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Lord Dorchester
Chapter XII - The Canada Act

LYMBURNER in the meantime had arrived in England, during the summer of 1789, to represent the views of the British-Canadians and of a fraction of the French who were against partition and in favour of an elective assembly. He somewhat ignored the paucity of his French supporters in urging the wishes of his fellow-colonists on the British government, but otherwise was a sensible and clearheaded man. Reforms of some kind were impending and inevitable, and it was only right that his party should be heard, particularly as many of their claims had become reasonable through altered circumstances and unforeseen developments. How plainly one seems to see this old faction-riven Quebec in the voluminous correspondence of the time—sometimes preserved in the original handwriting, French or English, crabbed or ornate, scholarly or illiterate, of the men who so unconsciously tell us its story, interleaved here and there with criticisms on the enclosures or characteristic disquisitions by governors and lieutenant-governors on the state of the country.

As one follows the arguments of these various advocates and puts oneself for the moment in their respective situations, it is sometimes difficult to preserve a judicial twentieth century attitude and stamp them as the mere outbursts of prejudice or faction. Even those seemingly arrogant all-British fanatics that Dorchester so snubbed, and the congress sympathizers whom in duty bound he treated still more severely, had some justification. They were for the most part Americans, to use a convenient and significant designation. They were accustomed to democratic usages, such as had spelled prosperity for 4he communities that had produced them. Few of them had basked in the sunshine of those little viceregal circles which had tempered the republicanism of a favoured group in each colony. They had been invited, under definite promises as they supposed, to Canada, a province that they had directly or indirectly helped to conquer with a great expenditure of blood and treasure. Eighteenth century conquerors had not attained to altruistic ethics, and they well knew that if the kings of France or their proconsuls had been in a similar position might would assuredly have spelled right. We may recall /Frontenac's merciless intentions towards New England and New York, if support of such an unanswerable argument were needed.

Their case would appear less offensive to us moderns if they had simply demanded that the colony should be administered by the governor and council in the interest of British settlers, till these last assumed proportions that should make popular government restricted to themselves seem reasonable to current opinion. But it was the cant cry of popular government, where current figures made mockery of the term and only spelled the tyranny of an ill-instructed few in naked characters, tHafhas put the would-be legislators of 1763 and 1787 so hopelessly out of court with most historians even of their/ own race. The downright policy of forcibly anglicizing the colony would have been at least honest and logical and not out of harmony with those times, if distasteful to ours; but not surely under such a caricature of popular freedom as their scheme involved.

It is still sometimes argued, and indeed quite open to argument, that sixty thousand scattered peasants ~ might have been turned into freeholders, to their immediate relief; that some thirty or forty seigniorial families (there were twenty-seven officially returned in 1787) of small rent rolls might have been made permanently happy or at least comfortable, whether as exiles or otherwise, for a trifling sum in commutation. Religion might have been left severely alone, with stringent precautions against external intrigue through its means—easy enough to effect in an isolated country with an unhampered government. British settlers, it is argued, would have poured in freely. In a few decades a Protestant parliament would have been at least as representative of the country as that Protestant assembly dissolved in 1800 was representative of Ireland, and for having deprived them of which Irish Catholics abuse England in such unmeasured terms. The effect of such a policy towards the Canadian peasantry firmly and benignantly administered by men like Carleton, or approximating to his likeness, might or might not have saved Canada from the racial friction that distracted and weakened her for so long, though at the expense of the French spirit and nationality which is nowadays such a factor in a peaceful land. It is quite easy to argue either its success or failure in convincing fashion. Putting political morality as we now hold it and race sentiment out of the question, it is an interesting if futile Subject for reflection. Great Britain, to her credit, proved superior to the ethics of her day and in advance of the times—in advance indeed of her own offspring who held themselves to be the vanguard of .political liberty. Happily the retort, possible at almost any other moment, that Britain in this generous action was influenced by fear of France is impossible, for in 1763 France was crushed, humiliated, and bankrupt, and her rival at the very zenith of her power. Nor does the more enlightened French view that Great Britain only did her duty, though in most creditable fashion, seem quite adequately to express the measure of her merit. Nor again should it be forgotten that her first viceroys, in the teeth of unceasing opposition, acted not only . in the letter but in the spirit of their generous instructions.

But there were cleavages other than racial in this little dominion of Dorchester's, if not such violent ones. Conflicting views and interests stand out plainly in the current literature and correspondence of the time, and contribute to its history. Scarcely any one, it must be remembered, was rich; nearly all were poor. A still infant trade was harassed by wars and rumours of wars. The incomes of rentiers professional men and office-holders were small, and the struggle for place and position proportionately keen. Numbers of deserving people had lost much or all of their property in the invasion of 1775-6. The seigniors, as we have seen, had lost, as a class, their hold on the peasantry. A few of them, both before and after the conquest, had been extortionate in the matter of rents, to which there was no legal limit, and their censitaires proportionately irritated. Lanaudi|re, Dorchester's aide-de-camp, had offered his seigniory of thirty square leagues to the government for settlement with freeholders, but the rest opposed all change in land tenure for reasons already stated. To the British such obstacles to the free purchase and exchange of land proved an irritation and inconvenience, but still more they militated against the development of the country. The seigniories had-been devised to keep a docile peasantry on the land, to prevent restlessness, and to preserve discipline; and the seigniors themselves had been instituted as trustees for the common weal rather than as ordinary landowners.

A seigniory could be sold only in bulk, but a fifth always to the annual rent of a few sous an arpent, the seigniorial mill rights and, what was more serious still as an obstruction to ready transfer, liable also to the lods et ventes—by which a twelfth of the purchase money went to the seignior, including of course a twelfth of the improvements. In the neighbourhood of towns these restrictions with many minor ones almost strangled thesale of land. A prosperous trader in Quebec, to give an example, could not buy a country place a mile or two out of town untrammelled by these curiously belated and unmerican burdens. The inrush of Loyalist settlers >uld be accommodated only outside the seigniories, which not merely pressed them back with their improvements into less accessible regions but left a vast amount of available wilderness almost indefinitely wild. As free and common socage was the only tenure acceptable to these American or British newcomers, Another set of land laws was required within the province. The complications were even greater than a modern reader might suppose, and there is neither space nor need to elaborate here the many minor details that now confronted the administration. When a thousand or two townsmen represented and seemed likely for some time to represent the British element, there would have been small wisdom in rooting up the Canadian land system, seeing that toleration of it had been tacitly accepted. But now fresh developments money went to the Crown. A tenant re could sell his holding, but was liable compelled some modification of this archaic survival and created a situation which may well seem extraordinary in a vast and almost virgin country, carrying, even in 1791, but some one hundred and thirty thousand souls. The notaries, it might be added, by education and identity of interest and a natural preference for their own laws, were mostly with the seigniors in their attachment to the system.

The clergy appear to have outlived such little unpleasantness as the American sympathizers had stirred up between them and their flocks anent the legalizing of the dime. There had been some difficulty too about a supply of priests since the connection with France had bBeen severed, the local supply qualified for the more important offices proving short. Importations from old France had been interdicted for obvious and sufficient reasons, while permission to introduce priests from the Catholics provinces of central Europe seems to have been little utilized. Bishop Hubert indeed intimated to Dorchester that the plan was not agreeable, though he had recognized as reasonable the veto against the introduction of ecclesiastics from the dominions of the House of Bourbon. Those who most objected to the proposed partition of the province were naturally the British residents within what would be the limits of the old one, and who saw the recent and unexpected addition to their ranks, with the hopes thus raised, in prospect of being in great part wrenched away. Lymburner, as we have seen, was their eloquent advocate and pleaded their cause for many hours before a committee of the House of Commons. Dorchester's objections, already quoted, to the partition were less fervent and due to another cause, namely a distrust of the ripeness of so small a community for self-government. Perhaps his experiences of the British politicians of Quebec and Montreal had influenced his judgment.

In March, 1790, however, he sent home a list of suitable persons for seats in the legislative and executive councils of the two proposed provinces of Upper and Lower Canada. For the former he mainly relies on the judgment of Sir John Johnson, whose services entitled him to be its first governor. But before his letters were received in England Simcoe had been already appointed. It seems that the home government considered Johnson's private interests in western Canada as too considerable for the detachment of mind necessary to their representative in the new province. These details were arranged in the spring of this year, as it had been intended to pass the bill through during the session. Dorchester was anxious to go to London himself, both on private accounts and for the better conduct of a measure fraught with so much importance to Canada. But now as ever, placing his country's interests before his personal inclinations and convenience, he accepted at /once a hint of Grenville's that it would be acceptable to the king if he would remain at his post while the state of the West continued so critical. It is true that his agents in the United States, who always kept him well informed, reported that no attack would be made on the British posts that year, but then the Spanish trouble over the Nootka Sound was brewing, and Dorchester foresaw complications on the western frontier should war break out with that power.

Dorchester did not receive the news of Simcoe'£s appointment with complacency. The bill had been postponed in the session of 1790, and he wrote again to Grenville in September urging the claims of .Sir John Johnson, his distinguished services, and the discontent which their non-recognition would arouse among the Loyalists of his country. He again urged that Johnson should be appointed governor of the new province and colonel of the militia, while Simcoe could with advantage take charge of the Indian department. The non-acceptance of Dorchester's views on this point was the key no doubt to the un^\ easy terms upon which he stood towards Simcoe when the latter eventually took office. The former's views, as communicated at length to the government, did not approve, as we have seen, of an immediate concession of popular government. He proposed that the four western districts should be placed under a lieutenant-governor, and that a firm and benevolent j government should be established. He had always rejected the idea of high-sounding hereditary rank among the colonists. He had strong leanings, however, towards some sort of aristocracy for the new settlements, and made the proposal so often alluded to in modern times that the Loyalist immigrants should have the right and their children after them to affix the letters U.E. to their names. But he objected to all proposals for making the office of legislative councillor hereditary—knowing better than the home government the fluctuations of fortune in colonial life. This plan was adopted, however, and embodied in the Act, though common sense and experience endorsed Dorchester's views and kept it a dead letter. His notions of an aristocracy were of a wider and less conspicuous kind. He could not guess how completely Upper Canada, without the aid of any outward marks of distinction, would develop his theory, though not altogether perhaps upon the lines he would have appoved of or with as much success as he anticipated.

The western boundary of the proposed new province also perplexed him not a little. To include the western forts, such as Oswego, Niagara, Detroit, Vand Michilimackinac, would be to encroach on territory ceded to the United States by treaty and provoke their hostility at once, while to leave them out of British jurisdiction involved complications. The result was that no definitions of the western and southern limits of the province were included in the \Act at all. In general terms Dorchester held to the principle that had marked both periods of his administration. "A considerable degree of attention," he wrote, "is due to the prejudice and habits of the French inhabitants who compose so large a proportion of the community, and every degree of caution should be used to continue to them the enjoyment of those civil and religious rights which were secured to them by the capitulation of the province, or have since been granted by the liberal and enlightened spirit of the British government." Every active mind had some suggestions to make at this important moment, and Dorchester's chief-justice, Smith, not always in agreement with his friend and superior, put his contribution to the literature of the movement in the governor's hands for transmission to England.

Smith heartily concurs in the partition of the province but would fain do more than this. As an old and leading member of the former colony of New York he dreads the weakness inherent in a group of democratic assemblies all pulling different ways in time of danger—for he knew well that nothing but the fortunate combination of a Washington, the French alliance and the Germain-Howe insanities, could have saved the revolting colonies from disaster. He had seen them recently, at the close of a successful war, doing their utmost to stultify its results by fatuous quarrelling, bickerings and jealousy of each other and of all authority. Smith, in short, was nearly a century before his time and advocated nothing less than a combination of all the British North American provinces, Newfoundland included, under a central administration and a federal assembly. "1 am old enough," he writes, "to remember what we in the Maritime Provinces dreaded from this French colony and what it cost to take away that dread which confined our population to the edge of the Atlantic." He adds to a long and interesting letter, partly retrospective and relating to the origin of our colonial troubles, ten clauses embodying his scheme, as additions to the new Canada Act. Upon the whole we may credit Chief-Justice Smith with the gift of foresight in no ordinary degree.

The introduction of the Canada Act had been deferred on account of the threatened war with Spain, whose territorial interests were so interwoven with American western progress. Throughout the first half of 1791, while the Act was passing through the British parliament, Dorchester remained in Canada, though he had been invited by the ministry to come over in March and assist in the completion of the bill. Faction and agitation were lulled by the impending change in the constitution, but it was a busy enough season for the governor, as his official correspondence plainly shows. Every matter of the smallest moment from Detroit to Gaspe seems to have come under his notice, and many matters also which were by no means small. The constant friction upon the western frontier, the appeals of traders and Indians, the reports of agents and officers—full of rumours, false and true, of warlike encounters between Indians and Americans— were always with him, while the various surveys, charters, grants, and the infinite minutiae inevitable to the settlement of thousands of people at widely scattered points added to the complexity of his responsibilities. Clerical matters, too, had to come under his surveillance, both Catholic and Protestant, for the newly organized Church of England was now concerned with the building of churches and rectories and the acquisition of lands, while the chronic question of the Jesuits' estates was always in the front.

But we must leave Dorchester to these multifarious duties of no t special moment to our story, and follow as briefly as may be the fortunes of the Canada Act in its by no means tranquil passage through the British parliament to the royal desk.

On March 7th, 1791, the bill was introduced in the House of Commons by Mr. Pitt, and on the twenty-third Mr. Lymburner made the long address to the members already alluded to. He opposed the bill in its present form. As representative of the British Quebec interest he pleaded for a total repeal of the Quebec Act and against the partition of the province. He told the story of inefficient judges and miscarried justice and the general confusion in all legal matters which Dorchester's commission, it will be remembered, exposed in somewhat dramatic fashion. He alluded to the proposed partition as a "violent measure," and thought that if the parts were separated any future attempts to combine them would be hopeless. He was also of opinion that the country beyond Niagara, which in no long time became the garden of Canada, could never be of much importance on account of the barrier to transport offered by the Falls. He was emphatic, where Dorchester was only doubtful, as to the difficulty of finding sufficient capable men who would leave the clearing of their farms for legislative duties. Lymburner being a Scot, not an American, failed to realize what experience and talent existed among the United Empire Loyalists. Having delivered these and many other destructive arguments, he then proceeded to the constructive theories of his party, modified in some particulars by concessions to the inevitable.

A House of Assembly was naturally in the forefront, though the admission of. Catholics was at last recognized as unavoidable. Its sessions should be triennial. There should be a legislative council of life members. Hereditary seats in it, however, like every sensible man in Canada, he would have none of. He advocated the criminal law of England, together with the same code of commercial law and the habeas corpus, while in the matter of land, marriage settlements, dower and inheritance, the Claw of Canada might be retained so far as Quebec, Three Rivers, and Montreal were concerned. In the rest of the provinces the common law of England should prevail, and he argued that there should be power when petitioned for to accept the surrender of the feudal grants of a seigniory and to re-apportion the land in free and common socage.

Soon afterwards .the merchants trading with Canada presented a petition against the Act, on the ground that the measure would be damaging to the commerce of the colony. Fox spoke against, the bill, urging that it was not sufficiently liberal. Towards the end of April it was in committee. The attendance, as usual in colonial matters of a peaceful nature, was scanty, and an adjournment was asked for and refused by Pitt. Burke took part in the debate to declare against the division of the province, and also to air his strenuous views on the French Revolution, and to provoke the famous quarrel and final breach between Fox and himself which here took place. Canada and her affairs were nearly lost sight of through the irrelevancy of Burke's peroration, which was made the object of outcries from the floor, and sharp reminders from the chair. Indeed, the colony seems to have been chiefly serviceable to the great orator in this debate as an excuse for indulging in sonorous adjectives that invited alliteration, though "bleak and barren" were not felicitous ones for a country of universal forest and considerable fertility. That, however, did not much matter in the House of Commons, nor perhaps would it now. The opinions of the numerous private members of parliament who expressed themselves with much complacency upon a question which was still a source of some doubt and perplexity even to Dorchester are of no consequence. Their votes were, however, of consequence, and the Act was carried through both Houses, and became law on May 14th, 1791.

The intention of the Act was to assimilate the new constitution of the two Canadian provinces as nearly as possible to that of Great Britain. The legislative council of Quebec, or Lower Canada, was to consist of not less than fifteen members, its elective assembly of not less than thirty, half of whom were to form a quorum. The minimum strength of the council and assembly of Upper Canada was fixed at seven and sixteen respectively. The preponderating wealth and intelligence of the British merchants was partly recognized by the allotment to the towns of Quebec, Montreal, Three Rivers, and Sorel of two members apiece. The provinces were to be divided into electoral districts based so far as possible on population, and not on geographical area. The qualification for both voters and candidates was liberal, providing they were of age, and either born or naturalized subjects. A forty shilling freehold, or its equivalent, was the qualification in the country, and in the town the ownership of a house worth five pounds a year or the occupancy of one producing twice that amount. The Crown withdrew all right to taxation except as regards such duties as it might be expedient to impose for the regulation of commerce, the net produce of the same to be applied in every case to the use of the province they were collected in.

There was provision, too, for the exchange of the seigniorial tenure into freehold on petition. It was by this Act, too, that one-seventh of the Crown lands ' was set apart for the "support of a Protestant clergy." This apparently comprehensive term was defined in another clause more precisely. This last empowered the erection of parsonages when required\ in each township of the English district "according to the establishment of the Church of England," and endowed them with the reserved lands of that particular township. In the long disputes which this measure gave rise to in after years, the first part of the ordinance was loudly quoted by the non-Anglicans without its supplement, which leaves no doubt of the intention of the Act, whatever its wisdom. The boundary between the two provinces was-virtually the same as to-day. The western bounds of Upper Canada, however, were left undefined for good reason^, as we have seen; those between Quebec and New Brunswick were deferred for local settlement. The Crown reserved to itself the fulest powers of veto and appointment. The governors of .Lower Canada,, however, still retained as before the suzerainty, to use a convenient term, over all the other provinces and their lieutenant-governors, Upper Canada of course included.

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