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John Graves Simcoe
Chapter I - The Canada Act

IT was on February 25th, 1791, that a royal message apprised the House of Commons that it was the intention to divide Quebec into two separate provinces, and the bill was introduced on March 7th by Pitt. The advisability of repealing the Quebec Act had been the subject of much agitation and debate, and hardly had the peace been concluded when demands were made, mainly by the English-speaking inhabitants of the province, for a properly constituted House of Assembly and for the trial by jury in criminal cases.

The portions of the province above Montreal had become settled by soldiers of the disbanded regiments and by Loyalist refugees, and they desired a change in the tenure of land to free and common socage from the feudal tenure which obtained under the Quebec Act of 1774. The partizan bias of some of the foremost agitators for these changes, in what afterwards became the lower province, led to proposals designed rather to place the strength of government in the hands of the minority than to establish upon broad and generous principles a government for the people, legislating for the good of the province. The spokesman of these agitators for constitutional changes, Mr. Adam Lymburner, a Quebec merchant of Scottish extraction, requested that one half the representatives from Lower Canada should be chosen from the towns, which would throw the balance of power into the hands of his party and race. But it was with a very different desire and actuated by a nobler motive that the bill which was to inaugurate the principle of colonial self-government was designed and carried. Grenville, writing to Guy Carleton, Lord Dorchester, then governor-general of Canada, on October 20th, 1789, accompanied a draft of the proposed bill with a general survey of the measure. The letter contains a paragraph elucidating the principles upon which the bill was drawn: "Your Lordship will observe that the general object of this Plan is to assimilate the constitution of that Province to that of Great Britain, as nearly as the difference arising from the manners of the People and from the present situation of the Province will admit. In doing this a considerable degree of attention is due to the prejudices 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."

It is upon the life and power of these principles that the welfare and harmonious permanency of the Canadian confederation depends.

Such expressions could not have fallen coldly upon the mind of Dorchester; they are in effect his own, and are merely the echo of opinions and sentiments by which his conduct as governor was consistently guided. The weight of his judgment was thrown against the division of the province. He brought to the criticism of the draft bill his great knowledge of the condition of the country and his sympathy with the inhabitants. His views previously expressed were that for some time the only organization required by the settlements which were to be included in the upper province was that provided for a county; and a survey of the early Acts and proceedings of the legislature of Upper Canada will show this to have been to some extent the case. But the importance of the Canada Act lay not so much in its immediate necessity as in the principle of colonial self-government which it carried into effect. While really an Act of separation, by its clauses cleaving one province into two and providing for the self-rule of each, it was also distinctly the forerunner of those Acts of union which cemented the dominion and made confederation. In fact confederation, even in its present sense, was not unknown to the statesmen of the great minister's day.

A statement is here and there made that the present Canadian political union is artificial and will not bear the storm of change, which will break upon it from alien provincial interests, and the very weight of growth which will encumber it with almost imperial burdens. But it augurs well for the life of this many-branched tree that its planting is a century old and that its growth has been gradual.

Colonel Morse was doubtless the first to suggest the advantage of a union of the colonies in North America. In 1783 he pointed out that a federation of the Maritime Provinces with Canada would lead to the upbuilding, of a great and prosperous domain.

Chief-Justice Smith, who may be said to have drafted the first scheme for confederation of the British possessions in America, was a native of the old province of New York. In the year 1703 he was appointed chief-justice of the province. During the time of doubts and agitations, when the revolutionary spirit was rising like a wave, Smith remained neutral, but in 1778 he espoused the British cause. Upon the conclusion of the war he accompanied Carleton to England, and was subsequently appointed chief-justice. Whatever opinion may be held as to Smith's character and motives, and both have been impugned, it cannot be denied that his judgment was sound and his opinions of the causes of the revolution consistent with facts. He argued that the provinces had outgrown their forms of government, and that the small legislatures acting independently had failed to create common political interests or to associate themselves as units in a confederated empire. His recommendation looked towards the provision of a legislative assembly and council for the whole of British America from Bermuda to Hudson Bay. The council was to consist of life members. The assembly was to be chosen by the provincial Houses. A governor-in-chief was to hold power above the lieutenant-governors, and was to have the option of assenting to a bill or reserving it for the royal decision. Provincial Acts were to be referred for approval to the federal or central government. In the main these terms and those of the British North America Act are synonymous but it needed nearly a century of political conflict before the colonies and the mother country were ready for so sweeping and so novel a change.

It had been the intention to introduce the bill for the division of the province during the previous session, but the uncertain state of the relations with Spain rendered this inadvisable. With war as a contingency it was deemed impolitic to further unsettle a colonial dependency which might be come the cause of demands, if not the scene of actual invasion, by the United States. Dorchester, therefore, remained at his post and was not summoned to England until March of 1791. It was hoped that he might arrive in time to assist in clearing and adjusting the many points which still remained open and debatable. He did not arrive, however, until the Act had become a statute. But the fullest discussion was given to the measure, and its opponents had the privilege of laying before the House the reasons which they had to urge against it. Lymburner was heard at the bar of the House on March 23rd, and presented the adverse views as forcibly as possible. Time has shown that many of the contentions were cogent, and that many more were unworthy of the stress laid upon them.

The difficulty of communication with the territory of the proposed upper province and its inland character, together with an alleged hostility of the inhabitants to any division, were points urged against the passage of the bill. The measure was criticized "as dangerous in every point of view to British interests in America, and to the safety, tranquility, and prosperity of the inhabitants of the province of Quebec." His object, and that of the English merchants of the province, was to save themselves from the domination of the French-Canadians, and to this end he asked for a complete repeal of the Quebec Act and the inauguration of a new constitution "unembarrassed with any laws prior to this period." In this sentence he struck upon the main cause of the opposition both to the old cond' tions and the new proposals. It was to the French Civil Code and the feudal tenure that obtained under the Quebec Act and would be continued in Lower Canada under the provisions of the Canada Act that his party objected. If one large province could be constituted, the English inhabitants west of Montreal would join those of their tongue in the older section of the country, and in the union would be a certain safety from French aggression. But his representations had not sufficient weight to alter the course of legislation.

Pitt, in introducing the bill, spoke at some lengtli and stated that " he hoped the division would remove the differences of opinion which had arisen between the old and new inhabitants, since each province would have the right of enacting laws desired in its own House of Assembly." Burke and Fox appeared in conflict; the former supporting the division reasoning from the absurdity of attempting to amalgamate the two races, the latter opposing it with the statement that it was most desirable "to see the French and English inhabitants coalesce into one body." But the principles of the bill had no stronger supporter than Fox. "I am convinced," he said, "that the only means of retaining distant colonies with advantage is to enable them to govern themselves."

Among the members who took a deep interest and a prominent part in the discussions was one of the representatives for St. Maw's, Cornwall, Lieutenant-Colonel John Graves Simcoe. His words were listened to with more than ordinary attention, for it was known that he had had some years' experience of British American affairs during the period of the Revolution, and that this experience had led him to form opinions, which were entitled to consideration, upon the features necessary in a colonial constitution.

On Thursday, May 12th, 1701, in committee, he contributed to the discussion by reading an extract from an American paper to prove that congress thought a very small number of representatives sufficient for a western province, and that two or four would be enough to represent Montreal or Quebec. During the second reading on Monday, May 16th, he spoke forcibly in favour of the whole bill, and expressed confidence that it would be acceptable to the inhabitants of both provinces.

It was during the debate m committee upon the bill that the dramatic incident arose which marked the close of the life-long and intimate association between Fox and Burke. It is a peculiarity of our parliamentary system that these episodes may grow out of discussion upon matters to which they are foreign. And, from the clear sky of a debate upon this peaceful Act, fell the thunderbolt of quarrel which, when its work was completed, left but the wreck of a friendship, the most remarkable in modern political life. The participants were men of noble genius, they had been knit together for very many years, they were alike passionate and capable of deep feeling, and in their clash upon the battlefield where they had so often urged their forces against a common foe there is something tragic.

Burke, introducing the subject of the French Revolution, attacked bitterly the constitution of the new republic. Fox replied by criticizing the unseemliness of an attack, loaded with abuse, upon an event which nobody had sought to discuss. Burke immediately threw the personal element into the discussion, and brought up the question of Cazales, the French royalist orator, who, as Carlyle says, "earned the shadow of a name." Repeatedly was he called to order, but he pressed on with rash and vehement eloquence. In vain did Fox allude feelingly to their past cordial relations. "During the American war," he said, "we had rejoiced together at the successes of a Washington, and sympathized almost in tears for the fall of a Montgomery." Burke complained of wanton personal attack and misrepresentation. "It is certainly an indiscretion at any period, especially at my time of life," he said, "to give my friends occasion to desert me, yet if my firm and steady adherence to the British constitution places me in such a dilemma I will risk all." Fox, with tears, exclaimed, "There is no loss of friends." "Yes," cried Burke, "there is a loss of friends. I know the price of my conduct. Our friendship is at an end." The association thus disrupted was never reformed. Suddenly and unexpectedly had the episode occurred, and before morning it was the talk of London and a week later of the country. The quarrel broke for a moment or two the peaceful monotony of the debates upon the Canada Act. It was but an exhibition of personal passion and rancour, and left no trace upon the legislation which proceeded without any other obstruction. Upon May 14th, 1791, the bill became law.

Following closely Sir John G. Bourinot's thinks, the provisions of the Act were as follows :—

"The legislative council was to be appointed 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 twenty-one, and either natural-born 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. 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-general. The county members were elected by owners of land 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 10 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, having 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 co 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 to 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 t.<me left the exclusive apportionment of all monies 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. 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."

In a troubled session of parliament the bill probably passed as a comparatively unimportant though necessary measure. Contemporary opinion and criticism laid more stress upon the disruption of the friendship between the two great Whigs and upon the message of March 28th, 1791, with its menace of war with Russia, which, but for the cool and intrepid retreat of Pitt, would have plunged the government down a precipice of ruin. But we now see these events in their true perspective, and no act of Pitt's long administration has greater relative importance than this colonial measure. Its gradual extension to all dependencies pacified them forever and bound them in perpetual loyalty to the Crown.

The achievements of peace are saner than those of war, and no statesman bases his monument upon a deeper foundation than when by his enactments he consults and ensures the welfare of people.

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