. Partaking as I do in the general opinions which you have expressed on this subject, I nevertheless could not supply the want of Canadian authority for the municipal clauses, which induced Sir R. Peel and Lord Stanley, friendly as they were to the Bill, to support their omission. I may also observe that Mr. Gillespie and others in this country well acquainted with Canada, concurred in the objections made to those clauses in the House of Commons. The benefit of municipal government being so great, it is difficult to conceive that the legislature of the United Province can long resist the introduction of a system so useful to the interests, and so directly tending 1 See No. CLVH. 1791-1840] Constitutional Documents of Canada. 555 to increase the power of the people, when recommended warmly and repeatedly by the executive of the province and supported by the Crown. I have, etc., (Signed) J. RUSSELL. CLVI M TO [Trans.: Scrope, op. cit.] 1840 (?) No man in his senses would think for a moment of the Union without its being accompanied by some sort of Local Government, in which the people may control their own officers, and the executive at the same time obtain some influence in the country districts. Without a breakwater of this kind between the Central Government and the people, Government with an Assembly is impossible in Lower Canada, and most difficult in Upper Canada ; and it is absurd to expect that any good system can or will be established by the Provincial Legis- lature, even if time admitted of its being proposed to them. No colonial legislature will ever divest itself of the great power it now possesses of parcelling out sums of money for every petty local job; and although by the Union Bill the initiative of money votes will be confined to the Gov- ernment, this provision will become null, because the moment that the executive is called upon to provide for all these local expenses, with the details of which it cannot be acquainted, it must renounce the task, and leave it in the hands of the members themselves. A distinct principle must be laid down, that all purely local expenses be borne by the localities them- selves, settled and voted by them, and that only great works be paid for out of the provincial funds. Nor is it only with reference to the Canadas that it was all-important for Parliament itself to have laid down the principle and details of Local Government. Since I have been in these Provinces, I have become more and more satisfied that the capital cause of the misgovernment of them is to be found in the absence of Local Government, and the consequent exer- cise by the Assembly of powers wholly inappropriate to its functions. Members are everywhere chosen only with reference to the extent of job for their particular district which they can carry. Whoever happens to lead a party in the House, of twelve or fourteen members, may at once obtain a majority for his political views by jobbing with other members for votes upon them, or by rejecting their jobs as the penalty of refusal oust them from their seats. This, indeed, is admitted by the best men of all parties, and especially of the popular side. But it is equally admitted that they cannot of themselves change the system. In both Nova Scotia and New Brunswick I was told that if Parliament laid down a system of Local Government for Canada, then it was likely that in these provinces too the Assembly would adopt it; but, without that, it would be impossible to get it done. So, by this step, if Lord John has really been forced to take it, not only has all chance of the Union Bill working well been destroyed, but also the hope of a change of system throughout all the Provinces. Last year, if you remember, we made it a sine qua non to the Union ; in- deed, our scheme was altogether based on it. The establishment of Muni- cipal Government by Act of Parliament is as much a part of the intended scheme of Government for the Canadas as the union of the two Legis- latures, and the more important of the two. All chance of good Govern- ment, in Lower Canada especially, depends on its immediate adoption. FIFTH PERIOD 1840-1867 FIFTH PERIOD 1840-1867 Lord John Russell was not prepared to accept in its entirety Lord Durham's proposal for full responsible government, but in his instructions to Sydenham, he at least shewed a new path to the British Government (see No. CXLII). Sydenham's plan of being his own first minister and of calling to the service of the Govern- ment the best men, without forming what we know technically as a Cabinet, was well suited for a time of stress. The recent rebel- lions had left memories out of all proportion to their importance. The French-Canadians were full of melancholy suspicion, and feared that Durham's suggestion for their absorption might be attempted. Sydenham's successor, Sir Charles Bagot, went fur- ther, but Sir Charles Metcalfe, who followed, had little belief in the possibility of establishing full responsible government (see No. CLX), and under him the old sore was re-opened. Fortunately, Sir Robert Peel's ministry fell at another difficult moment in Cana- dian history, and Lord John Russell came into power with Earl Grey as Secretary of State for the Colonial Department. Almost at once the new Government decided to grant full responsible government, and the principle was laid down by Earl Grey him- self : "This country has no interest whatever in exercising any greater influence on the internal affairs of the colonies than is indispensable either for the purpose of preventing any one colony from adopting measures injurious to another or to the Empire at large." 1 It has been impossible to give examples of documents which would illustrate in full the development of representative govern- ment in the Maritime Provinces. Joseph Howe's letters (Nos. CXXXVII-CXL) prepared the way. Lord Falkland's failure in Nova Scotia to imitate Sydenham's policy accelerated the develop- ment and to his successor, Sir John Harvey, were sent despatches in which the principles of full responsible government were laid down (Nos. CLXI ; CLXII). Nova Scotia and New Brunswick passed through a comparatively uneventful history to their full self-government. In Canada, however, there were, after the Act of Union, eight years of experimenting, and it was not till the arrival of Lord Elgin as Governor-General that Canada had a system of Cabinet Government in full working order. Elgin received similar instruc- tions to those given to Sir John Harvey. With these as a working scheme, he faced immediate issues and with him responsible government triumphed. His correspondence (Nos. CLXIIT- CLXXII) illustrates his purpose and throws light on the diffi- 1 Earl Grey, The Colonial Policy of Lord Jok* Russell, Vol. I., p. 17 (2 vols., London, 1853). culties which he encountered. Earl Grey summed up his rule in Canada: "In conformity with the principles laid down, it was Lord Elgin's first object in assuming the government of the pro- vince to withdraw from the position of depending for support on one party into which Lord Metcalfe had, by unfortunate circum- stances been brought. He was to act generally on the advice of his Executive Council and to receive as members of that body those persons who might be pointed out to him as entitled to be so by their possessing the confidence of the Assembly. But he was careful to avoid identifying himself with the party from the ranks of which the actual Council was drawn, and to make it gen- erally understood that, if public opinion required it, he was equally ready to accept their opponents as his advisers, uninfluenced by any personal preferences or objections." 1 New difficulties, how- ever, continued to arise in the workings of the Canadian constitu- tion which led up to and hastened Confederation. Cabinet Government, as understood in Great Britain and as set up in Canada by Lord Elgin, implies government by party. Two strong parties are its usual and best guarantee for success. In Canada the number of parties was legion Upper Canadian Reformers; Upper Canadian Conservatives; French-Canadian Radicals ; French-Canadian Conservatives, with a small, but effi- cient, group that carried on the most extreme Tory traditions of Upper Canada. It was impossible to combine parties of the same name, for there was no common political platform behind a com- mon name. Coalition government was the result, with all the weaknesses to which such a form of government is heir. Then the religious and racial difficulties did not tend to disappear under the influence of parliamentary and election oratory. The issues at stake, too, were often only local, in which Upper Canadian and Lower Canadian had no common interest. These difficulties led to serious consequences. We find two Premiers, one French, one English. Before long it becomes a constitutional convention that a ministry must command a majority in English-speaking as well as in French-speaking Canada. The whole scheme of government soon became full of anomalies, and ministries quickly followed one another to defeat. Then came the party cry of "Representa- tion by population," which threatened to overthrow the pact of the Act of Union. The Civil War in the United States and the "Trent Affair" helped to bring into relief the weakness of government in Canada, and finally the Canadian Government fell back on the untried scheme suggested in Lord Durham's Report a federation of British North America. Large extracts have been made from the Confederation Debates in the Canadian Parliament (No. CLXXVIII). These extracts illustrate, as far as space would allow, every point of view. The history can be followed in Pope, Confederation Documents (To- ronto, 1895), and Memoirs of Sir John Macdonald (2 vols. 1894) ; G. R. Parkin, Sir John Macdonald ; J. H. Gray, Confederation of Canada (Toronto, 1872). 1 Earl Grey, op. cit., p. 213. 1840-1867] Constitutional Documents of Canada. 561 CLVII [Trans. : Imperial Blue Books relating to Canada, 1841-43, Vol. XIV.] 15th June, 1841. Honourable Gentlemen of the Legislative Council, and Gentlemen of the House of Assembly. I have deemed it right to assemble you at the earliest period which the circumstances of the Province and the duties imposed upon me by the Imperial Act for the Union of the Canadas, under which this Legislature is constituted, have admited ; and it is with sincere satisfaction that I now meet you to deliberate on the great and important interests committed to our charge. A subject of Her Majesty, an inhabitant of this Province 1 , has been forcibly detained in the neighbouring States charged with a pretended crime. No time was lost by the Executive of this Province in remon- strating against this proceeding, and provision was made for insuring to the individual the means of defence pending the further action of Her Majesty's Government. The Queen's Representative at Washington has since been instructed to demand his release. Of the result of that demand I am not yet apprised, but I have the Queen's commands to assure her faithful subjects in Canada of her Majesty's fixed determination to protect them with the whole weight of her power. Arrangements were completed during the course of last summer by which, under the directions of the Treasury, the rates of Postage between all parts of this Colony and the United Kingdom were greatly reduced; and a more speedy and regular conveyance of letters between different parts of this Province has since been established by arrangements made by the Deputy Postmaster-General under my directions. A commission has been appointed by me to inquire into and report upon the Post-office system of British North America, and I confidently anticipate that the result of its labours will be the establishment of a plan securing improvements in the internal communication by post within the Colony equal to those which we have already obtained in the communication with the mother-country. Many subjects of deep importance to the future welfare of the Pro- vince demand your early attention, upon some of which I have directed bills to be prepared, which will be submitted for your consideration. Amongst them, first in importance at the present juncture of affairs is the adoption of measures for developing the resources of the Proyince by well-considered and extensive public works. The rapid settlement of the country the value of every man's property within it the advancement of his future fortunes are deeply affected by this question. The improve- ment of the Navigation from the shores of Lake Erie and Lake Huron to the Ocean the establishment of new internal communications in the inland districts are works requiring a great outlay, but promising commensurate returns. To undertake them successfully large funds will undoubtedly be required, and the financial condition of the Province, as it stands at present, would seem to forbid the attempt. But I have the satisfaction of inform- ing you that I have received authority from Her Majesty's government to state that they are prepared to call upon the Imperial Parliament to afford their assistance towards these important undertakings. In the full belief that peace and tranquillity will be happily re-established in this province, under the constitution settled by Parliament, and that nothing but a relief from its most pressing difficulties is wanting to its rapid advancement to prosperity, they will propose to Parliament, by affording the guarantee of the Imperial Treasury for a loan to the extent of no less than a million 1 See Scropc, op. cit., pp. 224 ff. 562 Constitutional Documents of Canada. [1840-1867 and a half sterling, to aid the Province, for the double purpose of diminish- ing the pressure of the interest on the public debt, and of enabling it to proceed with those great public undertakings whose progress during the last few years has been arrested by the financial difficulties. I shall direct a measure to be submitted to you embracing a plan for this purpose, and I shall lay before you, for your information and that of the people of Canada, extracts from the despatches which convey to me this most gratify- ing assurance. In immediate connexion with the outlay of capital upon public works is the subject of emigration and the disposal and settlement of the public lands. There exist within this Province no means so certain of producing a healthy flow of immigration from the mother-country, and of ultimately establishing the immigrant as a settler and proprietor within the Colony, as the power of affording sure employment for his labour on his first arrival. The assistance of Parliament for the public works which may be undertaken here, will in great measure provide for this ; but with a view further to aid immigration, I am authorized to "Hectare to you that Her Majesty's government are prepared to assist in facilitating the passage of the immigrant from the port at which he is landed to the place where his labour may be made available, and that a vote of money for this purpose will be proposed to the Imperial Parliament. The conditions which Her Majesty's government attach to this measure will be submitted to you at the same time that I shall draw your attention to a scheme for the settle- ment and disposal of the public funds. It appears highly desirable that the principle of local self-government, which already prevails to some extent throughout that part of the Province which was formerly Upper Canada, should receive a more extended appli- cation there, and that the people should exercise a greater degree of power over their own local affairs. I have directed a measure upon this subject to be submitted to you, and I solicit your earnest attention to the establish- ment of such a form of local government for those districts of the Pro- vince which are unprovided with it, as may ensure satisfaction to the people whilst it preserves inviolate the prerogative of the Crown, and main- tains the administration of justice pure from party and popular excitement. A due provision for the education of the people is one of the first duties of the State, and in this Province, especially, the want of it is grievously felt. The establishment of an efficient system by which the blessings of instruction may be placed within the reach of all is a work of difficulty; but its overwhelming importance demands that it should be undertaken. I recommend the consideration of that subject to your best attention, and I shall be most anxious to afford you in your labours all the co-operation in my power. If it should be found impossible so to reconcile conflicting opinions as to obtain a measure which may meet the approbation of all, I trust that at least steps may be taken by which an advance to a more perfect system may be made, and the difficulty under which the people of this Province now labour may be greatly diminished, subject to such improvements hereafter as time and experience may point out. Gentlemen of the House of Assembly, The financial accounts of the Province will be immediately laid before you, and I shall direct the estimates for the public service to be submitted to you with the least possible delay. I rely upon your co-operation in the financial measures which it will be my duty to propose to you for taking advantage of the assistance which her Majesty's Government propose to afford, and for carrying into effect the public improvements which are deemed most desirable. I shall earnestly endeavour that whatever you mav appropriate for this latter purpose shall be economically employed and rendered effective. Honourable Gentlemen and Gentlemen, In your wisdom and prudence I confide for the regulation of the different important matters which must necessarily come before you. Canada, united under a constitution which the Imperial Legislature has 1840-1867] Constitutional Documents of Canada. 563 framed with an earnest desire for the welfare of this portion of the British Empire, cannot fail to prosper under prudent and sage counsels. The generous aid which I have already announced to you, the determination which I am also empowered to state upon the part of the Government to devote annually a large sum for the military defences of the Province the fixed and settled determination which I have the Queen's commands to declare that her North American possessions shall be maintained at all hazards as part of Her Empire, are pledges of the sincerity with which the mother-country desires to promote the prosperity of Canada, and to assist in the well-working of the new institutions which it has established. The eyes of England are anxiously fixed upon the result of this great experi- ment. Should it succeed, the aid of Parliament in your undertakings, the confidence of British capitalists in the credit you may require from them, the security which British people will feel in seeking your shores, and establishing themselves upon your fertile soil, may carry improvement to an unexampled height. The rapid advance of trade and of immigration within the last eighteen months, afford ample evidence of the effects of tranquillity in restoring confidence and promoting prosperity. May no dissensions mar the flattering prospect which is open before us. May your efforts be steadily directed to the great practical improvements of which the Province stands so much in need, and under the blessing of that Provi- dence which has hitherto preserved this portion of the British dominions, may your counsels be so guided as to ensure to the Queen attached and loyal subjects, and to United Canada a prosperous and contented people. CLVIII SYDENHAM TO HIS BROTHER [Trans. : Scrope, op. cit.] 28th August, 1841. My last feat has been to carry the Municipal District Bill for Upper Canada, word for word after my own ordinance for the Lower Province ; thereby not only giving the complement to the Union (for you know 1 always declared that without such institutions the Union could not work), but setting up my own particular legislation by the sanction of the United Parliament. The bill has passed both Houses, and I proceed to-day in state to give it the royal assent, in order to make perfectly sure of its being law, even if I were to quit this world the day after. But the trouble I have had to do this has completely justified all my anticipations of the next to impossibility of our getting such a measure through a Provincial Assembly, and the utter hopelessness of the effort, but for the course which I followed of dictating it, .whilst I was dictator, for one part of the province first. One party hated the measure because it was to give power to the people; another because it placed that power under wholesome control by the Crown; a third because it deprived the members of the Assembly of all their past power of jobbing. But I beat them all three, to the utter astonishment of the spectators ; and at last carried my work, the Bill, the whole Bill, and nothing but the Bill, by a majority of forty-two to twenty-nine, or more than one third. I have now accomplished all T set much value on ; for whether the rest be done now or some sessions hence, matters little. The five great works I aimed at have been got through the establishment of a board of works with ample powers; the admission of aliens; a new system of county courts; the regulation of the public lands ceded by the Crown under the Union Act ; and lastly, this District Council Bill. 564 Constitutional Documents of Canada. [1840-1867 CLIX RESOLUTIONS OF THE LEGISLATIVE ASSEMBLY OF CANADA, 1841 1 [Trans.: Journals of the Assembly of Canada, 1841, pp. 480 ff.] I. Robert Baldwin's Proposals. 1. That the most important as well as the most undoubted of the political rights of the people of this Province is that of having a Provincial Parliament for the protection of their liberties, for the exercise of their constitutional influence over the Executive Departments of their Govern- ment and for legislation upon all matters which do not, on the grounds of absolute necessity, constitutionally belong to the jurisdiction of the Imperial Parliament, as the paramount authority of the Empire. 2. That the head of the Provincial Executive Government of the Province being within the limits of his Government, the representative of the Sovereign, is not constitutionally responsible to any other than the authorities of the Empire. 3. That the representative of the Sovereign for the proper conduct and efficient disposal of the public business is necessarily obliged to make use of the advice and assistance of subordinate officers in the administra- tion of his Government. 4. That in order to preserve that harmony between the different branches of the Provincial Parliament which is essential to the happy conduct of public affairs the principal of such subordinate officers, advisers of the representative of the Sovereign, and constituting as such the Pro- vincial administration under him as the head of the Provincial Government, ought always to be men possessed of the public confidence, whose opinions and policy harmonizing with those of the representatives of the people, would afford a guarantee that the well understood wishes and interests of the people, which Our Gracious Sovereign has declared shall be the rule of the Provincial Government 2 , will at all times be faithfully represented to the head of that Government, and through him to the Sovereign and Im- perial Parliament. 5. That as it is practically always optional with such advisers to con- tinue in or retire from office at pleasure, this House has the constitutional right of holding such advisers politically responsible for every act of the Provincial Government of a local character, sanctioned by such Govern- ment while such advisers continue in office. 6. That for the like reason this House has the constitutional right of holding such advisers in like manner responsible for using, while they continue in offiq:, their best exertions to procure from the Imperial author- ities the exercise of their right of dealing with such matters affecting the interests of the Province as constitutionally belong to those authorities, in the manner most consistent with the well understood wishes and inter ests of the people of this Province. II. S. B. Harrison's Amendments to Baldwin's Proposals. 1. That the most important, as well as the most undoubted, of the political rights of the people of this Province is that of having a Provincial Parliament for the protection of their liberties, for the exercise of a con- stitutional influence over the Executive Departments of their Government, and for legislation upon all matters of internal Government. 2. That the head of the executive Government of the Province being, within the limits of his Government, the representative of the Sovereign is responsible to the Imperial authority alone; but that, nevertheless, the management of our local affairs can only be conducted by him, by and with the assistance, counsel and information, of subordinate officers in the Province. 1 These Resolutions were proposed by Robert Baldwin on Sept. 3. 1841. Harri- son's amendments, which were carried, are generally assigned to Sydenham's own pen. * See No. CXLII. 1840-1867] Constitutional Documents of Canada. 565 3. That in order to preserve between the different branches of the Provincial Parliament that harmony which is essential to the peace, welfare and good Government of the Province the chief advisers of the representa- tive of the Sovereign, constituting a Provincial administration under him, ought to be men possessed of the confidence of the representatives of the people, thus affording a guarantee that the well understood wishes and interests of the people, which our Gracious Sovereign has declared shall be the rule of the Provincial Government, will, on all occasions, be faith- fully represented and advocated. 4. That the people of this Province have, moreover, a right to expect from such Provincial Administration, the exertion of their best endeavours that the Imperial authority, within its constitutional limits shall be exer- cised in the manner most consistent with their well understood wishes and interests. CLX METCALFE TO STANLEY 1 [Trans.: J. W. Kaye, Selections from the Papers of Lord Metcalfe, pp. 411 ff., London 1855.] August 5, 1843. My Lord, Regarding Lord Sydenham as the fabricator of the frame of government now existing in this province, I have read his despatches to her Majesty's Secretary of State with attention, in search of some explana- tion of the precise view with which he gave to the local executive adminis- tration its present form ; or of any clear understanding which he authorized the colony to entertain on the mooted question of Responsible Government. I find that in the early portion of his despatches, whenever the notion of Responsible Government is alluded to, in the sense in which it is here understood, he scouts it. There are some remarkable passages in his letters from Halifax, or about the time of his mission to Nova Scotia, which indicate decisively his view of that question. In speaking of a vote of want of confidence passed in the Legislative Assembly of that province, with regard to a member or members of the Executive Council, he reprobates such a vote as unconstitutional. He does not entertain the same opinion of a petition from the House to her Majesty for the removal of the Gov- ernor. This proceeding he regards as the constitutional mode by which a colony may express its disapprobation of the administration of the govern- ment, and seek redress against the measures of the Governor. Nothing could more clearly define his view of the responsibility of a colonial Gov- ernment, which evidently was, that the Governor is the responsible Govern- ment ; that his subordinate executive officers are responsible to him, not to the Legislative Assembly; and that he is responsible to the Ministers of the Crown, and liable to appeals from the colony against his proceedings; it being, at the same time, incumbent on him to consult local feelings, and not to persist in employing individuals justly obnoxious to the community. Regarding this as the view taken of the question by Lord Sydenham, it is beyond measure surprising that he adopted the very form of adminis- tration that was most assuredly calculated to defeat that purpose, and to produce or confirm the notion of Responsible Government which he had before reprobated ; that is, the responsibility of the executive officers of the Government to the popular Legislative Assembly. In composing his Coun- cil of the principal executive officers under his authority, in requiring that they should all be members of the Legislature, and chiefly of the popular branch, and in making their tenure of office dependent on their commanding a majority in the tody representing the people, he seems to me to have 1 Metcalfe's despatch illustrates the breaking down of Sydenham's system of "re- sponsible government." Kaye's note is reprinted at the end of the despatch. For Metcalfe's government, see J. C. Dent, Canada Since the Union of 1841 (Toronto, n. d.); and E. Gibbon Wakefield, (?) View of Sir Charles Metcalfe's Government of Canada (1844). 566 Constitutional Documents of Canada. [1840-1867 ensured, with the certainty of cause and effect, that the Council of the Governor should regard themselves as responsible, not so much to the Governor as to the House of Assembly. In adopting the very form and practice of the Home Government, by which the principal Ministers of the Crown form a Cabinet, acknowledged by the nation as the executive admin- istration, and themselves acknowledging responsibility to Parliament, he rendered it inevitable that the Council here should obtain and ascribe to themselves, in at least some degree, the character of a Cabinet of Ministers. If Lord Sydenham did not intend this, he was more mistaken than from his known ability one would suppose to be possible ; and if he did intend it, he, with his eyes open, carried into practice that very theory of Responsible Colonial Government which he had pronounced his opinion decidedly against. I cannot presume to account for this apparent inconsistency otherwise than by supposing either that he had altered his opinion when he formed his Council after the union of the two provinces, or that he yielded against his own conviction to some necessity which he felt himself unable to resist. His despatches do not furnish any explanation as to which of these influ- ences he acted under ; at least, I have not discovered in his latter despatches any opinion on the subject on which he had previously declared his decision against the theory, which he practically carried into effect, by avowedly making the tenure of office dependent on the support of a majority in the popular branch of the Legislature. It is understood that he was little accustomed to consult his Council, and that he conducted his administration according to his own judgment. His reputation for ability stands very high in this country; but it is be- lieved that he could not have carried on his Government much longer without being forced to yield to the pressure of the Legislative Assembly on his Executive Council. Before the commencement of the first session of the Parliament of Canada, the only session of the united province that he lived, or ever intended, to go through, he was threatened with a vote of want of confidence against a part of his Council the very vote which he had pronounced to be unconstitutional. This was averted during that session by a division in the Reform party, but the session, I am informed, was scrambled through with difficulty, the majorities reckoned on in sup- port of the Government on some questions not exceeding one voice, and there not being in every instance even that. The first week of the session was occupied in extorting from the members of the Council an avowal of their responsibility to the majority, according to the popular construction of Responsible Government. The vote of want of confidence was averted in that session only to be brought forward in the next, when, as is known, the dread of it operated with decisive effect. I dwell on Lord Sydenham's administration because it has had most important influence, which is likely to be permanent, on the subsequent government of this province. He established, among the last acts of his administration, what is here called Responsible Government, and left the problem of the success of that system in Colonial Government to be solved by futurity. It may have been that to carry the measures which he had immediately at heart he could not avoid what he adopted. The term Responsible Government, now in general use in this colony 1 , was derived, I am told, from the marginal notes of Lord Durham's report. Previously to the publication of that document, the Democratic party in Upper Canada had been struggling for a greater share than they possessed in the administration of the Government of the country; but they had no precise name for the object of their desires, and could not exactly define their views. Lord Durham's report gave them the definition, and the words Irresponsible Government, Responsibility of the Government, Responsibility of the Officers of the Government, occurring repeatedly in the marginal notes, it is said furnished the name. From that time "Responsible Govern- 1 On May 14, 1829, however, a petition signed by over two thousand inhabitant* of Upper Canada was presented to the House of Commons asking for "a local respon- sible ministry." 1840-1867] Constitutional Documents of Canada. 567 ment" became the war-cry of the party. Lord Sydenham, on his arrival in Upper Canada, had to encounter or submit to this demand. One of his objects was to win the Reform party, the name assumed by the party in question, and they could only be won by the belief on their part that Responsible Government was to be conceded. In fact, Lord Sydenham, whether intending it or not, did concede it practically by the arrangements which he adopted, although the full extent of the concession was not so glaringly manifested during his administration as in that of his successor. 1 There appears to me to have been a great difference between the sort of Responsible Government intended by Lord Durham and that carried into effect by Lord Sydenham. On examining Lord Durham's report in search of what may be supposed to have been his plan, I find that he proposes that all officers of the Government except the Governor and his secretary should be responsible to the United Legislature ; and that the Governor should carry on his government by heads of departments, in whom the United Legislature repose confidence. All this might be done without impairing the powers of usefulness of the Governor. If the secretary who issued the Governor's orders were not responsible to the Legislature, there would be a great difference from the present arrange- ment under which the provincial administration generally is carried on through secretaries professedly so responsible. The general responsibility of heads of departments, acting under the orders of the Governor, each distinctly in his own department, might exist without the destruction of the former authority of her Majesty's Government. In this scheme there is no mention of the combination of these officers in a Council, to act bodily with the character of a Cabinet, so as manifestly to impair the powers of the responsible head of the Government. Lord Durham's general concep- tion does not seem to have been formed into a distinct plan, and when he says that the responsibility to the Legislature of "all officers of the Govern- ment except the Governor and his secretary should be secured by every means known to the British constitution," he does not explain by what means this should be done; and it is by the means of doing it that the plan must be most materially affected. Lord Sydenham realised the conception in the way most calculated to weaken the authority of the Governor, and render the responsibility ot the officers of the Government to the popular branch of the Legislature complete, by transacting the business of the province through the provincial secretaries, and making them and all the heads of departments a Council responsible to the Legislature, and holding their seats by the voice of the majority. As far as Lord Sydenham's despatches show, this was an optional and spontaneous arrangement on his part, although clearly op- posed in its natural consequences to the sentiments which he had previously expressed. Lord Sydenham's policy in Upper Canada was to win the party calling themselves Reformers, to crush the party called the Family Compact, and to form a Council of the moderate men of the Reform and Conservative parties. In the two former of these objects he succeeded. In the latter he must be said to have failed, for, although the Council so formed strug- gled through one short session of the Legislature, it could not meet, or was afraid to meet, the threatened storm in the next, and was broken up, the Conservative portion retiring to make way for the French party, and what was considered the extreme Democratic, or Reform party. Lord Sydenham's policy in Lower Canada had been to subdue the French party. In this he failed. They remained compact and exceedingly embittered against Lord Sydenham. They united themselves with the extreme Democratic party; these were strangely joined by the extreme Conservative party; and this combination overthrew Lord Sydenham's Council, which had been previously recruited by Sir Charles Bagot, with accessions from both the Conservative and the Reform parties. By these manoevres the French and Reform parties became united, the Conservatives were thrown into a minority, and the ultra-Conservatives, 1 Sir Charles Bagot. 568 Constitutional Documents of Canada. [1840-1867 who had aided in bringing about this change, were dropped by their recent allies, in accordance with the terms of their alliance, which was only for offensive war against the Council. The result of this struggle naturally increased the conviction that Responsible Government was effectually established. New councillors were forced on the Governor-General, to at least one of whom he had a decided antipathy. The Council was no longer selected by the Governor. It was thrust on him by the Assembly of the people. Some of the new members of the Council had entered it with extreme notions of the supremacy of the Council over the Governor that is, of the necessity of his conforming to their advice on all matters, great or small ; and the illness of Sir Charles Bagot after this change threw the current business of administration almost entirely into their hands, which tended to confirm these notions. Subsequent experience has, I hope, modified these impressions, and pro- duced a more correct estimate of the relative position of the Governor and the Council; but it is obvious that the existence of a Council, in reality appointed and maintained by a. majority in the popular branch of the Legislature, must tend to impair the power and influence of the Governor. Whether this, in the end, will operate advantageously for the colony and the mother country, time alone can positively show. I am disposed to think that its immediate effects are injurious, presuming, as I do, that whatever good it may seem to effect might have been produced in another way. One evil of this kind of Responsible Government is, that it tends to produce the government of a party. The Governor may oppose himself to this, but will hardly be able to do so effectually. The Council will be apt to think more of securing their own position than of cordially co-operating in the accomplishment of his wishes. Their recommendations in matters of patronage, which in the relations existing between them and the Gov- ernor are likely to be often attended to, even without admitting their claim to a monopoly, will be almost always in favour of partisans. Their sup- porters look to them for the exclusive bestowal of places of emoluments, and threaten openly to withdraw their support from them if they do not favour their views. To maintain the majority by which they hold office will be with them a primary concern ; such, at least, is the tendency of the circumstances of their position, without supposing the total absence of higher and better motives. Without a Council so circumstanced, a Governor, acknowledging the propriety and necessity of conducting his government according to the interests and wishes of the people, and of conciliating and winning the Legislature and this might have been made a rule for the guidance of Governors never to be departed from might render his administration of the government satisfactory to all parties, and obtain an influence con- ducive to the preservation of affectionate relations between the mother country and the colony, and to the welfare and interests of both. Under the existing system, the Governor, it appears to me, is not likely to obtain influence. If he and his Council are cordially united, he becomes, either in reality or to appearance, a partisan, without any reason for his being so. The credit of all the good that he may do will be assumed by them, or ascribed to them, by their party. All that may be considered evil by the other party he will have the discredit of allowing. If he evinces any dis- position to conciliate the other party, he becomes an object of distrust to his Council and their party. Their interests and his, and with his those of her Majesty's Government, are always distinct; for they have their inter- ests as a party to guard, which must be distinct from those of her Majesty's Government, as well as from any which the Governor may personally feel with respect to the credit of his administration. . I will endeavour to describe my own position. I am not perfectly satisfied with my Council, chiefly because they are under the influence of party views, and would, if they could, drag me on with them in the same course. The only effectual remedy would be to dismiss them, or such of them as are most in the extreme on this point, and form another Council. 1840-1867] Constitutional Documents of Canada. 569 But the consequence to be expected would >be, that a cry would be raised accusing me of hostility to Responsible Government. The new Council would not be able to stand against a majority in the popular branch of the Legislature, and I should either be obliged to take back those whom I had dismissed, with a sort of disgrace to myself injurious to the efficiency of my government, or be in a continual warfare with a majority in the House of Assembly that would render my presence here of no benefit to her Majesty's service. Such a contest I would neither shrink from nor yield to, if it became my duty to encounter it; but it is so desirable to avoid it, that it would require strong grounds to justify its being wilfully incurred. My objects are to govern the country for its own welfare, and to engage its attachment to the parent State. For these purposes it is my wish to conciliate all parties ; and although this might be difficult, I do not perceive that it would be impracticable, if the Governor were free to act thoroughly in that spirit; but the accomplishment of that wish seems almost impossible when the Governor is trammelled with a Council deeming it necessary for their existence that their own party alone should be consid- ered.^ Sooner than abandon myself as a partisan to such a course, I would dismiss the Council and take the consequences; but it is scarcely possible to avoid the influence of party spirit in an administration in which every adviser and every executive officer is guided by it ; and the chief difficulty of my position, I conceive, is to act according to my own sense of what is right, and in opposition to this party spirit, without thereby breaking with the Council and the majority that at present support them. The form of administration adopted by Lord Sydenham appears to me to have put heavy shackles on any Governor who means to act with prudence, and would not recklessly incur the consequences of a rupture with the majority in the popular Assembly. The meeting of the Legislature will probably enable me to see my position more clearly. It is at present far from certain that a change of councillors would produce any beneficial alteration in respect to the difficulty noticed, for any Council appointed on the principle of Canada Responsible Government would most probably have similar party views, and the same pressure on them from their partisans. It becomes a question whether Party Government can be avoided The experiment of Responsible Government in this colony hitherto would indicate that it cannot. It seems to be inevitable in free and independent States where Responsible Government exists; and the same causes are likely to produce similar effects everywhere; but there is a wide difference between an independent State and a colony. In an independent State all parties must generally desire the welfare of the State. In a colony sub- ordinate to an Imperial Government, it may happen that the predominant party is hostile in its feelings to the mother country, or has ulterior views inconsistent with her interests. In such a case, to be obliged to co-operate with that party, and to permit party government to crush those who are best affected, would be a strange position for the mother country to be placed in, and a strange part for her to act. This ought to have been well considered before the particular system which has obtained the name of Responsible Government was established. It is now, perhaps, too late to remedy the evil. I have supposed an extreme and possible case without intending to apply the description to the state of parties in this colony. I trust that it is in a great degree inapplicable. It is nevertheless so far applicable, that the party always known as the British Party in this pro- vince is now in the minority. It will be my study to make all parties con- tented and happy; but that part of my task, I fear, is hopeless. It will also be my study to promote loyalty to our gracious Sovereign, and attach- ment to the British Empire. These feelings will be most successfully con- firmed by an administration of the government satisfactory to the people, and by a conviction on their minds that their interests are promoted by British connexion. The acts of her Majesty's Government in guaranteeing the loan for public works, and in facilitating the importation of Canada wheat and flour into the United Kingdom, ought to have in this respect a 570 Constitutional Documents of Canada. [1840-1867 very beneficial tendency, as evincing a fostering care for the colony which can hardly fail to be highly appreciated. I have to apologise for some repetition in this despatch of sentiments nearly the same as those expressed on former occasions on which I have noticed the same subject. It is one which has unavoidably occupied much of my attention, and is brought before me continually by daily occurrences. I feel that the little power of usefulness that I might have had under different circumstances is obstructed by the plan of administration intro- duced into this colony ; but that any attempt to remove the impediment would most probably be still more injurious. I have therefore dilated on the peculiarity of my position more frequently than may seem necessary ; and I trust that I shall not again trouble your Lordship on this topic. [The anticipations shadowed forth in the preceding despatch were soon fulfilled. Sir Charles Metcalfe said truly that "the chief difficulty of his position was to act according to his sense of what was right without breaking with his Council." IH a preceding despatch he had spoken of the requirements of his. .Council, and the impossibility of submitting to them consistently with the duty that he owed to the Imperial Government. "I am required," he said, "to give myself up entirely to the Council; to submit absolutely to their dictation; to have no judgment of my own; to bestow the patronage of the Government exclusively on their partisans; to pro- scribe their opponents ; and to make some public and unequivocal declara- tion of my adhesion to these conditions, including the complete nullification of her Majesty's Government." But he was not disposed to purchase peace on such terms as these. As the autumn advanced, the prospect of a rupture with the Executive Council seemed more and more imminent: "At the end of November the crisis came. The question which precipitated it at last was a question of patronage. Metcalfe had appointed to his personal Staff a French-Canadian officer who was distasteful to Mr. Lafontaine. The appointment was intended to conciliate the French-Canadian community, but it offended their chief. The leaders of both parties in the Council then waited oVi the Governor-General, intent on advancing the pretensions of the Executive. They demanded that the Governor-General should make no appointment without the sanction of his Ministers. During two long sit- tings, on the 24th and 25th of November, Baldwin and Lafontaine pressed their demands with energy and resolution ; but Metcalfe, in his own placid way, was equally energetic and resolute On the 26th of November, all the members of the Council, with the exception of Mr. Daly, finding that they could not shake the firmness of the Governor-General, resigned their offices, and prepared to justify their conduct to Parliament and th* colony at large."] CLXI EARL GREY TO LIEUTENANT-GOVERNOR SIR JOHN HAVREY, K.C.B. 1 [Trans. : Imperial Blue Books relating to Canada, 1844-48, Vol. XV. j Extracts from a Despatch from Earl Grey to Lieutenant-Governor Sir John Harvey, K.C.B., dated- Downing Street, 3 November, 1846. I have received your Despatch of the 15th September, marked "Private and Confidential," in which you communicate to me your views upon the state of affairs which you have found on arriving in Nova Scotia. 1 This and the despatch which follows contain the scheme of "full responsible government" as worked out in Nova Scotia by the Lieutenant-Governor, Sir John Harvey, and in Canada by Lord Elfin. 1840-1867] Constitutional Documents of Canada. 571 Circumstances prevented me from answering your Despatch, as you wished me to have done, by the packet which left England on the 3d in- stant; but the interval which has since elapsed has enabled me to devote more time to the consideration of the questions which you have brought under my notice than the brief space between the arrival and the departure of the North American packet would have allowed me to do. I perceive, from your representation of the position of affairs in Nova Scotia, that there are questions to be determined in respect to the govern- ment of tharprovince of no ordinary difficulty, and that it is of the utmost importance that the first measures of your administration should be pre- ceded by the most careful deliberation. The knowledge which I possess of the local politics of Nova Scotia is at present too limited to enable me, with confidence in my own judgment, to give you any positive and de- tailed directions as to the course which circumstances may require you to adopt in the present conjuncture; but though it is out of my power to give you such instructions, there are certain general principles which ought, as I conceive, to govern your conduct in this and in similar cases ; and which, as they admit of being stated, ought, I think, to be communicated to you for your guidance. I shall advert first to the important topic of the composition of the Legislative Council. In making appointments to this body, it ought un- doubtedly to be the object of the administrator of the Government so to compose it as to make it fairly represent the opinion of the majority of the intelligent members of the community; but supposing the selection of the present members to have been ill-advised, and that the Council in conse- quence is not in harmony with public opinion, the question arises, what is then the proper course to be adopted? Under such circumstances there are two considerations to which it is necessary to advert. First, that it is impossible to allow the Legislative Council to obstruct permanently the passing of measures called for by public opinion, and sent up by the popu- lar branch of the Legislature. Secondly, that it is a serious evil to be compelled to make an addition to the members of this body for the purpose of changing the character of the majority; since each such addition creates both a precedent and a necessity for a similar and perhaps larger addition whenever a change in public feeling gives the ascendancy to a new party in the assembly. It is difficult to reconcile these almost conflicting con- siderations, but this, in my opinion, may be attempted with the greatest hopes of success, by adopting as a rule that an addition is not to be made to the Legislative Council with a view to changing the character of the majority, except under circumstances of clear and obvious necessity. An anticipation that public business will be impeded because there is a majority in the Legislative Council attached to the political party which has not the confidence of the colony is insufficient to justify the appointment of addi- tional members. Practical inconvenience must have actually arisen, and to a serious extent, before resort can with propriety be had to any measure for increasing the number of the Council. If that body be found obstructing pertinaciously the progress of public business, and the passing of laws which public opinion demands, an addition to it would then be felt to be a just and necessary measure, and would not excite the same indignation, on the part even of those against whom it might be directed, as would be the case if adopted on lighter grounds; while the probability is that the members of the Legislative Council, knowing that if it should become necessary this measure must ultimately be resorted to, will shrink from creating the necessity by obstinately opposing themselves to the real opinion of the intelligent classes of the community. ****** I come now to the second question which you have submitted to me in your Despatch, namely, the propriety of dissolving the present House of Assembly. ****** I am of opinion that under all the circumstances of the case, the best course for you to adopt is to call upon the members of your present Execu- 572 Constitutional Documents of Canada. [1840-1867 tive Council to propose to you the names of the gentlemen whom they would recommend to supply the vacancies, which I understand to exist, in the present Board. If they should be successful in submitting to you an arrangement to which no valid objection arises, you will of course continue to carry on the government through them, so long as it may be possible to do so satisfactorily, and as they possess the necessary support from the Legislature. Should the present Council fail in proposing to you an arrangement which it would be proper for you to accept, it would then be your natural course, in conformity with the practice in analogous cases in this country, to apply to the opposite party, and should you be able, through their assistance, to form a satisfactory Council, there will be no impro- priety in dissolving the Assembly upon their advice ; such a measure, under those circumstances, being the only mode of escaping from the difficulty which would otherwise exist of carrying on the government of the province upon the principles of the constitution. The object with which I recommend to you this course, is that of making it apparent that any transfer which may take place of political power from the hands of one party in the province to those of another is the result not of an act of yours but of the wishes of the people them- selves, as shown by the difficulty experienced by the retiring party in car- rying on the government of the province according to the forms of the constitution. To this I attach great importance; I have therefore to in- struct you to abstain from changing your Executive Council until it shall become perfectly clear that they are unable, with such fair support from yourself as they have a right to expect, to carry on the government of the province satisfactorily, and command the confidence of the Legislature. Of whatsoever party your Council may be composed, it will be your duty to act strictly upon the principle you have yourself laid down in the memorandum delivered to the gentleman with whom you have communi- cated, that, namely, "of not identifying yourself with any one party," but instead of this, "making yourself both a mediator and a moderator between the influential of all parties." In giving, therefore, all fair and proper support to your Council for the time being, you will carefully avoid any acts which can possibly be supposed to imply the slightest personal objec- tion to their opponents, and also refuse to assent to any measures which may be proposed to you by your Council, which may appear to you to involve an improper exercise of the authority of the Crown for party rather than for public objects. In exercising, however, this power of refusing to sanction measures which may be submitted to you by your council, you must recollect that this power of opposing a check upon extreme measures proposed by the party for the time in the government, depends entirely for its efficacy upon its being used sparingly, and with the greatest possible discretion. A refusal to accept advice ten- dered to you by your council is a legitimate ground for its members to tender to you their resignation, a course they would doubtless adopt should they feel that the subject on which a difference had arisen between you and themselves was one upon which public opinion would be in their favour. Should it prove to be so, concession to their views must, sooner or later, become inevitable, since it cannot be too distinctly acknowledged that it is neither possible nor desirable to carry on the government of any of the British provinces in North America in opposition to the opinion of the inhabitants. Clearly understanding, therefore, that refusing to accede to the advice of your council for the time being upon a point on which they consider it their duty to insist, must lead to the question at issue being brought ulti- mately under the decision of public opinion, you will carefully avoid allow- ing any matter not of very grave concern, or upon which you cannot rea- sonably calculate upon being in the end supported by that opinion, to be made the subject of such a difference. And if, unfortunately, such a dif- ference should arise, you will take equal care that its cause and the grounds of your own decision are made clearly to appear in written documents capable of being publicly quoted. 1840-1867] Constitutional Documents of Canada. 573 The adoption of this principle of action by no means involves the necessity of a blind obedience to the wishes and opinions of the members of your Council ; on the contrary, I have no doubt that if they see clearly that your conduct is guided, not by personal favour to any particular men or party, but by a sincere desire to promote the public good, your objections to any measures proposed will have great weight with the Council, or should they prove unreasonable, with the Assembly, or, in last resort, with the public. Such are the general principles upon which the constitutions granted to the North American colonies render it necessary that their government should be conducted. It is, however, I am well aware, far easier to lay down these general principles than to determine in any particular case what is that line of conduct which an adherence to them should prescribe. In this your own judgment and a careful consideration of the circumstances in which you are placed must be your guide ; and I have only, in conclusion to assure you that Her Majesty will always be anxious to put the most favourable construction upon your conduct in the discharge of the arduous duties imposed upon you by the high situation you hold in Her service. CLXII EARL GREY TO LIEUT-GOVERNOR SIR JOHN HARVEY, K.C.B. [Trans. : Imperial Blue Books relating to Canada, 1844-48, Vol. XV.] Downing Street, 31 March, 1847. Sir, I have already acknowledged the receipt of your Despatch of the 2d February, enclosing two letters to yourself from your Executive Council, and I now propose to communicate the conclusions at which I have arrived after that attentive consideration which I have felt due, as well to the intrinsic merits of the views stated by your advisers, as to the respectable source from which the statement emanates. In doing so, it will be convenient that I should at the same time advert to the correspondence which, soon after your assumption of the govern- ment of Nova Scotia, you had with Mr. Howe and his friends. Upon a careful comparison of these very able papers, in which the members of your Council and their political opponents have stated their respective views as to the manner in which the Executive Government of Nova Scotia ought to be conducted, I am led to the conclusion that there is not in reality so wide a difference of principle between the conflicting par- ties as would at first sight appear to exist, and that it may not be impos- sible to chalk out a system of administration to be hereafter adopted, to which, without the slightest sacrifice of consistency, both might assent. On the one hand, I find that the members of your Council declare that they "desire in no degree to weaken the responsibility of the Provincial Goyernment to the Legislature," and I gather from the general tenor of their papers of the 28th and 30th of January, that they are aware that, in the present state of affairs, and of public opinion in Nova Scotia, it is necessary that the Governor of the province should, in administrating its affairs, have the advice and assistance of those who can command the con- fidence of the Legislature, and more especially of that branch of the Legis- lature which directly represents the people. On the other hand, I can hardly doubt that the gentlemen of the oppo- site party who have insisted so strongly upon the necessity of what is termed "responsible government," would admit the justice and importance of many of the arguments which have been used, in order to show the danger and inconvenience of making the general tenure of offices in the colonial service to depend upon the fluctuations of political contests in the Assembly. I am the more convinced that the gentlemen of the opposition will recognize the force of these arguments, because I observe in the 574 Constitutional Documents of Canada. [1840-1867 various papers in which they have stated their views, frequent references, either direct or implied, to the practice of this country, as that which affords the best model for imitation in laying down rules as to the manner in which the government of Nova Scotia should be carried on. Now there is scarcely any part of the system of government in this country which I consider of greater value than that, which though not enforced by any written law, but deriving its authority from usage and public opinion, makes the tenure of the great majority of officers in the public service to depend upon good behaviour. Although with the exception of those who hold the higher judicial situations, or situations in which judicial inde- pendence has been considered to be necessary, the whole body of public servants in the United Kingdom hold their offices technically during the pleasure of the Crown, in practice all but the very small proportion of offices which are distinguished as political, are held independently of party changes, nor are those who have once been appointed to them ever in point of fact removed, except in consequence of very obvious misconduct or un- fitness. Thus, in fact, though the legal tenure, "during good behaviour," is rare, tenure during good behaviour, in the popular sense of the term, may be said to be the general rule of our public service. The exception is in the case of those high public servants whom it is necessary to invest with such discretion as really to leave in their hands the whole direction of the policy of the empire in all its various depart- ments. Such power must, with a representative government, be subject to constant control by Parliament, and is therefore administered only by such persons as from time to time enjoy the confidence of Parliament as well as of the Crown. These heads of departments, or Ministers, together with their Immediate subordinates who are required to represent or support them in Parliament, are almost invariably members of one or other House, and hold their offices only as long as they enjoy the confidence of Parlia- ment. Though it is not without some inconveniences, I regard this system as possessing upon the whole very great advantages. We owe to it that the public servants of this country, as a body, are remarkable for their experi- ence and knowledge of public affairs, and honourably distinguished by the zeal and integrity with which they discharge their duties, without refer- ence to party feeling; we owe to it also, that as the transfer of power from one party in the State to another is followed by no change in the holders of any but a few of the highest offices, political animosities are not in general carried to the same height, and do not so deeply agitate the whole frame of society as in those countries in which a different practice prevails. The system with regard to the tenure of office which has been found to work so well here, seems well worthy of imitation in the British American Colonies, and the small population and limited revenue of Nova Scotia, as well as the general occupation and social state of the community, are, in my opinion, additional reasons for abstaining, so far as regards that province, from going further than can be avoided, without giving up the principle of executive responsibility, in making the tenure of offices in the public service dependent upon the result of party contests. In order to keep the Executive Government in harmony with the Legislature, it is doubtless necessary that the direction of the internal policy of the colony should be entrusted to those who enjoy the confidence of the Provincial Parliament, but it is of great moment not to carry the practice of changing public officers further than is absolutely necessary for the attainment of that end, lest the administration of public affairs should be deranged b> increasing the bitterness of party spirit, and subjecting the whole machin- ery of Government to perpetual change and uncertainty. In the practical application of these views, there will, I am aware, be room for considerable difference of opinion. In this, as in all questions of classification, varying circumstances and the various views taken by different men, will give rise to discussions and occasional alterations with respect to particular offices. Your acquaintance with what has passed, and is passing in the mother country, will suggest to 1840-1867] Constitutional Documents of Canada. 575 you instances in which the question has been raised, whether a particular office should or should not be a Parliamentary office; and some in which different offices have been deliberately removed from the one into the other class. The question how many of the public officers 'in Nova Scotia ought to be regarded as political, is one to be determined on the general principles I have before laid down, and with reference to. various considerations aris- ing from the peculiar exigencies of the public service, and the finances and social state of the colony. The practical end of responsible government would be satisfied by the removability of a single public officer, provided that through him public opinion could influence the general administration of affairs. Without quite assenting to the too modest estimate which your present Council have given of the resources of the province, I admit that the smallness of the community, its want of wealth, and the comparative deficiency of a class possessing leisure and independent incomes, preclude it from, at present, enjoying a very perfect division of public employments. Small and poor communities must be content to have their work cheaply and somewhat roughly done. Of the present members of your Council, the Attorney-General and Provincial Secretary, to whom the Solicitor- General should perhaps be added, appear to me sufficient to constitute the responsible advisers of the Governor. The holders of these offices shoulcl henceforth regard them as held on a political tenure. And, with a view to that end, the Provincial Secretary should be prepared, in the event of any change, to disconnect from his office that of the clerkship of the Council, which seems to be one that should on every account be held on a more permanent tenure. It is possible that in the event of any change being rendered necessary by the course of events in the Provincial Parliament, the party succeeding to power might insist on increasing this number of political offices, by add- ing to the list of those to be so regarded. In case such a question should arise, I must leave it to your discretion, on a view of various local and temporary circumstances, which I am unable at present to appreciate, to form your own decision with respect to any such demand. I should feel no objection to somewhat increasing the number of political offices (for instance, by appointing a financial secretary and a responsible chief of the department of public lands and works), should the expense of doing so, without injustice to those now in the public service, be found to be not more than the colonial revenue would conveniently bear. But I rely on your using your influence to resist that disposition, which a party succeed- ing to power often exhibits, to throw open the various offices of emolu- ment to their friends, without sufficient regard to the mischiefs thereby permanently entailed on the public service. And it is but due to what I have seen of the conduct of the principal advocates of responsible govern- ment in Nova Scotia, to express my reliance on their public spirit and sober estimate of their country's position and interests, as the most effectual safeguard against any abuse of power. There is another safeguard which, even with the less considerate mem- bers of any party, you will, I think, find sufficient to protect the public interests against any great disposition unnecessarily to place offices hitherto held on what has practically been a tenure of good behaviour, on one of a more precarious nature. However desirous the people of Nova Scotia may be to establish the principal of responsible government, they would I feel assurd, shrink from effecting any reform, however just or necessary, at the cost of injustice to individuals. Now, when individuals have engaged in the public service under a belief, sanctioned by custom, that they obtained a tenure of their offices during good behaviour, it would be most unjust to change that tenure to one of dependence on a parliamentary majority, without ensuring them a provision that would make up for the loss of official income. I think that the consideration that the grasping at any particular office would necessitate the provision of an adequate pension for its occupant, will be a salutary check on any disposition to carry party government beyond its just limits. 576 Constitutional Documents of Canada. [1840-1867 This condition must be applied to the removal of those public officers who now have seats in your Executive Council, unless where they have clearly accepted office on an understanding to the contrary .effect. I cannot suppose that the necessity of providing the requisite pensions will be deemed by the Assembly an unreasonable accompaniment of the establish- ment of parliamentary government. And hereafter I think it would be proper to recognise as an invariable rule, that no person should without such provision be deprived of any office (except upon the ground of unfit- ness or misconduct), unless he had accepted it on the distinct understand- ing that it was to be held 'virtually, as well as nominally, during pleasure. I entertain a strong conviction that the adoption of such a rule will be found conducive not only to the interests of the holders of offices, but also to those of the public, and to a true economy of the public money. As I have already observed, it is impossible to expect that men of superior capa- city will devote themselves to the public service unless they are assured that their employment will be permanent, or are offered emoluments so large as to make up for the uncertainty of the tenure by which they are enjoyed. If the emoluments of public employment are small, and its tenure at the same time uncertain, a strong temptation is given to the holders to endeavour to make up for these disadvantages by irregular gains, and thus to give rise to practices equally injurious to the community in a pecuniary and in a moral point of view. You will observe that, in the preceding observations, I have assumed that those only of the public servants, who are to be regarded as removable on losing the confidence of the Legislature, are to be members of the Executive Council. This I consider to follow from the principles I have laid down. Those public servants, who hold their offices permanently, must upon that very ground be regarded as subordinate, and ought not to be members of either house of the Legislature, by which they would neces- sarily be more or less mixed up in party struggles ; and, on the other hand, those who are to have the general direction of affairs exercise that function by virtue of their responsibility to the Legislature, which implies their be- ing removable from office, and also that they should be members either of the Assembly or of the Legislative Council. But this general direction of affairs, and the control of all subordinate officers, it is the duty of the Governor to exercise through .the Executive Council ; hence the seats in that Council must be considered as in the nature of political offices, and if held in connexion with other offices must give to these also a political character. This, however, leads me to observe, that if only two or three of the principal offices are to be regarded as political, it may very probably be advisable to assign salaries to two or three of the Executive Councillors as such. The Executive Council has duties of a very important character to perform ; those duties, and the defects in the manner in which they had then generally been discharged I find thus described in a confidential de- spatch which the late Lord Sydenham, then Mr. P. Thomson, addressed to Lord J. Russell, from' Halifax, in the year 1840: "The functions of the Executive Council, on the other hand are, it is "perfectly clear, of a totally different character. They are a body upon "whom the Governor must be able to call at any or at all times for advice ; "with whom he can consult upon the measures to be submitted to the "Legislature, and in whom he may find instruments, within its walls, to "introduce such amendments in the laws as he may think necessary, or to "defend his acts and his policy. It is obvious, therefore, that those who "compose this body must be persons whose constant attendance on the "Governor can be secured ; principally, therefore, officers of the Govern- "ment itself ; but, when it may be expedient to introduce others, men hold- ing seats in one or other House, taking a leading part in political life, "and above all exercising influence over the Assembly." ****** "The last, and, in my opinion, by far the most serious defect in the "Government, is the utter absence of power in the Executive, and its total 1840-1867] Constitutional Documents of Canada. 577 "want of energy to attempt to occupy the attention of the country upon "real improvements, or to lead the Legislature in the preparation and adop- tion of measures for the benefit of the colony. It does not appear to "have occurred to any one that it is one of the first duties of the Govern- "ment to suggest improvements where they are wanted. That the constitu- tion having placed the power of legislation in the hands of an Assembly "and a Council, it is only by' acting through these bodies that this duty can "be performed, and that if these proper and legitimate functions of Gov- "ernment are neglected, the necessary result must be, not only that the "improvements which the people have a right to expect will be neglected, "and the prosperity of the country checked, but that the popular branch of "the Legislature will misuse its power, and the popular mind be easily led "into excitement, upon mere abstract theories of government, to which "their attention is directed as the remedy for the uneasiness they feel." In this view of the proper functions of the Executive Council I en- tirely concur; but I greatly doubt whether they could be adequately dis- charged by a Council composed of only two or three persons holding offices in the public service, and of gentlemen serving gratuitously. It is hardly possible to expect that those so serving should devote any large portion of their time to their public duties, and it therefore appears to me highly desirable that salaries should be assigned to at least one or two seats in the Executive Council. On such terms as these, which I have thus detailed, it appears to me that the peculiar circumstances of Nova Scotia present no insuperable obstacle to the immediate adoption of that system of parliamentary gov- ernment which has long prevailed in the mother country, and which seems to be a necessary part of representative institutions in a certain stage of their progress. I have thought it due to you to enter thus fully into the practical diffi- culties to be encountered in giving effect to those general principles which, in my despatch of the 3d of November, I laid down for your guidance in the selection of your responsible advisers. I am in hopes that the present despatch will leave you in no doubt as to the course to be pursued by you in the event of any changes of which you may anticipate the contingency. I owed it to you to make myself clearly understood on this point; and I trust that what I have now said, will be regarded by your Council as amounting to such a declaration of my views as was requested by them in their letter of the 30th January. I have, etc., (Signed) GREY. CLXIII ELGIN TO EARL GREY, 1847 1 [Trans. : T. Walrond, Letters and Journals of Lord Elgin, 2nd Edn., Lon- don, 1873.] Several causes co-operate together to give to personal and party in- terests the overweening importance which attaches to them in the estima- tion of local politicians. There are no real grievances here to stir the depths of the popular mind. We are a comfortable people, with plenty to eat and drink, no privileged classes to excite envy, or taxes to produce irri- tation. It were ungrateful to view these blessings with regret, and yet believe that they account in some measure for the selfishness of public men and their indifference to the higher aims of statesmanship. The comparatively small number of members of which the popular bodies who determine the fate of provincial administrations consist, is also. I am inclined to think, unfavourable to the existence of a high order of 1 For Elgin's rule in Canada, see Bourinot, Lord Elgin, and G. M. Wrong, Lord 578 Constitutional Documents of Canada. [1840-1867 principle and feeling among official personages. A majority of ten in an assembly of seventy may probably be, according to Cocker, equivalent to a majority of 100 in an assembly of 700. In practice, however, it is far otherwise. The defection of two or three individuals from the majority of ten puts the administration in peril. Thence the perpetual patchwork and trafficking to secure this vote and that, which (not to mention other evils) so engrosses the time and thoughts of ministers, that they have no* leisure for matters of greater moment. It must also be remembered that it is only of late that the popular assemblies in this part of the world have acquired the right of determining who shall govern them of insisting, as we phrase it, that the administration of affairs shall be conducted by per- sons enjoying their confidence. It is not wonderful that a privilege of this kind should be exercised at first with some degree of recklessness, and that, while no great principles of policy are at stake, methods of a more ques- tionable character for winning and retaining the confidence of these arbi- ters of destiny should be resorted to. My course in these circumstances, is, I think, clear and plain. It may be somewhat difficult to follow occa- sionally, but I feel no doubt as tp the direction in which it lies. I give to my ministers all constitutional support, frankly and without reserve, and the benefit of the best advice that I can afford them in their difficulties. In return for this, I expect that they will, in so far as it is possible for them to do so, carry out my views for the maintenance of the connexion with Great Britain and the advancement of the interests of the province. On this tacit understanding we have acted together harmoniously up to this time, although I have never concealed from them that I intended to do nothing which may prevent me from working cordially with their oppon- ents, if they are forced upon me. That ministries and oppositions should occasionally change places, is of the very essence of our constitutional system, and it is probably the most conservative element which it contains. By subjecting all sections of politicians in their turn to official responsi- bilities, it obliges heated partisans to place some restraint on passion, and to confine within the bounds of decency the patriotic zeal with which, when out of place, they are wont to be animated. In order, however, to secure these advantages, it is indispensable that the head of the Government should show that he has confidence in the loyalty of all the influential par- ties with which he has to deal, and that he should have no personal anti- pathies to prevent him from acting with leading men. I feel very strongly that a Governor-General, by acting upon these views with tact and firmness, may hope to establish a moral influence in the province which will go far to compensate for the loss of power conse- quent on the surrender of patronage to an executive responsible to the local Parliament. Until, however, the functions of his office, under our amended colonial constitution, are more clearly defined until that middle term which shall reconcile the faithful discharge of his responsibility to the Imperial Government and the province with the maintenance of the quasi- monarchical relation in which he now stands towards the community over which he presides, be discovered and agreed upon, he must be content to tread along a path which is somewhat narrow and slippery, and to find that incessant watchfulness and some dexterity are requisite to prevent him from falling, on the one side into the neant of mock sovereignty, or on the other into the dirt and confusion of local factions. 1840-1867] Constitutional Documents of Canada. 579 CLXIV ELGIN TO LADY ELGIN, 1 1847 [Trans. T. Walrond, op. cit.] I still adhere to my opinion that the real and effectual vindication of Lord Durham's memory and proceedings will be the success of a Governor- General of Canada who works out his views of government fairly. Depend upon it, ( if this country is governed for a few years satisfactorily, Lord Durham's reputation as a statesman will be raised beyond the reach of cavil. I do not indeed know whether I am to be the instrument to carry out this work, or be destined, like others, who have gone before me, to break down in the attempt; but I am still of opinion that the thing may be done, though it requires some good-fortune and some qualities not of the lowest order. I find on my arrival here a very weak Government .almost as much abused by their friends as by their foes, no civil or private secre- tary, and an immense quantity of arrears of business. It is possible, there- fore, that I may not be able to bear up against the difficulties of my situa tion, and that it may remain for some one else to effect that object, which many reasons would render me so desirous to achieve. CLXV ELGIN TO EARL GREY [Trans.: Imperial Blue Books relating to Canada, Vol. XV.] Government House, Montreal, April 30, 1849. My Lord, I regret to state that rioting, attended with some consequences much to be regretted, though happily with no injury to life, or, except in one instance, to person, has taken place in the city of Montreal during the last few days. I hasten to furnish your Lordship with an account of what has actually occurred, lest you should be misled by exaggerated reports conveyed through the United States. 2. In consequence of the unexpected arrival of vessels with merchan- dize at the Port of Quebec, it became necessary for me to proceed, on a short notice, to Parliament, on Wednesday last, in order to give the Royal Assent to a Customs Bill which had that day passed the Legislative Coun- cil ; and I considered that, as this necessity had arisen, it would not be expedient to keep the public mind in suspense by omitting to dispose, at the same time, of the other Acts in which the two branches of the local Parliament had at an earlier period of the session concurred, and which still awaited my decision. Among these was the Act to provide for the indemnification of parties in Lower Canada whose property was destroyed during the Rebellion in 1837 and 1838, with respect to which, as your Lord- ship is aware, much excitement has unhappily been stirred. 3. I herewith enclose, for your Lordship's perusal, a printed copy of the Act in question, and I shall not fail by the first mail to furnish you with full information respecting its character and objects, the circum- stances which led to its introduction, and the grounds on which I resolved after much reflection, to sanction it. No money can be paid under it as indemnity for a considerable period, so that Her Majesty's power of dis- allowance can be exercised with effect, should Her Majesty be so advised, notwithstanding the course which I have taken. As I am writing this Despatch in haste, with a view to its transmission by way of New York, I shall confine myself for the present to a statement of the proceedings by which the peace of the city has been disturbed. 1 Daughter of Lord Durham. 580 Constitutional Documents of Canada. [1840-1867 4. In order, however, to render this narrative intelligible, I must premise that for some time past the House of Assembly, as at present constituted, has been the object of bitter denunciation, and not unfrequently of reckless menace, on the part of a certain portion of the press of the province, and more especially of that of Montreal. Your Lordship will probably recollect that the body in question is the product of a general election which took place about 18 months ago, under the auspices of the political party now in opposition, and after a dissolution, to which I had recourse on their advice, for the purpose of strengthening them in their position as a Government. The result of this measure was in the las degree unfavourable to those who had recommended it; not, however, so much so in Lower Canada, where the complexion of the representation was little affected by the dissolution, as in the Upper Province, where several constituencies, among which were some of the most populous, rejected conservative in favour of liberal candidates. On a question of confidence raised at the commencement of the session, immediately after the general election, the Administration was defeated by a majority of more than two to one, and a change of Government, as a matter of course, ensued. 5. This alteration in the political complexion of the Assembly, and the change of Government consequent upon it, were therefore clearly and distinctly traceable to a revulsion of sentiment in the British constituencies of Upper Canada. In Lower Canada nothing had occurred to account for either. This circumstance has, however, failed to secure for the de- cisions of the popular representative body either forbearance or respect from a certain section of those who profess to be emphatically the sup- porters of British interests. To denounce the Parliament as French in its composition, and the Government as subject to French influences, has been their constant object, and the wildest doctrines have been broached with respect to the right which 'belongs to a British minority of redressing by violence any indignity to which it may be subjected from such a source. I have now before me an article that appeared in one of the principal Eng- lish newspapers of Montreal at a very early period of the session, of which I transcribe the concluding paragraph, as illustrative of the temper and language in which, even at that time, and before the public mind had been excited by the discussion of the Rebellion Losses Bill, a portion of the press ventured to criticise the proceedings of the local Parliament. The article treats of a measure affecting the townships, to which, I believe, no great objection was raised in Parliament. It terminates, however, in the words "We are very glad of it the sooner the cloven foot is made "visible the better; the obvious intention of that majority, composed of "Frenchmen, aided by traitorous British Canadians, is to force French in- "stitutipns still further upon the British minority in Lower Canada. The "intention is obvious, as we said, and we are glad that it is openly shown. "We trust that the party of the Government will succeed in every one of "their obnoxious measures. When French tyranny becomes insupportable "we shall find our Cromwell. Sheffield, in the olden times, used to be "famous for its keen and well-tempered whittles; well, they make bayonets "there now, just as sharp and just as well-tempered. When we can stand "tyranny no longer, it will be seen whether good bayonets in Saxon hands "will not be more than a match for a mace and a majority." 6. To persons accustomed to the working of constitutional government in well-ordered communities, it may seem incredible that such language should be employed by the organs of any respectable party in reference to a body comprising the freely-chosen representatives of a constituency, formed on a most popular basis; but the cause of the anomaly is apparent enough to all who are acquainted with the history of Canada. For a series of years the popular representative body and the Executive, supported by the Legislative Council, were, in the Lower Province especially, in a con- dition of almost constant antagonism. To revile the one was the surest test of patriotism; to denounce the other, of loyalty. In a society singu- larly democratic in its structure, where diversities of race supplied special elements of confusion, and where consequently it was most important that 1840-1867] Constitutional Documents of Canada. 581 constituted authority should be respected, the moral influence of law and Government was enfeebled by the existence of perpetual strife between the powers that ought to have afforded to each other a mutual support. No state of affairs could be imagined less favourable to the extinction of national animosities, and to the firm establishment of the gentle and benignant control of those liberal institutions which it is England's pride and privilege to bestow upon her children. 7. I am not without hope that a steady adherence to the principles of constitutional government, and the continuance of harmony between the co-ordinate branches of the Legislature, may lead in process of time to the correction of these evils; meanwhile, however, I must ascribe mainly to the cause which I have assigned the tone of arrogant defiance with which the resolutions, not of the Government only, but also of the Parlia- ment are treated by parties who happen for the moment to be unable to make their views prevail with either, and the acts of violence to which this inflammatory language has in the present instance led. 8. That many persons conscientiously disapprove of the measure respecting rebellion losses in Lower Canada which has been introduced by the Government, and which the local Parliament has passed by large majorities, and that in the minds of others it stirs national antipathies and recollections of former conflicts, which designing politicians seek to im- prove to their own selfish ends, cannot I fear, be doubted. It is therefore emphatically a measure which should have been approached with calmness and caution, by all at least who are not directly interested in the issue. Unfortunately, however, this has been by no means the case. Not only have appeals to passion of the most reckless description proceeded from the local press, but they have received encouragement from quarters from which they had little right to look for it. Passages such as the following, in which a London journal of influence treats of the British population as affected by the measure in question : "They are tolerably able to take "care of themselves, and we very much misconstrue the tone adopted by the "English press and English public in the province if they do not find some "means of resisting the heavy blow and great discouragement which is "aimed at them," are read with avidity, and construed to mean that sym- pathy will be extended from influential quarters at home to those who seek to annul the obnoxious decision of the local Legislature, whatever be the means to which they resort for the attainment of that end. 9. The scenes by which the city of Montreal has been lately disgraced, are the natural fruits of an agitation of this character, operating on a people of excitable temper, who have been taught to believe that a race which they despise, and over which they have been wont to exercise do- minion, has obtained through the operation of a constitutional system an authority which it could not otherwise have acquired. Hence, more especially, their vehement indignation against me personally, and the con- viction, in many cases I doubt not perfectly sincere, that I have been guilty of a serious dereliction of duty because I have not, as my predecessors have often done before me, consented to place myself in the front of an agitation to counteract the policy of Parliament. The nature of the con- stitutional doctrines which practically obtain in this section of the com- munity is curiously exemplified by the fact, that it is not the passage of the Bill by an overwhelming majority of the representatives of the people, or the acquiescence of the Council, but the consent of the Governor which furnishes the pretext for an exhibition of popular violence. 10. When I left the House of Parliament after giving the Royal Assent to several Bills, to which I have referred, I was received witn mingled cheers and hootings by a crowd by no means numerous which sur- rounded the entrance to the building. A small knot of individuals consist- ing, it has since been ascertained, of persons of a respectable class in society pelted the carriage with missiles which they must have brought with them for the purpose. Within an hour after this occurrence, a notice, of which I enclose a copy, issued from one of the newspaper offices, calling a meeting in the open air. At the meeting inflammatory speeches were made. 582 Constitutional Documents of Canada. [1840-1867 On a sudden, whether under the effect of momentary excitement, or in pursuance of a plan arranged beforehand, the mob proceeded to the House of Parliament where the members were still sitting, and breaking the win- dows set fire to the building and burned it to the ground. By this wanton act public property of considerable value, including two excellent libraries, has been utterly destroyed. Having achieved their object the crowd dis- persed, apparently satisfied with what they had done. The members were permitted to retire unmolested, and no resistance was offered to the mili- tary who appeared on the ground after a brief interval, to restore order, and aid in extinguishing the flames. During the two following days a good deal of excitement prevailed in the streets, and some further acts of incendiarism were perpetrated. Since then the military force has been increased, and the leaders of the disaffected party have shown a disposition to restrain their followers, and to direct their energies towards the more constitutional object of petitioning the Queen for my recall, and the dis- allowance of the obnoxious Bill. The proceedings of the House of Assem- bly will also tend to awe the turbulent. I trust, therefore, that the peace of the city will not be again disturbed. The newspapers which I enclose contain full, and I believe pretty accurate, accounts of all that has occurred since Wednesday last. 11. The Ministry are blamed for not having made adequate provision against these disasters ; that they by no means expected that the hostility to the Rebellion Losses Bill would have displayed itself in the outrages which have been perpetrated during the last few weeks is certain. Perhaps sufficient attention was not paid by them to the menaces of the opposition press. It must be admitted, however, that their position was one of con- siderable difficulty. The civil force of Montreal a city containing about 50,000 inhabitants of different races, with secret societies and other agencies of mischief in constant activity consists of two policemen under the authority of the Government, and seventy appointed by the Corporation. To oppose, therefore, effectual resistance to any considerable mob, recourse must be had in all cases either to the military or to a force of civilians enrolled for the occasion. Grave objections, however, presented them- selves in the present instance to the adoption of either of these courses until the disposition to tumult on the part of the populace unhappily mani- fested itself in overt acts. More especially was it of importance to avoid any measure which might have had a tendency to produce a collision be- tween parties on a question on which their feelings were so strongly ex- cited. The result of the course pursued is, that there has been no blood- shed, and, except in the case of some of the ministers themselves, no destruction of private property. 12. The proceedings in the Assembly have been important. I enclose the copy of an address which has been voted to me by a majority of 36 to 16, expressive of abhorrence at the outrages which have taken place in the city of Montreal, of loyalty to the Queen, and approval of my just and impartial administration of the Government with my late as well as my present advisers. Some of the opposition approve of the course which 1 have taken with respect to the Rebellion Losses Bill, as appears from the speeches of Messrs. Wilson and Gait, of which reports are given in the newspapers which I enclose. Mr. Wilson is an influential member of the Upper Canada conservative party, and Mr. Gait's views are the more im- portant, because he has been returned to Parliament only a few days ago by a Lower Canadian constituency which comprises a large British popu- lation. Generally, however, as the amendments they have moved to the address show, they desire to avoid committing themselves on this point. The votes against the Address may be thus classed : Sir A. M'Nab and his party; my late ministers and their party; and Mr. Papineau. The first acts with perfect consistency in voting as he has done on this question ; for he has always contended that government conducted on British prin- ciples is unsuited to Canada. The course of the second class is less intel- ligible; for, until the day on which they resigned their offices into my hands, they uniformly expressed approval of the principles on which my 1840-1867] Constitutional Documents of Canada. 583 conduct as Governor-General was guided ; and these, as your Lordship well knows, have undergone no change with the change of administration. Mi. Papineau's vote conveys a useful lesson which will not, I trust, be lost on persons who had been induced to believe that the persecution of which I am now the object is really attributable to my having shown undue lenity to those who were led by him into rebellion. 13. I have now furnished your Lordship with as clear a statement of these important occurrences as I can give, and I can conclude by assuring you that the city is perfectly tranquil, and that there is no present likeli- hood of a renewal of disturbances. A few days will show what echo the proceedings of the violent party awaken in Upper Canada, and to what extent they are followed by reaction. Meanwhile it is my firm conviction that if this dictation be submitted to, the government of this province by constitutional means will be impossible, and that the struggle between overbearing minorities, backed by force, and majorities resting on legality and established forms, which has so long proved the bane of Canada, driving capital from the province, and producing a state of chronic dis- content, will be perpetuated. At the same time, I think that if I am unable to recover that position of dignified neutrality between contending parties which it has been my unremitting study to maintain, and from which I would appear to have been for the moment driven not, as I firmly be- lieve, through any fault of my own, but by the unreasoning violence of faction it may be a question with your Lordship whether it would not be for the interests of Her Majesty's service that I should be removed from my high office to make way for one who should not indeed hold views at variance with mine with respect to the duties of a constitutional Governor, but who should have the advantage of being personally unobnoxious to any section of Her Majesty's subjects within the province. I have, etc., ELGIN AND KINCARDINE. CLXVI ELGIN TO EARL GREY [Trans. : T. Walrond, op. cit.] Toronto, March 23, 1850. Lord John's speech 1 on the colonies seems to have been eminently successful at home. It is calculated, too, I think, to do good in the colo- nies; but for one sentence, the introduction of which I deeply implore the sting in the tail. Alas for that sting in the tail! I much fear that when the liberal and enlightened sentiments, the enunciation of which by one so high in authority is so well calculated to make the colonists sensible of the advantages which they derive from their connection with Great Britain, shall have passed away from their memories, there will not be wanting those who will remind them that, on this solemn occasion, the Prime Minister of England, amid the plaudits of a full senate, declared that he looked forward to the day when the ties which he was endeavouring to render so easy and mutually advantageous would be severed. And wherefore this foreboding? or, perhaps, I ought not to use the term fore- boding, for really to judge by the comments of the press on this declara- tion of Lord John's, I should be led to imagine that the prospect of these sucking democracies, after they have drained their old mother's life-blood, leaving her in the lurch, and setting up as rivals, just at the time when their increasing strength might render them a support instead of a burden, is one of the most cheering which has of late presented itself to the English imagination. But wherefore then this anticipaiton if foreboding be not 1 On February 8, 1850, Lord John Russell delivered a speech in the House of Commons in which he anticipated colonial independence, and stated that in making the colonies fit for such an event England would "have the consolation of Baying that [she had] contributed to the happiness of the world." 584 Constitutional Documents of Canada. [1840-1867 the correct term? Because Lord John and the people of England persist in assuming that the Colonial relation is incompatible with maturity and full development. And is this really so incontestable a truth that it is a duty not only to hold but to proclaim it? Consider for a moment what is the effect of proclaiming it in our case. We have on this continent two great empires in presence, or rather, I should say, two great Imperial systems. In many respects there is much similarity between them. In so far as powers of self-government are concerned it is certain that our colonists in America have no reason to envy the citizens of any state in the Union. The forms differ, but it may be shown that practically the inhabit- ants of Canada have a greater power in controlling their own destiny than those of Michigan or New York, who must tolerate a tariff imposed by twenty other states, and pay the expenses of war undertaken for objects which they profess to abhor. And yet there is a difference between the two cases; a difference, in my humble judgment, of sentiment rather than substance, which renders the one a system of life and strength, and the other a system of death and decay. No matter how raw and rude a terri- tory may be when it is admitted as a state into the Union of the United States, it is at once, by the popular belief, invested with all the dignity of manhood, and introduced into a system which, despite the cpmbativeness of certain ardent spirits from the South, every American believes and main- tains to be immortal. But how does the case stand with us? No matter how great the advance of a British colony in wealth and civilisation; no matter how absolute the powers of self-government conceded to it, it is still taught to believe that it is in a condition of pupilage from which it must pass before it can attain maturity. For one, I have never been able to comprehend why, elastic as our constitutional system is, we should not be able, now more especially when we have ceased to control the trade of our colonies, to render the links which bind them to the British Crown at least as lasting as those which unite the component parts of the Union. . . .... One thing is, however, indispensable to the success of this or any other system of Colonial Government. You must renounce the habit oi telling the Colonies that the Colonial is a provisional existence. You must allow them to believe that, without severing the bonds which unite them to Great Britain, they may attain the degree of perfection, and of social and political development, to which organised communities of free men have a right to aspire. Since I began this letter I have, I regret to say, confirmatory evidence of the justice of the anticipations I had formed of the probable effect of Lord John's declaration. I enclose extracts from two newspapers, an annexationist, the Herald of Montreal, and a quasi annexationist, the Mirror of Toronto. You will note the use they make of it. I was more annoyed, however, I confess, by what occurred yesterday in Council. We had to determine whether or not to dismiss from his offices a gentleman who is both M.P.P., Q.C., and J.P., and who has issued a flaming manifesto in favour, not of annexation, but of an immediate declaration of independ- ence as a step to it. I will not say anything of my own opinion on the case, but it was generally contended by the members of the Board, that it would be impossible to maintain that persons who had declared their intention to throw off their allegiance to the Queen, with a view to annexation, were unfit to retain offices granted during pleasure, if persons who made a similar declaration with a view to independence were to be differently dealt with. Baldwin had Lord John's speech in his hand. He is a man of singularly placid demeanour, but he has been seriously ill, so possibly his nerves are shaken at any rate I never saw him so much moved. "Have you read the latter part of Lord J. Russell's speech?" he said to me. I nodded assent. "For myself," he added, "if the anticipations therein ex- pressed prove to be well founded, my interest in public affairs is gone for "ever. But is it not hard upon us while we are labouring, through good "and evil report, to thwart the designs of those who would dismember the "Empire, that our adversaries should be informed that the difference be- "tween them and the Prime Minister of England is only one of time? 1840-1867] Constitutional Documents of Canada. 585 "If the British Government has really come to the conclusion that we are a "burden to be cast off whenever a favourable opportunity offers, surely "we ought to be warned." I replied that while I regretted as much as he could do the paragraph to which he referred, I thought he somewhat mistook its import: that 1 believed no man living was more opposed to the dismemberment of the Empire than Lord J. Russell ; that I did not conceive that he had any inten- tion of deserting the Colonies, or of inviting them to separate from Eng- land ; but that he had in the sentence in question given utterance to a purely speculative, and in my judgment most fallacious, opinion, which was shared, I feared, by very many persons both in England and the Colonies : that I held it to be a perfectly unsound and most dangerous theory, that British Colonies could not attain maturity without separation, and that my interest in labouring with them to bring into full play the principles of Constitu- tional Government in Canada would entirely cease, if I could be persuaded to adopt it. I said all this, I must confess however, not without misgiving, for I could not but be sensible that, in spite of all my allegations to the contrary, my audience was disposed to regard a prediction of this nature, proceeding from a Prime Minister, less as a speculative abstraction than as one of that class of prophecies which work their own fulfilment. I left the Council Chamber disheartened, with the feeling that Lord J. Russell's reference to the manhood of Colonies was more likely to be followed by practical consequences than Lamartine's famous "quand I'heure aura sonne" invocation to oppressed nationalities. It is possible, indeed, that I exag- gerate to myself the probable effects of this declaration. Politicians of the Baldwin stamp, with distinct views and aims, who having struggled to obtain a Government on British principles, desire to preserve it, are not, I fear, very numerous in Canada ; the great mass move on with very inde- finite purposes, and not much inquiring whither they are going. Of one thing, however, I am confident: there cannot be any peace, contentment, progress, or credit in this colony while the idea obtains that the connection with England is a millstone about its neck which should be cast off, as soon as it can be conveniently managed. What man in his senses would invest his money in the public securities of a country where questions affecting the very foundations on which public credit rests are in perpetual agitation ; or would settle in it at all if he could find for his foot a more stable resting-place elsewhere? I may, perhaps, be expressing myself too unreservedly with reference to opinions emanating from a source which I am no less disposed than bound to respect. As I have the means, how- ever, of feeling the pulse of the colonists in this most feverish region, I consider it to be always my duty to furnish you with as faithful a record as possible of our diagnostics. And, after all, may I not with all sub- mission ask, Is not the question at issue a most momentous one? What is it indeed but this: Is the Queen of England to be the Sovereign of an Empire, growing, expanding, strengthening itself from age to age, striking its roots deep into fresh earth and drawing new supplies of vitality from virgin soils? Or is she to be for all essential purposes of might and power, Monarch of Great Britain and Ireland merely her place and that of her line in the world's history determined by the productiveness of 12,(XX square miles of a coal formation, which is being rapidly exhausted, and the duration of the social and political organization over which she pre- sides dependent on the annual expatriation, with a view to its eventual alienization, of the surplus swarms of her born subjects? Lord J. Russell, instead of concluding his excellent speech with a declaration of opinion which, as I read it, and as I fear others will read it, seems to make it a point of honour with the Colonists to prepare for separation, had con- tented himself with resuming the statements already made in its course, with showing that neither the Government nor Parliament could have any object in view in their Colonial policy but the good of the Colonies, and the establishment of the relation between them and the mother-country on the basis of mutual affection ; that, as the idea of maintaining a Colonial Empire for the purpose of exercising dominion or dispensing patronage had 586 Constitutional Documents of Canada. [1840-1867 been for some time abandoned, and that of regarding it as a hot-bed for forcing commerce and manufacturers -more recently renounced, a greater amount of free action and self-government might be conceded to British Colonies without any breach of Imperial Unity or the violation of any principle of Imperial Policy, than had under any scheme yet devised fallen to the lot of the component parts of any Federal or Imperial system; if he had left these great truths to work their effect without hazarding a con- jecture which will, I fear, be received as a suggestion, with respect to the course which certain wayward members of the Imperial family may be expected to take in a contingency still confessedly remote, it would, I venture with great deference to submit, in so far at least as public feeling in the Colonies is concerned, have been safer and better. You draw, I know, a distinction between separation with a view to annexation and separation with a view to independence. You say the former is an act of treason, the latter a natural and legitimate step in progress. There is much plausibility doubtless in this position, but, inde- pendently of the fact that no one advocates independence in these Colonies except as a means to the end, annexation, is it really tenable? If you take your stand on the hypothesis that the Colonial existence is one with which the Colonists ought to rest satisfied, then, I think, you are entitled to denounce, without reserve or measure, those who propose, for some second- ary object, to substitute the Stars and Stripes for the Union Jack. But if, on the contrary, you assume that it is a provisional state, which admits of but a stunted and partial growth, and out of which all communities ought in the course of nature to strive to pass, how can you refuse to permit your colonies here, when they have arrived at the proper stage in their existence, to place themselves in a condition which is at once most favour- able to their security and to their perfect national development? What reasons can you assign for the refusal, except such as are founded on selfishness, and are, therefore, morally worthless? If you say that your great lubberly boy is too big for the nursery, and that you have no other room for him in your house, how can you decline to allow him to lodge with his elder brethren over the way, when the attempt to keep up an establishment for himself would seriously embarrass him? CLXVII ELGIN TO EARL GREY. [Trans. : T. Walrond, op. cit.] Toronto, November 1, 1850. Sir H. Bulwer spent four days with us, and for many reasons I am glad that he has been here. He leaves us knowing more of Canada than he did when he came. I think too that both he and Sir E. Head return to their homes re-assured on many points of our internal policy, on which they felt doubtful before, and much enlightened as to the real position of men and things in this province. With one important truth I have laboured to impress them, and 1 hope successfully. It is this: that the faithful carrying out of the principles of Constitutional Government is a departure from the American model, not an approximation to it, and, therefore, a departure from republicanism in its only workable shape. Of the soundness of this view of our case I entertain no doubt whatever ; and though I meet with few persons to whom it seems to have occurred (for the common belief of superficial observers is that we are republicanising the colonies), I seldom fail in bringing it home to the understanding of any intelligent person with whom I have occasion to discuss it. The fact is, that the American system is our old Colonial system with, in certain cases, the principle of popular election substituted for that of nomination by the Crown. Mr. Filmore stands to 1840-1867] Constitutional Documents of Canada. 587 his Congress very much in the same relation in which I stood to my Assembly in Jamaica. There is the same absence of effective responsibility in the conduct of legislation, the same want of concurrent action between the parts of the political machine. The whole business of legislation in the American Congress, as well as in the State Legislatures, is conducted in the manner in which railway business was conducted in the House of Commons at a time when it is to be feared that, notwithstanding the high standard of honour in the British Parliament, there was a good deal of jobbing. For instance, our Reciprocity measure was pressed by us at Washington last session, just as a Railway Bill in 1845 or 1846 would have been pressed in Parliament. There was no Government to deal with. The interests of the Union, as a whole and distinct from local and sectional interests, had no organ in the representative bodies ; it was all a question of canvassing this member of Congress or the other. It is easy to perceive that, under such a system, jobbing must become not the exception but the rule. Now I feel very strongly, that when a people have been once thoroughly accustomed to the working of such a Parliamentary system as ours, they never will consent to revert to this clumsy irresponsible mechanism. Whether we shall be able to carry on the war here long enough to allovv the practice of Constitutional Government and the habits of mind which it engenders to take root in these provinces, may be doubtful. But it may be worth your while to consider whether these views do not throw some light on affairs in Europe. If you part with constitutional monarchies there, you may possibly get something much more democratic ; but you cannot, I am confident, get American republicanism. It is the fashion to say, "of course not ; we cannot get their federal system ;" but this is not the only reason, there are others that lie deeper. Look at France, where they are trying to jumble up the two things, a head of the State responsible to the people who elect him, and a ministry responsible to the Government. CLXVIII ELGIN TO EARL GREY [Trans. : T. Walrond, op. cit.'\ Toronto, December 17, 1850. Although, as you observe, it seems to be rather idle in us to corres- pond on what may be termed speculative questions, when we have so much pressing business on hand, I venture to say a few words in reply to your letter of the 23rd ult, firstly, because I presume to dissent from some of the opinions which you advance in it; and, secondly, because I have a practical object of no small importance in view in calling your attention to the contrasts which present themselves in the working of our institutions and those of our neighbours in the States. My practical object is this when you concede to the Colonists Constitutional Government in its in- tegrity, you are reproached with leading them to Republicanism and the American Union. The same reproach is hurled with anathemas against your humble servant. Lord Stanley, if I rightly remember, in the debate on Ryland's case last year, stated amid cheers, that if you were in the habit of consulting the ministers of the Crown in the Colony before you placed persons on the colonial pension list, he had no hesitation m saying you had already established a republic in Canada ! Now, I believe, on the contrary, that it may be demonstrated that the concession of Constitu- tional Government has a tendency to draw the Colonists the other way; firsly because it slakes that thirst for self-government which seizes on all British communities when they approach maturity ; and, secondly, because it habituates the Colonists to the working of a political mechanism, whith is both intrinsically superior to that of the Americans, and more unlike < than our old Colonial system. 588 Constitutional Documents of Canada. [1840-1867 Adopting, however^ the views with respect to the superiority of the machanism of our political system to that of our neighbours, which I have ventured to urge, you proceed to argue that the remedy is in their hands; that without abandoning their republicanism they and their confreres in France have nothing to do but to dismiss their Presidents and to substitute our constitution without a King, the body without the head, for their own, to get rid of the inconveniences which they now experience ; and you quote with approbation, as an embodiment of this idea, the project submitted bv M. Grevy and the Red Republicans to the French Constituent Assembly. Now here I confess I cannot go along with you, and the difference be- tween us is a very material one; for if the monarch be not an indispens- able element in our constitutional mechanism, and if we can secure all the advantages of that mechanism without him, I have drawn the wrong moral from the facts. You say that the system the Red Republicans would have established in France would have been the nearest possible approach to pur own. It is possible, I think, that we may be tending towards the like issues. It is possible, perhaps probably, that as the House of Commons becomes more democratic in its composition, and consequently more arro- gant in its bearing, it may cast off the shackles which the other powers of the State impose on its self-will, and even utterly abolish them ; but I ven- ture to believe that those who last till that day comes, will find that they are living under a very different constitution from that which we now enjoy; that they have traversed the interval which separates a temperate and cautious administration of public affairs resting on the balance of powers and interests, from a reckless and overbearing tyranny based on the caprices and passions of an absolute and irresponsible body. You talk somewhat lightly of the check of the Crown, although you acknowledge its utility. But is it indeed so light a matter, even as our constitution now works? Is it a light matter that the Crown should have the power of dis- solving Parliament; in other words, of deposing the tyrant at will? Is it a light matter that for several months in each year the House of Commons should be in abeyance, during which period the nation looks on Ministers not as slaves of Parliament, but servants of the Crown? Is it a light mat- ter that there should still be such respect for the monarchical principle, that the servants of that visible entity yclept the Crown are enabled to carry on much of the details of internal and foreign administration with- out consulting Parliament, and even without its cognisance? Or do you suppose that the Red Republicans, when they advocated the nomination of a Ministry of the House of Assembly with a revocable mandat, intended to create a Frankenstein endowed with powers in some cases paramount to, and in others running parallel with, the authority of the omnipotent botfv to which it owed its existence? My own impression is, that they meant a set of delegates to be appointed, who should exercise certain functions of legislative initiation and executive patronage so long as they reflected clearly, in the former the passions, and in the latter the interests of the majority for the time being, and no longer. It appears to me, I must confess, that if you have a republican form of government in a great country, with complicated internal and external relations, you must either separate the executive and legislative ^depart- ments, as in the United States, or submit to a tyranny of the majority, not the more tolerable because it is capricious and wielded by a tyrant with many heads. Of the two evils I prefer the former. Consider, for a moment, how much more violent the proceedings of majorities in the American Legislatures would be, how much more reckless the appeals to popular passion, how much more frequently the permanent interests of the nation and the rights of individuals and classes would be sacrificed to the object of raising political capital for present uses, if de- bates or discussions affected the tenure of office. I have no idea that the executive and legislative departments of the State can be made to work together with a sufficient degree of harmony to give the maximum of strength and of mutual independence to secure freedom and the rights of minorities, except under the presidency of Monarchy, the moral influence 1840-1867] Constitutional Documents of Canada. 589 of which, so long as a nation is monarchical in its sentiments, cannot, of course, be measured merely by its recognized power. CLXIX ELGIN TO MR. GUMMING BRUCE [Trans.: T. Walrond, op. cit.] September, 1852. As "respects the matter of the report 1 , I am disposed to believe that, viewing the question with reference to personal interests exclusively, my removal from hence would not be any disadvantage to me. But, as to my work here, there is the rub. Is it to be all undone? On this point I must speak frankly. I have been possessed (I use the word advisedly, for I fear that most persons in England still consider it a case of possession) with the idea that it is possible to maintain on this soil of North America, and in the face of Republican America, British connection and British institu- tions, if you give the latter freely and trustingly. Faith, when it is sincere, is always catching; and I have imparted this faith, more or less thoroughly to all Canadian statesmen with whom I have been in official relationship since 1848, and to all intelligent Englishmen with whom I have come in contact since 1850 as witness Lord Wharncliffe, Waldegrave Tremenheere, etc., etc. Now if the Governor ceases to posses this faith, or to have the faculty of imparting it, I confess I fear that, ere long, it will become extinct in other breasts likewise. I believe that it is equally an error to imagine with one old-fashioned party, that you can govern such depend- encies as this on the antiquated bureaucratic principle, by means of re- scripts from Downing Street, in defiance of the popular legislatures, and on the hypothesis that one local faction monopolises all the loyalty of the Colony; and to suppose with the Radicals that all is done when you have simply told the colonists "To go to the devil their own way." I believe, on the contrary, that there is more room for the exercise of influence on the part of the Governor under my system than under any that ever was be- fore devised; an influence, however, wholly moral an influence of suasion, sympathy, and moderation, which softens the temper while it elevates the aims of local politics. It is true that on certain questions of public policy, especially with regard to Church matters, views are propounded by my ministers which do not exactly square with my pre-conceived opinions, and which I acquiesce in, so long as they do not contravene the fundamental principles of morality, from a conviction that they are in accordance with the general sentiments of the community. It is true that I do not seek the commendation bestowed on Sir F. Head for bringing men into his councils from the Liberal party, and telling them that they should enjoy only a partial confidence; thereby allowing them to retain their position as tribunes of the people in conjunction with the prestige of advisers of the Crown by enabling them to shirk responsi- bility for any acts of government which are unpopular. It is true that I have always said to my advisers, "while you continue my advisers you shall enjoy my unreserved confidence; and en revanche you shall be responsible for all acts of government." But it is no less certain that there is not one of them who does not know that no inducement on earth would prevail with me to bring me to acquiesce in any measure which seemed to me repugnant to public morals, or Imperial interests; and I must say that, far from finding in my advisers a desire to entrap me into proceedings of which I might disapprove. I find a tendency constantly increasing to attach the utmost value to my opinion on all questions, local or general, that arise. 1 i.e. Lord Elgin's rumoured recall by the new ministry under Lord Derby. 590 Constitutional Documents of Canada. [1840-1867 CLXX ELGIN TO THE 'DUKE OF NEWCASTLE [Trans. : T. Walrond, op. cit.] Quebec, February 18, 1853. Now that the bonds formed by commercial protection and the disposal of local offices are severed, it is very desirable that the prerogative of the Crown, as the fountain of honour, should be employed, in so far as this can properly be done, as a means of attaching the outlying parts of the empire to the throne. Of the soundness of this proposition as a general principle no doubt can, I presume, be entertained. It is not, indeed, always easy to apply it in these communities, where fortunes are precarious, the social system so much based on equality, and public services so generally mixed up with party conflicts. But it should never, in my opinion, be lost sight of, and advantage should be taken of all favourable opportunities to act upon it. There are two principles which ought, I think, as a general rule to be attended to in the distribution of Imperial honours among colonists. First- ly, they should appear to emanate directly from the Crown, on the advice, if you will, of the Governors and Imperial Ministers, but not on the recom- mendation of the local executives. And, secondly, they should be con- ferred, as much as possible, on the eminent persons who are no longer actively engaged in political life. If these principles be neglected, such dis- tinctions will, I fear, soon lose their value. CLXXI ELGIN TO THE DUKE OF NEWCASTLE. [Trans. : T. Walrond, op. cit.] March 26, 1853. It is argued that, by the severance of the connection, British states- men would be relieved of an onerous responsibility for colonial acts of which they cannot otherwise rid themselves. Is there not, however, some fallacy in this? If by conceding absolute independence the British Parlia- ment can acquit itself of the obligation to impose its will upon the Colon- ists, in the matter, for instance, of a Church Establishment, can it not attain the same end by declaring that, as respects such local questions, the Colonists are free to judge for themselves? How can it be justifiable to adopt the former of these expedients, and sacriligious to act upon the lat- ter? The true policy, in my humble judgment, is to throw the whole weight of responsibility on those who exercise the real power, for, after all, the sense of responsibility is the best security against the abuse of power; and, as respects the connection, to act and speak on this hypothesis that there is nothing in it to check the development of healthy national life, in these young communities. I believe that this policy will be found to be not only the safest, but also (an important consideration in these days) the most economical. 1840-1867] Constitutional Documents of Canada. 591 CLXXII ELGIN TO THE COLONIAL SECRETARY, SIR GEORGE GREY [Trans. : T. Walrond, op. cit.] Quebec, December 18, 1854. I readily admit that the maintenance of the position and due influence of the Governor is one of the most critical problems that have to be solved in the adaptation of Parliamentary Government to the Colonial system : and that it is difficult to over-estimate the importance which attaches to its satisfactory solution. As the Imperial Government and Parliament gradually withdraw from legislative interference, and from the exercise of patronage in Colonial affairs, the office of Governor tends to become, in the most emphatic sense of the term, the link which connects the Mother Country and the Colony, and his influence the means by which harmony of action between the local and Imperial authorities is to be preserved. It is not, however, in my humble judgment, by evincing an axious desire to stretch to the utmost constitutional principles in his favour, but, on the contrary, by the frank acceptance of the conditions of the Parliamentry system, that this influence can be most surely extended and confirmed. Placed by his position above the strife of parties holding office by a tenure less precarious than the ministers who surround him having no political interests to serve but that of the community whose affairs he is appointed to administer his opinion cannot fail, when all cause for suspi- cion and jealousy is, removed, to have great weight in the Colonial Councils, while he is set at liberty to constitute himself in an especial manner the patron of those larger and higher interests such interests, for example, as those of education, and of moral and material progress in all its branches which, unlike the contests of party, unite instead of dividing the members of the body politic. The mention of such influences as an appre- ciable force in the administration of public affairs may provoke a sneer on the part of persons who have no faith in any appeal which is not addressed to the lowest motives of human conduct; but those who have juster views of our common nature, and who have seen influences that are purely moral wielded with judgment, will not be disposed to deny to them a high degree of efficacy. CLXXIII THE UNION ACT AMENDMENT ACT, 1848 (11 & 12 Victoria, c. 56.) An Act to repeal so much of an Act of the Third and Fourth Years of Her present Majesty, to re-unite the Provinces of Upper and Lower Canada, as relates to the use of the English Language in Instruments relating to the Legislative Council and Legislative Assembly of the Province of Canada. 14th August, 1848. Whereas by an Act 1 past in the session of Parliament held in the 3 and 4 Vict third and fourth years of Her Present Majesty, intituled "An Act to re-c.35. unite the Provinces of Upper and Lower Canada, and for the Government of Canada," it is amongst other things enacted that from and after the said reunion of the said two Provinces, all writs, proclamations, instruments for summoning and calling together the Legislative Council and Legisla- tive Assembly of the Province of Canada, and for prorguing and dissolv- ing the same, and all writs of summons and elections, and all writs and public instruments whatsoever relating to the said Legislative Council and Legislative Assembly, or either of them, and all returns to such writs and instruments, and all journals, entries, and written or printed proceedings, 1 See No. CLIII. 592 Constitutional Documents of Canada. [1840-1867 of what nature soever, of the said Legislative Council and Legislative Assembly, and of each of them respectively, and all written or printed pro- ceedings and reports of Committees of the said Legislative Council and Legislative Assembly respectively, shall be in the English language only : Provided always that the said enactment shall not be construed to prevent translated copies of any such documents being made, but no such copy should be kept among the records of the Legislative Council or Legislative Assembly, or be deemed in any case to have the force of an original record : And whereas it is expedient to alter the law in this respect, in order that the Legislature of the Province of Canada, or the said Legisla- tive Council and Legislative Assembly respectively, may have power to make such regulations herein as to them may seem advisable : Be it there- So much of f r enacted by the Queen's most excellent Majesty, by and with the advice recited Act as and consent of the Lords Spiritual and Temporal, and Commons, in this enacts that all present Parliament assembled, and by the authority of the same, that from shalf'be in an( * after the passing of this Act so much of the said recited Act as is English, hereinbefore recited shall be repealed. 1 repealed. II, And be it enacted that this Act, or any part thereof, may be re- Act may be pealed, altered, or varied at any time during the present session of Par- amended, etc. liament. CLXXIV THE UNION ACT AMENDMENT ACT 3 , 1854 (17 & 18 Victoria, c. 118.) An Act to empower the Legislature of Canada to alter the Constitution oj the Legislative Council for that Province, and for other purposes. llth August, 1854. Whereas an Act 3 of the session of Parliament holden in the third and fourth years of her Majesty, chapter thirty-five, "to reunite the Provinces of Upper and Lower Canada, and for the Government of Canada," pro- vides amongst other things for the establishment of a Legislative Council in the Province of Canada, consisting of members summoned thereto by the Governor, under the authority of her Majesty as therein specified : And whereas it is expedient that the Legislature of the said Province should be empowered to alter the constitution of the said Legislative Coun- cil : And whereas the said Act requires amendment in other respects : Be it enacted by the Queen's most excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows : Power to the I. it shall be lawful for the Legislature of Canada, by any Act or Canada "o* Acts to be hereinafter for that purpose passed, to alter the manner of corn- alter the posing the Legislative Council of the said Province, and to make it consist Constitution of such number of members appointed or to be appointed or elected by lative Council. i This repea i was due to the fact that the Speaker of the Canadian House of Assembly (1854-5) found himself compelled under the Act of Union, Section 41, to re- fuse a motion written in French. As a result of this refusal an address was sent to England praying for repeal. Gladstone replied, saying that the address would be fav- ourably received (3 February, 1846), and this Act was accordingly passed without pro- test, except from Lord Stanley in the House of Lords, who said that the official recog- nition of French which would follow would constitute "a permanent barrier between two portions of the country." Elgin, who favoured the use of French, announced the repeal of section 41 of the Act of Union to the Canadian Parliament on January 18, 1849. (See inter alia, Journals of the House of Assembly of Canada; Hansard, Vol. C (III Series); Bourinot's Life of Elgin). This Imperial Statute did much to allay the fear of the French-Canadians, who had not forgotten Lord Durham's suggestion that the future should contain a gradual effort "to establish an English population with English laws and language. . . .and to trust government to none but a decidedly English legislature." 2 This Act was passed in response to an address from the Canadian House of Assembly (see Journals, 1853, and Hansard, Vol. CXXXIV, III Series). An Act was passed in 1856 by the Canadian Legislature, providing for an elective Legislative Council. No. CLIII. 1840-1867] Constitutional Documents of Canada. 593 such persons and in such manner as to the said Legislature may seem fit, and to fix the qualifications of the persons capable of being so appointed or elected, and by such Act or Acts to make provision, if they shall think fit, for the separate dissolution, by the Governor of the said Legislative Council and Legislative Assembly respectively, and for the purposes afore- said to vary and repeal in such manner as to them may seem fit all or any of the sections of the said recited Act, and of any other Act of Parliament now in force, which relate to the constitution of the Legislative Council of Canada: Provided always that any bill or bills which shall be passed by the present Legislative Council and Assembly of Canada for all or any of the purposes aforesaid shall be reserved by tjie said Governor, unless he think fit to withhold her Majesty's assent thereto, for the signification of her Majesty's pleasure, and shall be subject to the enactments of the said recited Act of the third and fourth years of her Majesty, chapter thirty- five, section thirty-nine, which relate to bills so reserved for the significa- tion of her Majesty's pleasure. II. As soon as the constitution of the Legislative Council Provisions of of the Province of Canada shall have been altered under such Act of^rHament or Acts so assented to by her Majesty as aforesaid, all provisions of the toapp iyto said recited Act of Parliament of the third and fourth years of her Ma- the new Legis- jesty, chapter thirty-five, and of any other Act of Parliament now in force latlve Counci! - relating to the Legislative Council of Canada, shall be held to apply to the Legislative Council of Canada so altered, except so far as such provisions may have been varied or repealed by such Act or Acts of the Legislature of Canada so assented to as aforesafd. III. It shall be lawful for the Legislature of Canada from time to ^.f^f* of time to vary and _ repeal all or any of the provisions of the Act or Acts varyAct? altering the constitution of the said Legislative Council: Provided always, constituting that any bill for any such purpose, which shall vary the qualification off he . ne ] **;?" 11 i , r ec f L MI iL. i lative Council ; councillors, or the duration of office of such councillors, or the power of the Governor to dissolve the Council or Assembly, shall be reserved by the Governor for the signification of her Majesty's pleasure in manner afore- said. IV. It shall be lawful for the Legislature of Canada, by any Act 01 1^*?' Acts reserved for the signification of her Majesty's pleasure, and whereto per ' t 'y qualinca- her Majesty shall have assented as hereinbefore provided, to vary or repeal tion of mem- any of the provisions of the recited Act of Parliament of the third and e fourth years of her Majesty, which relate to the property qualification of members of the Legislative Assembly. _ V. So much of the twenty-sixth section of the said recited Act of Parliament as provides that it shall not be lawful to present to the Cover- 3 a nd 4 Viet., nor of the Province of Canada, for her Majesty's assent, any bill of the c. 35, repealed. Legislative Council and Assembly of the said Province by which the num- ber of representatives in the Legislative Assembly may be altered unless the second and third readings of such bill in the Legislative Council and Legislative Assembly shall have been passed with the concurrence of two- thirds of the members for the time being of the said Legislative Council, and of two-thirds of the members for the time being of the said Legisla- tive Assembly respectively, and that the assent of her Majesty shall not be given to any such bill unless addresses shall have been presented by the Legislative Council and the Legislative Assembly respectively t& the Gover- nor stating that such bill has been so passed, is hereby repealed. VI. The forty-second section of the said recited Act of Parliament, providing that in certain cases Bills of the Legislative Council and Assem- c . 35, repealed. bly of Canada shall be laid before both Houses of Parliament of the United Kingdom, is hereby repealed ; and notwithstanding anything in the said Act of Parliament, or in any other Act of Parliament contained, it shall be lawful for the Governor to declare that he assents in her Majesty s name to any bill of the Legislature of Canada, or for her Majesty to assent to any such bill if reserved for the signification of her pleasure thereon although such bill shall not have been laid before the said Houses of Par- liament ; and no Act heretofore passed, or to be passed by the Legislature 594 Constitutional Documents of Canada. [1840-1867 of Canada shall be held invalid or ineffectual by reason of the same not having been laid before the said Houses, or by reason of the Legislative Council and Assembly not having presented to the Governor such address as by the said Act of Parliament is required. *' J iat m ^ s ^ ct ^ e w ? r< * "Governor" is to be understood as comprehending the Governor and in his absence the Lieutenant-Governor, or person authorized to execute the office or the functions of the Governor of Canada. CLXXV THE UNION ACT AMENTMENT ACT, 1859 (22 & 23 Victoria, c. 10.) An Act to empower the Legislature of Canada to make laws regulating the appointment of a Speaker of the Legislative Council. 8th August, 1856. 3 and 4 Viet. Whereas by an Act 1 passed in the Session of Parliament holden in the c. 35. ' third and fourth years of Her Majesty, chapter thirty-five, "to re-unite the Provinces of Upper and Lower Canada, and for the Government of Can- ada," it is amongst other things provided that the Governor of the Pro- vince of Canada shall have power and authority, from time to time, by an instrument under the Great Seal of the said Province, to appoint one mem- ber of the said Legislative Council to be Speaker of the said Legislative Council, and to remove him and appoint another in his stead: And, whereas Viet c. 118. by an Act 2 P as sed in the Session of Parliament holden in the seventeenth and eighteenth years of Her Majesty, chapter one hundred and eighteen, "to empower the Legislature of Canada to alter the constitution of the Legislative Council for that Province, and for other purposes," power was given to the Legislature of Canada to alter the manner of composing the Legislative Council for that Province, and to make it consist of such num- ber of persons appointed, or to be appointed, or elected by such persons and in such manner as to the said Legislature may seem fit, in the manner and subject to the conditions by that Act provided, and for the purpose aforesaid to vary and repeal, in such manner as to them may seem fit, all or any of the provisions of the first-recited Act, and of any other Act of Parliament now in force which relate to the constitution of the Legislative Council of Canada; and it was thereby further enacted, that the Speaker of the Legislative Council should, as theretofore, be appointed by the Gov- ernor: And, whereas the said Legislature, in pursuance of the powers con- ferred on them by the said last-recited Act, have, by an Act of the Province of Canada passed in the Session of the said Legislature holden in the nine- teenth and twentieth years of Her Majesty, "to change the constitution of the Legislative Council by rendering the same elective," provided for the election of members of the said Council, and for the gradual substitution of elective for appointed members thereof : And, whereas doubts have been entertained whether it is lawful for the Legislature of Canada, under the powers given to them by the said last-recited Act of Parliament, to pro- vide for the appointment or election of a Speaker of the Legislative Coun- cil, and it is expedient that such doubts should be removed, be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows: I. It shall be lawful for the Legislature of Canada, by any Act or Acts passed in the manner and subject to the conditions specified in the said last-recited Act of Parliament, to alter the constitution of Ihe Legisla- tive Council of the said Province by providing for the appointment or 1 No. CLIII. 'No. CLXXIV. 1840-1867] Constitutional Documents of Canada. 595 election of a Speaker* of the said Council; and for this purpose to vary and repeal, in such manner as to them may seem fit, so much of the herein- before recited sections of the said Acts of Parliament, and of the provi- sions of the said recited or any other Acts of Parliament as relates to the appointment of such Speaker. CLXXVI COLONIAL HABEAS CORPUS ACT, 1862 (25 & 26 Victoria, c. 20.) An Act respecting the issue of Writs of Habeas Corpus out of England into Her Majesty's Possessions abroad. 16th May, 1862. Whereas it is expedient that writs of Habeas Corpus should not issue out of England into any colony or foreign dominion of the Crown, where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or foreign dominion: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. No 'writ of Habeas Corpus shall issue out of England, by authority Writ not to of any judge or court of justice therein, into any colony or foreign do- JS^"? J tc minion of the Crown, where Her Majesty has a lawfully established court having Court or courts of justice having authority to grant and issue the said writ, and authorized to to ensure the due execution thereof throughout such colony or dominion, s 2. Provided, that nothing in this Act contained shall affect or interfere Not to affect with any right of appeal to Her Majesty in Council now by law existing, right of CLXXVII COLONIAL LAWS VALIDITY ACT, 1865 (28 & 29 Victoria, c. 63.) An Act to remove Doubts as to the Validity of Colonial Laws. 29fh June, 1865. Whereas doubts have been entertained respecting the validity of divers laws enacted, or purporting to be enacted by the Legislatures of certain of Her Majesty's Colonies, and respecting the powers of such Legislatures; and it is expedient that such doubts should be removed : Be it hereby enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. The term "colony" shall in this Act include all of Her Majesty s Definitions: Possessions abroad, in which there shall exist a legislature as hereinafter * defined, except the Channel Islands, the Isle of Man, and such territories as may for the time being be vested in H'er Majesty, under or by virtue of any Act of Parliament for the government of India: The terms "Legislature" and "Colonial Legislature shall severally ^Legislature, 1 signify the authority (other than the Imperial Parliament or Her Majesty ^"{^ .. in Council), competent to make laws for any colony; The term "Representative Legislature" shall signify any ( on 1 In 1860 the Canadian Legislature passed an Act to provide for the election of a ture." Speaker by the Legislative Council. 596 Constitutional Documents of Canada. [1840-1867 "Colonial Law." Act of Par- liament, etc., when to extend to Colony. "Governor." "Letters Patent." Colonial Law Colonial Law when not void for re- pugnancy. Legislature which shall comprise a legislative body of which one-half are elected by inhabitants of the colony; The term "Colonial Law" shall include laws made for any colony, either by such Legislature as aforesaid or by Her Majesty in Council; An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament ; The term "Governor" shall mean the officer lawfully administering the Government of any colony; The term "Letters Patent" shall mean letters patent under the great seal of the United Kingdom of Great Britain and Ireland. 2. Any colonial law, which is or shall be repugnant to the provisions when void for o f anv Act of Parliament extending to the colony to which such law may icy ' relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. 3. No colonial law shall be or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parlia- ment, order, or regulation, as aforesaid. not'void for* ^' ^ co ^ on ' a ^ ^ aw P asg ed with the concurrence of or assented to by inconsistency the Governor of any colony, or to be hereafter so passed or assented to, with instruc- shall be, or be deemed to have been, void or inoperative by reason only of tions - any instructions with reference to such law, or the subject thereof, which may have been given to such Governor, by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instruc- tions may be referred to in such letters patent, or last-mentioned instru- ment. 5. Every colonial Legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judi- cature, and to abolish and reconstitute the same, and to alter the constitu- tion thereof, and to make provision for the administration of justice therein ; and every representative Legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure Representative of such Legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required, by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the colony. 6. The certificate of the clerk or other proper officer of a legislative body in any colony to the effect that the document to which it is attached is a true copy of any colonial law assented to by the Governor of such colony, or of any .bill reserved for the signification of Her Majesty's pleasure by the said Governor, shall be prima facie evidence that the docu- ment so certified is a true copy of such law or bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such bill has been duly and properly passed and presented to the Governor ; and any proclamation, purporting to be published by authority of the Governor, in any newspaper in the colony to which such law or bill shall relate, and signifying Her Majesty's disallowance of any such colonial law, or Her Majesty's assent to any such reserved bill as aforesaid, shall be prima facie evidence of such disallowance or assent. And whereas doubts are entertained respecting the validity of certain Acts enacted, or reputed to be enacted, by the Legislature of South Aus- f t* gi ? lature tralia : be it further enacted as follows: Australia ?. All ' aws P r reputed laws enacted or purporting to have been to be valid. enacted by the said Legislature, or by persons or bodies of persons for Colonial Leg- Courts of Law. Legislature Constitution. Certified that they are properly passed. of assent and disallowance. Certain Acts 1840-1867] Constitutional Documents of Canada. 597 the time being acting as such Legislature, which have received the assent of Her Majesty in Council, or which have received the assent of the Governor of the said Colony in the name and on behalf of Her Majesty, shall be and be deemed to have been valid and effectual from the date of such assent for all purposes whatever; provided that nothing herein con- tained shall be deemed to give effect to any law or reputed law which has been disallowed by Her Majesty, or has expired, or has been lawfully repealed, or to prevent the lawful disallowance or repeal of any law. CLXXVIII DEBATES IN THE CANADIAN PARLIAMENT ON CONFEDERA- TION, 1865 [Trans. : Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec, 1865).] Monday, February 6, 1865. Attorney General Macdonald moved, "That an humble Address be presented to Her Majesty, praying that She may be graciously pleased to cause a measure to be submitted to the Imperial Parliament, for the pur- pose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, in one Government, with pro- visions based on certain Resolutions', which were adopted at a Conference of Delegates from the said Colonies, held at the city of Quebec, on the 10th October, 1864." He said : Mr. Speaker, in fulfilment of the promise made by the Government to Parliament at its last session, I have moved this resolution. I have had the honor of being charged, on behalf of the Government, to submit a scheme for the Confederation of all the British North American Provinces a scheme which has been received, I am glad to say, with general, if not universal, approbation in Canada. The scheme, as propounded through the press, has received almost no opposition. While there may be occasionally, here and there, expressions of dissent from some of the details, yet the scheme as a whole has met with almost uni- versal approval, and the Government has the greatest satisfaction in pre- senting it to this House. This subject, which now absorbs the attention of the .people of Canada, and of the whole of British North America, is not a new one. For years it has more or less attracted the attention of every statesman and politician in these provinces, and has been looked upon by many far-seeing politicians as being eventually the means of de- ciding and settling very many of the vexed questions which have retarded the prosperity of the colonies as a whole, and particularly the prosperity of Canada. The subject was pressed upon the public attention by a great many writers and politicians ; but I believe the attention of the Legislature was first formally called to it by my honorable friend the Minister of Finance 2 . Some years ago, in an elaborate speech, my hon. friend, while an independent member of Parliament, before being connected with any Government, pressed his views on the Legislature at great length and with his usual force. But the subject was not taken up by any party as a branch of their policy, until the formation of the Cartier-Macdonald administration in 1858, when the Confederation of the colonies was announced as one of the measures which they pledged themselves to attempt, if possible, to bring to a satisfactory conclusion. In pursuance of that promise, the letter or despatch, which has been so much and so freely commented upon in the press and in this House, was addressed by three of the members of that Administration to the Colonial Office. The subject, however, though looked upon with favor by the country, and though there were no distinct ex- pressions of opposition to it from any party, did not begin to assume its 1 Printed in Pope, Confederation Documents, pp. 38 ff. (Toronto, 1895). 2 Hon. A. T. Gait. 598 Constitutional Documents of Canada. [1840-1867 present proportions until last session. Then, men of all parties and all shades of politics became alarmed at the aspect of affairs. They found that such was the opposition between the two sections of the province, such was the danger of impending anarchy, in consequence of the irrescon- cilable differences of opinion, with respect to representation by population, between Upper and Lower Canada, that unless some solution of the diffi- culty was arrived at, we would suffer under a succession of weak govern- ments, weak in numerical support, weak in force, and weak in power of doing good. All were alarmed at this state of affairs. We had election after election, we had ministry after ministry, with the same result. Parties were so equally balanced, that the vote of one member might decide the fate of the Administration, and the course of legislation for a year or a series of years. This condition of things was well calculated to arouse the earnest consideration of every lover of his country, and I am happy to say it had that effect. None were more impressed by this momentous state of affairs, and the grave apprehensions that existed of a state of anarchy destroying our credit, destroying our prosperity, destroying our progress, than were the members of this present House; and the leading statesmen on both sides seemed to have come to the common conclusion, that some step must be taken to relieve the country from the dead-lock and impending anarchy that hung over us. With that view my colleague, the President of the Council 1 , made a motion founded on the despatch addressed to the Colonial Minister, to which I have referred, and a committee was struck, composed of gentlemen of both sides of the House, of all shades of political opinion, without any reference to whether they were supporters of the Administration of the day or belonged to the Opposition, for the purpose of taking into calm and full deliberation the evils which threatened the future of Canada. That motion of my honorable friend resulted most happily. The committee, by a wise provision, and in order that each member of the committee might have an opportunity of expressing his opinions without being in any way compromised before the public, or with his party, in regard either to his political friends or to his political foes, agreed that the discussion should be freely entered upon without reference to the political antecedents of any of them, and that they should sit with closed doors, so that they might be able to approach the subject frankly and in a spirit of compromise. The committee included most of the lead- ing members of the House, I had the honor myself to be one of the number, and the result was that there was found an ardent desire a creditable desire, I must say, displayed by all the members of the com- mittee to approach the subject honestly, and to attempt to work out some solution which might relieve Canada from the evils under which she labored. The report of that committee was laid before the House, and then came the political action of the leading men of the two parties in this House, which ended in the formation of the present Government. The principle upon which that Government was formed has been announced, and is known to all. It was formed for the very purpose of carrying out the object which has now received to a certain degree its completion, by the resolutions I have had the honor to place in your hands. As has been stated, it was not without a great deal of difficulty and reluctance that that Government was formed. The gentlemen who compose this Government had for many years been engaged in political hostilities to such an extent that it affected even their social relations. But the crisis was great, the danger was imminent, and the gentlemen who now form the present Administration found it to be their duty to lay aside all personal feelings, to sacrifice in some degree their position, and even to run the risk of having their motives impugned, for the sake of arriving at some conclusion that would be satisfactory to the country in general. The present resolu- tions were the result. And, as I said before, I am proud to believe that the country has sanctioned, as I trust that the representatives of the people in this House will sanction, the scheme which is now submitted for the future government of British North America. Everything seemed to favor 1 Hon. George Brown. 1840-1867] Constitutional Documents of Canada. 599 the project, and everything seemed to shew that the present was the time, if ever, when this great union between all Her Majesty's subjects dwelling in British North America, should be carried out. When the Government was formed, it was felt that the difficulties in the way of effecting a union between all the British North American Colonies were great so great as almost, in the opinion of many, to make it hopeless. And with that view it was the policy of the Government, if they could not succeed in procuring a union between all the British North American Colonies, to attempt to free the country from the dead-lock in which we were placed in Upper and Lower Canada, in consequence of the difference of opinion between the two sections, by having a severance to a certain extent of the present union between the two provinces of Upper and Lower Canada, and the substitution of a Federal Union between them. Most of us, however, I may say, all of us, were agreed and I believe every thinking man will agree- as to the expediency of effecting a union between all the provinces, and the superiority of such a design, if it were only practicable, over the smaller scheme of having a Federal union between Upper and Lower Canada alone. By a happy concurrence of events, the time came when that proposition could be made with a hope of success. By a fortunate coin- cidence the desire for union existed in the Lower Provinces, and a feeling of the necessity of strengthening themselves by collecting together the scattered colonies on the sea-board, had induced them to form a convention of their own for the purpose of effecting a union of the Maritime Provinces of Nova Scotia, New Brunswick, and Prince Edward Island, the legis- latures of those colonies having formally authorized their respective gov- ernments to send a delegation to Prince Edward Island for the purpose or attempting to form a union of some kind. Whether the union should be federal or legislative was not then indicated, but a union of some kind was sought for the purpose of making of themselves one people instead of three. We, ascertaining that they were about to take such a step, and knowing that if we allowed the occasion to pass, if they did indeed break up all their present political organizations and form a new one, it could not be expected that they would again readily destroy the new organiza- tion which they had formed, the union of the three provinces on the sea- board, and form another with Canada. Knowing this, we availed our- selves of the opportunity, and asked if they would receive a deputation from Canada, who would go to meet them at Charlottetown, for the pur- pose of laying before them the advantages of a larger and more extensive union, by the junction of all the provinces in one great government under our common Sovereign. They at once kindly consented to receive and hear us. They did receive us cordially and generously, and asked us to lay our views before them. We did so at some length, and so satisfactory to them were the reasons we gave ; so clearly, in their opinion, did we shew the advantages of the greater union over the lesser, that they at once set aside their own project, and joined heart and hand with us in entering into the larger scheme, and trying to form as far as they and we could, a great nation and a strong government. Encouraged by this arrange- ment, which, however, was altogether unofficial and unauthorized, we re- turned to Quebec, and then the Government of Canada invited the several governments of the sister colonies to send a deputation here from each of them for the purpose of considering the question, with something like authority from their respective governments. The result was, that when we met here on the 10th of October, on the first day on which we assembled, after the full and free discussions which had taken place at Charlottetown, the first resolution now before this House was passed unanimously, being received with acclamation as, in the opinion of every one who heard it, a proposition which ought to receive, and would receive, the sanction of each government and each people. The resolution is, "That the best interests and present and future prosperity of British North America will be pro- moted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several provinces. It seemed to all the statesmen assembled and there are great statesmen 600 Constitutional Documents of Canada. [1840-1867 in the Lower Provinces, men who would do honor to any government and to any legislature of any free country enjoying representative institutions it was clear to them all that the best interests and present and future prosperity of British North America would be promoted by a Federal Union under the Crown of Great Britain. And it seems to me, as to them, and I think it will so appear to the people of this country, that, if we wish to be a great people; if we wish to form using the expression which was sneered at the other evening a great nationality, commanding the respect of the world, able to hold our own against all opponents, and to defend those institutions we prize: if we wish to have one system of government, and to establish a commercial union, with unrestricted free trade, between people of the five provinces, belonging, as they do, to the same nation, obeying the same Sovereign, owning the same allegiance, and being, for the most part of the same blood and lineage: if we wish to be able to afford to each other the means of mutual defence and support against aggression and attack this can only be obtained by a union of some kind between the scattered and weak boundaries composing the British North American Provinces. The very mention of the scheme is fitted to bring with it its own approbation. Supposing that in the spring of the year 1865, half a million of people were coming from the United Kingdom to make Canada their home, although they brought only their strong arms and willing hearts ; though they brought neither skill nor experience nor wealth, would we not receive them with open arms, and hail their presence in Canada as an important addition to our strength? But when, by the proposed union, we not only get nearly a million of people to join us when they contribute not only their numbers, their physical strength, and their desire to benefit their position, but when we know that they consist of old- established communities, having a large amount of realized wealth, com- posed of people possessed of skill, education and experience in the ways of the New World people who are as much Canadians, I may say, as we are people who are imbued with the same feelings of loyalty to the Queen, and the same desire for the continuance of the connection with the Mother Country as we are, and at the same time, have a like feeling of ardent attachment for this, our common country, for which they and we would alike fight and shed our blood, if necessary. When all this is considered, argument is needless to prove the advantage of such a union. There were only three modes. if I may return for a moment to the difficulties with which Canada was surrounded, only three modes that were at all sug- gested, by which the dead-lock in our affairs, the anarchy we dreaded, and the evils which retarded our prosperity, could be met or averted. One was the dissolution of the union between Upper and Lower Canada, leaving them as they were before the union of 1841. I believe that that proposition, by itself had no supporters. It was felt by every one that, although ii was a course that would do away with the sectional difficulties which existed, though it would remove the pressure on the part of the people of Upper Canada for the representation based upon population, and the jealousy of the people of Lower Canada lest their institutions should be attacked and prejudiced by that principle in our representation; yet it was felt, by every thinking man in the province that it would be a retrograde step, which would throw back the country to nearly the same position as it occupied before the union, that it would lower the credit enjoyed by United Canada, that it would be the breaking up of the connection which had existed for nearly a quarter of a century, and, under which, although i had not been completely successful, and had not allayed altogether the local jealousies that had their root in circumstances which arose before the union, our province, as a whole, had nevertheless prospered and in- creased. It was felt that a dissoration of the union would have destroyed all the credit that we had gained by being a united province, and would have left us two weak and ineffective governments, instead of one power- ful and united people. The next mode suggested, was the granting of representation by population. Now, we all know the manner in which that question was and is regarded by Lower Canada ; that while in Upper 1840-1867] Constitutional Documents of Canada. 601 Canada the desire and cry for it was daily augmenting, the resistance to it in Lower Canada was proportionably increasing in strength. Still, if some such means of relieving us from the sectional jealousies which existed between the two Canadas, if some such solution of the difficulties as Con- federation had not been found, the representation by population must eventually have been carried ; no matter though it might have been felt in Lower Canada, as being a breach of the Treaty of Union, no matter how much it might have been felt by the Lower Canadians that it would sacri- fice their local interests, it is certain that in the progress of events repre- sentation by population would have been carried; and, had it been carried I speak here by own individual sentiments I do not think it would have been for the interest of Upper Canada. For though Upper Canada would have felt that it had received what it claimed as a right, and had succeeded in establishing its right, yet it would have left the Lower Province with a sullen feeling of injury and injustice. The Lower Canadians would not have worked cheerfully under such a change of system, but would have ceased to be what they are now a nationality, with representatives in Parliament, governed by general principles, and dividing according to their political opinions and would have been in great danger of becoming a faction, forgetful of national obligations, and only actuated by a desire to defend their own sectional interests, their own laws, and their own institu- tions. The third and only means of solution for our difficulties was the junction of the provinces either in a Federal or a Legislative Union. Now, as regards the comparative advantages of a Legislative and a Federal Union, I have never hesitated to state my own opinions. I have again and again stated in the House, that, if practicable, I thought a Legislative Union would be preferable. I have always contended that if we could agree to have one government and one parliament, legislating for the whole of these peoples, it would be the best, the cheapest, the most vigor- ous, and the strongest system of government we could adopt. But, on looking at the subject in the Conference, and discussing the matter as we did, most unreservedly, and with a desire to arrive at a satisfactory conclu- sion, we found that such a system was impracticable. In the first place, it would not meet the assent of the people of Lower Canada, because they felt that in their peculiar position being in a minority, with a different language, nationality and religion from the majority, in case of a junction with the other provinces, their institutions and their laws might be assailed, and their ancestral associations, on which they prided themselves, attacked and prejudiced; it was found that any proposition which involved the ab sorption of the individuality of Lower Canada if 1 may use the expression would not be received with favor by her people. We found too, that though their people speak the same language and enjoy the same system of law as the people of Upper Canada, a system founded on the common law of England, there was as great a disinclination on the part of the vari- ous Maritime Provinces to lose their individuality, as separate political organization, as we observed in the case of Lower Canada herself. There- fore, we were forced to the conclusion that we must either abandon the idea of Union altogether, or devise a system of union in which the separate provincial organizations would be in some degree preserved. So that those who were, like myself, in favor of a Legislative Union, were obliged to modify their views and accept the project of a Federal Union as the only scheme practicable, even for the Maritime Provinces. Because, although the law of those provinces is founded on the common law of England, yet every one of them has a large amount of law of its own colonial law framed by itself, and affecting every relation of life, such as the laws of property, municipal and assessment laws; laws relating to the liberty of the subject, and to all the great interests contemplated in legislation; we found, in short, that the statutory law of the different provinces was so varied and diversified that it was almost impossible to weld them into a Legislative Union at once. Why, sir, if you only consider the innumerable subjects of legislation peculiar to new countries, and that every one of those five colonies had particular laws of its own, to which its people have 602 Constitutional Documents of Canada. [1840-1867 been accustomed and are attached, you will see the difficulty of effecting and working a Legislative Union, and bringing about an assimilation of the local as well as general laws of the whole of the provinces. We in Upper Canada understand from the nature and operation of our peculiar municipal law, of which we know the value, the difficulty of {jaming a general system of legislation on local matters which would meet the wishes and fulfil the requirements of the several provinces. Even the laws con- sidered the least important, respecting private rights in timber, roads, fencing, and innumerable other matters, small in themselves, but in the aggregate of great interest to the agricultural class, who form the great body of the people, are regarded as of great value by the portion of the community affected by them. And when we consider that every one of the colonies has a body of law of this kind, and that it will take years before those laws can be assimilated, it was felt that at first, at all events, any united legislation would be almost impossible. I am happy to state and indeed it appears on the face of the resolutions themselves that as regards the Lower Provinces, a great desire was evinced for the final assimilation of our laws. One of the resolutions provides that an attempt shall be made to assimilate the laws of the Maritime Provinces and those of Upper Canada, for the purpose of eventually establishing one body of statutory law, founded on the common law of England, the parent of the laws of all those provinces. One great objection made to a Federal Union was the expense of an increased number of legislatures. I will not enter at any length into that subject, because my honorable friends, the Finance Minister and the President of the Council, who are infinitely more com- petent than myself to deal with matters of this kind matters of account will, I think, be able to show that the expenses under a Federal Union will not be greater than those under the existing system of separate govern- ments and legislatures. Here, where we have a joint legislature for Upper and Lower Canada, which deals not only with subjects of a general interest common to all Canada, but with all matters of private right and of sec- tional interest, and with that class of measures known as "private bills," we find that one of the greatest sources of expense to the country is the cost of legislation. We find, from the admixture of subjects of a general, with those of a private character in legislation, that they mutually interfere with each other; whereas, if the attention of the Legislature was confined to measures of one kind or the other alone, the session of Parliament would not be so protracted and therefore not so expensive as at present. In the proposed Constitution all matters of general interest are to be dealt with by the General Legislature; while the local legislatures will deal with mat- ters of local interest, which do not affect the Confederation as a whole, but are of the greatest importance to their particular sections. By such a division of labor the sittings of the General Legislature would not be so protracted as even those of Canada alone. And so with the local legis- latures, their attention being confined to subjects pertaining to their own sections, their sessions would be shorter and less expensive. Then, when we consider the enormous saving that will be effected in the administration of affairs by one General Government when we reflect that each of the five colonies have a government of its own with a complete establishment of public departments and all the machinery required for the transaction of the business of the country that each have a separate executive, judi- cial and militia system that each province has a separate ministry, includ- ing a Minister of Militia, with a complete Adjutant General's Department that each have a Finance Minister with a full Customs and Excise staff that each Colony has as large and complete an administrative organization, with as many Executive officers as the General Government will have we can well understand the enormous saving that will result from a union of all the colonies, from their having but one head and one central system. We in Canada, already know something of the advantages and disadvan- atges of a Federal Union. Although we have nominally a Legislative Union in Canada although we sit in one Parliament, supposed constitu- tionally to represent the people without regard to sections or localities, yet 1840-1867] Constitutional Documents of Canada. 603 we know, as a matter of fact, that since the union in 1841, we have had a Federal Union; that in matters affecting Upper Canada solely, members from that section claimed and generally exercised the right of exclusive legislation, while members from Lower Canada legislated in matters affect- ing only their own section. We have had a Federal Union in fact, though a Legislative Union in name; and in the hot contests of late years, if on any occasion a measure affecting any one section were interfered with by the members from the other if, for instance, a measure locally affecting Upper Canada were carried or defeated against the wishes of its majority, by one from Lower Canada, my honorable friend the President of the Council, and his friends denounced with all their energy and ability such legislation as an infringement of the rights of the Upper Province. Just in the same way, if any act concerning Lower Canada were pressed into law against the wishes of the majority of her representatives, by those from Upper Canada, the Lower Canadians would rise as one man and protest against such a violation of their peculiar rights. The relations between England and Scotland are very similar to that which obtains be- tween the Canadas. The union between them, in matters of legislation, is of a federal character, because the Act of Union between the two countries provides that the Scottish law cannot be altered, except for the manifest advantage of the people of Scotland. This stipulation has been held to be so obligatory on the Legislature of Great Britain that no measure affecting the law of Scotland is passed unless it receives the sanction of a majority of the Scottish members in Parliament. No matter how important it may be for the interests of the empire as a whole to alter the laws of Scotland no matter how much it may interfere with the symmetry of the general law of the United Kingdom, that law is not altered, except with the consent of the Scottish people, as expressed by their representatives in Parliament. Thus, we have in Great Britain, to a limited extent, an example of the working and effects of a Federal Union, as we might expect to witness them in our own Confederation. The whole scheme of Confederation, as pro- pounded by the Conference, as agreed to and sanctioned by the Canadian Government, and as now presented for the consideration of the people, and the Legislature, bears upon its face the marks of compromise. Of neces- sity there must have been a great deal of mutual concession. When we think of the representatives of five colonies, all supposed to have different interests, meeting together, charged with the duty of protecting those inter- ests and of pressing the views of their own localities and sections, it must be admitted that had we not met in a spirit of conciliation, and with an anxious desire to promote this union ; if we had not been impressed with the idea contained in the words of the resolution "That the best interests and present and future prosperity of British North America would be promoted by a Federal Union under the Crown of Great Britain," all our efforts might have proved to be of no avail. If we had not felt that, after coming to this conclusion, we were bound to set aside our private opinions on matters of detail, if we had not felt ourselves bound to look at what was practicable, not obstinately rejecting the opinions of others nor adhering to our own; if we had not met, I say, in a spirit of conciliation, and with an anxious, overruling desire to form one people under one government, we never would have succeeded. With these views, we press the question on this House and the country. I say to this House, if you do not believe that the union of the colonies is for the advantage of the country, that the joining of these five peoples into one nation, under one sovereign, is for the benefit of all, then reject the scheme. Reject it if you do not believe it to be for the present advantage and future prosperity of yourselves and your children. But if, after a calm and full consideration of this scheme, it is believed, as a whole, to be for the advantage of this province if the House and country believe this union to be one which will ensure for us British laws British connection, and British freedom and increase and develop the 'social, political and material prosperity of the country, then I implore this House and the country to lay aside all prejudices, and accept the scheme which we offer. I ask this House to meet the question in the 604 Constitutional Documents of Canada. [1840-1867 same spirit in which the delegates met it. I ask each member of this House to lay aside his own opinions as to particular details, and to accept the scheme as a whole if he think it beneficial as a whole. As I stated in the preliminary discussion, we must consider this scheme in the light of a treaty. By a happy coincidence of circumstances, just when an Adminis- tration had been formed in Canada for the purpose of attempting a solution of the difficulties under which we laboured, at the same time the Lower Provinces, actuated by a similar feeling, appointed a Conference with a view to a union among themselves, without being cognizant of the position the government was taking in Canada. If it had not been for this fortunate coincidence of events, never, perhaps, for a long series of years would we have been able to bring this scheme to a practical conclusion. But we did succeed. We made the arrangement, agreed upon the scheme, and the deputations from the several governments represented at the Conference went back pledged to lay it before their governments, and to ask the legis- latures and people of their respective provinces to assent to it. I trust the scheme will be assented to as a whole. I am sure this House will not seek to alter it in its unimportant details ; and, if altered in any important pro- visions, the result must be that the whole will be set aside, and we must begin de novo. If any important changes are made, every one of the colon- ies will feel itself absolved from the implied obligation to deal with it as a Treaty, each province will feel itself at liberty to amend it ad libitum so as to suit its own views and interests; in fact, the whole of pur labours will have been for nought, and we will have to renew our negotiations with all the colonies for the purpose of establishing some new scheme. I hope the House will not adopt any such a course as will postpone, perhaps for ever, or at all events for a long period, all chances of union. All the statesmen and public men who have written or spoken on the subject admit the advantages of a union, if it were practicable: and now when it is proved to be practicable, if we do not embrace this opportunity the present favorable time will pass away, and we may never have it again. Because, just so surely as this scheme is defeated, will be revived the original pro- position for a union of the Maritime Provinces, irrespective of Canada ; they will not remain as they are now, powerless, scattered, helpless com- munities ; they will form themselves into a power, which, though not so strong as if united with Canada, will, nevertheless, be a powerful and cosiderable community, and it will be then too late for us to attempt to strengthen ourselves by this scheme, which, in the words of the resolution "is for the best interests, and present and future prosperity of British North America." If we are not blind to our present position, we must see the hazardous situation in which all the great interests of Canada stand in respect to the United States. I am no alarmist. I do not believe in the prospect of immediate war. I believe that the common sense of the two nations will prevent a war; still we cannot trust to probabilities. The Government and Legislature would be wanting in their duty to the people if they ran any risk. We know that the United States at this moment are engaged in a war of enormous dimensions that the occasion of a war with Great Britain has again and again arisen, and may at any time in the future again arise. We cannot foresee what may be the result ; we cannot say but that the two nations may drift into a war as other nations have done before. It would then be too late when war had commenced to think of measures for strengthening ourselves, or to begin negociations for a union with the sister provinces. At this moment, in consequence of the ill-feeling which has arisen between England and the United States a feeling of which Canada was not the cause in consequence of the irritation which now exists, owing to the unhappy state of affairs on this continent, the Reciprocity Treaty, it seems probable, is about to be brought to an end our trade is hampered by the passport system, and at any moment we may be deprived of permission to carry our goods through United States channels the bonded goods system may be done away with, and the winter trade through the United States put an end to. Our merchants may be obliged to return to the old system of bringing in during the 1840-1867] Constitutional Documents of Canada. 605 summer months the supplies for the whole year. Ourselves already threat- ened, our trade interrupted, our intercourse, political and commercial, destroyed, if we do not take warning now when we have the opportunity, and while one avenue is threatened to be closed, open another by taking advantage of the present arrangement and the desire of the Lower Pro- vinces to draw closer the alliance between us, we may suffer commercial and political disadvantages it may take long for us to overcome. The Conference having come to the conclusion that a legislative union, pure and simple, was impracticable, our next attempt was to form a government upon federal principles, which would give to the General Government the strength of a legislative and administrative union, while at the same time it preserved that liberty of action for the different sections which is allowed by a Federal Union. And I am strong in the belief that we have hit upon the happy medium in those resolutions, and that we have formed a scheme of government which unites the advantages of both, giving us the strength of a legislative union and the sectional freedom of a federal union, with protection to local interests. In doing so we had the advantage of the experience of the United States. It is the fashion now to enlarge on the defects of the Constitution of the United States, but I am not one of those who look upon it as a failure. I think and believe that it is one of the most skillful works which human intelligence ever created; is one of the most perfect organizations that ever governed a free people. To say that it has some defects is but to say that it is not the work of Omniscience, but of human intellects. We are happily situated in having had the oppor- tunity of watching its operation, seeing its working from its infancy till now. It was in the main formed on the model of the Constitution of Great Britain, adapted to the circumstances of a new country, and was perhaps the only practicable system that could have been adopted under the circumstances existing at the time of its formation. We can now take advantage of the experience of the last seventy-eight years, during which that Constitution has existed, and I am strongly of the belief that we have, in a great measure, avoided in this system which we propose for the adoption of the people of Canada, the defects which time and events have shown to exist in the American Constitution. In the first place, by a resolution which meets with the universal approval of the people of this country, we have provided that for all time to come, so far as we can legis- late for the future, we shall have as the head of the executive power, the Sovereign of Great Britain. No one can look into futurity and say what will be the .destiny of this country. Changes come over nations and peoples in the course of ages. But, so far as we can legislate, we provide that, for all time to come, the Sovereign of Great Britain shall be the Sovereign of British North America. By adhering to the monarchical principle, we avoid one defect inherent in the Constitution of the United States. By the election of the President by a majority for a short period, he never is the sovereign and chief of the nation. He is never looked up to by the whole people as the head and front of the nation. He is at best but the successful leader of a party. This defect is all the greater on account of the practice of re-election. During his first term of office, he is employed in taking steps to secure his own re-election, and for his party a continu- ance of power. We avoid this by adhering to the monarchical principle the Sovereign whom you respect and love. I believe that it is of the utmost importance to have that principle recognized, so that we shall have a Sovereign who is placed above the region of party to whom all parties look up who is not elevated by the action of one party nor depressed by the action of another, who is the common head and sovereign of all. In the Constitution we propose to continue the system of Responsible Govern- ment, which has existed in this province since 1841, and which has long obtained in the Mother Country. This is a feature of our Constitution as we have it now, and as we shall have it in the Federation, in which, I think, we avoid one of the great defects in the Constitution of the United States. There the President, during his term of office, is in a great measure a despot, a one-man power, with the command of the naval and military 606 Constitutional Documents of Canada. [1840-1867 forces with an immense amount of patronage as head of the Executive, and with the veto power as a branch of the legislature, perfectly uncon- trolled by responsible advisers, his cabinet being departmental officers merely, whom he is not obliged by the Constitution to consult with, unless he chooses to do so. With us the Sovereign, or in this country the Repre- sentative of the Sovereign, can act only on the advice of his ministers, those ministers being responsible to the people through Parliament. Prior to the formation of the American Union, as we all know, the different states which entered into it were separate colonies. They had no connec- tion with each other further than that of having a common sovereign, just as with us at present. Their constitutions and their laws were dif- ferent. They might and did legislate against each other, and when they revolted against the Mother Country they acted as separate sovereignties, and carrid on the war by a kind of treaty of alliance against the common enemy. Ever since the union was formed the difficulty of what is called "State Rights" has existed, and this had much to do in bringing on the present unhappy war in the United States. They commenced, in fact, at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the Constitution, were conferred upon the General Government and Congress. Here we have adopted a different system. We have strengthened the General Gov- ernment. We have given the General Legislature all the great subjects of legislation. We have conferred on them, not only specifically and in detail, all the powers which are incident to sovereignty, but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures, shall be con- ferred upon the General Government and Legislature. We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. We have avoided all conflict of jurisdic- tion and authority, and if this Constitution is carried out, as it will be in full detail in the Imperial Act to be passed if the colonies adopt the scheme, we will have in fact, as I said before, all the advantages of a legislative union under one administration, with, at the same time the guarantees for local institutions and for local laws, which are insisted upon by so many in the provinces now, I hope, to be united. I think it is well that, in fram- ing our Constitution although my honorable friend the member for Hochelaga 1 sneered at it the other day, in the discussion on the Address in reply to the speech from the Throne our first act should have been to recognize the sovereignty of Her Majesty. I believe that, while England has no desire to lose her colonies, but wishes to retain them, while I am satis- fied that the public mind of England would deeply regret the loss of these provinces yet, if the people of British North America after full delibera- tion had stated that they considered it was for their interest, for the advan- tage of the future of British North America to sever the tie, such is the generosity of the people of England, that, whatever their desire to keep these colonies, they would not seek to compel us to remain unwilling sub- jects of the British Crown. If therefore, at the Conference, we had ar- rived at the conclusion, that it was for the interest of these provinces that a severance should take place, I am sure that Her Majesty and the Imperial Parliament would have sanctioned that severance. We accordingly felt that there was a propriety in giving a distinct declaration of opinion on that point, and that, in framing the Constitution, its first sentence should declare, that "The Executive authority or government shall be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well understood principles of the British Constitution, by the Sovereign personally, or by the Representative of the Sovereign duty authorised." That resolution met with the unanimous assent of the Conference. The desire to remain connected with Great Britain and to retain our allegiance to Her Majesty was unanimous. Not a single suggestion was made, that it could, by any possibility, be for the * Hon. A. A. Dorion. 1840-1867] Constitutional Documents of Canada. 607 interest of the colonies, or of any section or portion of them, that there should be a severance of our connection. Although we knew it to be pos- sible that Canada, from her position, might be exposed to all the horrors of war, by reason of causes of hostility arising between Great Britain and the United States causes over which we had no control, and which we had no hand in bringing about yet there was a unanimous feeling of willing- ness to run all the hazards of war, if war must come, rather than lose the connection between the Mother Country and these colonies. We provide that "the Executive authority shall be administered by the Sovereign per- sonally, or by the Representative of the Sovereign duly authorized." It is too much to expect that the Queen should vouchsafe us her personal gov- ernance or presence, except to pay us, as the heir apparent of the Throne, our future Sovereign has already paid us, the graceful compliment of a visit. The Executive authority must therefore be administered by Her Majesty's Representative. We place no restriction on Her Majesty's pre- rogative in the selection of her representative. As it is now, so it will be if this Constitution is adopted. The Sovereign has unrestricted freedom of choice. Whether in making her selection she may send us one of her own family, a Royal Prince, as a Viceroy to rule over us, or one of the great statesmen of England to represent her, we know not. We leave that to Her Majesty in all confidence. But we may be permitted to hope, that when the union takes place, and we become the great country which British North America is certain to be, it will be an object worthy the ambition of the statesmen of England to be charged with presiding over our des- tinies. Let me now invite the attention of the House to the Provisions in the Constitution respecting the legislative power. The sixth resolution says, "There shall be a general legislature or parliament for the federated provinces, composed of a Legislative Council and a House of Commons." This resolution has been cavilled at in the English press as if it excluded the Sovereign as a portion of the legislature. In one sense, that stricture was just because in strict constitutional language, the Legislature of Eng- land consists of King, Lords and Commons. But, on the other hand, in ordinary parlance we speak of "the King and his Parliament," or "the King summoning his Parliament," the three estates Lords spiritual, temporal Lords, and the House of Commons, and I observe that such a writer as Hallam occasionally uses the word Parliament in that restricted sense. At best it is merely a verbal criticism. The legislature of British North America will be composed of King, Lords, and Commons. The Legislative Council will stand in the same relation to the Lower House, as the House of Lords to the House of Commons in England, having the same power of initiating all matters of legislation, except the granting of money. As regards the Lower House, it may not appear to matter much, whether it is called the House of Commons or House of Assembly. It will <( bear whatever name the Parliament of England may choose to give it, but "The House of Commons" is the name we should prefer, as shewing that represents the Commons of Canada, in the same way that the English House of Commons represents the Commons of England, with the same privileges, the same parliamentary usage, and the same parliamentary authority. In settling the constitution of the Lower House, that which peculiarly represents the people, it was agreed that the principle of repre- sentation based on population should be adopted, and the mode of applying that principle is fully developed in these resolutions. When I speak of representation by population, the House will of course understand, that universal suffrage is not in any way sanctioned, or admitted by these reso- lutions, as the basis on which the constitution of the popular branch should rest. In order to protect local interests, and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated should be represented in the Upper House on the principle of equality. There are three great sections, having different interests, in this proposed Confederation. We have Western Canada, an agricultural country far away from the sea. and having the largest popu- lation who have agricultural interests principally to guard. We have Lower 608 Constitutional Documents of Canada. [1840-1867 Canada, with other and separate interests, and especially with institutions and laws which she jealously guards against absorption by any larger, more numerous, or stronger power. And we have the Maritime Provinces, having also different sectional interests of their own, having, from their position, classes and interests which we do not know in Western Canada. Accordingly, in the Upper House, the controlling and regulating, but not the initiating, branch (for we know that here as in England, to the Lower House will practically belong the initiation of matters of great public inter- est), in the House which has the sober second thought in legislation it is provided that each of those great sections shall be represented equally by 24 members. The only exception to that condition of equality is in the case of Newfoundland, which has an interest of its own, lying, as it does, at the mouth of the great river St. Lawrence, and more connected, perhaps, with Canada than with the Lower Provinces. It has, comparatively speak- ing, no common interest with the other Maritime Provinces, but has sec- tional interests and sectional claims of its own to be protected. It, there- fore has been dealt with separately, and is to have a separate representation in the Upper House, thus varying from the equality established between the other sections. As may be well conceived, great difference of opinion at first existed as to the constitution of the Legislative Council. In Canada the elective principle prevailed ; in the Lower Provinces, with the exception of Prince Edward Island, the nominative principle was the rule. We found a general disinclination on the part of the Lower Provinces to adopt the elective principle; indeed, I do not think there was a dissenting voice in the Conference against the adoption of the nominative principle, except from Prince Edward Island. The delegates from New Brunswick, Nova Scotia and Newfoundland, as one man, were in favor of nomination by the Crown. And nomination by the Crown is of course the system which is most in accordance with the British Constitution. We re- solved then, that the constitution of the Upper House should be in accord- ance with the British system as nearly as circumstances would allow. An hereditary Upper House is impracticable in this young country. Here we have none of the elements for the formation of a landlord aristocracy no men of large territorial positions no class separated from the mass of the people. An hereditary body is altogether unsuited to our state of society, and would soon dwindle into nothing. The only mode of adapting the English system to the Upper House, is by conferring the power of appoint- ment on the Crown (as the English peers are appointed), but that the ap- pointment should be for life. The arguments for an elective Council are numerous and strong; and I ought to say so, as one of the Administration responsible for introducing the elective principle into Canada. I hold that this principle has not been a failure in Canada ; but there were causes which we did not take into consideration at the time why it did not so fully succeed in Canada as we had expected. One great cause was the enormous extent of the constituencies and the immense labor which conse- quently devolved on those who sought the suffrages of the people for elec- tion to the Council. For the same reason the expense the legitimate expense was so enormous that men of standing in the country, eminently fitted for such a position, were prevented from coming forward. At first, I admit, men of the first standing did come forward, but we have seen that in every succeeding election in both Canadas there has been an increasing disinclination, on the part of men of standing and political experience and weight in the country, to become candidates ; while, on the other hand, all the young men, the active politicians, those who have resolved to embrace the life of a statesman, have sought entrance to the House of Assembly. The nominative system in this country, was to a great extent successful, before the introduction of responsible government. Then the Canadas were to a great extent Crown colonies, and the upper branch of the legislature consisted of gentlemen chosen from among the chief judicial and ecclesias- tical dignitaries, the heads of departments, and other men of the first position in this country. Those bodies commanded great respect from the character, standing and weight of the individuals composing them, but they 1840-1867] Constitutional Documents of Canada. 609 had little sympathy with the people or their representatives, and collisions with the Lower House frequently occurred, especially in Lower Canada. When responsible government was introduced, it became necessary for the Governor of the day to have a body of advisers who had the confidence of the House of Assembly which could make or unmake ministers as it chose. The Lower House in effect pointed out who should be nominated to the Upper House; for the ministry, being dependent altogether on the Lower branch of the legislature for support, selected members for the Upper House from among their political friends at the dictation of the House of Assembly. The Council was becoming less and less a substantial check on the legislation of the Assembly ; but under the system now proposed, such will not be the case. No ministry can in future do what they have done in Canada before they cannot, with the view of carrying any meas- ure, or of strengthening the party, attempt to overrule the independent opinion of the Upper House, by filling it with a number of its partisans and political supporters. The provision in the Constitution, that the Legislative Council shall consist of a limited number of members that each of the great sections shall appoint twenty-four members and no more, will pre- vent the Upper House from being swamped from time to time by the ministry of the day, for the purpose of carrying out their own schemes or pleasing their partisans. The fact of the government being prevented from exceeding a limited number will preserve the independence of the Upper House, and make it, in reality, a separate and distinct chamber, having a legitimate and controlling influence in the legislation of the country. The objection has been taken that in consequence of the Crown being deprived of the right of unlimited appointment, there is a chance of a dead-lock arising between the two branches of the legislature; a chance that the Upper House being altogether independent of the Sovereign, of the Lower House, and of the advisers of the Crown, may act independently, and so independently as to produce a dead-lock. I do not anticipate any such result. In the first place we know that in England it does not arise. There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it a mere chamber for registering the decrees of the Lower Htouse. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people. Even the House of Lords, which as an hereditary body, is far more independent than one appointed for life can be, whenever it ascertains what is the calm, deliberate will of the people of England, it yields, and never in modern times has there been, in fact or act, any attempt to overrule the decisions of that House by the appointment of new peers, excepting, perhaps, once in the reign of Queen Anne. It is true that in 1832 such an increase was threatened in consequence of the reiterated refusal of the House of Peers to pass the Reform Bill. I have no doubt the threat would have been carried into effect, if necessary ; but every one, even the Ministry who ad- vised that step, admitted that it would be a revolutionary act, a breach of the Constitution to do so, and it was because of the necessity of preventing the bloody revolution which hung over the land, if the Reform Bill had been longer refused to the people of England, that they consented to t bloodless revolution of overriding the independent opinion of the House of Lords on that question. Since that time it has never been attempted, and I am satisfied it will never be attempted again. Only a year or two ago the House of Lords rejected the Paper Duties Bill and they acted quite constitutionally, according to the letter and as many think, according to the spirit of the Constitution in doing so. Yet when they found they had inter- fered with a subject which the people's house claimed as belonging of right to themselves, the very next session they abandoned their position, not because they were convinced they had done wrong, but bcause they "ad 610 Constitutional Documents of Canada. [1840-1867 ascertained what was the deliberate voice of the representatives of the people on the subject. In this country, we must remember, that the gentle- men who will be selected for the Legislative Council stand on a very different footing from the peers of England. They have not like them any ancestral associations or position derived from history. They have not that direct influence on the people themselves, or on the popular branch of the legislature, which the peers of England exercise, from their great wealth, their vast territorial possessions, their numerous tenantry and that prestige with which the exalted position of their class for centuries has invested them. The members of our Upper House will be like those of the Lower, men of the people, and from the people. The man put into the Upper House is as much a man of the people the day after, as the day before his elevation. Springing from the people, and one of them, he takes his seat in the Council with all the sympathies and feelings of a man of the people, and when he returns home, at the end of the session, he mingles with them on equal terms, and is influenced by the same feelings and associations, and events, as those which affect the mass around him. And is it, then, to be supposed that the members of the upper branch of the legislature will set themselves deliberately at work to oppose what they know to be the settled opinions and wishes of the people of the country? They will not do it. There is no fear of a dead-lock between the two houses. There is an infinitely greater chance of a dead-lock between the two branches of the legislature, should the elective principle be adopted, than with a nominated chamber chosen by the Crown, and having no mission from the people. The members of the Upper Chamber would then come from the people as well as those of the Lower House, and should any difference ever arise between both branches, the former could say to the members of the popular branch "We as much represent the feelings of the people as you do, and even more so ; we are not elected from small localities and for a short period ; you as a body were elected at a particular time, when the public mind was running in a particular channel ; you were returned to Parliament, not so much representing the general views of the country, on general question, as upon the particular subjects which happened to engage the minds of the people when they went to the polls. We have as much right, or a better right, than you to be considered as representing the deliberate will of the people on general question, and therefore we will not give way." There is, I repeat, a greater danger of an irreconcilable difference of opinion between the two branches of the legislature, if the upper be elective, than if it holds its commission from the Crown. Besides, it must be remembered that an Upper House, the members of which are to be appointed for life, would not have the same quality of permanence as the House of Lords; our members would die; strangers would succeed them, whereas son succeeded father in the House of Lords. Thus the changes in the membership and state of opinion in our Upper House would always be more rapid than in the House of Lords. To show how speedily changes have occurred in the Upper House, as regards life members, I will call the attention of the House to the follow- ing facts : At the call of the House, in February, 1856, forty-two life members responded; two years afterwards, in 1858, only thirty-five an- swered to their names; in 1862 there were only twenty-five life members left, and in 1864, but twenty-one. This shows how speedily changes take place in the life membership. But remarkable as this change has been, it is not so great as that in regard to the elected members. Though the elective principle only came into force in 1856, and although only twelve men were elected that year, and twelve more every two years since, twenty-four changes have already taken place by the decease of members, by the acceptance of office, and by resignation. So it is quite clear that, should there be on any question a difference of opinion between the Upper and Lower Houses, the government of the day being obliged to have the con- fidence of the majority in the popular branch would, for the purpose of bringing the former into accord and sympathy with the latter, fill up any vacancies that might occur, with men of the same political feelings and 1840-1867] Constitutional Documents of Canada. 611 sympathies with the Government, and consequently with those of the majority in the popular branch; and all the appointments of the Admin- istration would be made with the object of maintaining the sympathy and harmony between the two houses. There is this additional advantage to be expected from the limitation. To the Upper House is to be confided the protection of sectional interests; therefore is it that the three great divisions are there equally represented, for the purpose of defending such interests against the combinations of majorities in the Assembly. It will, therefore, become the interest of each section to be represented by its very- best men, and the members of the Administration who belong to each section will see that such men are chosen, in case of a vacancy in their section. For the same reason each state of the American Union sends its two best men to represent its interests in the Senate. It is provided in the Constitution that in the first selections for the Council, regard shall be had to those who now hold similar positions in the different colonies. This, it appears to me, is a wise provision. In all the provinces, except Prince Edward, there are gentlemen who hold commissions for the Upper House for life. In Canada, there are a number who hold under that commission, but the majority of them hold by a commission, not, perhaps, from a monarchical point of view so honorable, because the Queen is the fountain of honor, but still, as holding their appointment from the people, they may be considered as standing on a par with those who have Her Majesty's commission. There can be no reason suggested why those who have had experience in legislation, whether they hold their positions by the election of the people or have received preferment from the Crown there is no valid reason why those men should be passed over, and new men sought for to form the Legislative Council of the Confederation. It is, therefore, provided that the selection shall be made from those gentlemen who arc now members of the upper branch of the Legislature in each of the colo- nies, for -seats in the Legislative Council of the General Legislature. The arrangement in this respect is somewhat similar to that by which Repre- sentative Peers are chosen from the Peers of Scotland and Ireland, to sit in the Parliament of the United Kingdom. In like manner, the members of the Legislative Council of the proposed Confederation will be first selected from the existing Legislative Councils of the various provinces. In the formation of the House of Commons, the principle of representation by population has been provided for in a manner equally ingenious and simple. The introduction of this principle presented at first the apparent difficulty of a constantly increasing body until, with the increasing popu- lation, it would become inconveniently and expensively large. But by adopting the representation of Lower Canada as a fixed standard as the pivot on which the whole would turn that province being the best suited for the purpose, on account of the comparatively permanent character of its population, and from its having neither the largest nor least number of inhabitants we have been enabled to overcome the difficulty I have mentioned. We have introduced the system of representation by popula- tion without the danger of an inconvenient increase in the number of repre- sentatives on the recurrence of each decennial period. The whole thing is worked by a simple rule of three. For instance, we have in Upper Canada, 1,400,000 of a population; in Lower Canada 1,100,000. Now, the proposition is simply this if Lower Canada, with its population of 1,100,000 has a right to 65 members how many members should Upper Canada have, with its larger population of 1,400,000? The same rule applies to the other provinces the proportion is always observed and the principle of repre- sentation by population carried out, while, at the same time, there will not be decennially an inconvenient increase in the numbers of the Lower House. At the same time, there is a constitutional provision that hereafter if deemed advisable, the total number of representatives may be increased from 194, the number fixed in the first instance. In that case, if an increase is made, Lower Canada is still to remain the pivot on which the whole calculation will turn. If Lower Canada, instead of sixty-five, shall have seventy members, then the calculation will be, if Lower Canada has seventy 612 Constitutional Documents of Canada. [1840-1867 members, with such a population, how many shall Upper Canada have with a larger population? I was in favor of a larger House than one hundred and ninety-four, but was overruled. I was perhaps singular in the opinion, but I thought it would be well to commence with a larger representation in the lower branch. The arguments against this were, that, in the first place, it would cause additional expense ; in the next place, that in a new country like this, we could not get a sufficient number of qualified men to be representatives. My reply was that the number is rapidly increasing as we increase in education and wealth ; that a larger field would be open to political ambition by having a larger body of representatives; that by having numerous and smaller constituencies, more people would be inter- ested in the working of the union, and that there would be a wider field for selection for leaders of governments and leaders of parties. These are my individual sentiments, which, perhaps, I have no right to express here but I was overruled, and we fixed on the number of one hundred and ninety-four, which no one will say is large or extensive, when it is considered that our present number in Canada alone is one hundred and thirty. The difference between one hundred and thirty and one hundred and ninety-four is not great, considering the large increase that will be made to our population when Confederation is carried into effect. While the principle of representation by population is adopted with respect to the popular branch of the legislature, not a single member of the Confer- ence, as I stated before, not a single one of the representatives of the government or of the opposition of any one of the Lower Provinces was in favor of universal suffrage. Every one felt that in this respect the principle of the British Constitution should be carried out, and that classes and property should be represented as well as numbers. Insuperable diffi- culties would have presented themselves if we had attempted to settle now the qualification for the elective franchise. We have different laws in each of the colonies fixing the qualification of electors for their own local legislatures; and we therefore adopted a similar clause to that which is contained in the Canada Union Act of 1841, viz., that all the laws which affected the qualification of members and of voters, which affected the ap- pointment and conduct of returning officers and the proceedings at elec- tions, as well as the trial of controverted elections in the separate pro- vinces, should obtain in the first election to the Confederate Parliament, so that every man who has now a vote in his own province should continue to have a vote in choosing a representative to the first Federal Parliament. And it was left to the Parliament of the Confederation, as one of their first duties, to consider and to settle by an act of their own the qualifica- tion for the elective franchise, which would apply to -the whole Confedera- tion. In considering the question of the duration of Parliament, we came to the conclusion to recommend a period of five years. I was in favor of a longer period. I thought that the duration of the local legislatures should not be shortened so as to be less than four years, as at present, and that the General Parliament should have as long a duration as that of the United Kingdom. I was willing to have gone to the extent of seven years; but a term of five years was preferred, and we had the example of the New Zealand carefully considered, not only locally, but by the Imperial Parliament, and which gave the provinces of those islands a general par- liament with a duration of five years. But it was a matter of little im- portance whether five or seven years was the term, the power of dissolution by the Crown having been reserved. I find, on looking at the duration of parliaments since the accession of George III. to the Throne, that exclud- ing the present parliament, there have been seventeen parliaments, the average period of whose existence has been about three years and a half. That average is less than the average duration of the parliaments in Canada since the union, so that it was not a matter of much importance whether we fixed upon five or seven years as the period of duration of our General Parliament. A good deal of misapprehension has arisen from the acci- dental omission of some words from the 24th resolution. It was thought that by it the local legislatures were to have the power of arranging here- 1840-1867] Constitutional Documents of Canada. 613 after, and from time to time of readjusting the different constituencies and settling the size and boundaries of the various electoral districts. The meaning of the resolution is simply this, that for the first General Parlia- ment, the arrangement of constituencies shall be made by the existing local legislatures ; that in Canada, for instance, the present Canadian Parliament shall arrange what are to be the constituencies of Upper Canada, and to make such changes as may be necessary in arranging for the seventeen additional members given to it by the Constitution ; and that it may also, if it sees fit, alter the boundaries of the existing constituencies of Lower Canada. In short, this Parliament shall settle what shall be the different constituencies electing members to the first Federal Parliament. And so the other provinces, the legislatures of which will fix the limits of their several constituencies in the session in which they adopt the new Constitu- tion. Afterwards the local legislatures may alter their own electoral limits as they please, for their own local elections. But it would evidently be unproper to leave to the Local Legislature the power to alter the constitu- encies sending members to the General Legislature after the General Legis- lature shall have been called into existence. Were this the case, a member of the General Legislature might at any time find himself ousted from his seat by an alteration of his constituency by the Local Legislature in his section. No, after the General Parliament meets, in order that it may have full control of its own legislation, and be assured of its position, it must have the full power of arranging and re-arranging the electoral limits of its constituencies as it pleases, such being one of the powers essentially necessary to such a Legislature. I shall not detain the House by entering into a consideration at any length of the different powers conferred upon the General Parliament as contradistinguished from those reserved to the local legislatures; but any honorable member on examining the list of different subjects which are to be assigned to the General and Local Legis- latures respectively, will see that all the great questions which affect the general interests of the Confederacy as a whole, are confided to the Federal Parliament, while the local interests and local laws of each section are preserved intact, and entrusted to the care of the local bodies. As a matter of course, the General Parliament must have the power of dealing with the public debt and property of the Confederation. Of course, too, it must have the regulation of trade and commerce, of customs and excise. The Federal Parliament must have the sovereign power of raising money from such sources and by such means as the representatives of the people will allow. It will be seen that the local legislatures have the control of all local works; and it is a matter of great importance, and one of the chief advantages of the Federal Union and of local legislatures, that each pro- vince will have the power and means of developing its own resources and aiding its own progress after its own fashion and in its own way. There- fore all the local improvements, all local enterprizes or undertakings of any kind, have been left to the care and management of the local legislatures of each province. It is provided that all "lines of steam or other ships, railways, canals and cither works, connecting any two or more of the provinces together or extending beyond the limits of any province," shall belong to the General Government, and be under the control of the General Legislature. In like manner "lines of steamships between the Federated Provinces and other countries, telegraph communication and the incorpora- tion of telegraph companies, and all such works as shall, although lying within any province, be specially declared by the Acts authorizing them to be for the general advantage," shall belong to the General Government. For instance the Welland Canal, though lying wholly within one section, and the St. Lawrence Canals in two only, may be properly considered national works, and for the general benefit of the whole Federation. Again, the census, the ascertaining of pur numbers and the extent of our resources, must, as a matter of general interest, belong to the General Government. So also with the defences of the country. One of the great advantages of Confederation is, that we shall have a united, a concerted, and uniform system of defence. We are at this moment with a different militia system 614 Constitutional Documents of Canada. [1840-1867 in each colony in some of the colonies with an utter want of any system of defence. We have a number of separate staff establishments, without any arrangement between the colonies as to the means, either of defence or offence. But, under the union, we will have one system of defence and one system of militia organization. In the event of the Lower Pro- vinces being threatened, we can send the large militia forces of Upper Canada to their rescue. Should we have to fight on our lakes against a foreign foe, we will have the hardy seamen of the Lower Provinces coming to our assistance and manning our vessels. We will have one system of defence and be one people, acting together alike in peace and in war. The criminal law too the determination of what is a crime and what is not and how crime shall be punished is left to the General Government. This is a matter almost of necessity. It is of great importance that we should have the same criminal law throughout these provinces that what is a crime in one part of British America, should be a crime in every part that there should be the same protection of life and property as in another. It is one of the defects in the United States system, that each separate state has or may have a criminal code of its own, that what may be a capital offence in one state may be a venial offence, punishable slightly, in another. But under our Constitution we shall have one body of criminal law, based on the criminal law of England, and operating equally throughout British America, so that a British American, belonging to what province he may, or going to any other part of the Confederation, knows what his rights are in that respect, and what his punishment will be if an offender against the criminal laws of the land. I think this is one of the most marked instances in which we take advantage of the experience derived from our observations of the defects in the Constitu- tion of the neighboring Republic. The 33rd provision is of very great importance to the future well-being of these colonies. It commits to the General Parliament the "rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Bruns- wick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these provinces." The great principles which govern the laws of all the provinces, with the single exception of Lower Canada, are the same, although there may be a diver- gence in details; and it is gratifying to find, on the part of the Lower Provinces, a general desire to join together with Upper Canada in this matter, and to procure, as soon as possible, an assimilation of the statutory laws and the procedure in the courts, of all these provinces. At present there is a good deal of diversity. In one of the colonies, for instance, they have no municipal system at all. In another, the municipal system is merely permissive, and has not been adopted to any extent. Although, therefore, a legislative union was found to be almost impracticable, it was understood, so far as we could influence the future, that the first act of the Confederate Government should be to procure an assimilation of the statutory law of all those provinces, which has, as its root and foundation, the common law of England. But to prevent local interests from being over-ridden, the same section makes provision, that, while power is given to the General Legislature to deal with this subject, no change in this respect should have the force and authority of law in any province until sanctioned by the Legislature of that province. The General Legislature is to have power to establish a general Court of Appeal for the Federated Provinces. Although the Canadian Legislature has always had the power to establish a Court of Appeal, to which appeals may be made from the courts of Upper and Lower Canada, we have never availed ourselves of the power. Upper Canada has its own Court of Appeal, so has Lower Canada. And this system will continue until a General Court of Appeal shall be established by the General Legislature. The Constitution does not provide that such a court shall be established. There are many arguments for and against the establishment of such a court. But it was thought wise and expedient to put into the Constitution a power to the General Legislature, that, if after full consideration they think it advisable to estab- 1840-1867] Constitutional Documents of Canada. 615 lish a General Court of Appeal from all the Superior Courts of all the provinces, they may do so. I shall not go over the other powers that are conferred on the General Parliament. Most of them refer to matters of financial and commercial interest, and I leave those subjects in other and better hands. Besides all the powers that are specifically given in the 37th and last item of this portion of the Constitution, confers on the General Legislature the general mass of sovereign legislation, the power to legis- late on "all matters of a general character, not specially and exclusively reserved for the local governments and legislatures." This is precisely the provision which is wanting in the Constitution of the United States. It is here that we find the weakness of the American system the point where the American Constitution breaks down. It is in itself a wise and necessary provision. We thereby strengthen the Central Parliament, and make the Confederation one people and one government, instead of five peoples and five governments, with merely a point of authority connecting us to a limited and insufficient extent. With respect to the local govern- ments, it is provided that each shall be governed by a chief executive officer, who shall be nominated by the General Government. As this is to be one united province, with the local governments and legislatures sub- ordinate to the General Government and Legislature, it is obvious that the chief executive officer in each of the provinces must be subordinate as well. The General Government assumes towards the local governments precisely the same position as the Imperial Governrnjent holds with respect to each of the colonies now: so that as the Lieutenant Governor of each of the different provinces is now appointed directly by the Queen, and is directly responsible, and reports directly to Her, so will the executives of the local governments hereafter be subordinate to the Representative of the Queen, and be responsible and report to him. Objection has been taken that there is an infringement of the Royal prerogative in giving the pardoning power to the local governors, who are not appointed directly by the Crown, but only indirectly by the Chief Executive of the Confederation, who is ap- pointed by the Crown. This provision was inserted in the Constitution on account of the practical difficulty which must arise if the power is confined to the Governor General. For example, if a question arose about the dis- charge of a prisoner convicted of a minor offence, say in Newfoundland, who might be in imminent danger of losing his life if he remained in con- finement, the exercise of the pardoning power might come too late if it were necessary to wait for the action of the Governor General. It must be remembered that the pardoning power not only extends to capital cases, but to every case of conviction and sentence, no matter how trifling even to the case of a fine in the nature of a sentence on a criminal conviction. It extends to innumerable cases, where, if the responsibility for its exer- cise were thrown on the General Executive, it could not be so satisfactorily discharged. Of course there must be, in each province, a legal adviser of the Executive, occupying the position of our Attorney General, as there is in every state of the American Union. This officer will be an officer of the Local Government; but, if the pardoning power is reserved for the Chief Executive, there must, in every case where the exercise of the par- doning power is sought, be a direct communication and report from the local law officer to the Governor General. The practical inconvenience of this was felt to be so great, that it was thought well to propose the arrange- ment we did, without any desire to infringe upon the prerogatives of the Crown, for our whole action shews that the Conference, in every step they took, were actuated by a desire to guard jealously these prerogatives, is a subject, however, of Imperial interest, and if the Imperial Government and Imperial Parliament are not convinced by the arguments we will be able to press upon them for the continuation of that clause then, of course, as the over-ruling power, they may set it aside. There are numerous sub- jects which belong, of right, both to the Local and the General Parlia- ments. In all these cases it is provided, in order to prevent a conflict of authority, that where there is concurrent jurisdiction in the General and Local Parliaments, the same rule should apply as now applies in cases 616 Constitutional Documents of Canada. [1840-1867 where there is concurrent jurisdiction in the Imperial and in the Provincial Parliament, and that when the legislation of the one is adverse to or con- tradictory of the legislation of the other, in all such cases the action of the General Parliament must overrule, ex-necessitate, the action of the Local Legislature. We have introduced also all those provisions which are necessary in order to the full working out of the British Constitution in these provinces. We provide that there shall be no money votes unless those votes are introduced in the popular branch of the Legislature on the authority of the responsible advisers of the Crown those with whom the responsibility rests of equalizing revenue and expenditure that there can be np expenditure or authorization of expenditure by Address or in any other way unless initiated by the Crown on the advice of its responsible advisers. As regards the financial features of the scheme, the arrange- ments made as to the present liabilities of the several provinces, and the future liabilities of the Confederation, on these and kindred matters, I have no doubt that my honorable friends, the Finance Minister and the President of the Council, will speak at full length, and that they will be able to shew you that this branch of the subject has received the fullest consideration. I feel I would be intruding myself unnecessarily on the Hiouse if, with my inferior knowledge of those subjects I were to detain you by venturing to speak of them, when I know that they will be so ably and fully gone into by my two honorable friends. The last resolution of any importance is one which, although not affecting the substance of the Constitution, is of interest to us all. It is that "Her Majesty the Queen be solicited to determine the rank and name of the federated provinces." I do not know whether the^f will be any expression of opinion in this House on this sub- ject whether we are to be a vice-royalty, or whether we are still to retain our name and rank as a province. But I have no doubt Her Majesty will give the matter Her gracious consideration, that She will give us a name satisfactory to us all, and that the rank She will confer upon us will be a rank worthy of our position, of our resources, and of our future. Let me again, before I sit down, impress upon this House the necessity of meeting this question in a spirit of compromise, with a disposition to judge the matter as a whole, to consider whether really it is for the benefit and advantage of the country to form a Confederation of all the provinces; and if honorable gentlemen, whatever may have been their preconceived ideas as to the merits of the details of this measure, whatever may still be their opinions as to these details, if they really believe that the scheme is one by which the prosperity of the country will be increased, and its future progress secured, I ask them to yield their own views, and to deal with the scheme according to its merits as one great whole. One argument, but not a strong one, has been used against this Confederation, that it is an advance towards independence. Some are apprehensive that the very fact of our forming this union will hasten the time when we shall be severed from the mother country. I have no apprehension of that kind. I believe it will have the contrary effect. I believe that as we grow stronger, that, as it is felt in England we have become a people, able from our union, our strength, pur population, and the development of our re- sources, to take our position among the nations of the world, she will be less willing to part with us than she would be now, when we are broken up into a number of insignificant colonies, subject to attack piece-meal without any concerted action or common organization of defence. I am strongly of opinion that year by year, as we grow in population and strength, England will more see the advantages of maintaining the alliance between British North America and herself. Does any one imagine that, when our population instead of three and a -half, will be seven millions, as it will be ere many years pass, we would be one whit more willing than now to sever the connection with England? Would not those seven mil- lions be just as anxious to maintain their allegiance to the Queen and their connection with the Mother Country, as we are now? Will the addition to our numbers of the people of the Lower Provinces, in any way lessen our desire to continue our connection with the Mother Country? I believe the 1840-1867] Constitutional Documents of Canada. 617 people of Canada East and West to be truly loyal. But, if they can by possibility be exceeded in loyalty, it is by the inhabitants of the Maritime Provinces. Loyalty with them is an overruling passion. In all parts of the Lower Provinces there is a rivalry between the opposing political parties as to which shall most strongly express and most effectively carry out the principle of loyalty to Her Majesty, and the British Crown. When this union takes place, we will be at the outset no inconsiderable people. We find ourselves with a population approaching four millions of souls. Such a population in Europe would make a second, or at least, a third rate power. And with a rapidly increasing population for I am satisfied that under this union our population will increase in a still greater ratio than ever before with increased credit with a higher position in the eyes of Europe with the increased security we can offer to immigrants, who would naturally prefer to seek a new home in what is known to them as a great country, than in any one little colony or another with all this I am satis- fied that, great as has been our increase in the last twenty-five years since the union between Upper and Lower Canada, our future progress, during the next quarter of a century) will be vastly greater. And when, by means of this rapid increase, we become a nation of eight or nine millions of in- habitants, our alliance will be worthy of being sought by the great nations of the earth. I am proud to believe that our desire for a permanent alliance will be reciprocated in England. I know that there is a party in England but it is inconsiderable in numbers, though strong in intellect and power which speaks of the desirability of getting rid of the colonies; but I believe such is not the feeling of the statesmen and the people of England. I believe it will never be the deliberately expressed determination of the Government of Great Britain. The colonies are now in a transition state. Gradually a different colonial system is being developed and it will be- come, year by year, less a case of dependence on our part, and of over- ruling protection on the part of the Mother Country, and more a case of a healthy and cordial alliance. Instead of looking upon us as a merely dependent colony, England will have in us a friendly nation a subordinate but still a powerful people to stand by her in North America in peace or in war. The people of Australia will be such another subordinate nation. And England will have this advantage, if her colonies progress under the new colonial system, as I believe they will, that, though at war with all the rest of the world, she will be able to look to the subordinate nations in alliance with her, and owning allegiance to the same Sovereign, who will assist in enabling her again to meet the whole world in arms, as she has done before. And if, in the great Napoleonic war, with every port in Europe closed against her commerce, she was yet able to hold her own, how much more will that be the case when she has a colonial empire rapidly increasing in power, in wealth, in influence, and in position. It is true that we stand in danger, as we have stood in danger again and again in Canada, of being plunged into war and suffering all its dreadful consequences, as the result of causes over which we have no control, by reason of their connection. This, however, did not intimidate us. At the very mention of the prospect of a war some time ago, how were the feelings of the people aroused from one extremity of British America to the other, and prepara- tions made for meeting its worst consequences. Although the people of this country are fully aware of the horrors of war should a war arise, unfortunately, between the United States and England and we all pray it never may they are still ready to encounter all perils of that kind, for the sake of the connection with England. There is not one adverse voice, not one adverse opinion on that point. We all feel the advantages we derive from our connection with England. So long as that alliance is maintained, we enjoy under her protection, the privileges of constitutional liberty according' to the British system. We will enjoy here that which is the great test of constitutional freedom we will have the rights of the minority respected. In all countries the rights of the majority take care of them- selves but it is only in countries like England, enjoying constitutional liberty and safe from the tyranny of a single despot or of an unbridled 618 Constitutional Documents of Canada. [1840-1867 democracy, that the rights of minorities are regarded. So long, too, as we form a portion of the British Empire, we shall have the example of her free institutions, of the high standard of the character of her statesmen and public men, of the purity of her legislation, and the upright administra- tion of her laws. In this younger country one great advantage of our con- nection with Great Britain will be, that, under her auspices, inspired by her example, a portion of her empire, our public men will be actuated by prin- ciples similar to those which actuate the statesmen at home. These although not material, physical benefits of which you can make an arith- metical calculation, are of such overwhelming advantage to our future interests and standing as a nation, that to obtain them is well worthy of any sacrifices we may be called upon to make, and the people of this coun- try are ready to make them. We should feel, also, sincerely grateful to bcnificent Providence that we have had the opportunity vouchsafed us of calmly considering this great constitutional change, this peaceful revolu- tion that we have not been hurried into it, like the United States, by the exigencies of war that we have not had a violent revolutionary period forced on us. as in other nations, by hostile action from without, or by domestic dissensions within. Here we are in peace and prosperity, under the fostering government of Great Britain a dependent people, with a government having only a limited and delegated authority, and yet allowed, without restriction, and without jealousy on the part of the Mother Coun- try to legislate for ourselves, and peacefully and deliberately to consider and determine the future of Canada and of British North America. It is our happiness to know the expression of the will of our Gracious Sove- reign, through Her Ministers, that we have her full sanction for our deliberations, that Her only solicitude is that we shall adopt a system which shall be really for our advantage, and that She promises to sanction whatever conclusion after full deliberation we may arrive at as to the best mode of securing the well-being, the present and future prosperity of British America, It is our privilege and happiness to be in such a position, and we cannot be too grateful for the blessings thus conferred upon us. I must apologize for having detained you so long for having gone perhaps too much into tedious details with reference to the questions bearing on the Constitution now submitted to this House. In conclusion, I would again implore the House not to let this opportunity to pass. It is an opportunity that may never recur. At the risk of repeating myself, I would say, it was only by a happy concurrence of circumstances, that we were enabled to bring this great question to its present position. If we do not take advan- tage of the time, if we show ourselves unequal to the occasion, it may never return, and we shall hereafter bitterly and unavailingly regret having failed to embrace the happy opportunity now offered of founding a great nation under the fostering care of Great Britain, and our Sovereign Lady, Queen Victoria. Tuesday, February 7, 1865. Atty. Gen. Cartier rose to continue the debate on Confederation. He said that he approached this subject with a certain amount of diffidence, knowing it was not the first time he had had the honor of speaking upon it in the Lower Provinces and elsewhere. He felt that this was a momentous occasion, as for anything that he said on this grave question, he was responsible to his constituents and the country. Respecting this grave question, it had been said that the Tache-Macdonald government had taken upon themselves the solution of a problem which was not at the time of its formation before the country, and had not even been mooted. Those saying so were ignorant of the parliamentary history of the past few years. He would briefly refer to the history of this great question, as far as it had been brought before the Parliament and the country. When the Cartier-Macdonald Government was constructed, after the downfall of the Brown-Dorion Administration, a programme of the policy of the former was laid before Parliament. Among the subjects contained in this pro- gramme of 7th August, 1858, was one referred to in the following terms: "The late Government felt themselves bound to carry out the law of the 1840-1867] Constitutional Documents of Canada. 619 land respecting the seat of Government, but, in the face of the recent vote on that subject, the Administration did not consider themselves warranted in incurring any expenditure for the public buildings, until Parliament has had an opportunity of considering the whole question in all its bearings; and the expediency of a Federal Union of the British North American Provinces will be anxiously considered, and communication with the Home Government and the Lower Provinces entered into forthwith on the sub- ject; and the result of this communication will be submitted to Parlia- ment at its next session. The Government will, during the recess, examine into the organization and working of the public departments, and carry out such administrative reforms as will be conducive to economy and effi- ciency." Here was this scheme of a union of the provinces mentioned in the programme of the Cartier-Macdonald Government, in 1858. He merely quoted this passage to show that neither Parliament nor the country w'as now taken by surprise with regard to this scheme. We had had general and special elections since 1858, and to pretend that this subject, which had been so often canvassed, was new to the country, was to assert an untruth. At the close of that session, Sir Edmund Head, in his Speech proroguing Parliament, made use of the following language : "I propose, in the course of the recess, to communicate with Her Majesty's Government, and with the Governments of the sister colonies, on another matter of very great importance. I am desirous of inviting them to discuss with us the principles on which a 'bond of a federal character, uniting the Provinces of British North America, may perhaps hereafter be practicable." In accordance with that announcement of policy, a deputation was sent to England, composed of his then colleagues, Hons. Messrs. Gait and Ross and himself. We pressed the matter before the Imperial Government, whom we asked to authorize a meeting of delegates from the British North American Governments, to consider this subject and report upon it, said report to be communicated to the Colonial Secretary. Of course we wanted, at that time, to act with the sanction and approval of the Im- perial Government. We pressed the matter as strongly as we could before it. Of all the provinces that responded to the call of the Imperial GoveTn- ment, Newfoundland, he thought, was the only one which professed her readiness to appoint delegates when the opportune moment arrived. Al- though the other provinces were not opposed to Confederation, still, as the question had not been brought conspicuously before their people, they did not like then to join in the measure and in the proceedings which the Canadian delegates had urged upon the Imperial Government in 1858. At this time the Canadian delegates had a duty to perform towards the illus- trious Administrator of the Government, Sir E. Head, to fulfil the pro- mise he had made, on proroguing Parliament, by pressing the measure upon the attention of the Imperial Administration. The Canadian Govern- ment also kept its promise to report to the House the result of the mission to England, at the next session of Parliament. The hon. gentleman here read the despatch dated October, 1858, which was transmitted to the Im- perial Government, setting forth the sectional difficulties which had arisen between Upper and .Lower Canada, principally on account of the former's demand for increased representation in Parliament, on the ground of its much larger population. Every one who knew anything of his past public course was aware that he was opposed to the principle of representation by population while Upper and Lower Canada were under one Govern- ment. He did not regret his opposition. If such a measure had been passed, what would have been the consequence? There would have been constant political warfare between Upper and Lower Canada. True it was that the members from Upper Canada, being in the majority, it might have been imagined that they would have carried everything before them ; but as far as justice to Lower Canada was concerned, such might not have been the case. The consequence of representation by population would have been that one territory would have governed another, and this fact would have presented itself session after session in the House, and day after day in the public prints. The moment this principle had been con- 620 Constitutional Documents of Canada. [1840-1867 ceded as the governing element, it would have initiated between the two provinces a warfare which would have been unremitting. He wished that Upper Canada should understand him in this matter. He was accused of being opposed to Upper Canada's rights, because during fifteen or twenty years he had to oppose his honorable friend the President of the Council. His honorable colleague took the ground that representation should je arranged according to population in each section of the province. He (Hon. Mr. Cartier) had resisted that position, believing that the moment such a principle was applied, his honorable friend, who, no doubt, wanted to maintain the peaceful government of the country, would have been dis- appointed in his wish. It would have given rise to one of the bitterest struggles between the two provinces that ever took place between two nations. He did not mean to say that the majority from Upper Canada would have tyrannized over Lower Canada ; but the idea that Upper Can- ada, as a territory, had the preponderence in the Government by a large number of representatives, would have been sufficient to generate that sec- tional strife to which he had alluded. In 1858 he first saw that represen- tation by population, though unsuited for application as a governing prin- ciple as Setween the two provinces, would not involve the same objection if other partners were drawn in by a federation. In a struggle between two one a weak, and the other a strong party the weaker could not but be overcome ; but if three parties were concerned, the stronger would not have the same advantage ; as when it was seen by the third that there was too much strength on one side, the third would club with the weaker com- batant to resist the big fighter. He did not oppose the principle of repre- sentation by population from an unwillingness to do justice to Upper Canada. He took this ground, however, that when justice was done to Upper Canada, it was his duty to see that no injustice was done to Lower Canada. He did not entertain the slightest apprehension that Lower Can- ada's rights were in the least jeopardized by the provision that in the General Legislature the French Canadians of Lower Canada would have a smaller number of representatives than all the other origins combined. It would be seen by the resolutions that in the questions which would be sub- mitted to the General Parliament there could be no danger to the rights and privileges of either French Canadians, Scotchmen, Englishmen or Irishmen. Questions of commerce, of international communication, and all matters of general interest, would be discussed and determined in the General Legislature, but in the exercise of the functions of the General Government, no one could apprehend that anything could be enacted which would harm or do injustice to persons of any nationality. He did not intend to go into the details of the question of Confederation, but merely to bring before the House the most conspicuous arguments in order to induce members to accept the resolutions submitted by the Government. Confederation was, as it were ,at this moment almost forced upon us. We could not shut our eyes to what was going on beyond the lines, where a great struggle was going on between two Confederacies, at one time form- ing but one Confederacy. We saw that a government, established not more than 80 years ago, had not been able to keep together the family of states which had broke up four or five years since. We could not deny that the struggle now in progress must necessarily influence our political existence. We did not know what would be the result of that great war whether it would end in the establishment of two Confederacies or in one as before. However, we had to do with five colonies, inhabited by men of the same sympathies and interests, and in order to become a great nation they re- quired only to be brought together under one General Government. The matter resolved itself into this, either we must obtain British North Ameri- can Confederation or be absorbed in an American Confederation. Some entertained the opinion that it was unnecessary to have British North American Confederation to prevent absorption into the vortex of American Confederation. Such parties were mistaken. We knew the policy of Eng- land towards us that she was determined to help and support us in any 1840-1867] Constitutional Documents of Canada. 621 struggle with our neighbors. The British Provinces, separated as at pre- sent, could not defend themselves alone, and the question resolved itseH into this: shall the whole strength of the empire be concentrated into Prince Edward Island, or Canada, as the case may be, in case of a war with the United States or shall the provinces be left to fight single-handed, dis- united? We were not sufficiently united. We had our duties, with regard to England, to perform. In order to secure the exercise of her power in our defence we must help her ourselves. We could not do this satisfac- torily or efficiently unless we had a Confederation. When all united, the enemy would know that, if he attacked any part of those provinces Prince Edward Island or Canada he would have to encounter the combined strength of the empire. Canada, separate, would be, although compara- tively strong in population and wealth, in a dangerous position should a war ensue. When we had organized our good defensive force, and united for mutual protection, England would send freely here both men and treasure for our defence. He had stated before audiences in the Lower Provinces that, as far as territory, population and wealth were concerned, Canada was stronger than any of the other provinces, but at the same time was wanting in one element necessary to national greatness the maritime one; and that, owing to the large trade and commerce of Canada, extensive communication with Great Britain at all seasons was absolutely necessary. Twenty years ago our commerce for the year could be man- aged by communication with Great Britain in the summer months only. At present, however, this system was insufficient, and for winter com- munication with the seaboard we were left to the caprice of our American neighbors ,through whose territory we must pass. He had also alluded to the bonding system, which if the Americans were to withdraw, Canada would be left in winter without any winter harbors. Canada, having two or three elements of national greatness territory and population wanted the maritime element ; and as he had said, the Lower Provinces had this element and a sea-board, but not a back country or large population, which Canada possessed, and for the mutual benefit and prosperity of all the provinces, all these elements ought to be united together. Those who pre- tended that the British North American Provinces would be in as safe a position, remaining separate, while they belonged to the British Crown, as under Confederation, were under great misapprehension. Now was the time for us to form a great nation of the several provinces. Now was the time to look the matter in the face and adopt the only safe and prudent course open to us in the shape of Confederation. He maintained it was necessary for our own commercial interests, prosperity and efficient de- fence. That was what we had now to discuss, and not the manner in which Confederation was to be brought about, which would be discussed when the details of the scheme came up for consideration. At present the question was: Was Confederation of the British North American Pro- vinces necessary in order to increase our strength and power and secure to us the continuance of the benefits of British connection? He had no doubt that the measure was necessary for those objects. It would be observed that the English speaking opponents of the scheme, in Lowei Canada, pretended a fear of this element being absorbed by the French Canadian; while the opponents, composed of the latter origin of men who might be called the old Papineau Tail whose sole idea was annexa- tion to the United States said they were afraid of the extinction of French Canadian nationality in the great Confederation. The annexation party in Montreal, including the followers of Mr. John Dougall, the proprie- tor of the Witness, opposed the scheme on the ground of supposed danger to the British of Lower Canada. The annexation party could not, however, be supposed to be sincere in their opposition to the scheme except in so far as they desired to carry Canada into the American Union. The absorp- tion of this province into the United States had long been contemplated, as would be seen from the 7th article in the original draft of the American Constitution, which he would read. It was as follows: "Art. 7. Canada, according to this Confederation and joining in the measures of the United 622 Constitutional Documents of Canada. [1840-1867 States, shall be admitted into, and entitled to all the advantages of this union ; and shall be equally with any other of the United States, solemnly bound to a strict observance of, and obedience to, these articles; as shall be also any other colony which shall be admitted into this Confederacy. The eleven votes in Congress shall be increased in proportion as the Con- federacy is extended. But, except Canada, no other colony shall be ad- mitted into the Confederacy without the assent of eleven or more votes as the case may require, by the Confederation being extended." By that article, no new state could go into the union except by the vote of the number of states required to admit a new partner. But, as regarded Can- ada, no such assent was required; on knocking at the door of the union, she would, as a matter of course, be admitted. The honorable gentleman went on to say that the papers lately contained a report of a meeting at the Institut Canadien of Montreal, where it was resolved that it was for the interests of Lower Canada in the interests of the French Canadians, were the province to become a part of the American Union. Hon. Mr. Dorion said that was not the case. The honorable gentle- men had misquoted what had passed there Hon. Mr C artier said he was right. If resolutions were not passed, sentiments were expressed td that effect. Then the organ of the Institute L'Ordrc, he thought had set forth that the interests of Lower Canada would be better secured by annexation to the United States than entering into a Confederation with the British American Provinces. It was no wonder then, that the French Canadian annexationists betrayed their pur- pose in opposition to British North American Confederation, and that their English-speaking colleagues pretended a fear of the rights of their class being jeopardized under Confederation. We knew their object in this that they were aware that as soon as this project was adopted, there would be no avail in any cry. of separation to form a part of the American Union. There had been a good deal of fault-finding and complaint as to the pro- ceedings of,the delegates having been conducted with closed doors. Such a course was an absolute necessity. Every one could understand that if all the difficulties arising among the representatives of the five colonies, during the Conference, had gone every morning to the public, it would have been impossible for the delegates to continue to meet, or compromise any of the difficulties that might be expected to spring up. Besides, the proceedings of the American Congress of 1782 was held with closed doors, and their proceedings were not published while matters were progressing. With regard to this, he would quote from a letter of Col. Mason, a mem- ber of the Convention: "All communications of the proceedings are for- bidden during the sitting of this Convention ; this, I think, was a neces- sary precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its first crude and indigested shape and after it shall have been properly matured and arranged." On the same principle the Conference at Quebec very pro- perly sat with closed doors. We wished, however, that the British Cana- dian public should know the result of our labors when concluded, and fliat result the Parliament and people of Canada had before their consideration, and it was for them to discuss its merits. We, on this side of the House the members of the Government and their supporters had come to the conclusion that Federation was desirable and necessary ; and we were ready to hear the honorable gentlemen on the other side who necessarily, from their standing, were supposed to have devoted their attention to it and appreciated their position, stating what in their opinion would be sufficient in order to maintain ourselves as a British colony on this side of the At- lantic, and to increase in wealth and power. He was aware that some members of the House, and a number of people in Upper Canada, in Lower Canada and in the Lower Provinces, were of opinion that a Legislative Union ought to have taken place instead of a Federal Union. He would say, however, at the outset, that it was impossible to have one Government to deal with all the private and local interests of the several sections of the several provinces forming the combined whole. The next question to 1840-1867] Constitutional Documents of Canada. 623 be considered, therefore, by those who had set to work to discover a solu- tion of the difficulties under which we had labored, was what was the best and most practicable mode of bringing the provinces together, so that particular rights and interests should be properly guarded and protected? No other scheme presented itself but the Federation system, and that was the project which now recommended itself to the Parliament of Canada. Some parties through the press and by other modes pretended that it was impossible to carry out Federation, on account of the differences of races and religions. Those who took this view of the question were in error. It was just the reverse. It was precisely on account of the variety of races, local interests, etc., that the Federation system ought to be re- sorted to, and would be found to work well. We were in the habit of seeing in some public journals, and hearing from some public men, that it was a great misfortune indeed there should be a difference of races in this colony that there should be the distinction of French Canadian from British Canadian. Now, he (Hon. Mr. Cartier) desired on this point to vindicate the rights, the merits, and usefulness, so to speak, of those belonging to the French Canadian race. In order to bring these merits and this usefulness more prominently before his hearers, it would be only necessary to allude to the efforts made by them to sustain British power on this continent, and to point out their adherence to British supremacy in trying times. We were all conversant with the history of the circum- stances which had brought about the difficulties between England and her former American colonies in 1775. Lower Canada, or rather he should say, the Province of Quebec, for the colony was not then known by the name of Canada, but was called the Province of Quebec, contained the most dense population of any British colony in North America at that time. The accession of Lower Canada was of course an object of envy to the other American colonies, and strenuous efforts were made by those who had resolved to overthrow British power on this continent to induce Canada to ally herself to their cause. As early as 1775, the French Cana- dians were solemnly addressed in a proclamation by General Washington, who called upon them to abandon the flag of their new masters, inasmuch as they could not expect anything from those who differed from them in language, in religion, in race, and in sympathies. But what was the con- duct of the French Canadian people under these circumstances what was the attitude of the clergy and the seigniors? It was right in treating this chapter of our history, to render justice to whom justice was due, and it was truth to say that the seigniors, forming, as they did, the educated class of our population at that early epoch, had fully understood that the object and aim of those who appealed to them was the downfall of the monarch- ical system in America. A few years only had elapsed at that time since the transfer of the country and its population from the Crown of France to the Crown of Great Britain ; but even within that brief interval of time, they were enabled to appreciate the advantages of their new position, not- withstanding the fact that they were still struggling and complaining. The people, as well as the clergy and aristocracy, had understood that it was better for them to remain under the English and Protestant Crown of England, rather than to become republicans. They were proof against the insidious offers of George Washington; and not only so, but when the Americans came as invaders, they fought against the armed forces of Arnold, Montgomery and others. Attempts were made to excite hos- tility to Federation on the ground that, under the regime of a local legis- lature, the English Protestant minority would not be fairly dealt with. He thought the way in which the French Canadians had stood by British connection, when there were but few British in the province, was a proof that they would not attempt to deal unjustly now by the British minority, when their numbers were so much greater. On this point, appealing to the evidence of history, he would quote from the work which he had already quoted. At a time when there were, perhaps, hardly a few hundred English Protestant residents in Lower Canada, the address in the name of Wash- ington, to which he had already briefly referred, was circulated through- 624 Constitutional Documents of Canada. [1840-1867 out the country by Arnold's invading army. The hon. gentleman here read a number of extracts from General Washington's proclamation, addressed to the inhabitants of Canada. It made the most earnest appeals to the Lower Canadians to join the other colonies. "We rejoice," said General Washington, "that our enemies have been deceived with regard to you; they have persuaded themselves they have even dared to say that the Canadians were not capable of distinguishing between the blessings of liberty and the wretchedness of slavery; that gratifying the vanity of a little circle of nobility would blind the people of Canada. By such artifices they hoped to bend you to their views, but they have been de- ceived. . . . Come then, my brethern, unite with us in an indissoluable union ; let us run together to the same goal. . . . Incited by these motives, and encouraged by "the advice of many friends of liberty among you, the grand American Congress have sent an army into your province, under the command of General Schuyler not to plunder but to protect you to animate and bring forth into action those sentiments of freedom you have disclosed, and which the tools of despotism would extinguish through the whole creation. To co-operate with this design, and to frustrate those cruel and perfidious schemes, which would deluge our frontiers with the blood of women and children, I have despatched Colonel Arnold into your country, with a part of the army under my command. I have en- joined upon him, and I am certain that he will consider himself, and act as in the country of his patrons and best friends. Necessaries and accommo- dations of every kind which you may furnish he will thankfully receive and render the full value. I invite you, therefore, as friends and brethern, to provide him with such supplies as your country affords ; and I pledge myself not only for your safety and security, but for an ample compensa- tion. Let no man desert his habitation let no one flee as before an enemy. The cause of America and of liberty is the cause of every virtuous Ameri- can citizen, whatever may be his religion or descent. The united colonies know no distinction but such as slavery, corruption and arbitrary dominion may create. Come then, ye generous citizens, range yourselves under the standard of general liberty against which all the force of artifice and tyranny will never be able to prevail." It appeared by this address that the most tempting offers and promises had been made by the republican general; but they had failed, nevertheless, to accomplish the desired effect. This, however, was not the only trait of this nature in the history of the French Canadian people. There was another despatch, or rather proclama- tion, issued in 1778, by Baron EfEstaing, commander of the French fleet, which was acting in aid of the American revolutionary party. The honor- able gentleman read some extracts from this proclamation, as follows : "I shall not ask the military companions of the Marquis of Levis, those who shared his glory, who admired his talents and genius for war, who loved his cordiality and frankness, the principal characteristics of our nobility, whether there be other names in other nations among which they would be better pleased to place their own. Can the Canadians, who saw the brave Montcalm fall in their defences-can they become the enemies of his nephews? Can they fight against their former leaders, and arm them- selves against their kinsmen? At the bare mention of their names, the weapons would fall out of their hands. I shall not observe to the ministers of the altars, that their evangelic efforts will require the special protection of Providence, to prevent faith being diminished by example, by worldly interest, and by sovereigns whom force has imposed upon them, and whose political indulgence will be lessened proportionally as those sovereigns shall have less to fear. I shall not observe that it is necessary for religion that those who preach it should form a body in the state ; and that in Canada no other body would be more considered, or have more power to do good than that of the priests, taking a part in the Government, since their respectable conduct has merited the confidence of the people. I shall not represent to that people, nor to all my countrymen in general, that a vast monarchy, having the same religion, the same manners, the same language, where they find kinsmen, old friends and brethren, must be an 1840-1867] Constitutional Documents of Canada. 625 inexhaustible source of commerce and wealth, more easily acquired and better secured by their union with powerful neighbors, than with strangers of another hemisphere, among whom everything is different, and who, jealous and despotic sovereigns would, sooner or later, treat them as a conquered people, and doubtless much worse than their late countrymen, the Americans, who made them victorious. I shall not urge to a whole people, that to join with the United States is to secure their own happiness, since a whole people, when they acquire the right of thinking and acting for themselves, must know their own interest. But I will declare, and I now formally declare in the name of His Majesty, who has authorized and commanded me to do it, that all his former subjects in North America, who shall no more acknowledge the supremacy of Great Britain, may depend upon his protection and support." rfEstaing had appealed to their ancestry and their prejudices; he had invoked the names of Levis and Montcalm, and endeavored to influence their clergy ; but the French Canadians understood their position too well. If they had their institu- tions, their language and their religion intact to-day, it was precisely be- cause of their adherence to the British Crown. Had they yielded to the appeals of Washington and Baron jyEstaing, it is probable that there would not have been now a vestige of British power on this continent. But, with the disappearance of British power, they too would have dis- appeared as French Canadians. These historical facts taught that there should be a mutual feeling of gratitude from the French Canadians to- wards the British, and from the British towards the French Canadians, for our present position, that Canada is still a British colony. He had had occasion, a moment ago, to refer to the French Canadian clergy in connec- tion with rfEstaing's address, and he would say this, to their honor and credit, that, if to-day Canada was a portion of the British Empire, it was due to the conservatism of the French Canadian clergy. It was a pleasure to him thus to be able to quote from these old documents proofs of the honor, loyalty, and liberality of the French Canadian people. He (Hon. Mr. Cartier) was as devoid of prejudice as any honorable gentleman in this House ; but when he heard or read the statements occasionally made, that there was some danger that, under the Federation system, the French Canadians would have too much power, and that the power thus obtained would be used to the prejudice of the British and Protestant minority the history of the past, in many instances, was the best reply to such attacks. Baron D'Estaing issued his tempting proclamation in 1778, and it was sent into Canada frequently afterwards, and circulated at the in- stigation of Rochambeau and Lafayette; but our clergy and our aristo- cracy, the leaders of our people in these days, saw that it was not their interest to cast their lot with the democratic element they knew the hollowness of democracy. We found ourselves at the present day dis- cussing the question of the Federation of the British North American Provinces, while the great Federation of the United States of America was broken up and divided against itself. There was, however, this im- portant difference to be observed in considering the action of the two peoples. They had founded Federation for the purpose of carrying out and perpetuating democracy on this continent ; but we, who had the bene- fit of being able to contemplate republicanism in action during a period of eighty years, saw its defects, and felt convinced that purely democratic institutions could not be conducive to the peace and prosperity of nations. We were not now discussing the great problem presented to our considera- tion, in order to propagate democratic principles. Our attempt was for the purpose of forming a Federation with a view of perpetuating the monarchical element. The distinction, therefore, between ourselves and our neighbors was just this : In our Federation the monarchical principle would form the leading feature, while on the other side of the lines, judging by the past history and present condition of the country, the ruling power was the will of the mob, the rule of the populace. Every person who had conversed with the most intelligent American statesmen and writers must have learned that they all admitted that the governmental powers had 626 Constitutional Documents of Canada. [1840-1867 become too extended, owing to the introduction of universal suffrage, and inob rule had consequently supplanted legitimate authority; and we now saw the sad spectacle of a country torn by civil war, and brethren fighting against brethren. The question for us to ask ourselves was this : Shall we be content to remain separate shall we be content to maintain a mere provincial existence, when, by combining together, we could become a great nation? It had never yet been the good fortune of any group of communities to secure national greatness with such facility. In past ages, warriors had struggled for years for the addition to their country of a single province. We had too, for instance, in our own days, the case of Napoleon III, who, after great expenditure of blood and treasure in the Italian difficulty, had acquired Savoy and Nice, by which he had ob- tained an addition of nearly one million inhabitants to France only one million souls, and if any person were for a moment to make a calculation of the value of the provinces acquired on one side, and the great cost on the other, he would at once see the great disproportion between the one and the other, and so ascertain the fact that the territory acquired did not compensate the outlay. Here, in British North America, we had five different communities inhabiting five separate colonies. We had the same sympathies, and we all desired to live under the British Crown. We had our commercial interests besides. It was of no use whatever that New Brunswick, Nova Scotia and Newfoundland should have their several custom houses against our trade, or that we should have custom houses against the trade of those provinces. In ancient times, the manner in which a nation grew up was different from that of the present day. Then the first weak settlement increased into a village, which, by turns, became a town and a city, and the nucleus of a nation. It was not so in modern times. Nations were now formed by the agglomeration of communities liaviog kindred interests and sympathies. Such was our case at the present moment. Objection had been taken to the scheme now under considera- tion, because of the words "new nationality." Now, when we were united together, if union were attained, we would form a political nationality with which neither the national origin, nor the religion of any individual, would interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races was Utopian it was impossible. Distinctions of this kind would always exist. Dissimilarity, in fact, appeared to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation could not be formed because Lower Canada was in great part French and Catholic, and Upper Canada was British and Protestant, and the Lower Provinces were mixed, it was futile, and worth- less in the extreme. Look, for instance, at the United Kingdom, inhabited as it was by three great races. Had the diversity of race impeded the glory, the progress, the wealth of England? Hetc ' Senate. 34. The Governor-General may from time to time, by Instrument Appointment under the Great Seal of Canada, appoint a Senator to be Speaker of the pea Senate, and may remove him and appoint another in his stead. 35. Until the Parliament of Canada otherwise provides, the presence Quorum of of at least fifteen Senators, including the Speaker, shall be necessary to* enate - constitute a meeting of the Senate for the exercise of its powers. 36. Questions arising in the Senate shall be decided by a majority ofY oti " Kin voices, and the Speaker shall in all cases have a vote, and when the voices e are equal the decision shall be deemed to be in the negative. The House of Commons. 37. The House of Commons shall, subject to the provisions of this^'g^ " Act, consist of one hundred and eighty-one Members, of whom eighty-two O f Commons. shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick. 1 38. The Governor-General shall from time to time, in the Queen's ^House'of name, by Instrument under the Great Seal of Canada, summon and call Commons. together the House of Commons. 39. A Senator shall not be capable of being elected or of sitting or^torsnot^ voting as a Member of the House of Commons. of Commons. 40. Until the Parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia, and New Brunswick shall, for the purposes of . the g^? c r t *' o{ Election of Members to serve in the House of Commons, be divided into the Four Electoral Districts as follows : Provinces. 1. ONTARIO. Ontario shall be divided into the Counties, Ridings of Counties, Cities, parts of Cities, and Towns enumerated in the First Schedule to this Act. each whereof shall be an Electoral District, each such District as numbered in that Schedule being entitled to return one Member. 2. QUEBEC. Quebec shall be divided into sixty-five Electoral Districts, composed of the sixty-five Electoral Divisions into which Lower Canada is at the passing of this Act divided under Chapter two of the Consolidated Statutes of Canada, Chapter seventy-five of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada of the twenty-third year of the Queen, Chapter one, or any other Act amending the same in force at the Union, so that each such Electoral Division shall be for the purposes of this Act an Electoral District entitled to return one Member. 3. NOVA SCOTIA. Each of the eighteen Counties of Nova Scotia shall be an Electoral District. The County of Halifax shall be entitled to return two members, and each of the other Counties one Member. 4. NEW BRUNSWICK. Each of the fourteen Counties into which New Brunswick is divided, including the City and County of St. John, shall be an Electoral District The City of St. John shall also be a separate Electoral Distncl of those fifteen Electoral Districts shall be entitled to return one Member. 41. Until the Parliament of Canada otherwise provides all laws in Connmjance force in the several Provinces of the Union, relative to the followin at : elections Taws ters or any of them, namely: the qualifications and disqualifications of until Parlia- persons to be elected or to sit or vote as Members of the House of>gttfQi Assembly or Legislative Assembly in the several Provinces, the Vot -s at provide9 1 See below, Section 51. 670 Constitutional Documents of Canada. [1840-1867 Writs for first election. As to casual vacancies. As to election of Speaker. As to filling up vacancy in office of Speaker. Speaker to preside. Provision in case of absence of Speaker. Suorutn of ouse of Commons. Voting in House of Commons. Its duration. Decennial readjustment of represen- tation. Elections of such Members ; the oaths to be taken by Voters ; the Returning Officers, their powers and duties, the proceedings at Elections ; the periods during which Elections may be continued, the trial of controverted Elec- tions and proceedings incident thereto, the vacating of seats of Members, and the execution of new Writs in cases of seats vacated otherwise than by dissolution, shall respectively apply to Elections of Members to serve in the House of Commons for the same several Provinces. Provided that until the Parliament of Canada otherwise provides, at any Election for a Member of the House of Commons for the District of Algoma, in addi- tion to persons qualified by the law of the Province of Canada to vote, every male British Subject, aged Twenty-one years or upwards, being a householder, shall have a vote. 42. For the first Election of Members to serve in the House of Commons, the Governor-General shall cause Writs to be issued by such person, in such form, and addressed to such Returning Officers as he thinks fit. The person issuing Writs under this Section shall have the like powers as are possessed at the Union by the Officers charged with the issuing of Writs for the Election of Members to serve in the respective House of Assembly or Legislative Assembly of the Provinces of Canada, Nova Scotia, or New Brunswick ; and the Returning Officers to whom Writs are directed under this Section shall have the like powers as are possessed at the Union by the Officers charged with the Returning of Writs for the Election of Members to serve in the same respective House of Assembly or Legislative Assembly. 43. In case a vacancy in the representation in the House of Commons of any Electoral District happens before the meeting of the Parliament, or after the meeting of the Parliament before provision is made by the Parlia- ment in this behalf, the provisions of the last foregoing Section of this Act shall extend and apply to the issuing and returning of a Writ in respect of such vacant District. 44. The House of Commons on its first assembling after a General Election shall proceed with all practicable speed to elect one of its members to be Speaker. 45. In case of a vacancy happening in the office of Speaker by death, resignation, or otherwise, the House of Commons shall with all practicable speed proceed to elect another of its members to be Speaker. 46. The Speaker shall preside at all meetings of the House of Com- mons. 47. Until the Parliament of Canada otherwise provides, in case of the absence for any reason of the Speaker from the Chair of the House ot Commons for a period of forty-eight consecutive hours, the House may elect another of its members to act as Speaker, and the Member so elected shall, during the continuance of such absence of the Speaker have and execute all the powers, privileges, and duties of Speaker. 48. The presence of at least twenty Members of the House of Com- mons shall be necessary to constitute a meeting of the House for the exercise of its powers, and for that purpose the Speaker shall be reckoned as a Member. 49. Questions arising in the House of Commons shall be decided by a majority of voices other than that of the Speaker, and when the voices are equal, but not otherwise, the Speaker shall have a vote. 50. Every House of Commons shall continue for five years from the day of the return of the Writs for choosing the House (subject to be sooner dissolved by the Governor-General) and no longer. 51. On the completion of the census in the year one thousand eight hundred and seventy-one, and of each subsequent decennial census, the representation of the four Provinces shall be readjusted by such authority in such manner, and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules: (1) Quebec shall have the fixed number of sixty-five members 1 : 1 See Sir John Macdonald's reasons for this section (p. 611), 1840-1867] Constitutional Documents of Canada. 671 (2) There shall be assigned to each of the other Provinces such a number of Members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty- five bears to the number of the population of Quebec (so ascertained) ; (3) In the computation of the number of Members for a Province, a fractional part not exceeding one-half of the whole number requisite for entitling the Province to a Member shall be disregarded; but a fractional part exceeding one-half of that number shall be equivalent to the whole number: (4) On any such readjustment the number of Members for a Pro- vince shall not be reduced unless the proportion which the number of the population of the Province bore to the number of the aggregate population of Canada at the then last preceding readjustment of the number of Members for the Province is ascertained at the then latest census, to be diminished by one-twentieth part or upwards: (5) Such readjustment shall not take effect until the termination of the then existing Parliament. 52. The number of Members of the House of Commons may be from lncr a* e of time to time increased by the Parliament of Canada, provided the proper- Houseof tipnate representation of the Provinces prescribed by this Act is not thereby Commons, disturbed. Money Votes ; Royal Assent. 53. Bills for appropriating any part of the Public Revenue, or for A PP"P"atin imposing any Tax or Impost, shall originate in the House of Commons. 54. It shall not be lawful for the House of Commons to adopt orRecommenda- pass any Vote, Resolution, Address, or Bill for the appropriation of any*j, on * Money part of the Public Revenue, or of any Tax or Impost, to any purpose, that c has not been first recommended to that House by Message of the Governor- General in the Session in which such Vote, Resolution, Address, or Bill is proposed. 55. Where a Bill passed by the Houses of Parliament is presented to Royal assent the Governor-General for the Queen's assent, he shall declare, according 40 '" s> etc - to his discretion, but subject to the provisions of this Act and to Her Majesty's instructions, either that he assents thereto in the Queen's name, or that he withholds the Queen's assent, or that he reserves the Bill for the signification of the Queen's pleasure 1 . 56. Where the Governor-General assents to a Bill in the Queen's Disallowance name, he shall by the first convenient opportunity send an authentic copy y Cover tary of State thinks fit to disallow the Act, such Disallowance (with a no certificate of the Secretary of State of the day on which the Act was received by him) being signified by the Governor-General, by Speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the day of such signification. 57. A Bill reserved for the signification of the Queen's pleasure shall ff^*V n not have any force unless and until within two years from the day on pi ca8Ure on which it was presented to the Governor-General for the Queen's Assent, Bill reserved, the Governor-General signifies, by Speech or Message to each of the Houses of the Parliament or by Proclamation, that it has received the Assent of the Queen in Council. An entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House, and a duplicate thereof duly attested shall be delivered to the proper Officer to be kept among the Records of Canada. V. PROVINCIAL CONSTITUTIONS. Excutive Power. 58. For each Province there shall be an Officer, styled the Lie" 4603 ' 1 ^^^^",,', Governor, appointed by the Governor-General in Council by Instrument Governorg under the Great Seal of Canada. 1 See No. CLXXXIII, note. 672 Constitutional Documents of Canada. [1840-1867 T ffi nurC f* *' ^ Lieutenant-Governor shall hold office during the pleasure of Lieutenant- tne Governor-General 1 ; but any Lieutenant-Governor appointed after the Governor. commencement of the first Session of the Parliament of Canada shall not be removable within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by Message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not then, within one week after the commencement of the next Session of the Parliament. 60. The salaries of the Lieutenant-Grovernors shall be fixed and provided by the Parliament of Canada. 61. Every Lieutenant-Governor shall, before assuming the duties of Lieutenant- n ' s ^p e ma ke and subscribe before the Governor-General or some person Governor. authorized by him, Oaths of Allegiance and Office similar to those taken by the Governor-General. 62. The provisions of this Act referring to the Lieutenant-Governor extend and apply to the Lieutenant-Governor for the time being of each Province or other the Chief Executive Officer or Administrator for the time being carrying on the Government of the Province, by whatever title he is designated. 63. The Executive Council of Ontario and of Quebec shall be com- posed of such persons as the Lieutenant-Governor from time to time thinks fit, and in the first instance of the following Officers, namely : the Attorney-General, the Secretary and Registrar of the Province, the Treas- urer of the Province, the Commissioner of Crown Lands, and the Com- missioner of Agriculture and Public Works, with, in Quebec, the Speaker of the Legislative Council and the Solicitor-General. 64. The Constitution of the Executive Authority in each of the Pro- and N^ew ia vinces of Nova Scotia and New Brunswick shall, subject to the provisions Brunswick. of this Act. continue as it exists at the Union, until altered under the authority of this Act. 65. All powers, authorities, and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exercisable by the respective Governors or Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Coun- cils or with any number of Members thereof, or 'by those Governors or Lieutenant-Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant-Governor of Ontario and Quebec respectively, with the advice, or with the advice and consent of, or in conjunction with the respective Executive Councils or any Members thereof, or by the Lieutenant-Gov- ernor individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be abolished or altered by the respective Legislatures of Ontario and Quebec. 66. The provisions of this Act referring to the Lieutenant-Governor in Council shall be construed as referring to the Lieutenant-Governor of the Province acting by and with the advice of the Executive Council thereof. 67. The Governor-General in Council may from time to time appoint an Administrator to execute the office and functions of Lieutenant-Gov- ernor during his absence, illness, or other inability. 68. Unless and until the Executive Government of any Province otherwise directs with respect to that Province, the seats of Government of the Provinces shall be as follows, namely, of Ontario, the City of Salaries of Lieutenant- Governors. Application of provisions referring to Lieutenant- Governor. Appointment of Executive Officers for Ontario and Quebec. Government Powers to be exercised by Lieutenant- Governor of Ontario or Quebec with advice or alone. As to Lieuten- ant-Governor in Council. As to absence, etc., of Lieutenant- Governor. Seats of Pro- vincial Gov- ernments. 1 For cases of dismissal of Lieutenant-Governors, sec Todd. Parliamentary Government in British Colonies; Willison, Sir Wilfrid Laurier and the Liberal Party. 1840-1867] Constitutional Documents of Canada. 673 A ~c i ' ^ he Cit ? of Q uebe c: of Nova Scotia, the City of ; and of New Brunswick, the City of Fredericton. Legislative Power. 1. Ontario. 69 There shall be a Legislature for Ontario, consisting of the Lieu- Legislature tenant-Governor and of one House, styled the Legislative Assembly of for Ontario. Untano. 70. The Legislative Assembly of Ontario shall be composed of Eighty- Electorial two Members to be elected to represent the Eighty-two Electoral Districts Districts, set forth in the First Schedule to this Act. 2. Quebec. 71. There shall be a Legislature for Quebec, consisting of the Lieu- Legislature tenant-Governor and of two Houses, styled the Legislative Council o f f or Quebec. Quebec and the Legislative Assembly of Quebec. 7 ?> T ^ e Le & islative Council of Quebec shall be composed of Twenty- Constitution four Members, to be appointed by the Lieutenant-Governor in the Queen's f Legislative name by Instrument under the Great Seal of Quebec, one being appointed to represent each of the Twenty-four Electoral Divisions of Lower Canada in this Act referred to, and each holding office for the term of his life, unless the Legislature of Quebec otherwise provides under the provisions of this Act. 73. The qualifications of the Legislative Councillors of Quebec shall be the same as those of the Senators for Quebec. CounSfiori 74. The place of a Legislative Councillor of Quebec shall become ;,.:., vacant in the cases, mutatis mutandis, in which the place of Senator be- etc. comes vacant. 75. When a vacancy happens in the Legislative Council of Quebec Vacancies, by resignation, death, or otherwise, the Lieutenant-Governor, in the Queen's name, by Instrument under the Great Seal of Quebec, shall appoint a fit and qualified person to fill the vacancy. 76. If any question arises respecting the qualification of a Legislative Questions as Councillor of Quebec, or a vacancy in the Legislative Council of Quebec. e vacanc ' e . the same shall be heard and determined by the Legislative Council. 77. The Lieutenant-Governor may, from time to time, by Instrument Speaker of under the Great Seal of Quebec, appoint a Member of the Legislative L *j^?, tiTe Council of Quebec, to be Speaker thereof, and may remove him and ap- point another in his stead. 78. Until the Legislature of Quebec otherwise provides, the presence Quorum of of at least ten Members of the Legislative Council, including the Speaker. ctundl' V< shall be necessary to constitute a meeting for the exercise of its powers. 79. Questions arising in the Legislative Council of Quebec shall be Voting . decided by a majority of voices, and the Speaker shall in all cases have a c^f/*^ 1 *' vote, and when the voices are equal, the decision shall be deemed to be in the negative. 80. The Legislative Assembly of Quebec shall be composed of Sixty- Constitution five Members, to be elected to represent the Sixty-five Electoral Divisions Assembly " or Districts of Lower Canada in this Act referred to, subject to alteration of Quebec, thereof by the Legislature of Quebec: Provided that it shall not be lawful to present to the Lieutenant-Governor of Quebec for assent any Bill for altering the limits of any of the Electoral Divisions or Districts mentioned in the Second Schedule to this Act, unless the second and third readings of such Bill have been passed in the Legislative Assembly with the concur- rence of the majority of the Members representing all those Electoral Divisions or Districts, and the assent shall not be given to such Bill unless an address has been presented by the Legislative Assembly to the Lieuten- ant-Governor, stating that it has been so passed. 3. Ontario and Quebec. 81. The Legislatures of Ontario and Quebec respectively shall beJI^gg 00 called together not later than six months after the Union. tures. QQ 674 Constitutional Documents of Canada. [1840-1867 Summoning of Legislative Assemblies. Restriction on election of holders of office. Continuance of existing election laws. 82. The Lieutenant-Governor of Ontario and of Quebec shall, from time to time, in the Queen's name, by Instrument under the Great Seal of the Province, summon and call together the Legislative Assembly of the Province. 83. Until the Legislature of Ontario or of Quebec otherwise provides, a person accepting or holding in Ontario or in Quebec any office, commis- sion, or employment, permanent or temporary at the nomination of the Lieutenant-Governor, to which an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever from the Province is attached, shall not be eligible as a Member of the Legislative Assembly of the respective Province, nor shall he sit or vote as such ; but nothing in this Section shall make ineligible any person being a Member of the Executive Council of the respective Province, or holding any of the fol- lowing Offices, that is to say: the Offices of Attorney-General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Commissioner of Agriculture and Public Works, and in Quebec Solicitor-General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such Office. 84. Until the Legislatures of Ontario and Quebec respectively other- wise provide, all laws which at the Union are in force in those Provinces respectively, relative to the following matters or any of them, namely, the qualifications and disqualifications of persons to be elected or to sit or vote as Members of the Assembly of Canada, the qualifications or disquali- fications of voters, the oaths to be taken by voters, the Returning Officers, their powers and duties, the proceedings at Elections, the periods during which such Elections may be continued, and the trial of controverted Elections and the proceedings incident thereto, the vacating of the seats of Members, and the issuing and execution of new Writs in case of seats vacated otherwise than by dissolution, shall respectively apply to Elections of Members to serve in the respective Legislative Assemblies of Ontario and Quebec. Provided that until the Legislature of Ontario otherwise provides, at any Election for a Member of the Legislative Assembly of Ontario for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British Subject aged Twenty-one years or upwards, being a householder, shall have a vote. 85. Every Legislative Assembly of Ontario and every Legislative Assembly of Quebec shall continue for four years from the day of the return of the Writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the Legislative Assembly of Que- bec being sooner dissolved by the Lieutenant-Governor of the Province), and no longer. 86. There shall be a Session of the Legislature of Ontario and of that of Quebec once at least in every year, so that twelve months shall not intervene between the last sitting of the Legislature in each Province in one Session and its first sitting in the next Session. 87. The following provisions of this Act respecting the House of Commons of Canada, shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to say, the provisions relating to the Elec- tion of a Speaker originally and on vacancies, the duties of the Speaker, the absence of the Speaker, the quorum, and the mode of voting, as if those provisions were here re-enacted and made applicable in terms to each such Legislative Assembly. 4. Nova Scotia and New Brunswick. Constitutions g8. The Constitution of the Legislature of each of the Provinces of tures oi Nova Nova Scotia and New Brunswick shall, subject to the provisions of this Scotia and Act, continue as it exists at the Union until altered under the Authority New Brans- of this Act; and the House of Assembly of New Brunswick existing at the passing of this Act shall, unless sooned dissolved, continue for the period for which it. was elected. Duration of Legislative Assemblies Yearly Session of Legislature. Speaker, quorum, etc. 1840-1867] Constitutional Documents of Canada. 675 S. Ontario, Quebec and Nova Scotia. 89. Each of the Lieutenant-Governors of Ontario, Quebec, and Nova First Elec- Scotia, shall cause Writs to be issued for the first Election of Members of** 01 "- the Legislative Assembly thereof in such form and by such person as he thinks fit, and at such time and addressed to such Returning Officer as the Governor-General directs, and so that the first Election of Member of Assembly for any Electoral District or any subdivision thereof shall be held at the same time and at the same places as the Election for a Member to serve in the House of Commons of Canada for that Electoral District. 6. The Four Provinces. 90. The following provisions of this Act respecting the Parliament -Application to of Canada, namely, the provisions relating to appropriation and tax Bills, ^provision's the recommendation of money votes, the assent to Bills, the disallowance respecting of Acts 1 , and the signification of pleasure on Bills reserved, shall extend mone y votes, and apply to the Legislatures of the several Provinces as if those provisions were here re-enacted and made applicable in terms to the respective Pro- vinces and the Legislatures thereof, with the substitution of the Lieutenant- Governor of the Province for the Governor-General, of the Governor- General for Queen and for a Secretary of State, of one year for two years and of the Province for Canada. VI. DISTRIBUTION OF LEGISLATIVE POWERS. Powers of the Parliament? 91. It shall be lawful for the Queen, by and with the advice and con- fr e! [i* 1 *^ ve . sent of the Senate and House of Commons, to make laws for the peace, Pariiamentof order and good government of Canada in relation to all matters not coming Canada, within the classes of subjects by this Act assigned exclusively to the Legis- latures of the Provinces ; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Au- thority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say: 1. The Public Debt and Property: 2. The regulation of Trade and Commerce: 3. The raising of money by any mode or system of Taxation : 4. The borrowing of money on the Public Credit: 5. Postal Service: 6. The Census and Statistics : 7. Militia, Military and Naval Service ,and Defence : 8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada: 9. Beacons, Buoys, Lighthouses, and Sable Island : 10. Navigation and Shipping: 11. Quarantine and the establishment and maintenance of Marine h pitals : 12. Sea Coast and Inland Fisheries : 13. Ferries between a Province and any British or Foreign Country, or between two Provinces: 14. Currency and Coinage : 15. Banking, Incorporation of Banks, and the issue of Paper Money: 16. Savings Banks: 17. Weights and Measures : 18. Bills of Exchange and Promissory Notes : 19. Interest : i v^r t\ir disallowance and reservation of Provincial Art*, see Canadian Sessional Pate* 1870. No ,35,^,^6. Consult, also. Hodrin*. and r.isbornc. The C pondence . . Pon the subject of Dominion and Provincial Legulalion, 1867-1 1904-1906. summary of the interpretation by the Court* of Section.. 91 and 92 see E. R. Cameron, The Canadian ContttMion (WmrnpcR. 1915). and Lfroy and Kennedy, Treatise on Canadian ConsMvtto*al Law (1918). 676 Constitutional Documents of Canada. [1840-1867 20. Legal Tender: 21. Bankruptcy and Insolvency: 22. Patents of Invention and Discovery: 23. Copyrights : 24. Indians and Lands reserved for the Indians: 25. Naturalization and Aliens: 26. Marriage and Divorce : 27. The Criminal Law, except the Constitution of the Courts of Crim- inal Jurisdiction, but including the Procedure in Criminal Mat- ters: 28. The establishment, maintenance and management of Penitentiaries: 29. Such Classes of Subjects as are expressly excepted in the enumera- tion of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces: And any matter coming within any of the Classes of Subjects enum- erated in this section shall not be deemed to come within the Class of matters of a local or private nature comprised in the Enumeration of the Gasses of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. Exclusive Powers of Provincial Legislatures. Subjects of 92. In each Province the Legislature may exclusively make laws in Provincial relation to matters coming within the Classes of Subjects next hereinafter Legislation, enumerated ; that is to say : 1. The amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant-Governor : 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes: 3. The borrowing of money on the sole credit of the Province: 4. The establishment and tenure of Provincial Offices, and the appoint- ment and payment of Provincial officers: 5. The management and sale of the Public Lands belonging to the Province, and of the timber and wood thereon : 6. The establishment, maintenance, and management of public and reformatory prisons in and for the Province: 7. The establishment, maintenance, and management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and fot the Provinces, other than Marine Hospitals: 8. Municipal Institutions in the Province: 9. Shop, Saloon, Tavern, Auctioneer, and other Licenses, in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes : 10. Local works and undertakings, other than such as are of the fol- lowing classes: a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending be- yond the limits of the Province: b. Lines of Steam Ships between the Province and any British or Foreign Country: c. Such works as, although wholly situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces: 11. The Incorporation of Companies with Provincial Objects: 12. The Solemnization of Marriage in the Province : 13. Property and civil rights in the Province : 14. The Administration of Justice in the Province, including the con- stitution, maintenance ,and organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including proce- dure in civil matters in those Courts : 1840-1867] Constitutional Documents of Canada. 677 15. The imposition of punishment by fine, penalty, or imprisonment tor entorcmg any Law of the Province made in relation to any matter coming within any of the classes of subjects enumerated m this Section : 16. Generally all matters of a merely local or private nature in the Province. Education. 93. In and for each Province the Legislature may exclusively make Legislation laws m relation to Education, subject and according to the following pro- J?! pectin * Visions : Education. (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of per- sons have by law m the Province at the Union :' (2) All the powers, privileges, and duties at the Union by law con- ferred and imposed in Upper Canada on the separate Schools and School Trustees of the Queen's Roman Catholic Subjects, shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec; (3) Where in any Province a system of separate or Dissentient Schools exists by law at the Union or is thereafter established by the Legislature of the Province, an appeal shall lie to the Governor-General in Council from any act of decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's Subjects in relation to Education; (4) In case any such Provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this Section is not made, or in case any decision of the Governor-General in Council on any appeal under this Section is not duly executed by the proper Provincial authority in that behalf, then and in every such case ,and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this Section, and of any decision of the Governor- General in Council under this Section. Uniformity of Laws in Ontario, Nova Scotia, and New Brunswick. 94. Notwithstanding anything in this Act, the Parliament of CanadaL8 isla . tion may make provision for the uniformity of all or any of the laws relative formity of to property and civil rights in Ontario, Nova Scotia, and New Brunswick, laws in three and of the procedure of all or any of the Courts in those three Provinces, Provinces, and from and after the passing of any Act in that behalf, the power of the Parliament of Canada to make laws in relation to any matter com- prised in any such Act shall, notwithstanding anything in this Act, be un- restricted; but any Act of the Parliament of Canada making provision for such uniformity shall not have effect in any Province unless and until it is adopted and enacted as law by the Legislature thereof. Agriculture and Immigration. 95. In each Province the Legislature may make laws in relation to C 3 ",, e f nt Agriculture in the Province, and to Immigration into the Province; and it L^rUUUon is hereby declared that the Parliament of Canada may from time to time respecting make laws in relation to Agriculture in all or any of the Provinces, and toA* riculturp - Immigration into all or any of the Provinces; and any law of the Legisla- ture of a Province, relative to Agriculture or to Immigration, shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. VII. JUDICATURE. 96. The Governor-General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 1 For the school question, see Willison, of. cit., Vol. II. For leading cases, see Maker v. Town of Portland; City of Winnipeg v. Barrett; Brophy v. Att. Gen. of Manitoba, reported in Wheeler, Confederation Law of Canada, pp. 3 ) ff., 371 ft., 376 ff., For the Manitoba provisions, see No. CLXXX, | 22. 678 Constitutional Documents of Canada. [1840-1867 Selection of J udges in Ontario, etc.; In Quebec. Tenure of office of Judges of Superior Courts. Salaries, etc. of Judges. General Court of Appeal, etc. Creation of Consolidated Revenue Fund. Expenses of Collection, etc Interest of Provincial public debts. Salary of Governor- General. Appropriation from time to time. Transfer of Stocks, etc. Transfer of property in Schedule. Property in Lands, Mines, etc. Assets con- nected with 97. Until the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick, and the procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor-General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province. 99. The Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor-General on address of the Senate and House of Commons. 100. The salaries, allowances, and pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in case* where the Judges thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada. 101. The Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance, and organization of a General Court of Appeal for Canada, and for the estab- lishment of any additional Courts for the better Administration of the Laws of Canada. VIII. REVENUES; DEBTS; ASSETS; TAXATION. 102. All Duties and Revenues over which the respective Legislature? of Canada, Nova Scotia, and New Brunswick before and at the Union, had and have power of appropriation, except such portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special powers conferred on them by this Act, shall form one Consolidated Revenue Fund, to be appropriated for the public service of Canada in the manner and subject to the charges in this Act provided. 103. The Consolidated Revenue Fund of Canada shall be permanently charged with the costs, charges and expenses incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon subject to be reviewed and audited in such manner as shall be ordered by the Governor-General in Council until the Parliament otherwise provides. 104. The annual Interest of the public debts of the several Provinces of Canada, Nova Scotia and New Brunswick at the Union shall form the second charge on the Consolidated Revenue Fund of Canada. 105. Unless altered by the Parliament of Canada, the salary of the Governor-General shall be Ten Thousand Pounds sterling money of the United Kingdom of Great Britain and Ireland, payable out of the Con- solidated Revenue Fund of Canada, and the same shall form the third charge thereon. 106. Subject to the several payments by this Act charged on the Con- solidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the public service. 107. All Stocks, Cash, Bankers' Balances, and Securities for money belonging to each Province at the time of the Union, except as in this Act mentioned, shall be the property of Canada, and shall be taken in re- duction of the amount of the respective debts of the Provinces at the Union. 108. The Public Works and Property of each Province enumerated in the Third Schedule to this Act shall be the Property of Canada. 109. All Lands, Mines, Minerals, and Royalties belonging to the sev- eral Provinces of Canada, Nova Scotia, and New Brunswick, at the Union and all sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same. 110. All Assets connected with such portions of the Public Debt of 1840-1867] Constitutional Documents of Canada. 679 each Province as are assumed by that Province shall belong to that Pro- provincial 11 r debts. 11. Canada shall be liable for the Debts and Liabilities of each Pro-Canad.to vmce existing at the Union. be liable JUS 1 r?" tar iV nd .9 U u eb u C ""yo'ntly shall be liable to Canada for the 10 *' amount (if any) by which the debt of the Province of Canada exceeds at Debts of the Union Sixty-two million five hundred thousand dollars, and shall be nt ioand charged with interest at the rate of five per centum per annum thereon Quebec ' i T t 6 ?? s ? ts enumer a ted in the Fourth Schedule to this Act, be- Assets of longing at the Union to the Province of Canada, shall be the property o f nt l Ontario and Quebec conjointly. Quebec. 114 Nova Scotia shall be liable to Canada for the amount (if any) Debt of by which its public debt exceeds at the Union Eight million dollars and Nova Scotia shall be charged with interest at the rate of five per centum per annum thereon. 115. New Brunswick shall be liable to Canada for the amount (if Debt of New any) by which its public debt exceeds at the Union Seven million dollars Br "<*- andjshall be charged with interest at the rate of five per centum per annum thereon. 116. In case the public debts of Nova Scotia and New Brunswick do Payment of not at the Union amount to Eight million and Seven million dollars respec- JS'""^- tively, they shall respectively receive, by half-yearly payments in advance and N^r from the Government of Canada, interest at five per centum per annum on Brunswick, the difference between the actual amounts of their respective debts and such stipulated amounts. 117. The several Provinces shall retain all their respective public Provincial property not otherwise disposed of in this Act, subject to the right of^oMrty Canada to assume any lands or public property required for Fortifications or for the defence of the country. 118. The following sums' shall be paid yearly by Canada to the sev- S ran - t8 to eral Provinces for the support of their Governments and Legislatures : Dollars Ontario Eighty thousand Quebec Seventy thousand Nova Scotia Sixty thousand New Brunswick Fifty thousand Two hundred and Sixty thousand ; and an annual grant in aid of each Province shall be made, equal to Eighty cents per head of the population as ascertained by the census of One thousand eight hundred and Sixty-one, and in the case of Nova Scotia and New Brunswick, by each subsequent decennial census until the population of each of those two Provinces amounts to Four hundred thousand souls, at which rate such grant shall thereafter remain. Such grants shall be in full settlement of all future demands on Canada, and shall be paid hajf- yearly in advance to each Province; but the Government of Canada shall deduct from such grants, as against any Province, all sums chargeable as interest on the public debt of that Province in excess of the several amounts stipulated in this Act. 119. New Brunswick shall receive, by half-yearly payments in advance Furt |, er ranu from Canada, for the period of ten years from the Union, an additional " ' allowance of Sixty-three thousand dollars per annum; but as long as the Brunswick. public debt of that Province remains under Seven million dollars, a de- duction equal to the interest at five per centum per annum on such defi- ciency shall be made from that allowance of Sixty-three thousand dollars. 120. All Payments to be made under this Act, or in discharge of lia-Formof bilities created under any Act of the Provinces of Canada, Nova Scotia. pyetiti. and New Brunswick respectively, and assumed by Canada, shall, until the 1 For an early dispute over this section with Nova Scotia, see Pope, Life of Sir John Macdonald, Vol. II, pp. 32 ff. ; 301 ff. See also No. CLXXXVII for the present arrangements. 680 Constitutional Documents of Canada. [1840-1867 in New Brunswick. Exemption of public Lands. Provincial Consolidated Revenue Fund. Parliament of Canada otherwise directs, be made in such form and manner as may from time to time be ordered by the Governor-General in Council. manufacturers, 121. All articles of the growth, produce, or manufacture of any one etc. 'of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces. Customs and J22. The Customs and Excise Laws of each Province shall, subject to e aws. t j ie p rov j s j ons o f thj s Act, continue in force until altered by the Parliament of Canada. ^nj'lm 3110 ' 1 123. Where Customs Duties are, at the Union, leviable on any goods, tion aTbetw\n wares, or merchandises in any two Provinces, those goods, wares, and two Provinces, merchandises may from and after the Union, be imported from one of those Provinces into the other of them, on proof of payment of the Cus- toms Duty leviable thereon in the Province of exportation, and on pay- ment of such further amount (if any) of Customs Duty as is leviable Lumber dues tnereon in the Province of importation. 124. Nothing in this Act shall affect the right of New Brunswick to levy the lumber dues 1 provided in Chapter Fifteen of Title Three of the Re- vised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues ; but the lumber of any of the Provinces other than New Brunswick shall not be subject to such dues. 125. No Lands or Property belonging to Canada or any Province shall be liable to taxation. 126. Such portions of the Duties and Revenues over which the respec- tive Legislatures of Canada, Nova Scotia, and New Brunswick had before the Union power of appropriation, as are by this Act reserved to the respective Governments or Legislatures of the Provinces, and all Duties and Revenues raised by them in accordance with the special powers con- ferred upon them by this Act, shall in each Province form one Consolidated Revenue Fund to be appropriated for the Public Service of the Province. IX. MISCELLANEOUS PROVISIONS. General. 127. If any person being at the passing of this Act, a Member of the Legislative Council of Canada, Nova Scotia, or New Brunswick, to whom a place in the Senate is offered, does not within thirty days thereafter, by writing under his hand, addressed to the Governor-General of the Pro- vince of Canada or to the Lieutenant-Governor of Nova Scotia or New Brunswick (as the case may be) accept the same, he shall be deemed to have declined the same; and any person who, being at the passing of this Act a Member of the Legislative Council of Nova Scotia or New Bruns- wick, accepts a place in the Senate, shall thereby vacate his Seat in such Legislative Council. 128. Every Member of the Senate or House of Commons of Canada shall, before taking his Seat therein, take and subscribe before the Gover- nor-General or some person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall, before taking his Seat therein, take and subscribe before the Lieutenant-Governor of the Province, or some person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act ; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor-General, or some person authorized by him, the Declaration of Qualification contained in the same Schedule. 129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue, in Ontario, Quebec, Nova 'These dues were abolished by the Treaty of Washington, Section XXXI, 1871. An Act was passed by the Dominion Parliament (36 Victoria, c. 41), providing com- pensation for New Brunswick from the Dominion. As to Legisla- tive Council- lors of Pro- vince becom- ing Senator*. Oath of At- legiance, etc. Continuance of existing Laws, Courts, Officers, etc. 1840-1867] Constittuional Documents of Canada. 681 Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parlia- ment of the United Kingdom of Great Britain and Ireland) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the authority of the Parliament or of that Legislature under this Act. 130. Until the Parliament of Canada otherwise provides, all Officers Tran0fer of of the several Provinces having duties to discharge in relation to matters officers to other than those coming within the classes of subjects by this Act assigned Canada, exclusively to the Legislatures of the Provinces shall be Officers of Can- ada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties as if the Union had not been made. 131. Until the Parliament of Canada otherwise provides, the Governor- Appointment General in Council may from time to time appoint such Officers as the ot new Governor-General in Council deems necessary or proper for the effectual Officer*, execution of this Act. 132. The Parliament and Government of Canada shall have all powers Treaty obli- necessary or proper for performing the obligations of Canada or of anygation. Province thereof, as part of the British Empire, towards Foreign Coun- tries .arising under Treaties between the Empire and such Foreign Coun- tries. 133. Either the English or the French language may be used by any ^2 d Eng " person in the debates of the Houses of the Parliament of Canada and of French the Houses of the Legislature of Quebec; and both those languages shall languages, be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person or in any pleading or process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Que- bec shall be printed and published in both those languages. Ontario and Quebec. 134. Until the Legislature of Ontario or of Quebec otherwise pro- fflggj vides, the Lieutenant-Governors of Ontario and Quebec may each appoint, officer* for under the Great Seal of the Province, the following Officers, to hold office Ontario and during pleasure, that is to say, the Attorney-General, the Secretary and uue Registrar ,of the Province, the Treasurer of the Province, the Commis- sioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and in the case of Quebec the Solicitor-General; and may, by order of the Lieutenant-Governor in Council, from time to time prescribe the duties of those Officers, and of the several Departments over which they shall preside or to which they shall belong, and of the Officers and Clerks thereof; and may also appoint other and additional Officers to hold office during pleasure, and may from time to time prescribe the duties of those Officers, and of the several Departments over which they shall pre- side or to which they shall belong, and of the Officers and Clerks thereof. 135. Until the Legislature of Ontario or Quebec otherwise provides, /* etc all rights powers, duties, functions, responsibilities, or authorities at the of Exe \. utive passing of this Act vested in or imposed on the Attorney-General, Solicitor- officen. General, Secretary and Registrar of the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Public WorV and Minister of Agriculture and Receiver-General, by any Law Statute, or Ordinance of Upper Canada, Lower Canada, or Canada and not re- pugnant to this Act, shall be vested in or imposed on any Officer to b appointed by the Lieutenant-Governor for the discharge of the same or any of them; and the Commissioner of Agriculture and Public Works shall perform the duties and functions of the office of Minister of Agriculture at the passing of this Act imposed by the law of the Province of Canada as well as those of the Commissioner of Public Works. 682 Constitutional Documents of Canada. [1840-1867 Great SeaJs. Construction of temporary Acts. As to errors in names. As to issue of Proclama- tions before Union to com- mence after Union. As to issue of Proclama- tions after Union. Penitentiary. Arbitration respecting Debts, etc. Division of records. Constitution of Townships in Quebec. and pTr7i! nt ment of Can- ada to make 136. Until altered by the Lieutenant-Governor in Council, the Great Seals of Ontario and Quebec respectively shall be the same, or of the same design, as those used in the Provinces of Upper Canada and Lower Canada respectively before their Union as the Province of Canada. 137. The words 'and from thence to the end of the then next ensuing Session of the Legislature,' or words to the same effect used in any tem- porary Act of the Province of Canada not expired before the Union, shall be construed to extend and apply to the next Session of the Parliament oi Canada, if the subject-matter of the Act is within the powers of the same as defined by this Act, or to the next Sessions of the Legislatures of On- tario and Quebec respectively, if the subject-matter of the Act is within the powers of the same as defined by this Act. 138. From and after the Union the use of the words 'Upper Canada' instead of 'Ontario,' or 'Lower Canada' instead of 'Quebec,' in any Deed, Writ, Process, Pleading, Document, Matter, or Thing shall not invalidate the same. 139. Any Proclamation under the Great Seal of the Province of Can- ada, issued before the Union, to take effect at a time which is subsequent to the Union, whether relating to that Province, or to Upper Canada, or to Lower Canada, and the several matters and things therein proclaimed, shall be and continue of like force and effect as if the Union had not been made. 140. Any Proclamation which is authorized by any Act of the Legi> lature of the Province of Canada to be issued under the Great Seal of the Province of Canada, whether relating to that Province, or to Upper Can- ada, or to Lower Canada, and which is not issued before the Union, may be issued by the Lieutenant-Governor of Ontario or of Quebec, as its subject-matter requires, under the Great Seal thereof; and from and after the issue of such Proclamation the same and the several matters and things therein proclaimed shall be and continue of the like force and effect in Ontario or Quebec as if the Union had not been made. 141. The Penitentiary of the Province of Canada shall, until the Par- liament of Canada otherwise provides, be and continue the Penitentiary of Ontario and of Quebec. 142. The division and adjustment of the Debts, Credits, Liabilities, Properties, and Assets of Upper Canada and Lower Canada shall be re- ferred to the arbitrament of three arbitrators, one chosen by the Govern- ment of Ontario, one by the Government of Quebec ,and one by the Gov- ernment of Canada; and the selection of the arbitrators shall not be made until the Parliament of Canada and the Legislatures of Ontario and Que- bec have met ; and the arbitrator chosen by the Government of Canada shall not be a resident either in Ontario or in Quebec. 143. The Governor-General in Council may from time to time order that such and so many of the records, books and documents of the Pro- vince of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec, and the same shall thenceforth be the property of that Province; and any copy thereof or extract therefrom, duly certified by the Officer having charge of the original thereof, shall be admitted as evidence. 144. The Lieutenant-Governor of Quebec may from time to time, by Proclamation under the Great Seal of the Province, to take effect from a day to be appointed therein, constitute Townships in those parts of the Province of Quebec in which Townships are not then already constituted, and fix the metes and bounds thereof. X. INTERCOLONIAL RAILWAY. 145. Inasmuch as the Provinces of Canada, Nova Scotia, and New Brunswick have joined in a declaration that the construction of the Inter- colonial Railway 1 is essential to the consolidation of the Union of British North America, and to the assent thereto of Nova Scotia and New Bruns- wick - an< * nave consequently agreed that provision should be made for its 1 See Sir Sandford Fleming, The Intercolonial Railway. 1840-1867] Constitutional Documents of Canada. 683 immediate construction by the Government of Canada: Therefore, in order to give effect to that agreement, it shall be the duty of the Government and Parliament of Canada to provide for the commencement, within Six months after the Union, of a Railway connecting the River St. Lawrence with the City of Halifax in Nova Scotia, and for the construction thereof without intermission, and the completion thereof with all practicable speed. XI. ADMISSION OF OTHER COLONIES. 146. It shall be lawful for the Queen, by and with the advice of Her Power to Majesty's Most Honourable Privy Council, on Addresses from the Houses (%$' 'of the Parliament of Canada, and from the Houses of the respective Legis- e tc., into the latures of the Colonies or Provinces of Newfoundland, Prince Edward Union. Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parlia- ment of Canada to admit Rupert's Land and the North-Western Territory, or either of them, into the Union, on such terms and conditions in each case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. 1 147. In case of the admission of Newfoundland and Prince Edward A to the Island or either of them, each shall be entitled to a representation, in thej^J^J^ Senate of Canada, of Four Members, and (notwithstanding anything in i an d an d this Act) in case of the admission of Newfoundland the normal number Prince Ed- of Senators shall be Seventy-six and their- maximum number shall be!^ a ^*{* nc1 Eighty-two ; but Prince Edward Island when admitted shall be deemed to be comprised in the third of the Three Divisions into which Canada is, in relation to the constitution of the Senate, divided by this Act, and accord- ingly, after the admission of Prince Edward Island, whether Newfound- land is admitted or not, the representation of Nova Scotia and New Bruns- wick in the Senate shall, as vacancies occur, be reduced from Twelve to Ten Members respectively, and the representation of each of those Pro- vinces shall not be increased at any time beyond Ten, except under the provisions of this Act, for the appointment of Three or Six additional Senators under the direction of the Queen. Note. The schedules of the B.N.A. Act are omitted as unnecessary for the purposes of this volume. 1 Prince Edward Island, British Columbia, Rupert's Land and North Western Territory were admitted by Orders-in-Council dated respectively 26 June, 1873, 16 May, 1871 23 June 1870. Compare Nos. CLXXXI and CLXXXV. SIXTH PERIOD 1867-1915 SIXTH PERIOD 1867-1915 The workings of the British North America Act, 1867, lie largely outside the sphere of Constitutional history, and belong to that of Constitutional law. The Act was almost of necessity a skeleton. The great aim was to provide a working plan for Con- federation. The interpretation of the Act has belonged almost entirely to the Canadian courts and to the Judicial Committee of the Privy Council, and there has grown up round it a body of legal decisions which form a formidable and complicated study. Cart- wright's Cases carry the decisions down to 1896. Cameron's Con- stitution of Canada down to 1915. A shorter summary up to 1918 is found in Lefroy and Kennedy, Short Treatise on Canadian Con- stitutional Law. Judicial constructions of certain sections of the Act are outlined in Jenkyns, British Rule and Jurisdiction beyond the Seas, App. III. (Oxford, 1902). To these books the student must refer. In this section I have only found it necessary to insert the Manitoba Act, the Alberta Act, some Imperial Acts of Parliament dealing with the Constitution of Canada, and some documents connected with the office of Governor-General of the Dominion. 1867-1915] Constitutional Documents of Canada. 689 CLXXX THE MANITOBA ACT (33 Victoriae, c. 3.) 1 An Act to amend and continue the Act 32 and 33 Victoriae, chapter 3; and to establish and provide for the Government of Manitoba. [Assented to May 12th, 1870.] Whereas it is probable that Her Majesty, The Queen, may, pursuantp reamW , to the British North America Act, 1867, be pleased to admit Rupert's Land and the North-Western Territory 2 into the Union or Dominion of Canada, before the next Session of the Parliament of Canada: And whereas it is expedient to prepare for the transfer of the said Territories to the Government of Canada at the time appointed by the Queen for such admission : And whereas it is expedient also to provide for the organization of part of the said Territories as a province, and for the establishment of a Government therefor, and to make provision for the Civil Government of the remaining part of the said Territories, not included within the limits of the Province : Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Province to 1. On, from and after the day upon which the Queen, by and with 1 ** for ed the advice and consent of Her Majesty's Most Honorable Privy Council, terrhory wher under the authority of the 146th Section of the British North America united to Act, 1867, shall by Order in Council in that behalf, admit Rupert's Land Canada - and the North-Western Territories into the Union or Dominion of Canada, there shall be formed out of the same a province, which shall be one "'"its namr *nH the Provinces of the Dominion of Canada, and which shall be called the boundaries. Province of Manitoba, and be bounded as follows : that is to say, com- mencing at the point where the meridian of ninety-six degrees west long- itude from Greenwich intersects the parallel of forty-nine degrees north latitude, thence due west along the said parallel of forty-nine degrees north latitude (which forms a portion of the boundary line between the United States of America and the said North-Western Territory) to the meridian of ninety-nine degrees of west longitude, thence due north along the said meridian of ninety-nine degrees west longitude to the intersection of the same with the parallel of fifty degrees and thirty minutes north latitude, thence due east along the said parallel of fifty degrees and thirty minutes north latitude to its intersection with the before-mentioned meri- dian of ninety-six degrees west longitude, thence due south along the said meridian of ninety-six degrees west longitude to the place of beginning. Certain pro- 2. On, from and after the said day on which the order of the Queen >ons of in Council shall take effect as aforesaid, the provisions of the British North fj^- ,*} America Act, 1867, shall, except those parts thereof which are in terms to Manitoba, made, or, by reasonable intendment may be held to be specially applicable to or only to affect one or more, but not the whole of the Provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the Province of Manitoba, in the same way, and to the like extent as they apply to the several Provinces of Canada, and as if the Province of Manitoba had been one of the provinces originally united by the said Act. 1 This Act was confirmed by the British North America Act. 1871 (No. CLXXXI). See for some notice of the circumstances under which each of the new provinces was admitted into the Dominion: Attorney-General of Prince Edward Island v. Attorney- General of Dominion, [1905] A. C. at pp. 45-7. * See note on Section 146, B.N.A. Act, 1867 (No. CLXXIX). R 690 Constitutional Documents of Canada. [1867-1915 Representa- tion in the Senate. Representa- tion in the House of Commons. Qualification of voters and members. Lieutenant- Governor. Executive Council. Seat of Government. Legislature. Legislative Council. Members and their appoint- ment, etc. Speaker. Quorum. Voting. Equality of votes. Legislative Assembly. Quorum. Electoral Divisions. 3. The said Province shall be represented in the Senate of Canada by two Members, until it shall have, according to decennial census, a popula- tion of fifty thousand souls, and from thenceforth it shall be represented therein by three Members, until it shall have, according to decennial census, a population of seventy-five thousand souls, and from thenceforth it shall be represented therein by four Members. 4. The said Province shall be represented, in the first instance, in the House of Commons in Canada, by four Members and for that purpose shall be divided by proclamation of the Governor General, into four Elec- toral Districts each of which shall be represented by one Member : Provided that on the completion of the census in the year 1881, and of each decennial census afterwards the representation of the said Province shall be read- justed according to the provisions of the fifty-first section of the British North America Act, 1867. 5. Until the Parliament of Canada otherwise provides, the qualifica- tions of voters at Elections of Members of the House of Commons shall be the same as for the Legislative Assembly hereinafter mentioned : And no person shall be qualified to be elected, or to sit and vote as a Member for any Electoral District, unless he is a duly qualified voter within the said Province. 6. For the saM Province there shall be an Officer styled the Lieutenant Governor, appointed by the Governor General in Council by instrument under the Great Seal of Canada. 7. The Executive Council of the Province shall be composed of such persons, and under such designations, as the Lieutenant Governor shall, from time to time think fit: and, in the first instance, of not more than five persons. 8. Unless and until the Executive Government of the Province other- wise directs, the seat of Government of the same shall be at Fort Garry, or within one mile thereof. 9. There shall be a Legislature for the Province, consisting of the Lieutenant Governor, and of two Houses, styled respectively, the Legis- lative Council of Manitoba, and the Legislative Assembly of Manitoba. 10. The Legislative Council shall, in the first instance, be composed of seven Members, and after the expiration of four years from the time of the first appointment of such seven Members, may be increased to not more than twelve Members. Every Member of the Legislative Council shall be appointed by the Lieutenant-Governor in the Queen's name, by Instrument under the Great Seal of Manitoba, and shall hold office for the term of his life, unless and until the Legislature of Manitoba otherwise provides under the British North America Act, 1867. 11. The Lieutenant-Governor may, from time to time, by Instrument under the Great Seal, appoint a member of the Legislative Council to be Speaker thereof, and may remove him and appoint another in his stead. 12. Until the Legislature of the Province otherwise provides, the presence of a majority of the whole number of the Legislative Council, including the Speaker shall be necessary to constitute a meeting for the exercise of its powers. 13. Questions arising in the Legislative Council shall be decided by a majority of voices, and the Speaker shall in all cases have a vote and when the voices are equal the decisions shall be deemed to be in the negative. 14. The Legislative Assembly shall be composed of twenty-four mem- bers to be elected to represent the Electoral Divisions into which the said Province may be divided by the Lieutenant-Governor as hereinafter men- tioned. 15. The presence of a majority of the Members of the Legislative Assembly shall be necessary to constitute a meeting of the House for the exercise of its powers; and for that purpose the Speaker shall be recog- nized as a Member. 16. The Lieutenant-Governor shall (within six months of the date of the Order of Her Majesty in Council admitting Rupert's Land and the 1867-1915] Constitutional Documents of Canada. 691 North-Western Territory into the Union), by Proclamation under the Great Seal, divide the said Province into twenty-four Electoral Divisions, due regard being had to existing Local Divisions and population. u ' Everv . male P erson shall be entitled to vote for a Member, to serve Qualification in the Legislative Assembly for any Electoral Division, who is qualified as of voters. following, that is if he is: 1. Of the full age of twenty-one years, and not subject to any legal incapacity : 2. A subject of Her Majesty by birth or naturalization: 3. And a bona fide householder within the Electoral Division, at the date of the Writ of Election for the same, and has been a bona fide house- holder for one year next before the said date ; or, 4. If, being, of the full age of twenty-one years and not subject to Special, for any legal incapacity and a subject of Her Majesty by birth or naturaliza-f^ ele tion, he was, at the time within twelve months prior to the passing of this Act, and (though in the interim temporarily absent) is at the time of such election a bona fide householder, and was resident within the Electoral Division at the date of the Writ of Election for the same: But this fourth sub-section shall apply only to the first election to be Proviso held under this Act for Members to serve in the Legislative Assembly aforesaid. 18. For the first election of Members to serve in the Legislative f t r 2 ce f d j ng9 Assembly, and until the Legislature of the Province otherwise provides, the t i on( 4 c . f !l~ Lieutenant-Governor shall cause writs to be issued, by such person in such how' regulated. form and addressed to such Returning Officers as he thinks fit ; and for the first election, and until the Legislature of the province otherwise provides, the Lieutenant-Governor shall, by proclamation, prescribe and declare the oaths to be taken by voters, the powers and duties of Returning and Deputy Returning Officers, the proceedings to be observed at such election, and the period during which such election may be continued, and such other pro- visions in respect to such first election as he may think fit. 19. Every Legislative Assembly shall continue for four years the date of the return of the writs for returning the same (subject theless to being sooner dissolved by the Lieutenant-Governor), and no longer; and the first Session thereof shall be called at such time as the Lieutenant-Governor shall appoint. 20. There shall be a Session of the Legislature once at least in ever> Sessions at year, so that twelve months shall not intervene between the last sitting O f^ ea ^ onee the Legislature in one Session and its first sitting in the next Session. 21. The following provisions of the British North America Act, 1867, Certain pro- respecting the House of Commons of Canada, shall extend and apply to B W N n A Act the Legislative Assembly, that is to say : Provisions relating to the election ig67 to apply. of a Speaker, originally, and on vacancies, the duties of the Speaker the absence of the Speaker and the mode of voting, as if those provisions were here re-enacted and made applicable in terms to the Legislative Assembly. Legation 22. In and for the Province, the said Legislature may exclusively J^g^J make laws in relation to Education' subject and according to the follow ing schools sub- provsons : (1) Nothing in any such Law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of per- sons have by Law or practice in the Province at the Union : (2) An appeal shall lie to the Governor-General in Council from any Act or decision of the Legislature of the Province or of any Provincial Authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to Education : (3) In case any such Provincial Law, as from time to time seems to the Governor-General in Council requisite for the due execution of the parliament. provisions of this section, is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper Provincial Authority on that behalf then, and in 1 See B.N.A. Act, 1867 (No. CLXXIX), section 93 and note. 692 Constitutional Documents of Canada. [1867-1915 English and French lan- guage to be used. Interest allowed to the Province on a certain amount of the debt of Canada. Subsidy to the Province for support of Government, and in propor- tion to its population. Canada as- sums certain expenses. General provision. Customs duties. Customs laws. Inland Reve- nue laws and duties. Una-ranted lands vested in the Crown for Dominion purposes. every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor- General in Council under this section. 23. Either the English or the French language may be used by any person in the debates of the Houses of the Legislature, and both those languages shall be used in the respective Records and Journals of those Houses : and either of those languages may be used by any person or in any pleading or Process, in or issuing from any Court of Canada estab- lished under the British North America Act, 1867, or in or from all or any of the Courts of the Province. The Acts of the Legislature shall be printed and published in both those languages. 24. Inasmuch as the Province is not in debt, the said Province shall be entitled to be paid and to receive from the Government of Canada by half-yearly payments in advance, interest at the rate of five per centum per annum on the sum of four hundred and seventy-two thousand and ninety dollars. 25. The sum of thirty thousand dollars shall be paid yearly by Canada to the Province, for the support of its Government and Legislature, and an annual grant in aid of the said Province shall be made, equal to eighty cents per head of the population estimated at seventeen thousand souls ; and such grant of eighty cents per head shall be augmented in proportion to the increase of population, as may be shewn by the census that shall be taken thereof in the year one thousand one hundred and eighty-one, and by each subsequent decennial census, until its population amounts to four hundred thousand souls, at which amount such grant shall remain there- after, and such sum shall be in full settlement of all future demands on Canada, and shall be paid half-yearly, in advance, to the said Province. 26. Canada will assume and defray the charges for the following services : 1. Salary of the Lieutenant-Governor. 2. Salaries and allowances of the Judges of the Superior and District r County Courts. 3. Charges in respect of the Department of the Customs. 4. Postal Department. 5. Protection of Fisheries. 6. Militia. 7. Geographical Survey. 8. The Penitentiary. 9. And such further charges as may be incident to and connected with the services which, by the British North America Act, 1867, appertain to the General Government, and as are or may be allowed to the other Provinces. 27. The Customs duties now by law chargeable in Rupert's Land, shall be continued without increase for the period of three years from and after the passing of this Act, and the proceeds of such duties shall form part of the Consolidated Revenue Fund of Canada. 28. Such provisions of the Customs Laws of Canada (other than such as prescribe the rate of duties payable) as may be from time to time de- clared by the Governor-General in Council to apply to the Province ot Manitoba shall be applicable thereto, and in force therein accordingly. 29. Such provisions of the Laws of Canada respecting the Inland Revenue, including those fixing the amount of duties, as may be from time to time declared by the Governor-General in Council applicable to the said province shall apply thereto, and be in force therein accordingly. 30. All ungranted or waste lands in the Province shall be, from and after the date of the said transfer, vested in the Crown, and administered by the Government of Canada for the purposes of the Dominion, subject to, and except, and so far as the same may be affected by the conditions and stipulations contained in the agreement for the surrender of Rupert's Land by the Hudson's Bay Company to Her Majesty. 1867-1915] Constitutional Documents of Canada. 693 31. And whereas, it is expedient, towards the extinguishment of Indian Title to the lands in the Province, to appropriate a portion of such?f. to Indian ungranted lands to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents, it is hereby enacted that under regulations to be from time to time made by the Governor General in Council, the Lieutenant J Governor shall select Grant for such lots or tracts in such parts of the Province as he may deem expedient, half breed*. to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council shall from time to time determine. 32. For the quieting of titles, and assuring to the settlers in the Quieting titles. Province the peaceable possession of the lands now held by them, it is enacted as follows : 1. All grants of land in freehold made by the Hudson's Bay Company Grants by H. up to the eighth day of March in the year 1869, shall, if required by the 8 ' Company owner, be confirmed by grant from the Crown. 2. All grants of estates less than freehold in land made by the The same - Hudson's Bay Company, up to the 8th day of March aforesaid, shall if required by the owner, be converted into an estate in freehold by grant from the Crown. 3. All titles by occupancy with the sanction and under the license andj ( c t s ^ nf authority of the Hudson's Bay Company up to the eighth day of March w j t i, pei-Jig. aforesaid, of land in that part of the Province in which the Indian Titlesion. has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. 4. All persons in peaceable possession of tracts of land at the time By peaceable of the transfer to Canada, in those parts of the Province in which the pos: Indian title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council. 5. The Lieutenant-Governor is hereby authorized under regulations Q ieut *"" n { to be made from time to time by the Governor General in Council to make t ^mVcpro all such provisions for ascertaining and adjusting, on fair and equitable ruions under terms, the rights of Common, and rights of cutting Hay held and en j oyed Order in by the Settlers in the Province, and for the commutation of the same by grants of land from the Crown. 33. The Governor General in Council shall from time to time settle ^ n ^, t r in and appoint the mode and form of Grants of Land from the Crown and appointf forin( any Order in Council for that purpose when published in the Canada ftc., of granu Gazette shall have the same force and effect as if it were a portion of this Act 34. Nothing in this Act shall in any way prejudice or affect the rights {^B^om- or properties of the Hudson's Bay Company as contained in the conditions pa ' ny ' not under which that Company surrendered Rupert's Land to her Majesty. affected. 35. And with respect to such portion of Rupert's Land and the : North- Lieutcnant . Western Territory as is not included in the Province of Manitoba, it isoovemorto hereby enacted that the Lieutenant-Governor of the said Province shall be f~ N. AV appointed, by Commission under the Great Seal of Canada to be the Lieu- %* tenant-Governor of the same under the name of the North-West Terri- tories and subject to the provisions of the Act in the next section men- 36 Except as hereinbefore is enacted and provided, the Act of the 33^*"^ Parliament of Canada passed in the now last session thereof, and entitled ^tended an.l "An Act for the Temporary Government of Rupert's Land and the North- continue, Western Territory when united with Canada" is hereby re-enacted, ex- tended and continued in force until the first day of January, 1871, and until the end of the Session of Parliament then next succeeding. 694 Constitutional Documents of Canada. [1867-1915 Short title. Parliament of Canada may establish new Provinces and provide for the constitu- tion, etc., thereof. Alteration of limits of Provinces. Parliament of Canada may legislate for any territory not included in a Province. Confirmation of Acts of Parliament of Canada. 32-33 V., c. 3. 33 V., c. 3. Limitation of powers of Parliament of Canada to legislate for an established Province. CLXXXI THE BRITISH NORTH AMERICA ACT, 1871 (34 & 35, Victoria, c. 28.) An Act respecting the Establishment of Provinces in the Dominion of Canada. 29th June, 1871. Whereas doubts 1 have been entertained respecting the powers of the Parliament of Canada to establish Provinces in territories admitted, or which may hereafter be admitted, into the Dominion of Canada, and to provide for the representation of such Provinces in the said Parliament, and it is expedient to remove such doubts, and to vest such powers in the said Parliament: Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as The British North America Act, 1871. 2. The Parliament of Canada may from time to time establish new Provinces in any territories forming for the time being part of the Domin- ion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and ad- ministration of any such Province, and for the passing of laws for the peace, order and good government of such Province, and for its represen- tation in the said Parliament. 3. The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and con- ditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby. 4. The Parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included in any Province. 5. The following Acts passed by the said Parliament of Canada, and intituled respectively : "An Act for the temporary government of Rupert's Land and the North-Western Territory when united with Canada" ; and "An Act* to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to establish and provide for the gov- ernment of the Province of Manitoba." shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent, in the Queen's name, of the Governor-General of the said Dominion of Canada. 6. Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last mentioned Act of the said Parliament in so far as it relates to the Province of Manitoba or of any other Act hereafter establishing new Pro- vinces in the said Dominion, subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legis- lative Assembly, and to make laws respecting elections in the said Province. 1 See Lord Kimberley's speech in Hansard, (HI. Series.), Vol. 206, p. 1171, for the reasons which led to the introduction of this bill. No. CLXXX. 1867-1915] Constitutional Documents of Canada. 695 CLXXXII PARLIAMENT OF CANADA ACT, 1875 1 (38 & 39 Victoria, c. 38.) An Act to remove certain doubts with respect to the powers of the Parlia- ment of Canada, under Section 18 of the British North America Act, 1867. 19th July, 1875. Whereas by section 18 of The British North America Act, 1867 it is provided as follows : "The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof." And whereas doubts have arisen with regard to the power of defining by an Act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers or immunities; and it is expedient to remove such doubts: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. Section 18 of The British North America Act, 1867, is hereby re- Substitution pealed, without prejudice to anything done under that section, and the f ol- * new sectio lowing section shall be substituted for the section so repealed: of^o'smd"! The privileges, immunities, and powers to be held, enjoyed and exer-V., c. 3. cised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parlia- ment of the United Kingdom of Great Britain and Ireland, and by the members thereof. 2. The Act of the Parliament of Canada passed in the thirty-first Confirmation year of the reign of her present Majesty, chapter twenty- four, intituled"/ Act of An Act to provide for oaths to witnesses being administered in certain o'clmada. cases for the purposes of either House of Parliament, shall be deemed to be valid, and to have been valid as from the date at which the royal assent was given thereto by the Governor General of the Dominion of Canada. 3. This Act may be cited as The Parliament of Canada Act, 1875. Short title. 1 During the Pacific Railway scandal, the Canadian Parliamentary Committee could not take evidence on oath, as this right did not belong to the British House of Com- mons, except in connexion with Private Bills, until 1871. This Act gives the Dominion Parliament power to bring its practice into line with the contemporary practice in the British Parliament. 696 Constitutional Documents of Canada. [1867-1915 CLXXXIII LETTERS-PATENT CONSTITUTING THE OFFICE OF GOV- ERNOR-GENERAL OF THE DOMINION OF CANADA, 1878 1 [Trans.: Canadian Sessional Papers, 1879, No. XIV.] Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India; To all to whom these Presents shall come, Greeting: Whereas We did, by certain Letters-Patent under the Great Seal of Our United Kingdom of Great Britain and Ireland, bearing date at West- minster the Twenty-second day of May, 1872, in the Thirty-fifth Year o* Our Reign, constitute and appoint Our Right Trusty and Right Well- beloved Cousin and Councillor, Frederick Temple, Earl of Dufferin, Knight of Our Most Illustrious Order of Saint Patrick, Knight Commander of Our Most Honorable Order of the Bath (now Knight Grand Cross of Our Most Distinguished Order of Saint Michael and Saint George), to be Our Governor-General in and over Our Dominion of Canada for and during Our will and pleasure. And whereas by the 12th Section of "The British North America Act, 1867," certain powers, authorities, and functions were declared to be vested in the Governor-General, and whereas We are desirous of making effectual and permanent provision for the office of Governor-General in and over Our said Dominion of Canada, without making new Letters-Patent on each demise of the said Office. Now know ye that We have revoked and determined, and by these presents do revoke and determine, the said recited Letters-Patent of the Twenty-second day of May, 1872, and every clause, article and thing therein contained : And further know ye that We, of our special grace, certain knowledge, and mere motion, have thought fit to constitute, order, and declare, and do by these presents constitute, order, and declare that there shall be a Gover- nor-General (hereinafter called Our said Governor-General) in and over Our Dominion of Canada (hereinafter called Our said Dominion), and that the person who shall fill the said Office of the Governor-General shall be from time to time appointed by Commission under our Sign-Manual and Signet. And we do hereby authorize and command Our said Governor- General to do and execute, in due manner, all things that shall belong to his said command, and to the trust We have reposed in him, according to the several powers and authorities granted 01 appointed him by virtue ot "The British North America Act, 1867," and of ihese present Letters- Patent, and of such Commission as may be issued to him under Our Sign- Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign-Manual and Signet, or by our Order in Our Privy Council, or by us through one of Our Principal Sec- 1 Various changes have taken place in the position of the Governor-General. From the year 1867 to 1878, his Instructions forbade him to give his assent to any bill (a) for divorce, (b) for granting land or money or gratuity to himself, (c) for making paper or any other currency legal tender, (d) for imposing differential duties, (e) con- trary to Treaty obligations, (f) interfering with the discipline or control of the naval or military forces of the Crown in Canada, (g) interfering with the Royal Preroga- tive, or the rights and property of British subjects outside of Canada, or with the trade and shipping of the United Kingdom and its dependencies, (h) containing pro- visions to which the Royal assent has already been refused or which have been dis- allowed. Acting on these Instructions, twenty-one Bills were reserved. In 1877, after the Hon. Edward Blake, Minister of Justice, had visited England, the practice of enumerating the titles to be reserved was discontinued, a suspending clause being inserted in Acts which would otherwise require the Governor-General's reservation. (Canadian Sessional Papers, 1877, No. XIII.) In addition, during Lord Dufferin's tenure of office difficulties arose over the prerogative of pardon, and Lord DufTerin exercised it without the advice of his Ministers. During his visit to England, Mr. Blake arranged for a change, which is embodied in the Instructions printed below (No. CLXXXIV). In 1878 the office of Governor-General of the Dominion of Canada was instituted on a permanent basis by Letters Patent. (See Todd, Parliamentary Govern ment in the Colonies.) 1867-1915] Constitutional Documents of Canada. 697 retaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion. II. And We do hereby authorize and empower Our said Governor- General to keep and use the Great Seal of Our said Dominion for sealing all things whatsoever that shall pass the said Great Seal. III. And We do further authorize and empower Our said Governor- General to constitute and appoint, in Our name and on Our behalf, all such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of Our Said Dominion, as may be lawfully constituted 01 appointed by Us. IV. And We do further authorize and empower Our said Governor- General, so far as we lawfully may, upon sufficient cause to him appearing, to remove from his office, or to suspend from the exercise of the same, any person exercising any office within Our said Dominion, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us in Our name or under Our authority. V. And We do further authorize and empower Our said Governor- General to exercise all powers lawfully belonging to us in respect of the summoning, proroguing, or dissolving the Parliament of Our said Do- minion. VI. And whereas by "The British North America Act, 1867," it is amongst other things enacted, that it shall be lawful for Us, if We think fit, to authorize the Governor-General of Our Dominion of Canada to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion, and in that capa- city to exercise, during the pleasure of Our Said Governor-General, such of the powers, authorities, and functions of Our said Governor-General as he may deem it necessary or expedient to assign to such Deputy or Deputies, subject to any limitations or directions from time to time ex- pressed or given by Us : Now We do hereby authorize and empower Our said Governor-General, subject to such limitations and directions as afore- said, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion of Canada, and in that capacity to exercise, during his pleasure, such of his powers, func- tions, and authorities, as he may deem it necessary or expedient to assign to him or them : Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise of any such power, authority or function by Our said Governor-General in person. VII. And We do hereby declare Our pleasure to be that, in the event of the death, incapacity, removal, or absence of Our said Governor- General out of Our said Dominion, all and every the powers and authori- ties herein granted to him shall, until Our further pleasure is signified therein, be vested in such person as may be appointed by Us under Our Sign-Manual and Signet to be Our Lieutenant-Governor of Our said Dominion ; or if there shall be no such Lieutenant-Governor in Our said Dominion, then in such person or persons as may be appointed by Us under Our Sign-Manual and Signet to administer the Government of the same; and in case there shall be no person or persons within Our said Dominion so appointed by Us, then in the Senior Officer for the time being in com- mand of Our regular troops in Our said Dominion : Provided that no such powers or authorities shall vest in such Lieutenant-Governor, or such other person or persons, until he or they shall have taken the oaths ap- pointed to be taken by the Governor-General of Our said Dominion, and in the manner provided by the Instructions accompanying these Our Let- ters-Patent VIII. And We do hereby require and command all Our Officers and Ministers, Civil and Military, and all other the inhabitants of Our said Dominion, to be obedient, aiding and assisting unto Our said Governor- General, or, in the event of his death, incapacity, or absence, to such person or persons as may from time to time, under the provisions of these Our Letters-Patent, administer the Government of Our said Dominion. IX. And We do hereby reserve to Ourselves, Our heirs and succes- 698 Constitutional Documents of Canada. [1867-1915 sors, full power and authority from time to time to revoke, alter or amend these Our Letters-Patent, as to Us or them shall seem meet. X. And We do further direct and enjoin that these Our Letters- Patent shall be read and proclaimed at such place or places as Our said Governor-General shall think fit within Our said Dominion of Canada. In Witness whereof We have caused these Our Letters to be made Patent, Witness Ourself at Westminster, the Fifth day of October, in the Forty-second Year of Our Reign. By Warrant under the Queen's Sign-Manual. C ROMILLY. CLXXXIV INSTRUCTIONS TO THE GOVERNOR-GENERAL OF THE DOMINION OF CANADA, 1878 [Trans.: Canadian Sessional Papers, 1879, No. XIV.] Dated 5th October, 1878. Victoria R. Instructions to Our Governor-General in and over Our Dominion of Canada, or, in his absence, to Our Lieutenant-Governor or the Officer for the time being administering the Government of Our said Do- minion. Given at Our Court at Balmoral, this Fifth day of October, 1878, in the Forty-second year of Our Reign. Whereas by certain Letters-Patent bearing even date herewith, We have constituted, ordered, and declared that there shall be a Governor- General (hereinafter called Our said Governor-General) in and over Our Dominion of Canada (hereinafter called Our said Dominion), and We have thereby authorized and commanded Our said Governor-General to do and execute in due manner all things that shall belong to his said command, and to the trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of the said Letters- Patent and of such Commission as may be issued to him under Our Sign- Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign-Manual and Signet, or by Our Order in Our Privy Council, or by Us through One of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion : Now, therefore, We do, by these, Our Instructions under Our Sign- Manual and Signet, declare Our pleasure to be that Our said Governor- General for the time being shall, with all due solemnity, cause Our Com- mission, under Our Sign-Manual and Signet, appointing Our said Gov- ernor-General for the time being, to be read and published in the presence of the Chief Justice for the time being, or other Judge of the Supreme Court of Our said Dominion, and of the members of the Privy Council in Our said Dominion: And We do further declare Our pleasure to be that Our said Governor- General, and every other officer appointed to administer the Government of Our said Dominion, shall take the Oath of Allegiance in the form pro- vided by an Act passed in the Session holden in the thirty-first and thirty- second years of Our Reign, intituled : "An Act to Amend the Law relating to Promisory Oaths ;" and likewise that he or they shall take the usual Oath for the due execution of the Office of Our Governor-General in and over Our said Dominion, and for the due and impartial administration of jus- tice; which Oaths the said Chief Justice for the time being, of Our said Dominion, or, in his absence, or in the event of his being otherwise in- capacitated, any Judge of the Supreme Court of Our said Dominion shall, and he is hereby required to tender and administer unto him or them. II. And We do authorize and require Our said Governor-General from time to time, by himself or by any other person to be authorized by 1867-1915] Constitutional Documents of Canada. 699 him in that behalf, to administer to all and to every persons or person as he shall think fit, who shall hold any office or place of trust or profit in Our said Dominion, the said Oath of Allegiance, together with such other Oath or Oaths as may from time to time, be prescribed by any Laws or Statutes in that behalf made and provided. III. And We do require Our said Governor-General to communicate forthwith to the Privy Council for Our said Dominion these Our Instruc- tions, and likewise all such others from time to time as he shall find con- venient for Our service to be imparted to them. IV. Our said Governor-General is to take care that all laws assented to by him in Our name, or reserved for the signification of Our Pleasure thereon, shall, when transmitted by him, be fairly abstracted in the mar- gins, and be accompanied, in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such Laws ; and he shall also transmit fair copies of the Journals and Minutes of the proceedings of the Parlia- ment of Our said Dominion, which he is to require from the clerks, or other proper officers in that behalf, of the said Parliament. V. And We do further authorize and empower Our said Governor- General, as he shall see occasion, in Our name and on Our behalf, when any crime has been committed for which the offender may be tried within Our said Dominion, to grant a pardon to any accomplice not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender ; and further, to grant to any offender convicted of any crime in any Court, or before any Judge, Justice, or Magistrate, within Our said Dominion, a pardon, either free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to Our said Governor- General may seem fit, and to remit any fines, penalties, or forfeitures which may become due and payable to Us. Provided always, that Our said Gov- ernor-General shall not in any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence that the offender shall be banished from or shall absent himself from Our said Dominion. And We do hereby direct and enjoin that Our said Governor-General shall not pardon or reprieve any such offender without first receiving in capital cases the advice of the Privy Council for Our said Dominion, and in other cases the advice of one, at least, of his Ministers ; and in any case in which such pardon or reprieve might directly affect the interest of Our Empire, or of any country or place beyond the jurisdiction of the Government of Our said Dominion, Our said Governor- General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. VI. And whereas great prejudice may happen to Our service and to the security of Our said Dominion by the absence of Our said Governor- General, he shall not, upon any pretence whatever, quit Our said Dominion without having first obtained leave from Us for so doing under Our Sign- Manual and Signet, or through one of Our Principal Secretaries of State. CLXXXV THE BRITISH NORTH AMERICA ACT, 1886 (49 & 50 Victoria, c. 35.) An Act respecting the Representation in the Parliament of Canada of Territories which for the time being form part of the Dominion of Canada, but are not included in any Province. 25th June, 1886. Whereas it is expedient to empower the Parliament of Canada to provide for the representation in the Senate and House of Commons of 700 Constitutional Documents of Canada. [1867-1915 Provision by Parliament of Canada for representation of territories. Effect of Acts of Parliament of Canada. 34 & 35 V.. c. 28. 30&31 V. c. 3 Short title and con- struction. 30&31 V. c. 3 34 & 35 V. c. 28. Canada, or either of them, of any territory which for the time being forms part of the Dominion of Canada, but is not included in any Province: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows : 1. The Parliament of Canada may from time to time make provision for the representation in the Senate and House of Commons of Canada, or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any Province thereof. 2. Any Act passed by the Parliament of Canada before the passing of this Act for the purpose mentioned in this Act, shall, if not disallowed by the Queen, be, and shall be deemed to have been, valid and effectual from the date at which it received the assent, in Her Majesty's name, of the Governor-General of Canada. It is hereby declared that any Act passed by the Parliament of Canada, whether before or after the passing of this Act, for the purpose mentioned in this Act, or in The British North America Act, 1871 1 , has effect, notwith- standing anything in The British North America Act, 1867, and the num- ber of Senators or the number of Members of the House of Commons specified in the last-mentioned Act is increased by the number of Senators or of Members, as the case may be, provided by any such Act of the Parliament of Canada for the representation of any provinces or terri- tories of Canada. 3. This Act may be cited as The British North America Act, 1886. This Act, and The British North America Act, 1867, and The British North America Act, 1871, shall be construed together, and may be cited together as The British North America Acts, 1867 to 1886. Preamble. Short title. Province of Alberta formed; its boundaries. CLXXXVI THE ALBERTA ACT (4-5 Edward VII., c. 3.) An Act to establish and provide for the Government of the Province of Alberta. [Assented to July 20th, 1905.] Whereas in and by the British North America Act, 1871*, being chapter 28 of the Acts of the Parliament of the United Kingdom passed in the session thereof held in the 34th and 35th years of the reign of her late Majesty Queen Victoria, it is enacted that the Parliament of Canada may from time to time establish new provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may ,at the time of such establishment, make pro- vision for the constitution and administration of any such province, and for the passing of laws for the peace, order, and good government of such province, and for its representation in the said Parliament of Canada ; And whereas it is expedient to establish as a province the territory hereinafter described, and to make provision for the government thereof, and the representation thereof, in the Parliament of Canada : Therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : 1. This Act may be cited as the Alberta Act. 2. The territory comprised within the following boundaries, that is to say, commencing at the intersection of the international boundary dividing Canada from the United States of America by the fourth meridian in the system of Dominion lands surveys ; thence westerly along the said inter- > No. CLXXXI. No. CLXXXI. 1867-1915] Constitutional Documents of Canada. 701 national boundary to the eastery boundary of the Province of British Columbia; thence northerly along the said eastern boundary of the Pro- vince of British Columbia to the north east corner of the said province; thence easterly along the parallel of the sixtieth degree of north latitude to the fourth meridian in the system of Dominion lands surveys, as the same may be hereafter defined in accordance with the said system; thence southerly along the said fourth meridian to the point of commencement, is hereby established as a province of the Dominion of Canada, to be called and known as the Province of Alberta. 3. The provisions of the British North America Acts, 1867 to 1886 1 , B. N. A. Acts shall apply to the Province of Alberta in the same way and to the like extent as they apply to the provinces heretofore comprised in the Dominion, as if the said Province of Alberta had been one of the provinces originally united, except in so far as varied by this Act, and except such provisions as are in terms made, or by reasonable intendment may be held to be, specially applicable to or only to affect one or more and not the whole of the said provinces. 4. The said province shall be represented in the Senate of Canada by Repnta- four members ; provided that such representation may, after the completion senate. ' of the next decennial census, be from time to time increased to six by the Parliament of Canada. 5. The said province and the Province of Saskatchewan shall, until ? epr - es ^ a " the termination of the Parliament of Canada, existing at the time of the House of* first readjustment hereinafter provided for, continue to be represented in Commons, the House of Commons as provided by chapter 60 of the Statutes of 1903, each of the electoral districts defined in that part of the schedule to the said Act which relates to the North-West Territories, whether such district is wholly in one of the said provinces, or partly in one or partly in the other of them, being represented by one member. 6. Upon the completion of the next quinquennial census for the said Re-adjustment province, the representation thereof shall forthwith be readjusted by the*^ r or in an , v . Act am ending the same, or in any Order in Council or 30 and 31* terms or conditions of union made or approved under the said Acts or in Viet., c. 3. a ny Act of the Canadian Parliament (i) The number of senators provided for under section twenty-one of the British North America Act, 1867, is increased from seventy- two to ninety-six : (ii) The Divisions of Canada in relation to the constitution of the Senate provided for by section twenty-two of the said Act are increased from three to four, the fourth division to comprise the Western Provinces of Manitoba, British Columbia, Saskatchewan, and Alberta, which four Divisions shall (subject to the provisions of the said Act and of this Act) be equally represented in the Senate, as follows: Ontario by twenty- four senators; Quebec by twenty- four senators ; the Maritime Provinces and Prince Ed- ward Island by twenty-four senators, ten thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof representing Prince Edward Island ; the Western Pro- vinces by twenty-four senators, six thereof representing Mani- toba, six thereof representing British Columbia, six thereof rep- resenting Saskatchewan, and six thereof representing Alberta: (iii) The number of persons whom by section twenty-six of the said Act the Governor-General of Canada may, upon the direction of His Majesty the King, add to the Senate is increased from three or six to four or eight, representing equally the four divisions of Canada : (iv) In case of such addition being at any time made the Governor- General of Canada shall not summon any person to the Senate except upon a further like direction by His Majesty the King or. the like recommendation to represent one of the four Divisions until -such Division is represented by twenty-four senators and no more : (v) The number of senators shall not at any time exceed one hundred and four: (vi) The representation in the Senate to which by section one hundred and forty-seven of the British North America Act, 1867, New- foundland would be entitled, in case of its admission to the Union is increased from four to six members, and in case of the admis- sion of Newfoundland into the Union, notwithstanding anything in the said Act or in this Act, the normal number of senators shall be one hundred and two, and their maximum number one 49 *nd 50 hundred and ten : Viet., c. 35. (vii) Nothing herein contained shall affect the powers of the Canadian Parliament under the British North America Act, 1886. 1867-1915] Constitutional Documents of Canada. 707 (2) Paragraphs (i) to (vi) inclusive of subsection (1) of this section shall not take effect before the termination of the now existing Canadian Parliament. 2. The British North America Act, 1867, is amended by adding thereto the following section immediately after section fifty-one of the said Act: Commons. 51A. Notwithstanding anything in this Act, a province shall always be entitled to a number of members in the House of Commons not less than the number of senators representing such province. 3. This Act may be cited as the British North America Act, 1915; and short title - the British North America Acts, 1867 to 1886, and this Act may be cited together as the British North America Acts, 1867 to 1915. UNIVERSITY OF CALIFORNIA Santa Barbara College Library Santa Barbara, California Return to desk from which borrowed. This book is DUE on the last date stamped below. LF> 21-10wi-5.'50 (B9484s4)476 JL 11 Kl- UCSOUTHER.NREGIONAL LIBRARY FACIUTV