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,