CALIFORNIA.

CHAPTER IV.

CONSTITUTIONAL ACT, 1791.

The constitution of 1774 remained in force until the 20th of December, 1791, when two provinces were established in Canada, and a more liberal system of government was given to each section. Whilst the American war of independence was in progress, the French Canadian people remained faithful to their allegiance, and resisted all the efforts of the Americans to induce them to revolt against England.' One very important result of the war was the immigration into British North America of a large body of people who had remained faithful to British connection throughout the struggle in the old colonies, and were destined, with their descendants, to exercise a great influence on the material and political development of Canada. Some forty thousand loyalists, as near as can be ascertained, came into the British American provinces. The ma

1 In 1775, General Washington addressed a proclamation to the French Canadians; Baron D'Estaing, commander of the French fleet, did the same in 1788. All such efforts were ineffectual. Speech of Sir G. E. Cartier, Confed. Deb., 57-60.

jority settled in the maritime colony of Nova Scotia, and founded the province of New Brunswick; but a large number, some ten thousand probably, established themselves in the country known as Upper Canada. By 1790, the total population of Canada had reached, probably, over one hundred and sixty thousand souls.' In 1788, the governor created five judicial districts in Upper and Lower Canada, in order to meet the requirements of the new population. It had by this time become the opinion of English statesmen that it would be advisable to make further constitutional changes in the province, more consonant with the wishes of its large population, of which the British element now formed a very important part. The question of representative

1 Introduction to Canada Census Statistics of 1871, vol. iv., Xxxviii.-xlii.

2 The population of New France in 1760 was estimated at between 60,000 and 70,000, a considerable emigration to France having taken place after the conquest. In 1775, the population of all Canada was estimated at 90,000. In 1790, Nova Scotia had probably 30,000 inhabitants; 1793, Cape Breton, 2,000; St. John or Prince Edward Island, 4,500 in 1796; New Brunswick had 35,000 by 1806.—(Census Statistics of 1871, vol. iv.) Others estimate the population of Canada in 1790 at only 135,000. Garneau, II., 205.

3 The district in the province of Quebec was called Gaspé ; the other four in the upper section were called Luneburg, Mecklenburg, Nassau and Hesse, after great houses in Germany, allied to the royal family of England. Luneburg extended from the Ottawa to the Gananoque; Mecklenburg, from the Gananoque to the Trent; Nassau, from the Trent to Long Point, on Lake Erie; and Hesse embraced the rest of Canada to the St. Clair. Doutre et Lareau, Histoire du Droit Canadien, I., 744. Bourinot's Local Government in Canada, 30.

government agitated the province from 1783 to 1790, and petitions and memorials, embodying the conflicting views of the political parties into which the people were divided, were presented to the home government, which decided to deal with the question, after receiving a report from Lord Dorchester, who had been authorized to make full enquiry into the state of the colony. In the session of 1791, George III. sent a message to the House of Commons declaring that it would be for the benefit of the people of the province if two distinct governments were established therein under the names of Lower Canada and Upper Canada.1 The result was the passage through Parliament of the Constitutional Act of 1791,2} which was introduced in the House of Commons by Mr. Pitt. This act created much discussion in Parliament and in Canada, where the principal opposition came from the British inhabitants of Lower Canada.3 Much jealousy

1 March 4, 1791. Christie, I., 68-8.

2 31 Geo. III., c. 31. “In Upper and Lower Canada the three estates of governor, council and assembly were established, not by the Crown (as in the case of the old colonies), but by the express authority of Parliament. This deviation from the general usage was unavoidable, because it was judged right to impart to the Roman Catholic population of the Canadas privileges which, in the year 1791, the Crown could not have legally conferred upon them. There is also reason to believe that the settlement of the Canadian constitution, not by a grant from the Crown merely, but in virtue of a positive statute, was regarded by the American loyalists as an important guarantee for the secure enjoyment of their political franchises." Rep. of Com. of Council, 1st May, 1849; Earl Grey's Colonial Policy, II., app. A.

Mr. Adam Lymburner, a Quebec merchant, was heard on the 23rd March, 1791, at the bar of the House of Commons against the bill. Christie, I., 74-114.

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already existed between the two races, who were to be still more divided from each other in the course of the operation of the new constitution. The authors of the new scheme of government, however, were of opinion that the division of Canada into two provinces would have the effect of creating harmony, since the French would be left in the majority in one section, and the British in the other.' The Quebec Act, it was generally admitted, had not promoted the prosperity or happiness of the people. Great uncertainty still existed as to the laws actually in force under the act. Although it had been sixteen years in operation, neither the judges nor the bar clearly understood the character of the laws of Canada previous to the conquest. No certainty existed in any matters of litigation except in the case of the possession, transmission, or alienation of landed property, where the custom of Paris was quite clear. The Canadian courts sometimes admitted, and at other times rejected, French law, without explaining the grounds of their determination. In not a few cases, the judges were confessedly ignorant of French Canadian jurisprudence.

The Constitutional Act of 1791 established in each province a legislative council and assembly, with power

1 Mr. Pitt said: "I hope this separation will put an end to the competition between the old French inhabitants and the new settlers from Britain and the British colonies." Edmund Burke was of opinion that "to attempt to amalgamate two populations composed of races of men diverse in language, laws, and customs, was a complete absurdity." For debates on bill see Eng. Hans., Parl. Hist., vol. 28, p. 1271; vol. 29, pp. 104, 359-459, 655. Garneau, II., 198-203. Christie, I., 66-114.

2 Christie, I., 67. Mr. Lymburner, Ib. 77-79; Report on Administration of Justice, 1787. Garneau, II., 189-90.

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to make laws. The legislative council was to be ap pointed by the King for life-in Upper Canada to consist of not less than seven, and in Lower Canada of not less than fifteen members. Members of the council and assembly must be of the age of 21, and either naturalborn subjects or naturalized by act of Parliament, or subjects of the Crown by the conquest and cession of Canada. The sovereign might, if he thought proper, annex hereditary titles of honour to the right of being summoned to the legislative council in either province.1 The speaker of the council was to be appointed by the governor-general. The whole number of members in the assembly of Upper Canada was not to be less than sixteen; in Lower Canada not less than fifty-to be chosen by a majority of votes in either case. The limits of districts returning representatives, and the number of representatives to each, were fixed by the governor

1 No titles were ever conferred under the authority of the act. Colonel Pepperell was the first American colonist who was made a baronet for his services in the capture of Louisbourg, 1745. Such distinctions were very rare in Canada during the years previous to Confederation. Chief Justices James Stuart and J. B. Robinson were both made baronets in the early times of Canada. But, since 1867, the Queen has conferred special marks of royal favour on not a few Canadians of merit. (See Todd Parl. Govt. in the Colonies, 232 et seq.) The Order of St. Michael and St. George was expressly enlarged with the view of giving an Imperial recognition of the services of distinguished colonists in different parts of the Empire.

2 Mr. Fox was of opinion that the assembly in Lower Canada should have at least one hundred members; he was also in favour of an elective legislative council.