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.