A history of Canada, 1763-1812

by Sir Charles Prestwood Lucas

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.