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government of the province so as to conciliate the majority of the people.' In the royal speech closing the session, the law was characterized as "founded on the plainest principles of justice and humanity, and would have the best effect in quieting the minds and promoting the happiness of our Canadian subjects."

The new constitution came into force in October, 1774. The Act sets forth among the reasons for legislation that the provisions made by the proclamation of 1763 were "inapplicable to the state and circumstances of the said province, the inhabitants whereof amounted at the conquest, to above sixty-five thousand persons professing the religion of the Church of Rome, and enjoying an established form of constitution and system of laws, by which their persons and property had been protected, governed, and ordered for a long series of years, from the first establishment of the province." Consequently, it is provided that Roman Catholics should be no longer obliged to take the test oath, but only the oath of allegiance. The government of the province was entrusted to a governor and a legislative council, appointed by the Crown, inasmuch as it was "inexpedient to call an assembly." This council was to comprise not more than twenty-three, and not less than seventeen

1 Garneau, who represents French Canadian views in his history, acknowledges that "the law of 1774 tended to reconcile the Canadians to British rule." II., 125.

2 Cav. Deb., iv.

3 Fox contended for a representative assembly, but Lord North expressed his opinion that it was not wise for a Protestant government to delegate its powers to a Catholic assembly. Cav. Deb., 246-8.

members, and had the power, with the consent of the governor or commander-in-chief for the time being, to make ordinances for the peace, welfare, and good government of the province. They had no authority, however, to lay on any taxes or duties except such as the inhabitants of any town or district might be authorized to assess or levy within its precincts for roads and or dinary local services. No ordinance could be passed, except by a majority of the council, and every one had to be transmitted within six months after its enactment to His Majesty for approval or disallowance. It was also enacted that in all matters of controversy, relative to property and civil rights, recourse should be had to the French civil procedure, whilst the criminal law of England should obtain to the exclusion of every other criminal code which might have prevailed before 1764. Both the civil and the criminal law might be modified and amended by ordinances of the governor and legislative council. Owners of lands, however, might bequeath their property by will, to be executed either according to the laws of England or the forms prescribed by the laws of England. The Act also expressly gave the French Canadians additional assurance that they would be secured in the rights guaranteed to them by the terms of the capitulation and the subsequent treaty. Roman Catholics were permitted to observe their religion with

1 A supplementary bill, passed in the session of 1774 (14 Geo. III., c. 88), provided a revenue for defraying expenses of administration of justice and civil government by imposing duties on spirits and molasses, in place of old French colonial custom dues. The deficiency in the expenses was supplied from the imperial treasury. Christie, I., 1-2.

perfect freedom, and their clergy were to enjoy their "accustomed dues and rights" with respect to such persons as professed that creed. Consequently, the Roman Catholic population of Canada were relieved of their disabilities many years before people of the same belief in Great Britain and Ireland received similar privileges.

The new constitution was inaugurated by Major General Carleton, afterwards Lord Dorchester,' who nominated a legislative council of twenty-three members, of whom eight were Roman Catholics.2 This body sat, as a rule, with closed doors; both languages were employed in the debates, and the ordinances agreed to were drawn up in French and English. It was not able to sit regularly, on account of the government being fully occupied with the defence of the province during the progress of the American war of independence. In 1776, the governor-general called to his assistance a privy council of five members, in accordance with the royal instructions accompanying his commission. This advisory, not legislative, body, was composed of the lieutenantgovernor and four members of the legislative council."

1 He was appointed Governor of Canada in 1772; in 1776 created a Knight of the Bath; in 1786 raised to the peerage with the above title. Caven. Deb., 100, note.

2 Several were public functionaries. Garneau, II., 166.

3 Councillors were required to take the following oath :—“ I swear to keep close and secret all such matters as shall be treated, debated, and resolved in Council, without disclosing or publishing the same or any part thereof." Doutre et Lareau, 718. * It did not meet during 1776. Garneau, II., 165.

5 Garneau, II., 169. Exception was taken to the legality of this body by Chief-Justice Livius, who contended that the law of 1774 only gave authority to establish a legislative council.

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 1In 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.1 By 1790, the total population of Canada had reached, probably, over one hundred and sixty thousand souls.2 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

3

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.

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