A history of Canada, 1763-1812

by Sir Charles Prestwood Lucas

FOOTNOTES:

[165] The text of the treaty is given in Appendix I.

[166] See the text of the treaty in Appendix I.

[167] From The Loyalists in the American Revolution, by C. H. Van Tyne. Macmillan & Co., 1902, p. 295. The author gives in the Appendices to his book a list of the laws passed against the Loyalists in the various states.

[168] American creditors sued Loyalist debtors in England, while the Loyalists’ property in America was confiscated.

[169] Act 23 Geo. III, cap. 80.

[170] 28 Geo. III, cap. 40.

[171] Wilmot’s account of the claimants and of the money awarded is most confusing. The figures are taken from the last Appendix, No. IX, which says the ‘claims including those in Nova Scotia and Canada’ were 5,072. It is difficult to reconcile these figures with those given on pp. 90-1 of the book, unless in the latter case the claims made in Canada are omitted.

[172] See the Annual Register for 1783, p. 262.

[173] Printed in Mr. Brymner’s Report on the Archives of Canada for the year 1884, Note C, pp. xl, xli.

[174] See The American Loyalists, by Lorenzo Sabine. Boston, 1847, Historical Essay, p. 62, note.

[175] See Shortt and Doughty, p. 495, note.

[176] Shortt and Doughty, pp. 494-5.

[177] In the volume for 1891 of Mr. Brymner’s Report on Canadian Archives, p. 17, the ‘Return of Disbanded Troops and Loyalists settled upon the King’s Lands in the Province of Quebec in the year 1784’ is given as 5,628, including women, children, and servants. The province of Quebec at this time included both Lower and Upper Canada.

[178] Census of Canada for 1871, vol. iv; Censuses of Canada, pp. xxxviii-xlii. See also p. 238, note below.

[179] vol. vii, p. 223.

[180] Mr. Van Tyne, The Loyalists in the American Revolution, p. 299.

[181] The American Loyalists, Preliminary Historical Essay, p. 91.

[182] See the Canadian War of 1812 (Lucas) pp. 11-15. More than one book has been written on the Macdonells in Canada. Reference should be made to the Report on the Canadian Archives for 1896, Notes B and C.

[183] Carlyle’s French Revolution, Book 4, chap. ii. Carlyle evidently thought lightly of de Puisaye. For this French Royalist scheme see Mr. Brymner’s Report on Canadian Archives for 1888, pp. xxv-xxxi, and Note F.

[184] See Parkman’s The Old Régime in Canada, and see above, p. 71.

[185] See the Canadian Archives Report for 1888, Note F, p. 85, and Stone’s Life of Brant, vol. ii, p. 403 and note.

[186] On ‘A map of the Province of Upper Canada, describing all the new settlements, townships, &c., with the countries adjacent from Quebec to Lake Huron, compiled at the request of His Excellency Major-General John G. Simcoe, first Lieutenant-Governor, by David William Smyth, Esq., Surveyor-General’, and published by W. Faden, London, April 12, 1800, ‘French Royalists’ is printed across Yonge Street between York and Lake Simcoe. The map is in the Colonial Office Library.

[187] Entitled Aboriginal Tribes. Printed for the House of Commons, 617, August 14, 1834, pp. 28-9. See also the House of Commons Blue Book 323, June 17, 1839, entitled, Correspondence Respecting the Indians in the British North American Provinces.

[188] Before the War of American Independence, the Mohawks had a church built for them in their own country in the present state of New York by the British Government, to which Queen Anne in 1712 presented silver Communion plate and a Bible. The plate was inscribed with the Royal Arms, in 1712, of ‘Her Majesty Anne by the Grace of God, of Great Britain, France and Ireland and Her Plantations in North America, Queen, to Her Indian Chapel of the Mohawks 1712’; and the Bible was inscribed, ‘To Her Majesty’s Church of the Mohawks 1712.’ After the War of Independence, two churches were built in Canada for the Mohawks who had emigrated to remain under British rule, one begun in 1785 on the Grand River at the present town of Brantford, and one on the bay of Quinté. The Communion plate and Bible, which had been buried by the Indians for safety during the war, were divided, four pieces of the plate and the Bible being brought to the Brantford Church, and three to the church on the bay of Quinté. The Brantford Church was the first Protestant church in Canada, and a bell, said to be the first bell to call to prayer in Ontario, and a Royal Coat of Arms were sent out to it by the British Government in 1786. This church, known as ‘St. Paul’s Church of the Mohawks’, and in common parlance as the old Mohawk Church, was in 1904, on a petition to the King, given by His Majesty the title of ‘His Majesty’s Chapel of the Mohawks’, in order to revive the old name of Queen Anne’s reign.

CHAPTER V
LORD DORCHESTER AND THE CANADA ACT OF 1791

Sir Frederick Haldimand, who had succeeded Carleton and had governed Canada with conspicuous ability during the later years of the American War of Independence, left on the 15th of November, 1784. After Carleton’s second term as Governor of Canada. an interval of nearly two years Carleton succeeded him.[189] Carleton had been Commander-in-Chief at New York from May, 1782, till November, 1783, refusing to evacuate the city until he had provided for the safe transport of the large number of Loyalists who wished to leave. In April, 1786, he was appointed for the second time Governor of Canada. He was created Lord Dorchester in the following August, and he arrived at Quebec on the 23rd of October in the same year, being then sixty-two years of age. He remained in Canada till August, 1791, when he took leave of absence until September, 1793, and he finally left in July, 1796. The whole term of his second government thus lasted for ten years. During his first government he had been Governor of the province of Quebec alone, but in April, 1786, he was appointed ‘Captain-General and Governor-in-Chief’ not only of the province of Quebec—the boundaries of that province being now modified by the terms of the Peace of 1783—but also of Nova Scotia,[190] and of the newly-created province of New Brunswick, receiving three separate commissions in respect of the three separate provinces. Thus he was, or was intended to be, in the fullest sense Governor-General of British North America.

House of Commons debate on Carleton’s pension.

Before he went out, a debate in the House of Commons, towards the end of June, 1786, gave evidence of the high repute in which he was held. William Pitt, Prime Minister and Chancellor of the Exchequer, presented a Royal Message, asking the House, in consideration of Carleton’s public services, to enable His Majesty to confer a pension of £1,000 per annum upon Carleton’s wife, Lady Maria Carleton, and upon his two sons for their several lives. The pension, it was explained, had been promised by the King in 1776, but partly by accident and partly by Carleton’s own wish the grant had been postponed. It was recounted by one of the speakers that ‘when all our other colonies had revolted, he (Carleton) by his gallantry, activity, and industry saved the city of Quebec, and by that means the whole province of Canada’; and when one malcontent—the only one—Courtenay by name, denied that Carleton had rendered any services, asserting with wonderful hardihood, that ‘Sir Guy had by no means protected Quebec. It was the inhabitants in conjunction with Chief Justice Livius (whom General Carleton afterwards expelled from his situation) that protected it’, another member, Captain Luttrell, rejoined that ‘In the most brilliant war we ever sustained, he was foremost in the most hard earned victories, and in the most disgraceful contest in which we ever were engaged, he alone of all our generals was unconquered’. But the most delightful tribute to Carleton was paid by Burgoyne, when the resolution had been agreed to and was being reported. Referring to the help which Carleton had given him in his fateful expedition, he said ‘Had Sir Guy been personally employed in that important command, he could not have fitted it out with more assiduity, more liberality, more zeal, than disappointed, displeased, and resentful against the King’s servants, he employed to prepare it for a junior officer’. Burgoyne then went on to testify to the uprightness of Carleton’s administration, ‘the purity of hand and heart with which he had always administered the expenditure of the public purse.’ The pension was sanctioned unanimously, to date from the 1st of January, 1785.[191]

Population of Canada in 1784.

In 1784, before the full tale of Loyalist immigration was yet complete, Canada, including the three districts of Quebec, Three Rivers, and Montreal, had a population of 113,000,[192] the towns of Quebec and Montreal containing in either case between 6,000 and 7,000 residents. This was really the population of what was afterwards the province of Lower Canada, exclusive of Ontario and the Maritime Provinces which were the main scenes of Loyalist settlement. The overwhelming majority of the population in the province of Quebec, as Canada, other than the Maritime Provinces, was styled prior to the Act of 1791, consisted of French Canadians, and the citizens of British birth were still comparatively few in number: but, as has been seen, the incoming of British citizens was actively in process under Haldimand’s administration; and during the same administration a beginning was The first canals in Canada. made of the canals which have played so great a part in the history of Eastern Canada. Between the years 1779 and 1783, mainly for military reasons, Royal Engineers under Haldimand’s directions constructed canals with locks round the rapids between Lake St. Francis and Lake St. Louis above Montreal, and in 1785 proposals were first made—though not at the time carried into effect—for a canal to rectify the break in navigation on the Richelieu river, caused by the rapids between St. John’s and Chambly, and so to give unimpeded water-communication between Lake Champlain and the St. Lawrence. This latter project was of great importance to Vermont, which had not yet been admitted as a state to the American Union.

Thus Dorchester came back to the land of the St. Lawrence and the great lakes amid indications of a new era with wider developments and corresponding difficulties. He came back as the man who had saved Canada in war, had given to the French Canadians the Quebec Act, and had stood firm at New York for protection of the Loyalists.

The political situation in 1786.

It was not an easy time for any man, however popular, who was responsible for the security and the welfare of Canada. British garrisons still held the frontier posts which, by the Treaty of 1783, Great Britain was bound to hand over to the United States, viz., Detroit, Michillimackinac, Erie or Presque Isle, Niagara, Oswego, Oswegatchie, and, on Lake Champlain, Point au Fer and Dutchman’s Point. The Indians were at open war with the Americans down to the year 1794, claiming as their own the lands to the north of the Ohio; and they were embittered against the English, because no provision had been made in the treaty to safeguard their rights, their homes and their hunting grounds. The Americans in their turn were irritated by the withholding of the forts, and suspected the English of instigating Indian hostilities and encouraging Indian claims. Meanwhile the internal affairs of Canada were rapidly growing more complicated, and the constitutional question pressed for solution.

Lord Dorchester on the Quebec Act.

Writing on the 13th of June, 1787, to Thomas Townshend, Lord Sydney, who was then Secretary of State,[193] Lord Dorchester pointed out that the Quebec Act had been introduced at a time when nothing could be thought of in Canada but self-defence. It came into force at the outbreak of the war, and the first Council held under its provisions was overshadowed by American invasion.[194] The Act, therefore, owing to circumstances, had never really been given a fair trial; yet it may be questioned whether the very great difficulty of adjusting conflicting interests in Canada, of bringing the old and the new into harmony, and of devising a system of government, which would ensure comparative contentment at the time and give facilities for future development, was really increased by the fact that wars and threats and rumours of wars clouded the first half century of the history of Canada as a British possession. The evil of distracting attention from internal problems, of interrupting and foreshortening political and social reforms was counterbalanced by the wholesome influence of common danger. As the removal of that influence had led to the severance of the old North American colonies from Great Britain, so the actual or possible hostility of the United States made the task of holding Canada together easier than it would otherwise have been, and, by preventing constitutional questions from absorbing the whole energies of the government and the public, tended to produce slow and gradual changes in lieu of reforms so complete as possibly to amount to revolution.

Petition for a free constitution.

On the 24th of November, 1784, immediately after Haldimand’s departure, a petition for a free constitution was addressed to the King by his ‘ancient and new subjects, inhabitants of the province of Quebec’. The petitioners asked, among other points, for a House of Representatives or Assembly, with power to impose taxes to cover the expense of civil government; for a Council of not less than 30 members, without whose advice no officer should be suspended and no new office be created by the governor; for a continuance of the criminal law of England, and of the ancient laws of the country as to landed estates, marriage settlements and inheritances; for the introduction of the commercial laws of England; and for the embodiment in the constitution of the Habeas Corpus Act. It will be remembered that an ordinance had lately been passed by the Legislative Council, on the 29th of April, 1784, ‘For securing the liberty of the subject and for the prevention of imprisonments out of this province,’[195] but the petitioners wished to have the right of Habeas Corpus laid down as a fundamental rule of the constitution. The petition purported to be from the ‘New Subjects’, i. e. the French Canadians, as well as from those of British extraction; but among the signatories hardly any French Canadian names appeared, and a counter petition was signed by French Canadian seigniors Counter petition from French Canadian seigniors. and others, deprecating the proposed change in the system of government. ‘This plan’, they wrote, ‘is so much more questionable, as it appears to us to aim at innovations entirely opposed to the rights of the King and of his Government and to detach the people from the submission they have always shown to their Sovereign.’ In April, 1785, a petition was presented in London by Petition from disbanded Loyalist soldiers for a separate province. Sir John Johnson on behalf of the disbanded soldiers and other Loyalists settled above Montreal, asking for the creation of a new district separate from the province of Quebec, whose capital should be Cataraqui, now Kingston, and that ‘the blessings of the British laws and of the British Government, and an exemption from the (French) tenures, may be extended to the aforesaid settlements’.[196]

On the 28th of April, 1786, Mr. Powys, a private member of the House of Commons called attention in the House Debate on Mr. Powys’ Bill in the House of Commons April, 1786. to the petition of 1784;[197] and, in view of the fact that two years had passed since it was presented, and that the Government had taken no action upon it, he moved for permission to bring in a Bill to amend the Quebec Act and ‘for the better securing the liberties of His Majesty’s subjects in the province of Quebec in North America’. The object of the Bill, which had been drafted in the previous year, was to limit the power of the governor, for the mover complained that the Quebec Act had ‘established as complete a system of despotism as ever was instituted’, and stated that the aim of his measure was ‘to give the inhabitants of the province of Quebec a system of government in the particulars he had mentioned, founded on known and definitive law. At present the government of that province rested altogether on unfixed laws, and was a state of despotism and slavery’. The Bill purported to give to the Canadians in the fullest measure the right of Habeas Corpus, except in case of rebellion or of foreign invasion, when it might be suspended, but only for three months at a time, and only by ordinance of the Legislative Council; to give trial by jury in civil cases at the option of either of the parties; to take from the governor the power of committing to prison by his own warrant, and of suspending judges and members of the Legislative Council; while the last clause increased the numbers of the council. It was supported by Fox, who took the opportunity to denounce the Quebec Act ‘as a Bill founded upon a system of despotism’, and by Sheridan; but the majority in a very thin House rejected it, agreeing with Pitt that, in view of the contradictory petitions which came from Canada, it would be well to wait until Carleton went out and reported upon the feeling of the country.

Petitions continued to come in. In June, 1787, Lord Dorchester wrote to Lord Sydney that with the increase of the English population the desire for an Assembly would increase, but that he himself was at a loss for a plan, and that a more pressing matter was a change in the tenure of land. In the following September Lord Sydney replied, in somewhat similar terms, that there was no present intention to alter the constitution, but that the King would be advised to make a change in the system of land tenure.

Adam Lymburner heard before the House of Commons.

In 1788 Adam Lymburner, a merchant of good position in Quebec, was sent as a delegate to London, to represent the views of the British minority in the province; and on Friday, the 16th of May, 1788, he was heard at the bar of the House of Commons, in support of the petitions which had been presented. He called attention mainly to the confused state of the law in Canada, and to the defects and anomalies in the administration of justice. A debate followed on a motion by Mr. Powys[198] to the effect that the petitions deserved the immediate and serious consideration of Parliament. The mover once more attacked the Quebec Act of 1774, characterizing it ‘as a rash and fatal’ measure and, when challenged to state what he considered to be the points of greatest urgency, specified ‘the rendering the writ of Habeas Corpus a matter of right, the granting independence to the judges, the lessening of the servility and dependence of the superior officers of justice, and the establishing a House of Assembly’. Fox, Sheridan and Burke spoke as usual against the Fox and Burke on the Quebec Act. Government, denouncing Pitt for pleading that, in view of the divergent views held in Canada, the Government should be given more time to obtain further information from Lord Dorchester. The whole of Lord Dorchester’s evidence on the Quebec Bill, said Fox, who professed great respect for Lord Dorchester himself, ‘contained opinions wholly foreign to the spirit and uncongenial with the nature of the English constitution. Lord Dorchester, therefore, was the last man living whose opinion he would wish to receive upon the subject.’ Burke spoke of the Quebec Act as ‘a measure dealt out by this country in its anger under the impulse of a passion that ill-suited the purposes of wise legislation’.

It was true that two years had passed since the previous discussion on the subject in the House of Commons, and that nothing had been done in the meantime; but the hollowness of the debate was shown by the stress laid by the Opposition speakers on the subject of Habeas Corpus. The recently passed ordinance had given to Canadians the right of Habeas Corpus, but it was argued that the grant was temporary only and that the Crown which had given the right and confirmed the ordinance might take it away, whereas no time should be lost in providing that Canadians, like all other British subjects, should enjoy it ‘as a matter of right and not as a grant at the will of the Crown’. There was little evidence among the speakers that they either knew or cared for the wishes of the great majority of Canadians, those of French descent: no suspicion seems to have entered into their minds that institutions which suited Englishmen might not be the best in the world for men who were not of English birth: it was assumed that clever speakers in the House of Commons were better judges of the requirements of a distant British possession than the man on the spot with unrivalled knowledge of local conditions. The debate well illustrated the prejudice and half knowledge with which partisan legislators in England approach colonial problems, and it afforded a good explanation of the grounds on which the common sense of England let the brilliant debaters talk harmlessly in opposition and entrusted the real work of the country to William Pitt. It ended in a motion, agreed to by the Prime Minister, that the House would take the subject into their earnest consideration early next session.

Following on the debate, Sydney wrote to Dorchester on the 3rd of September, asking for the fullest possible information before the next discussion should take place, and intimating that a division of the province was contemplated. On the 8th of November in the same year, Lord Dorchester replied, giving his views on the Lord Dorchester’s views opposed to division of the province. political situation. In the districts of Quebec and Montreal, exclusive of the towns, he estimated the proportion of British residents to French Canadians as one to forty; including the towns, as one to fifteen; and including the Loyalist settlements above Montreal, as one to five. The demand for an Assembly, he considered, came from the commercial classes, that is to say, from the towns where the British were most numerous: the seigniors and country gentlemen were opposed to it, the clergy were neutral, the uneducated habitants would be led by others. His own opinion was that a division of the province was at present unadvisable; but, should a division be decided upon, there was no reason why the western districts should not have an Assembly and so much of the English system of laws as suited their local circumstances, care being taken to secure the property and civil rights of the French Canadian settlers in the neighbourhood of Detroit, who had increased in numbers owing to the fur trade. A year later, on the 20th of October, 1789, he was informed by Grenville, who had succeeded Sydney as Secretary of State, that the Government had decided to alter the constitution of Canada and to divide the province of Quebec, a draft of the Bill which was to be introduced into Parliament Outline of the Canada Act. for the purpose being enclosed for an expression of the governor’s views, with blank spaces to be filled up on receiving from him information as to certain points of detail.

Difficulties of the situation.

Curiously complex were the conditions which the Bill was intended to meet. Assuming that the population of Canada had been homogeneous and of British descent, and assuming that Canada had been a single, well-defined colony, so that no question of subdivision could arise, it would still have remained a most difficult problem to decide within what limits political representation should be given and how far it should involve responsibility and real self-government. The British demand in Canada was for institutions to which Englishmen had always been accustomed, and which the old North American colonies of Great Britain had enjoyed. The petition of November, 1784, showed that the demand included right of taxation and a certain control over the Executive. This last point seems subsequently not to have been pressed, though it involved the essence of self-government, had been prominent in the disputes between the old colonies and the mother country, and had been emphasized in Canada by the fact that on the one hand the Home Government had conspicuously misused its patronage in making appointments in Canada, and that on the other, two strong governors, Carleton and Haldimand, in time of war and in face of disloyalty, had not hesitated so to put forth their strength as to incur the charge of being arbitrary.

But the population of Canada was not homogeneous, and the colony was obviously not one and indivisible. Even among the English residents there was diversity of interest. Those who lived in the districts of Quebec and Montreal, and for whom Lymburner spoke, were opposed to a division of the province, because the main body of subjects of English birth was to be found in the new settlements in Upper Canada. These newcomers, on the contrary, had much to gain by being severed from French Canada and incorporated into a separate colony. The British minority again in the old province contended that half the number of the representatives to be elected should be assigned to the towns where the number and the influence of the English residents was greatest, Quebec and Montreal containing at the time one Englishman to every two Canadians; thus town and country interests were pitted against each other. Meanwhile the overwhelming majority of the population, the French Canadians, set little store by the representative institutions which the English desired to enjoy. They had never known them and therefore never valued them, and they had reason to fear that any change might tend to give more power to the English minority accustomed to a political machinery which was novel to themselves. The habitants thought only whether their taxes would be increased, and whether new laws and customs would be substituted for those which they understood; the seigniors dreaded losing their feudal rights; the priests their privileges and authority. There was a very strong element of conservatism in French Canada running counter to the demand for political reform, and even in Upper Canada, in the district over against Detroit, and at some other points, there was a small minority of French settlers whose interests, as Dorchester had pointed out, could not be overlooked.

The question of land tenure.

Almost as important and fully as pressing as the question of political representation was that of land tenure. Was the land system of the future, especially in Upper Canada, to be the cumbrous feudal tenure which Louis XIV had imported from the Old to the New World? or was it to be assimilated to the land laws of England? Were other laws too, and was the legal procedure, especially in commercial matters, to be on French or English lines? Partly through confusion as to what was the law of the land, and partly because such judicial appointments as that of Livius were not calculated to inspire respect for the personnel of the judges, the administration of justice in Canada at this time had been hotly assailed, and a long local inquiry into the subject began in 1787, but seems to have produced little or no result in consequence of the passing of the Canada Act.

When there were so many difficulties to be faced and met, it was fortunate that the thorny questions of language and religion were not added to the number. The religious question had been settled by the Quebec Act, and all that was required was to make definite provision for the Protestant clergy, while not interfering with the rights which had been confirmed to the Roman Catholic priesthood. As to language, for good or for evil, no attempt seems to have been made by the Imperial Government to substitute English for French; the oaths prescribed by the terms of the 1791 Act were to be administered either in English or in French as the case might require, and the first elected Assembly of Lower Canada agreed not to give to either tongue preference over the other.[199]

Grenville’s dispatch and letter.

The terms of Grenville’s dispatch to Dorchester of the 20th October, 1789, in which he enclosed the draft of the proposed Act, and of the Private and Secret letter which he wrote at the same time, are interesting as showing the grounds on which Pitt’s Government had come to the decision to divide Canada into two provinces and to give popular institutions in either case.[200] Grenville wrote that the general object of the plan adopted by the Government was to assimilate the constitution of the province of Quebec to that of Great Britain ‘as nearly as the difference arising from the manners of the people Arguments for a division into two provinces and from the present situation of the province will admit’. In trying to effect this object it was necessary to pay attention to the ‘prejudices and habits of the French inhabitants’, and most carefully to safeguard the civil and religious rights which had been secured to them at or subsequently to the capitulation of the province. This consideration had largely influenced the Government in favour of dividing the province into two districts, still to remain under the administration of a Governor-General, but each to have a Lieutenant-Governor and separate Legislature. The Government, Grenville continued, had based upon the grant of representative institutions. not overlooked the reasons urged by Lord Dorchester against a division of the province, and they felt that great weight would have been due to his suggestions, had it been intended to continue the existing form of administration and not to introduce representative institutions; but, the decision having been taken to establish a provincial legislature to be chosen in part by the people, ‘every consideration of policy seemed to render it desirable that the great preponderance possessed in the upper districts by the King’s ancient 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 ancient prejudices by the habit of obedience to the same government and by the sense of a common interest’. Grenville’s private letter, which supplemented the public dispatch, showed that a lesson had been learnt from the late war with the American colonies. ‘I am persuaded,’ he wrote, ‘that it is a point of true policy to make these concessions at a time when they may be received as a 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 necessity which shall neither leave us any discretion in the form nor any merit in the substance of what we give.’[201] The last paragraph of the letter gave another reason for making the proposed changes without further delay, and that was 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 favourable event of the present troubles can ever enable her to make’. The letter was written after the taking of the Bastille and the outbreak of the French Revolution, when Lafayette was in demand at home and not likely to make further excursions into American politics; but the words implied that France was still in the eyes of British statesmen the main source of danger to Great Britain, especially in connexion with Canada, and that the grant of representative institutions to British and French colonists in Canada was likely to strengthen the hands of Great Britain as against her most formidable rival.

Policy of the British Government determined by the results of the War of American Independence.

The correspondence shows clearly that the outcome of the War of American Independence had inclined the British Government to give popular representation to the remaining British possessions in North America. On the other hand there are passages in it which should be noted, indicating that ministers were anxious at the same time to introduce certain safeguards against democracy, which had been wanting in the old North American colonies. Grenville’s dispatch stated that it was intended to appoint the members of the Upper Chamber, the Legislative Council, for life and during good behaviour, Proposed safeguards to the grant of popular institutions. provided that they resided in the province. It also stated that it was the King’s intention to confer upon those whom he nominated to the Council ‘some mark of honour, such as a Provincial Baronetage, either personal to themselves or descendible to their eldest sons in lineal Suggestion to give titles to members of the Upper Chamber. succession’, adding that, if there was in after years a great growth of wealth in Canada, it might be possible at some future date to ‘raise the most considerable of these persons to a higher degree of honour’. The object of these regulations, he wrote, ‘is both to give to the Upper Branch of the Legislature a greater degree of weight and consequence than was possessed by the Councils in the old colonial governments, and to establish 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.’ In writing as above, Grenville did not state in so many words that the Government contemplated making appointment to the Legislative council hereditary in certain cases, but merely that it was proposed to give some title to certain members of the Council, which title might be made hereditary; nor was any clause dealing with the subject included in the draft of the Bill which was sent to Lord Dorchester. The latter, however, Lord Dorchester opposed to the suggestion. rightly understood that what Pitt and his colleagues had in their minds was to give to each of the two provinces, into which Canada was to be divided, an Upper House which might develop into a House of Lords; and his answer was that, while many advantages might result from a hereditary Legislative Council distinguished by some mark of honour, if the condition of the country was such as to support the dignity, ‘the fluctuating state of property in these provinces would expose all hereditary honours to fall into disregard.’ He recommended, therefore, that for the time being the members of the Council should merely be appointed during life, good behaviour, and residence in the province.

When the Bill was introduced into Parliament, the provisions dealing with this subject were chiefly attacked by Fox, who expressed himself in favour of an elected council, though with a higher property qualification than would be required in the case of the Lower House or Assembly. The clauses were carried in a permissive form, empowering the King, whenever he thought fit to confer upon a British subject by Letters Patent under the Great Permissive clauses embodied in the Bill. Seal of either of the provinces a hereditary title of honour, to attach to the title at his discretion a hereditary right to be summoned to the Legislative Council, such right to be forfeited by the holder for various causes including continual absence from the province, but to be revived in favour of the heirs. Nothing came of this attempt to create a hereditary second chamber in the two provinces of Upper and Lower Canada: no such aristocracy was brought into being as when the French King and his ministers built up the French Canadian community on a basis analogous to the old feudal system of France; but, nevertheless, Pitt’s proposals cannot be condemned as fantastic or unreal. They were honestly designed to meet a defect which had already been felt in the British colonies, and which must always be felt in new countries, the lack of a conservative element in the Legislature and in the people, the absence of dignity and continuity with the past, and the want of some balance against raw and undiluted democracy which has not, as in older lands, been trained to recognize that the body politic consists of more than numbers.

The Executive Council.

The original draft of the Bill contained no provision for the appointment of an Executive Council distinct from the two houses of the Legislature. A clause to that effect was inserted by Lord Dorchester in the amended draft which he sent back, but it did not appear in the Act in its final form; though there is a reference in the Act to ‘such Executive Council as shall be appointed by His Majesty for the affairs’ of either province; and one section appointed the governor and Executive Council in each province a court of civil appeal. In his covering dispatch Grenville asked Lord Dorchester to state the number and names of the persons whom he might think proper to recommend to the King for seats on the Executive Council, and added that it was not intended to exclude members of the Legislative Council from the Executive Council, nor on the other hand to select the Executive Councillors exclusively from the Legislative Council. Grenville went on to suggest that it might be well that some persons should be members of the Executive Council in both of the two districts or provinces. The net result was that the Executive was still to remain wholly independent of the Legislature, or at any rate of the popular house in the Legislature, and therefore the main element of self-government was to be withheld. It was left for Lord Durham, after long years of friction between the Executive and the Legislature, to emphasize the necessity of giving to the popular representatives the control of the Executive, making them thereby responsible for the good government of the people whom they represented.

Crown Lands’ funds.

In his secret letter to Dorchester, Grenville referred 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’. Crown land funds are not yet wholly extinct in the British colonies. For instance, in the Bahamas, side by side with the revenue voted by the local Legislature, there is a small fund independent of the Legislature and at the disposal of the Crown alone; but the revenue derived from the fund is not sufficient to pay the salaries of the Executive officers, even if it were thought desirable to apply the money to such a purpose. Barbados, with its time-honoured constitution, to which Barbadians are passionately attached, is a good instance of a colony possessing representative institutions but not responsible government. Here there are no Crown funds, and the salaries of the public officers, from the governor downwards, are voted by the elected representatives, though the higher Executive appointments, with some exceptions, are in the gift and under the control not of the Legislature but of the Crown. In this and in other instances, where local conditions, including the fact of an overwhelming preponderance of coloured men over white, have made for a compromise, a system, illogical in theory and unsound in practice, has, by mutual forbearance, continued to work, though not always without friction. But on any large scale, and especially where the majority of the residents in a colony are of European birth, the position is impossible and can only be defended as a temporary expedient. Yet, in spite of the War of American Independence and the lessons which it taught, the world was not in the days of Pitt old enough for the British ministry to contemplate colonial self-government in its full expression. Nor, in truth, were the conditions of Canada sufficiently advanced to have made the introduction of responsible government either practicable or desirable. Hence Grenville cast about for an expedient which might reduce the probability of a conflict between the Executive and the Legislature, and sought for it in the establishment of a fund which would belong to the Crown alone and be expended by the Crown in paying its officers. If his policy had been consistently carried out, and an adequate revenue, not derived from taxation, been secured to the Crown, the result would have been greatly to strengthen the independence of the Executive by making the salaries of the officers independent of the vote of the Assembly. In the end the bitterness of the struggle for popular control might have been thereby increased, but in the meantime the petty squabble year by year over voting supplies, and the mean withholding of pay from this or that officer, because he happened to be unpopular at the moment, might have disappeared. The constitutional troubles which subsequently became so acute in Lower Canada, connected more especially with the attempt to obtain a Civil List, were due to the fact that the revenues of the Crown were not sufficient to cover the expenses of the public service without the aid of votes from the popular Assembly. It was this constant friction which had preluded the War of Independence, and this it was which Grenville hoped to avoid by establishing an adequate fund in the colony at the disposal of the Crown alone.

But a wider and more statesmanlike safeguard against the evils of colonial democracy in the eighteenth century was proposed in connexion with this Canada Act, though not by the Imperial Government. The post of Chief Chief Justice Smith. Justice of Canada, which Livius had held, was now after a long interregnum filled by the appointment of William Smith, who had been born in the state of New York, had been Chief Justice of that state, and, coming to England with Dorchester after the Peace of 1783, had been appointed to succeed Livius and had accompanied the Governor-General out to Canada. Invited by Dorchester His proposals for a general Legislature for the British North American Provinces. to give his views upon the draft of the Bill which Grenville had sent out, he embodied them in a remarkable letter which was forwarded to the Home Government. The Bill, he thought, greatly improved ‘the old mould 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’; but he missed in it ‘the expected establishment to put what remains to Great Britain of her ancient dominions in North America under one general direction, for the united interests and safety of every branch of the Empire’. It was when the old North American colonies became prosperous that the evils inherent in their system produced their full effect, and he dreaded lest the prosperity which he predicted for the two provinces of Canada might again in time work ruin, unless what he considered to be the one main safeguard were provided from the beginning of constitutional government. ‘Native as I am of one of the old provinces,’ he wrote, ‘and early in the public 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 country had outgrown its government, and wanted the true remedy for more than half a century before the rupture commenced.... To expect wisdom and moderation from near a score of petty parliaments, 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.... An American Assembly, quiet in the weakness of their infancy, could not but discover in their elevation to prosperity, that themselves were the substance, and the governor and Board of Council were shadows in their political frame. All America was thus, at the very outset 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 control 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.’

Such a power the Chief Justice outlined in ‘Proposed Additions to the New Canada Bill for a General Government’, which he enclosed in this noteworthy letter, prefacing them as clauses ‘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’. Provision was made in them for a Legislative Council and General Assembly, which, with the Governor-General, were to legislate for all or any of ‘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’. So many Legislative Councillors were to be appointed for each province by the Crown for life, subject to the conditions attached to membership of the Legislative Council in either of the two Canadas by the proposed Act; while the members of the General Assembly were to be elected by the provincial Assemblies. The Crown might appoint an Executive Council, and was to be confirmed in full Executive authority over all and any of the provinces, while the acts of the General Legislature were to be subject to disallowance by the Crown, ‘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’.

Chief Justice Smith’s views supported by Lord Dorchester.

Lord Dorchester forwarded these proposals with a few words indicating that he was in general sympathy with the views of the Chief Justice. He wrote of the scheme of a general government for British North America as one ‘whereby the united exertions of His Majesty’s North American provinces may more effectually be directed to the general interest and to the preservation of the unity of the Empire’. They were the proposals of a trained lawyer, of an American colonist of standing and position who had thrown in his lot with the mother country as against the revolting colonies, and who stated in the letter from which passages have been quoted above, that for more than twenty years, that is to say through all or nearly all the years of strife with the colonies, he had held the same view as to the radical defect in the relations between Great Britain and her colonies and the remedy which might have been applied at an earlier date. How far, we may ask, did Chief Justice Smith truly diagnose the disease, if disease it was, that had proved fatal to the old British Empire in North America? How far did he indicate what, if the disease had been taken in time, would or might have been an adequate remedy? and how far did he outline the Canadian Dominion of later days and anticipate views which are widely held at the present time as to the future of the British Empire?

click here for larger image.

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THE TWO CANADAS
under Constitutional Act of 1791
and
THE MARITIME PROVINCES

From a map of 1823, in the Colonial Office Library

B. V. Barbishire, Oxford, 1908.

Democracy in America was coeval with its colonization.

It has been attempted to show in a previous chapter that the spirit of independence in the American colonies, which in the end was embodied in political severance from Great Britain, was as old as their origin, and drew its strength from the fact that they had always been practically independent. This was the starting-point of the Chief Justice’s argument. ‘All America,’ in his words, ‘was, at the very outset of the plantations, abandoned to democracy’, and the separate colonies which at the time when he wrote, had been federated into the United States, were ‘little Republics’. Those little Republics, according to the ordinary colonial contention, the mother country had neglected in the weakness of their infancy, while she had tried to oppress them when they became prosperous and valuable. Chief Justice Smith read history differently. According to his view they were quiet until they had grown to strength, and then they discovered that the ultimate power of government rested with themselves and not with the mother country. The remedy, he thought, should have been It should have been controlled from within, not from without. found not so much by giving greater power to the Imperial Government as by establishing in America itself an authority controlling the separate Assemblies of the separate states, which body would have been a ‘Partner in the legislation of the Empire’.

It was no new conception that the states should have been in some sense federated while still under the British flag. Various governors, and men like Franklin, had proposed or contemplated some such measure, in order to correct the weakness of the separate provinces as against the common foe in Canada, while Canada belonged to France, and in order to minimize the difficulties which the Imperial Government found in dealing with a number of separate legislatures at least as jealous of each other as they were of the Home Government. But the Chief Justice’s retrospect was based on somewhat different The grounds on which Chief Justice Smith advocated a General Legislature for British North America. grounds. He would have had a federal legislature in order to control the provincial legislatures. He would have corrected democracy in America by, in a sense, carrying democracy further. He would have nothing of the maxim divide et impera; but, as democracy was born on American soil, on American soil he would have constituted a popular authority wider, wiser, and stronger than the bodies which represented the single provinces. It was a very statesmanlike view. He saw that one leading cause of the rupture between Great Britain and her colonies had been the pettiness of the American democracies, the narrowness of provincial politics, the intensity of democratic feeling cooped up in the small area of a single colony as in a single Greek city, the personal bitterness thereby produced in local politicians, and the obvious semblance of oppression when a great country like England was dealing with one small state and another, not with a larger federated whole. A federal legislature would have exercised home-grown American control over the American Assemblies; it would have given a wider and fuller scope to American democracy, enlarging the views, making the individual leaders greater and wider in mind; it would have been the body with which England would have dealt; and the dealings would have been those of ‘Partners in the legislation of the Empire’. This was in his mind when he earnestly recommended that the grant of constitutional privileges to the Canadian provinces should be from the first accompanied by the creation of a general government for British North America, including the maritime provinces as well as Upper and Lower Canada.

The General Legislature contemplated by Chief Justice Smith would have been a subordinate Legislature.

But, if this general government was to be a partner in the legislation of the Empire, it was clearly to be, in the view of the Chief Justice, a subordinate partner. The last of his proposed additions to the Bill began in the following terms: ‘Be it further enacted ... that nothing 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 Parliament of Great Britain.’ In other words he re-affirmed the principle, which the old colonies had rejected, that they were subordinated to the Parliament of the mother country as well as to the Crown; and he showed clearly in the clause empowering the Crown to appoint Executive Councils apart from the Legislature, that the Executive power was to rest not in British North America but in Great Britain. The general government of British North America was to be a partner in the legislation of the Empire, but not in the Executive, and even in the legislative sphere it was to take a second place. Theoretically, and to some small extent practically also, the Dominion Parliament is still a subordinate partner in legislation, so far as The Chief Justice did not contemplate colonial self-government in its fullest form. Imperial questions are concerned; but, since the days of Lord Durham, colonial self-government has included control of the Executive in the colony. Chief Justice Smith had therefore not contemplated or foreshadowed the colonial self-government of the future.

But that he had not done so was not due to want of statesmanship. He was rather still intent on seeking after a solution of the problem which later thinkers and statesmen held to be insoluble. The grant of responsible government in after times was not so much an act of constructive wisdom as a wise recognition of what was at the time impossible. To give to the colonial legislatures the control of the Executive was to remove them practically from the control of the mother country, and thereby to concede to these communities the full right of self-government. The first corrective of this grant was on similar lines to those which Chief Justice Smith prescribed, viz., to federate the self-governing communities in a given area, to place their separate legislatures under a general legislature, and, as the legislatures controlled the Executive, to limit the provincial executive authorities by a general executive authority, the control being exercised from within not from without, and small democracies being rectified by creating from among themselves a larger and a stronger democratic body. It still remains for the wisdom of the coming time to carry the constructive work further; if human ingenuity can devise a practical scheme, again to extend the principle of democratic representation and control; and to constitute a body which, with the Crown, shall, alike in legislation and in the sphere of the Executive, make the great self-governing provinces in the fullest sense partners in the Empire. In short, the point which it is here wished to emphasize is that whereas self-government was conceded not as a solution of the problem but as a final recognition that the problem was insoluble, men have come to realize that after all what was intended to be final was only a necessary preliminary to the possible attainment of an object, which had been relegated to the land of dreams and speculations.

The Act of 1791.

The views of the Chief Justice were not embodied in the law which was eventually passed in 1791. Pitt had pledged himself to deal with the Canadian question in the session of 1790, but in that year Great Britain was on the brink of war with Spain, owing to the seizure by the Spaniards in 1789 of British trading vessels in Nootka Sound, an inlet of what is now known as Vancouver Island. The matter was adjusted by the Nootka Sound Convention of 28th October, 1790, after which Vancouver began his voyages of survey and discovery along the Pacific Coast of North America; and, the hands of the British Government being free, a Royal Message to the House of Commons, dated the 25th of January, 1791, announced that it was the King’s intention to divide the province of Quebec into two provinces to be called Upper and Lower Canada, whenever His Majesty was enabled by Act of Parliament to make the necessary regulations for the government of the said provinces. The message further recommended that a permanent appropriation of lands should be made in the provinces for the support of a Protestant clergy.

Proceedings in Parliament.

On the 4th of March Pitt introduced the Bill. On the 23rd of March Lymburner was heard at the bar of the House on behalf of its opponents. He took objections, among other points, to the division of the province, to the creation of hereditary Legislative Councillors, to the small number of members who were to constitute the Assemblies, and to making the Assemblies septennial instead of triennial. The passage of the Bill through Committee in the House of Commons was chiefly remarkable for the historic quarrel between Burke and Fox on the subject of the French Revolution which was dragged into the debate. There was no real opposition to the measure, though Fox opposed the division of the province, the hereditary councillors, the small numbers assigned to the Assemblies, and the large provision made for the Protestant clergy. The duration of the Assemblies was reduced from seven years to four, and the number of members in the Assembly of Lower Canada was raised from thirty to fifty. Thus amended the Bill was read a third time in the House of Commons on the 18th of May, and received the Royal Assent on the following 10th of June, one of its sections providing that it should take effect before the 31st of December, 1791, and another that the Councils and Assemblies should be called together before the 31st of December, 1792. It had been intended that Dorchester should be present in London during the passing of the Act, in order to advise the Government on points of detail, but the dispatch informing him that the Act had already been passed crossed him on his way to England.

Omissions from the Act.

The omissions from the Act are as noteworthy as its contents. The Bill, both as presented to Parliament and as finally passed into law, contained no description of the line of division between Upper and Lower Canada, It contained no definition of the boundaries of Upper and Lower Canada. or of the boundaries of the two provinces. In the draft which Grenville sent out in 1789 there was a blank space, in which Dorchester was invited, with the help of his surveyor-general, to insert a description of the boundaries; but, wrote Grenville in his covering dispatch, ‘there will be a considerable difficulty in the mode of describing 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 established for the province by an Act of the British Parliament would probably excite a considerable degree of resentment among the inhabitants of the United States.’ Grenville accordingly suggested that the Upper Province might be described by some general terms such as ‘All the territories, &c., possessed by and subject to His Majesty and being to the West or South of the boundary line of Lower Canada, except such as are included within the present boundaries of the government of New Brunswick’.

Uncertainty as to what was or was not British territory affected among other matters the administration of justice. It was from this point of view that Dorchester mainly regarded it when he wrote in reply to Grenville, ‘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’. He returned the draft of the Bill with the blank filled in with a precise description of the dividing line within what was beyond dispute Canadian territory, and with the addition of some general words including in the Canadas all lands to the southward ‘now subject to or possessed by His Majesty’, but he reported at the same time that the Chief Justice was not satisfied that the terms used would answer the purpose. Eventually the Government left out the whole clause, omitting also all reference to another difficult point which had been raised and which had affected the administration of justice in connexion with the fisheries in the Gulf of St. Lawrence, viz., the boundary line between Lower Canada and New Brunswick. Parliamentary debate on a very awkward question was thus avoided, and the Act contained no provision which could give offence to the United States.

How the boundaries were defined.

But it was absolutely necessary to draw some dividing line, and to give some description of the boundaries, however vague. Accordingly the following very cautious course was taken. A ‘description of the intended boundary between the provinces of Upper Canada and Lower Canada’, being Lord Dorchester’s clause with the omission of the general words referred to above, was printed as a Parliamentary Paper,[202] while the Bill was before the House; and this line of division was embodied in an Order in Council issued on the following 24th of August, with the addition of the words ‘including all territory to the Westward and Southward of the said line, to the utmost extent of the country commonly known as Canada’. The line of division was set out again in the new commission to Lord Dorchester, which was issued on the 12th of September, 1791, the two provinces of Upper and Lower Canada being specified as comprehending all such territories to the Westward and Eastward of the line respectively ‘as were part of our said province of Quebec’.

Administration of Justice hardly mentioned in the Act,

On the important subject of administration of justice the Act was almost silent. One section only had reference to it, constituting the governor or lieutenant-governor and Executive Council in either province a court of appeal in civil matters, as had been the case in the undivided Nor did it contain any definition of the respective powers of the two Chambers. province. Nor was any attempt made to define the powers of the Legislative Council and Assembly in relation to each other; but, in sending out the Act, Dundas, who had succeeded Grenville, reminded Dorchester of ‘the disputes and disagreements which have at times taken place between the Councils and Assemblies of the different colonies respecting the right claimed by the latter that all Bills whatsoever for granting money should originate with them’, and he laid down in general terms that the principle, ‘as far as it relates to any question of imposing burthens upon the subject, is so consistent with the spirit of our constitution that it ought not to be resisted’.

Contents of the Act.

Out of the fifty sections which composed the Act, no less than thirty-two related to the constitution and legislative powers of the Councils and Assemblies in the two provinces. In Upper Canada the Legislative Council was to consist of not less than seven members, and the Assembly of not less than sixteen. In Lower Canada the minimum fixed for the Council was fifteen, and for the Assembly fifty. The electoral qualification was, in the country districts, ownership of real property to the net annual value of forty shillings, and in the towns of £5, or in the alternative in the latter case a rental qualification of £10 per annum.

Provision for Protestant clergy.

Of the remaining sections eight related to the endowment and maintenance of Protestant clergy and to providing parsonages and rectories for the Church of England. The wording of these sections, and the system of clergy reserves which they introduced, proved a fruitful source of controversy in after years. The Act continued the existing system by which Roman Catholics paid their dues to the Roman Catholic Church, while the tithes on lands held by Protestants were applied to the support of a Protestant clergy. It then went on, in accordance with the terms of the Royal Message to the House of Commons, to provide that there should be a permanent appropriation of Crown lands for the maintenance and support of a Protestant clergy, bearing a due proportion to the amount of Crown lands which had already been granted for other purposes, and that all future grants of Crown land should be accompanied by an appropriation, for the same object of maintaining a Protestant clergy, of land equal in value to one-seventh of the amount which was granted for other purposes. The intention was that the establishment and endowment of Protestant clergy should proceed pari passu with the alienation of lands for settlement, so that each township or parish in either province should have its Protestant minister. So far the general term Protestant was used, but provisions followed authorizing the erection and endowment of parsonages or rectories in every parish or township ‘according to the Establishment of the Church of England’, the incumbents to be ministers of the Church of England, and to be subject to the ecclesiastical authority of the Church of England bishop. It was also enacted that, while these provisions relating to religion and to Crown lands might be varied by Acts of the provincial legislatures, before any such Acts received the Royal Assent, they were to be laid before the Imperial Parliament, and, if either House presented an Address to the King praying that His assent should be withheld, such assent could not be given. The Act, though obscurely worded, in effect established and endowed the Church of England in both provinces alike, while confirming the rights which had already been conceded to the Roman Catholic Church. The provision made for the Church of England was, at any rate on paper, very ample, inasmuch as, while Crown lands were being assigned for its maintenance, the liability of Protestant land-owners to pay tithes was not abolished. Dundas, however, in his dispatch which enclosed copies of the Act, intimated to the governor that it was not desired permanently to continue the burden of the tithe, if the land-owners would in lieu subscribe to a fund for clearing the reserve lands and building the parsonage houses. Fox attacked these sections in the Act, and he also criticized a suggestion which Pitt made that a Church of England bishop might be given a seat in the Legislative Council.

The first Church of England bishops in British North America.

It may be noted that the Act specifically mentioned the Bishop of Nova Scotia as the spiritual authority for the time being over such ministers of the Church of England as might be appointed to the two Canadas. The Bishopric of Nova Scotia dated from 1787, and was the first, and in 1791 the only, Church of England bishopric in British North America, the Bishop—Bishop Inglis, having been a Loyalist clergyman in the city of New York. In 1793 a separate Bishop of Quebec was appointed, and in 1799 the Secretary of State authorized the building of a metropolitan church at Quebec, which was completed for consecration in 1804, and at the centenary of which in 1904 the Archbishop of Canterbury was present. There were indications at this time that the Protestants in Canada, most of whom were not members of the Church of England, might be inclined to unite within it, and it was hoped that the building and endowment of a metropolitan church might tend to such union and to placing the Church of England in the position of the Established Church of Canada.

The provisions in the Act which related to religion were followed by three very important sections dealing with land tenure. The main grievance of the settlers Provisions relating to land tenure, and to taxation by the Imperial Parliament. in Upper Canada was met by providing that land grants should there be made on the English system of free and common soccage. The same system was made optional in Lower Canada at the will of the grantee, but in that province the seigniors were not finally abolished until the year 1854. In 1778 an Act of Parliament had been passed[203]—too late in the day—which abolished the tea duty in the North American colonies, and laid down that no duty should in future be imposed by the British Parliament on any colony in North America or the West Indies for revenue purposes, but only for the regulation of commerce, and on the understanding that the net produce of such duties should be at the disposal of the colonial legislatures. Similar provisions were inserted in the Canada Act of 1791, and, in introducing the Bill, Pitt explained that, ‘in order to prevent any such dispute as had been the cause of separating the thirteen states from the mother country, it was provided that the British Parliament should impose no taxes but such as were necessary for the regulation of trade and commerce; and, to guard against the abuse of this power, such taxes were to be levied and to be disposed by the Legislature of each division.’

Thus Canada was endowed with representative institutions, and entered on the second stage in its history as a British possession. It was divided into an English province and a French province, in order as far as possible to prevent friction between two races not yet accustomed to each other. For the English province English land tenure was made the law of the land, in the French province it was only made optional. Taxation of members of one religion for the upkeep of another found no place in the Act, nor did taxation of a colony by the mother country for the purposes of Imperial revenue. The popular representatives were in the main given control of the moneys raised from taxes: and no doubt was left as to who had the keeping of the people’s purse.[204] On the other hand the Executive power was left with the Crown, and the waste lands provided possibilities of a revenue by which the government might be supported apart from the taxes, and by which an Established Church might be maintained apart from the tithes. The Imperial Parliament too retained the power of regulating commerce, while making no money out of the colony by any commercial regulations. It was in short a prudent and tolerant half-way Act, wise and practical in view of the times and the local conditions, and it was evidence that England and Englishmen had learnt good and not evil from the War of American Independence. A study of Canadian history, with special reference to the Quebec Act of 1774 and the Canada Act of 1791, and the results which flowed from them, leads to the conclusion that in either case the British Government of the day tried most honestly and most anxiously to deal with a very complicated problem on its merits; that every effort was made by the ministers of the Crown to mete out fair and considerate treatment to the majority of the resident population in Canada; and that those who framed and carried the laws guided themselves by living facts rather than by a priori reasoning. But it is also impossible to resist the conclusion that at almost any time from 1783 onwards, until the Canadian Dominion came into being, there was little to choose between the arguments for retaining a single province, and those for constituting two provinces. In any case it was inevitable that the provisions of the Act of 1791 should give rise to new complications of various kinds; and apart from specific questions, constitutional and otherwise, there were two very practical difficulties which necessarily arose from the division of the province of Quebec. The first was an Executive difficulty, of which more will be said presently. From the date of the Act there was increasingly divided authority in the Canadas. The second was a financial difficulty arising from geographical conditions. One of the two provinces had the keeping of the other, so far as regarded access from and to the sea.

Financial difficulties between the two provinces.

As the line of division was drawn, Upper Canada, like the Transvaal at the present day, was compelled to import all sea-borne articles through territory under the administration of another government, either through Lower Canada or through the United States. The St. Lawrence being the high road of import and export, Lower Canada commanded the trade of Upper Canada. Therefore, in order to collect a customs revenue, it was necessary for the Upper Province either to establish customs houses on the frontier of Lower Canada—a measure which would probably have been ineffective and would certainly have involved much inconvenience and expense, or to come to some arrangement whereby a certain proportion of the duties levied at Quebec, which was the port of entry of Lower Canada, would be handed over to the administration of the Upper Province. The latter course was taken, and in 1795, a provisional arrangement was made, by which the proportion was fixed for the time being at one-eighth. The record of what followed is a record of perpetual friction, of commissions and temporary arrangements confirmed by provincial Acts. It was suggested that the boundaries of the provinces should be altered, and that Montreal should be included in and be made the port of entry of Upper Canada, but the suggestion was never carried into effect. As the population of Upper Canada grew, the discontent increased. In 1818 one-fifth of the duties was temporarily assigned to Upper Canada. Then a complete deadlock ensued, which ended with the Imperial Canada Trade Act of 1822. By arbitration under the terms of that Act the proportion which Upper Canada was to receive was in 1824 raised to one-fourth; and when Lord Durham reported, it was about two-fifths. In his report Lord Durham referred to the matter as ‘a source of great and increasing disputes’, which only came to an end when the two provinces were once more united under the Imperial Act of 1840.

The Canada Act took effect on the 26th of December, 1791. Dorchester was then in England, and Sir Alured Clarke, Lieutenant-Governor of the province of Quebec under the old system and Commander of the Forces in British North America, was acting for him. Under the The position in Canada when the new Act came into force. new Act Clarke was appointed Lieutenant-Governor of Lower Canada, while the Lieutenant-Governorship of Upper Canada was conferred upon Colonel Simcoe, both officers being subordinate to Dorchester as Governor-in-Chief. Dorchester had left Canada on the 18th of August, 1791, and did not return till the 24th of September, 1793. His prolonged absence was unfortunate in more ways than one. Technical difficulties arose owing to the absence of the Governor-in-Chief, for, as soon as the new Act came into force, Clarke’s authority was confined by his commission to Lower Canada. The practical effect too was that Simcoe started on his new charge with a free hand and found it irksome, when Dorchester returned, to take a second place. Added to this were the complications caused by the French declaration of war against Great Britain in February, 1793, the hostilities between the United States and the Indian tribes on the border land of Canada, and the persistent and increasing bitterness in the United States against Great Britain, caused partly by sympathy with the French Revolution and the intrigues of French agents, and partly by the British retention of the frontier forts and supposed British sympathy with the Indians.

However, the political arrangements in Canada were carried into effect without any appreciable friction. Clarke, a man of judgement and discretion, did not hurry matters in Lower Canada. He divided the province into electoral districts, and summoned the Legislature for its first session at Quebec on the 17th of December, 1792, when the Act had been in force for nearly a year. The session then lasted into May. Simcoe arrived at Quebec on the 11th of November, 1791; but, as no Executive Council had yet been constituted for Upper Canada, he could not be sworn in as Lieutenant-Governor and take up his duties until the following midsummer, Upper Canada being in the meantime left without any governor or lieutenant-governor. In July, 1792, he issued a proclamation at Kingston, dividing Upper Canada into districts, and on the 17th of September the new Legislature met for the first time at Newark, on the Canadian side of the Niagara river, near where that river flows into Lake Ontario. The Lieutenant-Governor fixed his head quarters at ‘Navy Hall’, a building constructed in the late war for the use of the officers of the naval department on Lake Ontario. It stood by the water’s edge, nearly a mile higher up the river than Newark; and on the bank above, in the war of 1812, covering the buildings below, stood the historic Fort George. The session was a short one, closing on the 15th of October, but important work was done. English law and procedure, and trial by jury, were established, while proposals for taxation and the state of the marriage law gave a field for difference of opinion and debate. When the session was over, Simcoe reported that he found the members of the Assembly ‘active and zealous for particular measures, which were soon shown to be improper or futile’, and the Council ‘cautious and moderate, a valuable check upon precipitate measures’.[205]

Simcoe.

John Graves Simcoe, the first Lieutenant-Governor of Upper Canada, was the son of a naval officer who died when serving under Admiral Saunders in the fleet which helped to take Quebec. The son, who derived his second name from another sailor, his godfather Admiral Graves, was born in 1752. He was born in Northumberland, but after his father’s death, his mother made her home in Devonshire. He was educated at Exeter Grammar School, at Eton, and at Merton College, Oxford, and he joined the army in 1771, when he was nineteen years old. He served with much distinction in the War of Independence, in which he commanded a Loyalist Corps, known as the Queen’s Rangers. When the war ended, he held the rank of lieutenant-colonel. After his return to England in bad health he spent some years at his family home in Devonshire, he married, and in 1790 became a member of Parliament, sitting for the borough of St. Mawes in Cornwall. His Parliamentary career was very short, for in 1791, before he was yet forty years of age, Pitt appointed him to be Lieutenant-Governor of Upper Canada. He left Canada in 1796, and soon after he reached England he was sent out as Governor to St. Domingo. After a few months in the island, the state of his health compelled him to come home. He became a lieutenant-general, and was appointed to be Commander-in-Chief in India in succession to Lord Lake, but he never took up the appointment. Prior to going out he was sent to Lisbon in 1806 on a special mission, was taken ill, and brought home to die. He died at Exeter in October, 1806. There is a monument to him by Flaxman in Exeter Cathedral[206], and in Canada his name is borne by Lake Simcoe.

He was not only a good soldier, but a capable, vigorous, public-spirited man, well suited in many ways to be the pioneer governor of a new province. He was strong on questions of military defence and a great road maker. He made Yonge Street, the road from Toronto north to Lake Simcoe, called after Sir George Yonge then Secretary of State for War and afterwards for a short time Governor of the Cape; and he made Dundas Street, christened after the Secretary of State for the Colonies, which then started from the point on Lake Ontario where the city of Hamilton now stands and, running west, connected with the river Thames.

York or Toronto.

Toronto owed much to him, but not under its present name. The name Toronto had been borne in old times by Lake Simcoe, and on the site of the present city of Toronto the French had in 1749[207] built a fort, named Fort Rouillé. The place had come to be known as Toronto, but in 1792[208] the new name of York came into vogue, and in the autumn of the following year, 1793, Simcoe reported that that name had been officially adopted ‘with due celebrity’, in honour of the successful storming of the French camp at Famars near Valenciennes by the force under the command of the Duke of York on the 23rd of May, 1793. It was not until 1834, when the city was incorporated, that the old name of Toronto was restored. Simcoe wrote of Toronto Simcoe’s views as to the seat of government for Upper Canada. Harbour as ‘the proper naval arsenal of Lake Ontario’; but it was not here that he would have placed the seat of government. Strongly convinced of the necessity of opening communication between Lake Ontario and the upper lakes, without making the long round by the waters of Lake Erie and the Straits of Detroit, in 1793 he explored the peninsula between the three lakes of Ontario, Erie and Huron; and on a river, running westward into Lake St. Clair, known at that date as the La Tranche river and afterwards as the Thames[209], a place which was christened London and where there is now a city with 40,000 inhabitants, seemed to him to be the most suitable site for the political centre of Upper Canada. His view was that the seat of government should be inland, presumably because it would be more central in respect to the three lakes, and also because it would be further removed from the danger of raids from the neighbouring territory of the then unfriendly republic. It is interesting to note that, in a dispatch expressing an opinion to the above effect, Simcoe added that sooner or later the Canadas might be divided into three instead of two provinces and Montreal be made the centre of an intermediate government. Dorchester held, as against Simcoe, that Toronto should be the seat of government, and his view prevailed. The Legislature of Upper Canada met at Newark for the last time in May, 1796, shortly before the fort of Niagara on the opposite side of the river was handed over to the Americans,[210] and from 1797 onwards, Simcoe having left in the meanwhile, it met at Toronto.

Before Dorchester returned to take up again the duties of Governor-in-Chief, Simcoe had formed definite views Friction between Dorchester and Simcoe. as to the civil administration and the military defence of Upper Canada; and it is not surprising that the keen, active-minded soldier and administrator, who was little more than forty years of age, did not on all points see eye to eye with the veteran governor now verging on seventy; or that, when he differed, he was not inclined to subordinate his opinions to those of Dorchester. Thus we find Dorchester sending home correspondence with Simcoe with the blunt remark that the enclosures turned on the question whether he was to receive orders from Simcoe or Simcoe from him. In his long official career Dorchester had been much tried. At the time of the War of Independence, he had been badly treated by his employers in England and had felt to the full the mischief and inconvenience caused when those employers divided their confidence and communicated with one subordinate officer and another, thereby encouraging disloyalty and intrigue. The correspondence of these later years points to the conclusion that the iron had entered into his soul and that, with the weariness of age growing upon him, he had become somewhat querulous, unduly apprehensive of loss of authority, and over-sensitive to difference of opinion. There seems to have been no love lost between him and Dundas, while the latter was Secretary of State, but all through the last stage of his career the key-note was dread of divided authority.

Dorchester’s views in favour of a Central Legislature and a strong Executive.

We have seen that he had not favoured the policy of dividing the province of Quebec into two provinces, and that he had shown sympathy with Chief Justice Smith’s proposals for establishing a general government for British North America. In the summer of 1793, after the Canada Act had come into force but while he was still in England on leave, he raised again this question of a central government for all the King’s provinces in British North America, receiving an answer from Dundas to the effect that the measure would require a new Act of Parliament and that in Dundas’ opinion it would not add to the real strength or happiness of the different provinces. After his return to Canada Dorchester took up his text again, laying stress on the necessity of welding together the different provinces. In existing conditions he saw a revival of the system which had caused rebellion and the dismemberment of the Empire. While the United States were pursuing a policy of consolidation, the aim of the King’s Government seemed to be to divide and sub-divide and form independent governments. All power, he continued, was withdrawn from the Governor-General, and instructions were sent directly from home to inferior officers, so that the intermediate authority was virtually superseded. Everything was favourable to insubordination, and the fruits of it might be expected at an early season. This was in February 1795, when the governor was smarting under what he considered to be unjust censure by the Home Government; and, though he remained in Canada for some time longer, he continued to show, by the tone of his dispatches, that he entirely disapproved of the existing régime. In November, 1795, he wrote of ‘all command, civil and military, being disorganized and without remedy’; in the following May he wrote that ‘this unnatural disorder in our political constitution, which alienates every servant of the Crown from whoever administers the King’s Government, leaving only an alternative still more dangerous, that of offending the mass of the people, cannot fail to enervate all the powers of the British Empire on this Continent’; and in June he wrote, that the old colonial system was being strengthened with ruinous consequences.

It is not easy to decide how much ground there was for his complaints. If the situation was difficult, the difficulty had partly arisen from the bad custom, of which he had availed himself, of allowing governors and other holders of posts in the colonies to remain for an inordinate time at home while still retaining office and receiving the pay attaching to it. At the very time when he was most wanted in Canada to carry out the division of the two provinces, and to make the central authority of the Governor-in-Chief strongly felt from the first, he had remained away for fully two years, thereby allowing the new system to come into being and to make some progress before there was any Governor-in-Chief on the spot. Coming out to Canada he found the Lieutenant-Governors corresponding direct with the Home Government, and it was hardly reasonable to insist that they should be debarred from doing so, provided that, as the Duke of Portland, who succeeded Dundas, pointed out, the Governor-in-Chief was supplied with copies of the correspondence. An analogous case is that of Australia at the present day. The governors of the separate states correspond directly with the Colonial Office, sending copies of important dispatches to the Governor-General of the Commonwealth. Had Dorchester not been absent, Relations of the Governor-in-Chief and Lieutenant-Governors. when Simcoe took up his appointment in Upper Canada, and had his mind not been prejudiced by bitter memories of the days of Germain, it is possible that friction might not have arisen. On the other hand the limits of the authority of the Governor-in-Chief and of the Lieutenant-Governors in the British North American provinces seem not to have been clearly defined, with the result that, as years went on, the Governor-in-Chief gradually became little more than Governor of Lower Canada, and the Lieutenant-Governor of Upper Canada became, in civil matters, governor of that province in all but the name. When Lord Dalhousie was appointed Governor-in-Chief, Sir Peregrine Maitland, then Lieutenant-Governor of Upper Canada, asked the Secretary of State for a ruling on the subject; and Lord Bathurst’s answer, dated the 9th of February, 1821, was that ‘So long as the Governor-in-Chief is not resident within the province of Upper Canada, and does not take the oaths of office in Upper Canada, he has no control whatever over any part of the civil administration, nor are you bound to comply with his directions or to communicate with him on any act of your civil government. To His Majesty you are alone responsible for the conduct of the civil administration’. If, on the other hand, the Governor-in-Chief were to take up his residence in Upper Canada and be sworn into office, the Secretary of State laid down that the functions of the Lieutenant-Governor would be entirely suspended. By this date, therefore, the two appointments had become exclusive of each other. At a later date, when Lord Durham was going out to Canada, Lord Glenelg, then Secretary of State, emphasized still more strongly the independence of the Lieutenant-Governors. When sending Lord Durham his commission, he wrote on the 3rd of April, 1838, of the position which the Governor-General or Governor-in-Chief had up to that date held in regard to the other provinces. ‘With the title of Governor-General, he has, in fact, been Governor of the province of Lower Canada only, and has been prohibited from resorting to any of the other provinces, lest his presence should supersede the authority of the respective Lieutenant-Governors, to whose administration they have been confided.... Hitherto it has not been the practice to carry on official correspondence between the Governor-General and any of the Lieutenant-Governors. The Governor-General and the Lieutenant-Governors have severally conducted their separate administrations as separate and independent authorities, addressing all their communications on public affairs to the head of this department, and receiving from the Secretary of State alone instructions for their guidance.’ The result of dividing Canada into two provinces was necessarily to create two governors. One was intended to be subordinate to the other, but the subordination gradually became nominal only. The political problems of Lower Canada were so difficult and so important as to absorb the full time and attention of the Governor-in-Chief; no railways or telegraphs facilitated communication; and the British North American provinces, instead of being controlled by a central executive authority, for good or evil went their own way.

It has been seen that during Dorchester’s first government, he had experienced no little difficulty in dealing with Livius, the contumacious Chief Justice of Quebec. In the earlier period of his second government, he had, on the contrary, a wise and loyal fellow worker in Chief Justice Smith. Soon after the governor returned to Canada for the last time, towards the end of 1793, Smith died and his place was taken by Osgoode, the Chief Justice of Upper Canada, who did not enjoy Dorchester’s confidence to the same extent as his predecessor. But Osgoode’s appointment was made the occasion for putting into practice a reform which Dorchester, to his lasting Dorchester’s opposition to fees and perquisites. honour, had urgently pressed upon the notice of the Imperial Government, the abolition of fees and perquisites, and the payment of judges and other public officers by adequate salaries alone. Dorchester himself, when he first took up the government of Canada in 1766, had refused to take the fees to which he was legally entitled; and in the last years of his Canadian service he wrote on this subject in no measured terms. In a dispatch dated the last day of December, 1793, and written in connexion with the vacant chief justiceship, he referred to the system of fees and perquisites as one which ‘alienates every servant of the Crown from whoever administers the King’s Government. This policy I consider as coeval with His Majesty’s Governments in North America, and the cause of their destruction. As its object was not public but private advantage, so this principle has been pursued with diligence, extending itself unnoticed, till all authority and influence of government on this continent was overcome, and the governors reduced almost to mere corresponding agents, unable to resist the pecuniary speculations of gentlemen in office, their connexions and associates’. He added that whatever tended to enfeeble the Executive power in British North America tended to sever it for ever from the Crown of Great Britain. Subsequent dispatches were to the same effect. In June, 1795, he reported having disallowed certain small claims by subordinate officers, expressed regret that gentlemen in Britain should look to America for a reward for their services, and laid down that officers should be paid sufficient salaries to place them above pecuniary speculations in the colonies. The next month he wrote in the same strain with reference to the Customs officials and the collection of revenue: and a year later he again insisted that such officers should not receive indirect emoluments, that the local administration should not be warped and made subservient to fees, profits, perquisites ‘and all their dirty train’, and that the national interests should not be sacrificed to gentlemen who possessed or were looking out for good places for themselves and their connexions. Running through the dispatches is insistence on the principle that the Executive must be strong, that it can be strong only if the officers are duly subordinate to the representative of the Crown, that loyal subordination can only be produced by paying proper salaries and abolishing perquisites, and that the loss of the old North American colonies had been largely due to abuses which had lowered the dignity and the authority of the Crown, alienating from it the confidence and the affections of the people.

Dorchester criticized by Dundas for plain speaking as to the Americans.

The censure, if censure it can be called, which Dundas had passed on Dorchester, and which caused the latter to tender his resignation, was connected with the attitude which Dorchester felt it necessary to take up towards the United States after his return to Canada in the autumn of 1793. The Treaty of 1783 had settled, or purported to settle, the boundaries of Canada as against the United States, but it had not settled the boundaries of the United States as against the Indians, and the Indians manfully maintained their right to the territory War between the Americans and the Indians. north of the Ohio river. In November, 1791, an American force under General St. Clair, who had commanded at Ticonderoga at the time of Burgoyne’s advance, was badly defeated in the Miami country to the south-west of Lake Erie. The British Government and the Canadian authorities made various efforts to mediate between the contending parties, but the government of the United States was not disposed to accept such mediation, though British officers were asked to be present at conferences which were held in the summer of 1793 between representatives of the various Indian tribes and commissioners of the United States. No result came from these negotiations, the Indians demanding that the Ohio should be the boundary, the Americans definitely refusing to comply with the demand, and in the following year fighting began again.

The French Revolution had for some years been gathering strength. In the autumn of 1792 France had been declared a Republic; and the execution of the King American sympathy with France. on the 21st of January, 1793, was followed on the 1st of February by a declaration of war against Great Britain. The French also declared war against Spain, the power which now held New Orleans and Louisiana west of the Mississippi. The position in North America became at once very critical and very dangerous. Popular feeling in the United States ran strongly in favour of France. The Republicans of the New World were enthusiastic for the people who had enabled them to gain their independence and who, having put an end to monarchy in France, were preparing to insist upon the adoption of a Republican system elsewhere in Europe. Sympathy with France in the United States implied enmity to England, and Thomas Jefferson, Washington’s Secretary of State, was pronounced on the side of the French alliance, representing the views of the Republican party as opposed to the Federalists, the latter being headed by Alexander Hamilton and Jay and supported by the unrivalled influence of Washington himself. On the 22nd of April, 1793, Washington—with popular feeling strongly against him in the matter—issued a declaration of neutrality. At the same time, Genet, sent from France as representative Genet, French minister to the United States. of the new Republic, reached Charleston. With complete disregard of international law, which, when the French Revolution was at its height, had largely lost its meaning, Genet proceeded to make the United States a base for war against Great Britain and Spain, fitting out privateers, sending agents to Canada, planning a campaign against Louisiana. For some months the popularity of his country and his cause, the unpopularity of Great Britain, and the sympathy which Jefferson the Secretary of State had with his views, enabled him, in Washington’s words, to set the acts of the American Government at defiance with impunity and to threaten the Executive with an appeal to the people; but gradually Washington’s firmness and the Frenchman’s own outrageous pretensions had due effect; and, before a year had passed, Genet was, early in 1794, on the demand of the American Government, replaced by another minister.

It was while the bitterness of feeling against England in the United States was most intense that Dorchester Danger of war between Great Britain and the United States. returned to Canada. St. Clair had been replaced in command on the Ohio frontier by General Anthony Wayne, a soldier who had proved his worth in the War of Independence, a man of strong words and actions, and war seemed to be imminent. ‘Soon after my return to America,’ Dorchester wrote in the following year, ‘I perceived Dorchester’s views. a very different spirit’ (from that of the British Government) ‘animate the United States, much heat and enmity, extraordinary exertions, some open some covert, to inflame the passions of the people, all things moving as by French impulse rapidly towards hostilities, and the King’s Government of Lower Canada in danger of being overwhelmed, so that I considered a rupture as inevitable.’ Yet, as he said, he knew well that the British Government were anxious to maintain friendship and peace with the United States; there was no private inclination of his own to the contrary; nor, if there was, had he any force in Canada to back his views. In a previous dispatch, which was dated the 25th of October, 1793, almost immediately after his return, after having pointed out the likelihood of war and the necessity for reinforcements, he had written, ‘The interests of the King’s American dominions require peace, and I think the interests of the States require it still more, though their conduct both to us and the Indians has created many difficulties.’ He looked, he added, to a great future for the States and for the white race generally in North America, but not through war. ‘Not war, but a pure and impartial administration of justice under a mild, firm and wise government will establish the most powerful and wealthy people.’

Dorchester then was wholly averse to war; but being on the spot he saw more clearly than ministers in England that, the people of the United States being minded for war, want of preparation and appearance of timidity on the British side were likely to bring it on, that plain speaking and firm action might have a good effect. His firm attitude towards the United States. Simcoe, who was responsible under him for the frontier of Upper Canada, seems to have been of the same mind. Accordingly, in replying to two Indian deputations, one in the autumn of 1793, the other on the 10th of February, 1794, Dorchester took occasion to speak out, condemning the aggression of the United States which, he said, had nearly exhausted the patience of Great Britain, and referring to war between the two nations as imminent. At the same time, as a counterblast to Wayne’s advance in the Ohio territories, and as an outpost in the case of a movement against Detroit, he ordered a fort to be constructed and garrisoned on what were called the Miami rapids on the Maumee river, south-west of Lake Erie, near the site where a fort had been constructed and held during the War of Independence. Copies, or what purported to be copies, of the governor’s speeches, Protest of the American Government against Dorchester. and reports of his action, reached the American Government in due course, and Randolph, who had succeeded Jefferson, protested, characterizing them as ‘hostility itself’. In view of this protest Dundas, in July, 1794, by which time Jay, Washington’s emissary of peace, had arrived in England, addressed a mild remonstrance to Dorchester, expressing fear that what had been said and done might rather provoke hostilities than prevent them; and upon receipt of this dispatch in the following September Dorchester tendered his resignation. The Duke of Portland, who succeeded Dundas, was at pains to retain the old governor’s services, but, though nearly two years intervened before Dorchester actually left Canada, the correspondence Dorchester’s resignation. which passed in the interval showed his anxiety to be gone, now that the danger of war between Great Britain and the United States had for the moment passed away.

The most critical time was in the year 1794. In America the forces which make for war were strongly in evidence. On the other side of the Atlantic—to the lasting credit of both the British and the American Governments—representatives of the two countries were working hard for peace. In the spring of 1794 Washington nominated John Jay, Chief Justice of the United States, to be a special envoy to Great Britain with a view to settling, if possible, the outstanding points of dispute between the two nations. The Senate confirmed the nomination, and in June Jay reached England and entered into negotiations with Lord Grenville. The result was that on the 19th of November following Jay and Grenville Jay’s treaty signed. signed the well-known treaty which is associated with the American statesman’s name, and which provided for an immediate or prospective settlement of many if not of most of the questions at issue. The treaty was bitterly attacked in the United States by the Republican party and those who sympathized with France. Jay, Hamilton, even Washington himself were denounced and reviled; but the government had sufficient backing in the country to procure the assent of the Senate to the terms of the treaty, with the exception of one article, in the session of 1795; Washington ratified it in August, 1795; and in the following year the measures for carrying The border forts transferred to the United States in 1796. it into effect were voted by a small majority in the House of Representatives. Under its provisions, in that same year, 1796, the border forts were handed over to the United States.

Wayne defeats the Indians.

Meanwhile the war between the Americans and Indians ran the normal course of such wars. The white men suffered some reverses; but, with a strong body of regular troops supplemented by Kentucky militia, and with the help of fortified posts constructed along the line of advance, Wayne by August, 1794, had worn down the Indians and menaced the British fort on the Maumee river, to whose commandant, Major Campbell, he addressed threatening letters. On either side, however, the orders were to abstain from blows, while Jay and Grenville were negotiating, and the conclusion of the treaty ensured the abandonment by the British troops of this outpost of Detroit as well as of Detroit itself. Next year, on the 3rd of August, 1795, Wayne concluded the Treaty of Greenville with the Western Indians. Under its terms the Americans advanced their boundary beyond the Ohio, but still left to the Indians on the south of Lake Erie and in the peninsula of Michigan lands of which the treaty definitely recognized them to be owners, and where they were to dwell under the protection of the United States.

In September, 1795, the Duke of Portland wrote to Lord Dorchester telling him that General Prescott would Dorchester and Simcoe leave Canada. be appointed Lieutenant-Governor of Lower Canada and would leave for Canada in the spring, so that Dorchester could suit his own convenience as to returning to England. At the same time the Secretary of State repeated his regret that Dorchester had determined to retire. Prescott arrived on the 18th of June, 1796, and on the 9th of July Dorchester embarked for England. His ship was wrecked on the shore of Anticosti island, but he reached England in safety in September, and died in a good old age in the autumn of 1808. Simcoe, in the meantime, had, in December, 1795, applied for leave of absence on account of ill health, suggesting that Peter Russell, the senior councillor, should in his absence administer the government of Upper Canada, and tendering his resignation if the leave could not be granted. His wish was complied with, and, after being detained for some time at Quebec, he came back with the returning ships of the autumn convoy and was in London in 1796, two months after Dorchester’s arrival. Canada saw him no more, and, as has been told, he died at a comparatively early age, outlived by the old Governor-in-Chief whose control had fretted his impetuous spirit.

Lord Dorchester’s services to Great Britain and Canada.

In the colonial history of Great Britain Lord Dorchester’s place is or ought to be second to none. Men should be measured by the times in which they live, the lands in which they serve, the conditions which they are called upon to face. It did not fall to Carleton’s lot to be borne on the flowing tide of British victories, to be a leader in successful wars, to be remembered as one who struck down England’s foes and added provinces to her empire. Nor was it given to him to bear rule in times of settled peace, when wisdom and statesmanship are called on to gather in and store the harvest, to consolidate, to develop, to reform, to enrich, to give security and beneficent measures to trusting and expectant multitudes of the human race. Providence set the span of his active life while his country’s fortunes were running out on the ebb-tide of adversity; his public services were coincident with Great Britain’s depression; and the part of the Empire in which he served was the scene of her defeats. No men of good English type cheered and supported him at home, the patriotism which inspired his life was unknown alike to the ministers who preceded William Pitt and to an Opposition which, as embodied in Fox, lost all sense of proportion, and almost all sense of duty, or principle. Yet he held Quebec and saved Canada. Men turned to him to gather up the fragments after the War of Independence; and he reconciled French Canada to British rule and held the balance even between conflicting races and creeds. Open warfare, political intrigue, in every form and from every quarter, from without and from within, beset his path. Those he served and those by whom he was served were in turn disloyal to him. Colonial questions, such as in times of profound peace and goodwill, and after generations of experience, are yet almost insoluble, confronted him, without precedent, without guidance, in their most uncompromising form. He faced them, and through all the mire and mud in which England and English civilians and soldiers and sailors wallowed in these miserable years, he carried one name at any rate which stood for dignity, uprightness, and firm prescient statesmanship. It is not to the credit of English memories or English perception that his name has outside Canada passed into comparative oblivion. If ever a man had temptation to despair of or be untrue to his country, and if ever a man’s character and work redeemed his country and his country’s cause in unworthy times, that man was Carleton.

A great figure in the colonial history of Great Britain as a whole, in the history of Canada he is very great indeed. His character is poles apart from that of old Count Frontenac, and yet he filled in some sort a similar place. Both were soldier-governors; both came back to rule a second time; in either case the individual personality of a firm masterful man was the saving feature of a time of life and death for the colony. Carleton had none of Frontenac’s ruthlessness and arrogance, he had not his French quick wit; but either man in his turn, the one at the end of the seventeenth century, the other towards the end of the eighteenth, was in the fullest sense the saviour of Canada.

General Prescott succeeds Dorchester.

Dorchester did not actually cease to be Governor-in-Chief of Canada until the end of April, 1797, some months after his return to England. He was then succeeded in the office by Prescott, who in the meantime had been Lieutenant-Governor of Lower Canada and Commander-in-Chief of the British forces in North America, having been sworn in at Quebec on the 12th of July, 1796. Robert Prescott, of Lancashire descent, was an old man when he was sent to Canada. Born in 1725, he was seventy-one years of age, only one year younger than Dorchester. He was a Lieutenant-General in the army and had seen much fighting, principally in North America and the West Indies. He had served under Amherst and Wolfe, at Louisbourg and Quebec. He had fought in the War of American Independence and been present at the battle of Brandywine. In 1794 he was in command of the force which took Martinique from the French and, as civil governor of the island, he earned the goodwill of French and natives alike by his tact and humanity.[211] Thus he had a good record when he was chosen to succeed Lord Dorchester, and, though his rule in Canada was short and stormy, when he left, there was abundant evidence of his popularity.

Intrigues of the French minister in the United States against Canada.

Before his arrival in 1796, and at the time, Adet the French minister in the United States, was making mischief like his predecessor Genet, intriguing against Washington’s policy of strict neutrality as between France and Great Britain, and almost openly inciting the French Canadians to revolt. He over-reached himself, however, by supporting Jefferson’s candidature for the Presidency of the United States in succession to Washington, with the result that he was recalled. Jefferson’s opponent, John Adams, was elected President; and the feeling between France and the United States became strained to the verge of war between the two nations. The French designs on Canada came to nothing. A man named Maclane, said to have been of weak intellect, was executed for high treason at Quebec, and a vessel was seized containing arms, ostensibly for the state of Vermont, but, as the evidence seemed to show, designed for use in a raid from Vermont on Canada. There was no actual danger, but there was anxiety and unrest. England was at war with France; Lower Canada was the child of France; the United States contained a strong and very bitter anti-English party; and the armed forces in Canada were almost a negligible quantity. At this same critical time Prescott became involved in a quarrel with his Executive Council over the land question.

The land question in Canada. Prescott quarrels with his Executive Council.

A proclamation advertising Crown lands for settlement in Canada, which was issued in 1792, had called forth a large number of applications. Surveys had not kept pace with the demand for allotments, and the result had been that many applicants whose petitions had been entertained had not actually taken up any land, while others had settled and occupied land without having any legal title. As is usual in such cases, land-jobbing was prevalent; and Prescott, according to his own account, was at pains at once to frustrate ‘great schemes for accumulating land on principles of monopoly and speculation’, and to raise the fund which the Imperial Government had hoped to derive from this source for defraying in part the cost of civil administration. Prescott’s view, it would seem, was that those who had actually become occupiers and begun the work of settlement, should be confirmed in their lands in full; that, where applications had been recorded but no work done, the allotments should only be confirmed in part; that purchasers of claims should be dealt with on their merits, and that, the outstanding claims having been disposed of, the lands, with the exception of reserves for the Crown and the clergy, should be put up for sale at public auction. His Council strongly opposed him, on the ground that he was giving preference to those who had occupied land without having been granted any legal title, and that public sale would bring in a crowd of interlopers from the United States who would take up the land to the exclusion of Loyalists who had the first claim on the British Government. Prescott formed the view, rightly or wrongly, that various members of the Council were concerned in land-jobbing, and he held that public sale was the only real preventive of speculation. ‘Industrious farmers,’ he wrote, ‘who would wish to obtain a grant for the purpose of actual settlement, but who cannot spend their time in tedious solicitation, stand little chance of obtaining it, compared with speculators who can devote their time to the attainment of this object. By disposing of the land at public sale, industrious farmers would have an equal chance with any other competitor.’

Benedict Arnold’s claims.

The case of Benedict Arnold, though it did not apparently enter into the controversy, as he was in England at the time, illustrates the extravagant claims which were put forward to land grants in Canada. At the beginning of 1797 he wrote to the Duke of Portland, calling attention to the sacrifices which he had made for the British Government, and asking for a reward in the shape of a grant of lands in Canada. A year later he defined his demand. He stated that the usual grant was 5,000 acres to each field officer and 1,200 acres for every member of his family; in his own case, therefore, as his family consisted of a wife, six sons and a daughter, the total would amount to 14,600 acres; but, as he had raised and commanded what he called a legion of cavalry and infantry, he considered that he himself was entitled to 10,000 acres instead of 5,000, making up the total to 19,600 acres. Even this amount he had amplified in a previous petition to the King, and he wished to be allowed to select the land where he pleased and not to be compelled to reside upon it personally.

If Arnold’s claims were at all typical of others, it is not to be wondered at that Prescott took a strong line on the land question, with a view to putting a stop to speculation. The controversy which arose between himself and his Council was embittered by the course which he adopted of making public their proceedings. Chief Justice Osgoode and other members of the Council ranged themselves in opposition to him; and the state of feeling was well summed up in the words of a correspondent, writing from Quebec in August, 1798, that the Council must either get a new governor or the governor a new Council. The Duke of Portland, Secretary of State, Prescott recalled. preferred the former alternative. On the 10th of April, 1799, he ordered Prescott home. Robert Shore Milnes was sent out as Lieutenant-Governor of Lower Canada, and General Hunter as Lieutenant-Governor of Upper Canada. They reached Quebec on the 13th of June, and Milnes and Hunter appointed Lieutenant-Governors of Lower and Upper Canada respectively. on the 29th of July Prescott sailed for England, having received before he left addresses of confidence from all classes, British and French residents combining to pay honour to him, as a man, who, whatever his faults may have been, had won the respect and esteem of the people. By the evil custom of those days, though recalled from Canada, he was allowed to retain for years in England the office of Governor-General and to receive the pay.

Close of the eighteenth century.

Thus the eighteenth century came to an end, that memorable century, in all parts of the world fruitful alike for good and for evil to the British Empire, but nowhere so fruitful as in North America. It had seen New France severed from its motherland. It had seen the rival British colonies severed from Great Britain. It had seen the beginnings of an English province in Canada side by side with the French, and the grant of the first instalment of political privileges to Canadians of either race. The maritime provinces, when the century closed, were four in number, Nova Scotia, New Brunswick, which owed its separate existence to the incoming of the Loyalists, Cape Breton, which was later to be incorporated with Nova Scotia, and Prince Edward Island. The North-West was beginning to be a factor in Canadian history, and the exclusive power of the Hudson’s Bay Company in these regions was challenged by the formation of the North-West Company. Canada was still the land of the St. Lawrence and the great lakes, but light was breaking into the limitless area beyond, and as men’s visions widened, there came more movement and more unrest.

We have no regular census of the two Canadas between the year 1790, when there was an imperfect enumeration of the inhabitants of the then undivided province, and the years 1824-5; but in 1800 the Lieutenant-Governor estimated the population of Lower Canada at 160,000, while in 1806 an estimate of 250,000 is given from another source, the population of Upper Canada in the same year being estimated at 70,000. That at the end of the century Lower Canada was politically and socially in a state of transition is shown by an interesting dispatch from Milnes written on the 1st of November, 1800,[212] in which, like his predecessors, he laid stress on the necessity for taking steps to strengthen the Executive Milnes’ views as to strengthening the Executive. Government. He pointed out causes which in his opinion united ‘in daily lessening the power and influence of the Aristocratical Body in Lower Canada’; and, curiously enough, he considered the first and most important of these to be the manner in which the province was originally Independence of the Canadian habitants. settled, and the independent tenure by which the cultivators or habitants held their lands. The feudal system had been introduced with a view to keeping the colonists in leading strings, and reproducing in the New World a form of society based upon the fundamental principle of a landed aristocracy. Yet this English governor wrote of the habitants at the end of the eighteenth century, that ‘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’. The land had passed into the hands of the peasants from those of the seigniors, who retained only the old-time privileges of a Decay of the Canadian aristocracy. trifling rent, taking a fourteenth of the corn which the habitants were still bound to grind at the seigniors’ mills, and a twelfth of the purchase-money when lands were transferred. The seigniors, the dispatch stated, showed no disposition to enter into trade; their position had in many instances sunk below that of their vassals; and, taken as a whole, the Canadian gentry had nearly become extinct.

The second cause to which Milnes attributed the weakness of the government was ‘the prevalence of the Roman Catholic religion and the independence of the Independence of the Roman Catholic Church. priesthood’. The Royal Instructions were that no one should be admitted to Holy Orders or have the Cure of Souls without first obtaining a licence from the governor; but the instructions had not been enforced, and the whole patronage of the Roman Catholic Church had passed into the hands of the bishops, with the result that the power of the priests over the people was entirely independent of the government. This evil Milnes proposed to remedy by increasing the emoluments which the head of the Roman Catholic Church in Canada received from government funds, on condition that the rule requiring the governor’s licences for the parish priests was strictly observed in future.

The third cause which was mentioned as tending to lessen the influence of the government, was the practical disembodiment of the militia since Canada had passed Disuse of the militia. under British rule. Under the old French dominion the government had made itself felt in the various parishes through the captains of militia and the parish priests, and the captains of militia had been employed to issue and enforce the public ordinances. They were, Milnes wrote, chosen from among the most respectable of the habitants; and though the militia had not been called out for years past and he did not propose to call it out, the captains of militia were still in existence and the government availed itself of their honorary services on public occasions. He suggested that they should be given some salary or distinction so that they might consider themselves to be ‘the immediate officers of the Crown’; and thus he hoped to keep up the spirit of loyalty among the Canadian people, which ‘for want of an immediate class to whom they can look up, and from their having no immediate connexion with the Executive power, is in danger of becoming extinct’.[213] By attaching to the government the parish priests and the captains of militia, it might be possible to ensure a government majority in the House of Assembly and to secure the election of educated and businesslike representatives, whereas the main body of the Canadian habitants were, ‘from their want of education and extreme simplicity, liable to be misled by designing and artful men’.

The Crown Lands.

These proposals the Lieutenant-Governor regarded as temporary remedies. For the future, he looked to increasing the influence of the Crown by means of the revenue from waste lands, and the settlement of those lands by ‘a body of people of the Protestant religion that will naturally feel themselves more immediately connected with the English Government’. In the mind of Milnes, as in that of Dorchester, there was a fixed conviction that matters were tending to democracy, as democracy had shown itself in the adjoining republic; that such democracy meant disintegration; that the influence of the Crown and of the Executive Government was declining and would continue to decline, unless measures were taken to counteract the evil. He held to the doctrine that well-wishers of the government should think it matter for congratulation that there was an annual deficit on the budget of Lower Canada,[214] which made the province dependent upon the Imperial Government.

The records of the time show that in every respect the close of the eighteenth and the beginning of the The close of the eighteenth century was for Canada a time of transition and division. nineteenth century was for Canada a time of division and a time of change, though not yet of dangerous bitterness. There were two provinces instead of one. There were two Lieutenant-Governors, independent of each other, while the Governor-in-Chief, recalled to England, was still holding his post and drawing his pay. There were elected Assemblies, to which the Executive was not responsible, and the new century opened in Upper Canada with a complaint that the Lieutenant-Governor had spent money raised from the taxes without previously obtaining a vote of the Legislature. There was a suggestion of difficulties arising from the fact that military and civil authority for the time was divided. An interesting anonymous letter written from Quebec on the 28th of July, 1806, and signed ‘Mercator’, called attention to this point, alleging that, since Prescott’s recall in 1799, Lower Canada had languished owing to the fact that civil and military powers were not in the same hands. The result, in the writer’s opinion, was jealousy between the civil and military departments, weakening of the energy of government and loss of dignity. ‘The Canadians’ he wrote, ‘a military people and always accustomed to a military government, hold not in sufficient estimation a person placed at the head of affairs who does not at the same time command the troops.’[215]

There was again undoubted division between the Judicial and the Executive power. Chief Justice Osgoode in Lower Canada was not at one with either Dorchester, Prescott, or Milnes; while in Upper Canada, in the years 1806-7, a judge of the name of Thorpe became a member of the elected Assembly and was so outrageous in his opposition to the government that he was by Lord Castlereagh’s instructions suspended from his office. The Church of England bishop found cause to deplore the overshadowing pretensions of the Roman Catholic Church. The Roman Catholic dignitaries, on the other hand, asked for formal recognition of their position by the civil government. There was a movement, strongly advocated by the Church of England bishop, for more and better education, both primary and secondary, so that the French Canadian children might learn English, and the children of the upper classes might be educated without being sent to Europe or to the United States. The Secretary of State authorized free schools on the express condition that English should be taught in them, and directed that part of the Crown Lands revenues should be set aside for the purpose. There was also a strong feeling that the Jesuit estates, which long ago had been granted by the King to Lord Amherst but had never been handed over to him, should be applied to education. But no general system of state education was established—probably owing to Roman Catholic feeling; and, as against the proposal to teach English to the coming generation, there came into being in 1806 a French Canadian newspaper, Le Canadien, with the motto, ‘Nos institutions, notre langue et nos lois.’ Nothing in short was settled in Canada. Once more it was to be shown that pressure from without was necessary to produce full co-operation within; and, badly equipped as the two provinces were with means of defence, war was yet to be to them a blessing in disguise, as bringing them a step further on the path of national development.