A history of Canada, 1763-1812

by Sir Charles Prestwood Lucas

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.