FOURTH PERIOD

1791-1840

The period of Canadian constitutional history after the passing of the Constitutional Act, which divided the Province of Quebec into two Provinces, up to the Act of Union of 1840 which re-united them, is one of the most complicated. The documents are almost endless and the movement of events with the causes behind them is so full of minute detail that it is difficult to trace the issues at stake and to select documents. As a consequence it has been found impossible in this introductory note to refer to the exact points which the documents selected illustrate. The broad facts of the history, almost in the form of a chronicle, can be read in F. Bradshaw, Self Government in Canada, and how it was achieved, pp. 46-117 (London, 1903). On the other hand, there are certain generalizations which it is possible to make. These will illustrate the difficulties of the period and the story of constitutional devel

opment.

Firstly, difficulties arose early over the question of supply and continued to disturb each Province. The Governor had control over certain crown-revenues, and he could always draw on the military chest, which was regularly replenished by the British Government. The Assembly had control only over such monies as were raised by provincial legislation. Thus the Crown in Canada was able at any time to carry on the administration without a vote of supply. The history of the period is full of illustrations of this constitutional difficulty, and as long as the Crown was able to carry on the government in such a way there was a farcical element in representative institutions. This then was one of the broad issues. It is true, as a study of the documents will show, that the protagonists of popular control were often unbalanced extremists; yet behind the almost wearisome iteration of their demands there lay the vital constitutional principle that control over appropriation is essential to any real form of self-government and of representative institutions.

Secondly, there was in the Constitutional Act no statement of the respective legislative spheres which belonged to the British and Provincial Parliaments. A superficial reading of the Act is sufficient to prove that there were bound to be clashes. In Lower Canada, the Assembly began with petitions for the redress of grievances; but when the British Government turned a deaf ear to these petitions, which apparently it alone could effectively answer, the Assembly passed from point to point until it claimed the power of altering the Constitution. This difficulty erected a second barrier between the Crown and the popular house.

Houses of Assembly. The difficulty was one of linking up the executive authority with the elected chambers. As a matter of fact no solution to that difficulty was found within these years. The executive was financially and, worse still, constitutionally independent. That there was a malignant disease, every one seemed to know, but no one diagnosed it properly, least of all the Houses of Assembly; and the various cures suggested during the period, such as reuniting the Provinces, or a federation of British North America, or an elective Legislative Council, contained in reality no true cure. The Houses of Assembly talked violently and grandiloquently of "responsible government," and in trying to get it, without in the least understanding what it implied, they frequently overstepped constitutional limits and were dissolved time after time. Constitutionally, of course, the Governor was as much within his rights in dissolving them as the King would be in England in dissolving Parliament. There was, however, a vital point of difference. The King would act on the advice of responsible ministers, and his act would be of nebulous, if regal, neutrality. In Canada, on the other hand, the Governor had no responsible ministers, and he was driven to act in the spirit of a political party leader. Frequently the Executive and Legislative Councils were used by the Crown as bulwarks against the popular Assemblies, and almost generally appointments to them were confined to those who supported the Governor's administration. The vitiating principle constitutionally was that of an irresponsible executive.

Reference has already been made to various proposed remedies. A perusal of the petitions against union in 1822 will show how difficult it would have been to balance the centrifugal and centripedal forces which during this period rendered any larger scheme outside practical politics. It is, of course, quite easy for us to see where the Constitution of 1791 was weak, but at the time no one could see how it was possible to reconcile cabinet and responsible government in Canada with the sovereignty of the Crown. Not a few, however, saw that the agitation in Canada. implied responsible government, and faced it at the moment with a non possumus. It was only after the futile rebellions in both provinces that any broader vision came. Two quotations' from Lord Durham's Report form the best commentory on the period: "Representative Government coupled with an irresponsible Executive. . . . constant collision between the branches of the Government; the same abuse of the powers of the representative bodies. owing to the anomaly of their position; aided by the want of good municipal institutions, and the same constant interference of the imperial administration in matters which should be left wholly to the Provincial Governments."

"I know not how it is possible to secure harmony in any other way than by administring the Government on those principles. which have been found perfectly efficacious in Great Britain. I would not impair a single prerogative of the Crown; on the con1 Lord Durham's Report (Edited Lucas, 1912), Vol. II, pp. 194, 278.

trary, I believe that the interests of the people of these Colonies require the protection of prerogatives, which have not hitherto been exercised. But the Crown must, on the other hand, submit to the necessary consequences of representative institutions; and if it has to carry on the government in unison with a representative body, it must consent to carry it on by means of those in whom that representative body has confidence.'

The period closes with Lord Sydenham's work. Liberal selections are made from his despatches. He began the new era, and if he only succeeded in stamping his own strong personality on the Government, yet he made possible the successful rule of Lord Elgin, under whom full responsible government was set up in Canada.

LVI

AN ACT INTRODUCING ENGLISH CIVIL LAW INTO UPPER CANADA, IN THE THIRTY-SECOND YEAR OF

GEORGE THE THIRD. 1792.

[Trans. Doughty and McArthur, Constitutional Documents (Canadian Public Archives, 1914)]

An ACT to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, intituled, "An Act for making more effectual Provision for the Government of the Province of Quebec, in NORTH AMERICA," and to introduce the English law, as the Rule of Decision in all matters of Controversy, relative to Property and Civil Rights.

Whereas, by an Act passed in the fourteenth year of his present Majesty, intituled, "An Act for making more effectual provision for the Government of the Provincet of Quebec, in North America," it was, among other things provided, "That in all matters of controversy relative to property and civil rights, resort should be had to the Laws of Canada as the rule for the decision of the same;" such provision being manifestly and avowedly intended for the accommodation of His Majesty's Canadian subjects: and whereas, since the passing of the Act aforesaid, that part of the late Province of Quebec, now comprehended within the Province of Upper Canada, having become inhabited principally by British subjects, born and educated in countries where the English Laws were established, and who are unaccustomed to the Laws of Canada, it is inexpedient that the provision aforesaid contained in the said Act of the fourteenth year of His present Majesty, should be continued in this Province-Be it enacted, by the King's most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign intituled, 'An Act for making more effectual provision for the Government of the Province of Quebec, in North America,' and to make further provision for the Government of the said Province," and by the authority of the same, "That from and after the passing of this Act, the said provision contained in the said Act of the fourteenth year of his present Majesty, be, and the same is hereby repealed; and the authority of the said Laws of Canada, and every part thereof, as forming a rule of decision in all matters of controversy relative to property and civil rights, shall be annulled, made void and abolished, throughout this Province, and that the said Laws, nor any part thereof as such, shall be of any force or authority within the said Province nor binding on any of the inhabitants thereof."

II. Provided always, and be it Enacted by the Authority aforesaid, That nothing in this Act shall extend to extinguish, release or discharge, or otherwise to effect any existing right, lawful claim or incumbrance,to and upon any lands, tenements or hereditaments within the said Province, or to rescind or vacate, or otherwise to affect any contract or security already made and executed conformably to the usages prescribed by the said Laws of Canada.

III. And be it further enacted by the authority aforesaid, That from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort shall be had to the Laws of England as the rule for the decision of the same.

1 The Quebec Act of 1774 (see No. XXV).

See No. LV.