government agitated the province from 1783 to 1790, andpetitions 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.

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.1 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.2

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.

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 casc. 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.

general. The county members were elected by owners of lands in freehold, or in fief or roture, to the value of forty shillings sterling a year over and above all rents and charges payable out of the same. Members for the towns and townships were elected by persons having a dwelling house and lot of ground therein of the yearly value of £5 sterling or upwards, or who have resided in the town for twelve months previous to the issue of the election writ, should have bona fide paid one year's rent for the dwelling-house in which he shall have resided, at the rate of £10 sterling a year or upwards. No legislative councillor or clergyman could be elected to the assembly in either province. The governor was authorized to fix the time and place of holding the meeting of the legislature, and to prorogue and dissolve it whenever he deemed either course expedient; but it was also provided that the legislature was to be called together once at least every year, and that each assembly should continue for four years, unless it should be sooner dissolved by the governor. It was in the power of the governor to withhold as well as give the royal assent to all bills, and to reserve such as he should think fit for the signification of the pleasure of the Crown. The British Parliament reserved to itself the right of providing regulations imposing, levying and collecting duties, for the regulation of navigation and commerce to be carried on between the two provinces, or between either of them and any other part of the British dominions or any foreign country. Parliament also reserved the power of appointing or directing the payment of duties, but at the same time. left the exclusive apportionment of all moneys levied in this way to the legislature, which could apply them to

such public uses as it might deem expedient. It was also provided in the new constitution that all public functionaries, including the governor-general, should be appointed by the Crown, and removable at the royal pleasure. The free exercise of the Roman Catholic religion was guaranteed permanently. The king was to have the right to set apart, for the use of the Protestant clergy in the colony, a seventh part of all uncleared crown-lands. The governors might also be empowered to erect parsonages and endow them, and to present incumbents or ministers of the Church of England, and whilst power was given to the provincial legislatures to amend the provisions respecting allotments for the support of the Protestant clergy, all bills of such a nature could not be assented to until thirty days after they had been laid before both houses of the Imperial Parliament.1 The governor and executive council were to remain a court of appeals until the legislatures of the provinces might make other provisions." The right of bequeathing property, real and personal, was to be absolute and unrestricted. All lands to be granted in Upper Canada were to be in free and common socage, as well as in Lower Canada, when the grantee desired it. English criminal law was to obtain in both provinces.

A proclamation was issued on the 18th of November,

The intent of these provisions was to preserve the rights and interests of the established Church of England in both provinces from invasion by their respective legislatures. Christie, I. 122.

2 An ordinance of the province of Quebec had so constituted the Executive; provision was made subsequently as required by the Act.