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projects of Parliamentary Reform, out of lost in 1774, there was also a sincere desire the youthful and untempered notions which to secure to the French Canadians their reMr. Pitt imbibed from his father, and from ligion and customs; and this liberal policy, those with whom he was associated at the it was thought, would be most effectually end of the American war. And he over- realized by separating them from the rest of looked this simple distinction; the Consti- the Colony.* tution of England contemplates and provides But several circumstances were overlooka supreme and independent power, whereas ed. First, Lower Canada, though princiit was not inteuded to give supreme power pally peopled by the French, was also occii. to a Colony: and however liberally the Copied by English settlers, not inconsiderable lony might be governed, there must always in number; this indeed was admitted; but be questions to be decided by the King and due allowance was not made for the tenParliament of Great Britain, without refer- dency of the English settlers to increase raence to the wishes, or even the interests of pidly; nor was it sufficiently considered, the Colony. Such are questions of peace that this race was more enterprizing than and war, of trade with the mother country, the natives, more likely to acquire property with other colonies, and with foreign states; and importance. and those questions of much rarer occur Secondly, the two provinces being both rence, but strictly within the purview of the situated on one great navigable river, that Constitution, which regard the saccession which was nearest to its mouth, or Lower to the throne.
Canada, had a great advantage over the From 1782 to 1800, Great Britain and other, which was thus, in some degree, de. Ireland were in a relative position, in which pendent upon it. It was impossible to make collisions of this nature might have occur- a truly equal division of a country so cir. red; and though the difference which the cumstanced. French war might have occasioned did not Much praise has lately been given to Mr. in fact exist, there was a case, not two years Fox, for the superiority of his plans, at this previous to 1791, in which the Irish and time, over those of Mr. Putt. Fox bimself British Parliaments proceeded differently, would hardly clain this merit, for the case in reference to a regency, upon the then was, as he adınitted, one of great doubt; temporary disability of George III. A little while the minister leaned one way, the leadwant of discretion, and a continued illness, er of opposition naturally inclined the other. might have made this a mortal quarrel, and He observed truly, which Pitt did not deny, have divided the royal authority.
that a portion of British settlers would be We mention these things here to show, left in Lower Canada, subject to an assembly that the statesmen of 1791, if they really did almost entirely French; but he contem. persuade themselves that they were extend-plated with much complacency the alternaing to the Canadians the benefits of the Eng. tive, which would place the French Canalish Constitution, were misled by names, dians under the dominance of the English mistaking circumstances; their intentions party, which in an assembly common to the were benevolent, but their attempts were undivided, province, would have the majodelusive. The extent and effect of the de. rity. It is true that he spoke of making lusion we shall soon exhibit.
laws by which matters might be regulated Another branch of the measure of 1791 between the two races; but he did not, and was the separation of the provinces of Lower could not say, how those laws could be and Upper Canada. Almost all parties now framed and rendered acceptable. concur in condemning this separation ; The plan of Pitt had assuredly more of which stood, however, when adopted, upon what would now be styled a liberal characintelligible and attractive grounds of policy. ter than that of Fox. It approached more Lower Canada was, for the most part
, in. nearly to the principle of self-government, habited by the descendants of the French, under laws of the choice or preference of who had their own Roman Catholic reli. the people. gion, and for the most part their French But, under another head, Fox's views laws, including very peculiar laws affecting were the more democratic : he objected not tbe tenure of land. Upper Canada was only to the hereditary seats in the Legislapeopled by emigrants from the foriner Bri. tive Council, but to the seats for life. He tish provinces, now composing the United States, and by English settlers-chiefly, if See Mr. Pitt's speech, March 4, 1791, Parl. not entirely, Protestants, and attached to the Hist. xxxviii. 1377. The division, it was hoped, laws and customs of England. With the could be made in such a manner as to give each wish to give to the English in Canada the though it could not be expected to draw a line ni advantages which, as they then alleged, they complete separation."
proposed an Elective Council, the qualifica-| fewer who could be assigned to a superior tion of the councillors being "infinitely class. higher than those of the members of the How then could the Upper Chamber be Assembly, and those of the electors in pro- constituted ? How was a select body of men portion. In making this suggestion he ar- to be got together, not representing ihe mass gued strongly for an aristocracy, as an in- or even the lower orders of the class of pertegral part of the legislature; but contended sons sufficiently intelligent to be entrusted that, in a country like Canada, properly was with the sufirage, but occupying a position the fit basis of aristocracy. To hereditary infinitely higher? It was avowedly intend. seats he was opposed, because there were noted that ihis body should operate as a check in Canada the materials for a body similar upon the more popular Assembly; a check to our House of Lords. To the councillors more requisite than in England, in propor. for life he objected, as being too much de. lion to the want of property and educatiou pendent upon the crown.* Pitt and Burke in that Assembly. It was intended, also, both answered, that it was of the essence of that these members of the Upper Chamber an Upper Chamber, corresponding with our should have someconnection with the crown, House of Lords, 10 be more near to the and yet not be, from time to time, dependcrown than to the people.
ent upon the crown for their seats. All agreed that there must be an Upper We cannot easily see what other course Chamber, very different in its composition could be iaken than that which was taken; from the Lower; there was unquestionably enabling the Government to select, as legis. much difficulty in constructing this body, lative councillors for life, the best qualified but we believe that the difficulties of Fox's men that circumstances might produce; and plan would have been as great as those of always bearing in mind that the English Pili's.
constitution was the acknowledged model, It is true that Canada did not contain per- it appears to us quite right, and almost a sons to whom, according to our notions, matter of course, that if persons should arise, peerages would be appropriate. But is it as society advanced in civilization, who had less true, that there were not in the province acquired a considerable permanent interest persons sufficiently raised above the rest to in ihe soil, and even a family influence, it satisfy Mr. Fox's condition? The laws and should be lawful 10 make the seat in the habits of the French Canadians were not Chamber hereditary in the family of such favourable to the growth of an aristocracy persons, so as gradually 10 relieve the Goof any sort; and we doubt whether persons vernment from the invidious and difficult were to be found so "infinitely higher” than task of selection; and by raising up an inthe rest in point of property, as to entiile dependent aristocracy, with its due weight them to selection; nor, perhaps, a sufficien- in the legislature, correcting and finally cy of more substantial electors. We find in overcoming the very evil-dependence upon the act no qualification prescribed for the Government—which Fox had deplored. members of the Assembly. It is difficult And be it observed, that the French Cato account for this omission, unless, in fact, nadians were not, like the inhabitants of there was so much of equality, that no line many of the thirteen states, republican in of distinction could be drawn between the their origin, or puritans in church or state. electors and the eligible; and if it be now It would seem, from the evidence of 1774, true that some even of the latter cannot write that they were monarchical in their feelings, it is probable that, in 1791, there were still and that a privileged noblesse was familiar
to them. To such men the notion of here. • In arguing this point, Mr. Fox gave a de- ditary titles of honour could not be altogecided opinion against the introduction of peer-ther strange. ages for life into our English system :-“ The But it is not only among men bringing check upon making peers here, he had ever con- with them the ancient "customs of Paris," sidered as attended with this advantage, that when the king made a peer, he entailed an' here that such titles are acceptable. Some of the ditary legislator on the country. A doubt exist- leaders of the American revolution were ed whether the king had a right to make a peer discussing, soon after they had completed for life, without his title being hereditary, and at their triumph, the means by which Lord this time he understood there was such a judicial question collaterally existing in the House of North might have averted it
. The prevaLords, which was a clear proof that the practice lent opinion was, that if England had given was unknown. If the crown had such a power, to the discontented provinces a representathe life peers might overwhelm the hereditary tion in the British House of Commons, and peerage, and thus desti or the constitutional conirol of the aristocracy, in case they attempted to had conferred titles of honour upon some of resist the crown."-p. 413.
the most eminent Americans, the separation
might have been avoided.* We know not, ) would be neither so absurd nor so dangerous for certain, whether English peerages were as it appears in any other vicw. We make contemplared, or a new provincial nobility, this observation as well for the vindication of but the fact, in either form, would help to Mr. Pitt and the ministers of 1791, as by justify the measure of 1791.
way of introduction to what we shall presently Not one of the eminent statesmen who offer with a view to the future. And it will discussed the mode of assimilating the Cana. be seen that it is the deviation from the course dian to the English Constitution, saw the ut- which we have described, that produced the ter absurdity of the attempt.
present embarrassment. Nor was anything said in those debates on We cannot in this place trace the several the subject of finance, although so much of steps by which the Assembly arrived not only the working of the British Constitution turns at the power of refusing supplies altogether, upon money. But it is important to observe and, as we may say almost without a metathat an act was in existencet (of which we phor, starving the Government. So much shall hear more presently) by which certain as is necessary of this delineation will appear import duties were imposed at Quebec (in in the account of more recent events, which lieu of others which had been collected by we think it sufficient to commence with the the French government) in order “ to estab. year 1828. lish a fund towards further defraying the In that year the whole system was re. charges of the administration of justice, and viewed in Parliament. The complain:s of support of the civil Government within the the Lower Canadians against the Governor province of Quebec;” and that the revenue (Lord Dalhousie) and the Legislative Coun. thus arising was to be applied to its purpose cil, and also against the British Parliament, by the Lords of the Treasury in England, were referred to a Committee of the House and the surplus, if any, to remain " for the of Commons. future disposition of Parliament.” The Crown The suggestions however of the Canada was at this time possessed of certain casual Committee of 1828 were carried into effect and hereditary revenues, of which it had the between 1828 and 1832. It is a very im. absolute disposal. Clearly, therefore, it was portant point in this case, that the Legislative not the intention of the framers of the ar- Assembly of Lower Canada acknowledged rangement of 1791, that the Crown should that the recommendations of this Committee be dependent upon the provincial Assembly embraced all their grievances; and England for the ordinary expenses of administration. has therefore a right to say that her account If not, and the Government were not under with Lower Canada up to 1828 is “even and the necessity of applying for a mutiny bill, or quit," and if the Colony now alleges a griev. for extraordinary supplies, the power of the ance it must be sought in some proceeding purse which the Constitution gave to the As- subsequent to 1828. sembly, could not be so used as to control or What the grievances were in 1828, and distress the Government. And consequent how they were redressed, appears no where ly, the incompatibility of this power with the so clearly as in a minute recorded by the condition of a dependent colony would not Earl of Aberdeen, at the moment in which be felt.
be quitted the Colonial Office over which he The provincial legislature might go on presided for five months, with assiduity, tem. making provision, subject to the veto of the per, and ability, now universally acknow. Crown, for all local purposes, and working ledged. To this paper, the present ministers its constitutional powers on this confined have appealed, and it may justly be consiscale, without affecting the movement of the dered as no party document, but the mani. great machine of imperial government. festo of England herself.
In this view the imitation of the British It is too long for insertion, nor would we Constitution would be less perfect, but it willingly copy so much of it, as to deter would be as complete as the nature of the readers from perusing it* at lengih. case admits, and the attempt to effect it First among the concessions enumerated
by Lord Aberdeen, and foremost among the * We derive this anecdote from a very intelli- points now at issue between England and the
For some in 1837, and whom we met when employed in Colony, is the matter of finance. recording, for the instruction of some of his time previous to 1928 the expenses of the younger countrymen, what had passed upon the civil government of Lower Canada were occasion to which we refer. Should this note meet his eye, he will, perhaps, with the courtesy which we know belongs to him, communicate to * It is in p. 36 of Commons Papers, No. 113 of us an authentic account of the conversation 1836, but it will be found at the end of “The which we have imperfectly narrated.
Canadian Controversy,” ascribed to Mr. Elliot, + Act 14 Geo. III. c. 88.
the secretary to Lord Gosford's Commission.
provided by the revenues imposed by the act others for the virtues which they themselves of 14 Geo. III. c. 88, (as before mentioned,) possess. He felt that it would be more and appropriated by the English treasury, generous, and he fancied that it would be partly by a sum of 5000l. per annum pre. equally effectual, were he to give up the viously appropriated by the Canadian legis. revenues first, and trust to the Assembly for lature, and partly by revenues levied within granting a civil list afterwards. He sug. the province, and at the disposal of the As- gested* that which he conceived to be a sembly from time to time.
proper civil list, to be granted for the king's The system of defraying a part of the life, or for seven or more years. But his expenses by annual votes of the Assembly bill contained an unconditional surrender was new about the year 1818, and arose out of the revenues. The Duke of Wellington of the desire of the Assembly to acquire the equally honest, but more clear-sighted, control incident to the power of the purse. warned Lord Ripon that he was acting im. And they now put forward two claims; first, prudently, and recorded his opinion in a pro. they insisted upon their right to appropriate test, but the bill passed. and control the whole of the expenditure, not To us it appears that Lord Ripon made confining their control to that which was two mistakes in matters of fact. He proprovided for by their
own votes : and second. posed to imitate the conduct of William the İy, (this depended upon the construction of Fourth, who on his accession "freely gave acts of parliament not necessary to be dis. up his interest in his hereditary revenues,” cussed here,) they denied the right of the while the civil list was left to be arranged by crown to apply the duties under 14 Geo. Parliament. The ministers of William the III. c. 88.
Fourth did not advise his majesty to be thus It is obvious, and was afterwards admitted, imprudent. They obtained his leave to acthat “so long as the Assembly was called quaint Parliament that in arranging a civil upon to provide for and to regulate any por. list they might deal as they pleased with those tion of the public expenditure, it would vir- revenues; but his right to ihem remained in tually acquire a control over the whole." the king, until the moment in which the civil
Probably impressed with this opinion, and list act received his assent. This was the greatly desirous of conciliation, the Commit- precedent which Lord Ripon ought to have tee recommended that “the receipt and ex. followed. penditure of the whole public revenue,” in. But it was also an error to suppose that cluding the duties of 1774, and apparently the Assembly had declared their intention of including also the hereditary revenues of the giving a civil list in return for those revenues. crown, “ should be placed under the superin. The Government appears to have been mis. tendence and control of the House of Assem. led by Mr. Hume, or to have read incor. bly," but they proposed to annex this reason- rectly the resolutions passed by the House able condition, that the governor, judges, and of Assembly after seeing the Report of 1828. members of the executive council, should be Those resolutionsg promised a civil list (not made by a permanent provision for their very extensive) when the whole public re. salaries, independent of the annual votes of venue arising within the province should be the Assembly.
given up to them ;" whereas Lord Ripon, not The Duke of Wellington's government, in quite consistently with the principles enunwhich Sir George Murray was Secretary ciated in his despatch, had still reserved in for the Colonies, proceeded to carry this ye. the hands of the English Government, cer. commendation of the Committee into effect. tain revenues, known as the casual and he. A bill was introduced for appropriating the reditary revenues of the Crown. This rerevenues collected under the act of 1774 10 serve might be perfectly right, but it was a the high civil and judicial officers of the go- great deduction from the generosity of the vernment of the two Canadas, and placing grant, and might have been expected either the residue at the disposal of the colonial after general principles, or from a knowledge legislature.*
of the Assembly and its proceedings, to de. But owing to the king's death and the re. prive the donor of all benefit from that which signation of the ministers, this bill was drop. he gave. Lord Ripon, with the same geneped. Sir George Murray was succeeded by rosity which characterized his measure, has Lord Goderich, (now Earl of Ripon,) who, acknowledged that he acted “under the in. in an evil hour, accepted office with Lord Grey and Lord John Russell. Lord Ripon * Dec. 24, 1830. No. 37 of 1837, p. 18, Lord is a man of remarkable frankness and hon. Ripon's suggestion went rather beyond the enactesty, and such men are apt to give credit to ment of Sir G. Murray's bill.
+ Act 1 & 2 Will. IV.
I Parl. Deb. 3d. Ser. iv. 1002. See bill printed 29th April, 1830.
$ Decenaber 6, 1828, No. 73 of 1830, p. 26.
fluence of an imprudent confidence."* It is deeming it possible that the constitution of hardly necessary to add that the Assembly a colony could be assimilated to that of the have not to this day voted any civil list, or parent state, and secondly in believing that made even the judges independent. the power of the purse, either exists, or is
In the year 1832 the Assembly passed a ever used in England, in the way and to supply bill, providing, or very nearly, for all the extent in which the Canadians now asthe demands of the Government; and there sert it. Into the first mistake the Cana. were in this session other indications of a dians have been unfortunately led by the more reasonable disposition in the Assembly, language used here in 1791. The nature and of their conviction that their grievances of the second mistake may be best explained had been redressed.t The mover of the re. by Mr. Roebuck's speech." solutions to this effect was Mr. Neilson, the honourable and intelligent representative of
“ The executive" (in England, he says) the petitioners of 1828.
" has no funds at its disposal, and
“ The Cana. In 1833 also, the Assembly passed a bill dependent upon Parliament.” of supply, but they now annexed to some of dians wish to approximate to the English
practice, and therefore as they have no Mutitheir grants certain conditions, which in
ny bill to pass, and their chief expenses are duced the Legislative Council to reject the on the civil list, they have very wisely deter. bill, and would have induced the Crown to mined to pass the estimates yearly.” disallow it, if it bad come home for appro.
These conditions afforded the first in. “The people's representatives determined stance of the exercise by the Assembly of to vote their money by items, so much to this the power of the purse in a way unknown functionary, so much to that, a very wise to British practice. To the grant of salary precaution, and one almost universally adoptto each person holding office, all of whomed by the English House of Commons." were mentioned by name, they added a pro It is surely a mistake to treat the
power viso, that he be not member of the Legis- of the Commons to withhold supplies, as lative Council, or, as to others, of the Exe. deliberately given to them for the purpose cutive Council
. The salaries of the judges of enabling them to control the Crown in were made conditional upon their noi hold. the exercise of its functions. We admit that ing any other office under the Crown.
it is not easy to pronounce what was the in. We know of no instance of a grant of this tention of a constitution which does not ex. sort being made by the Commons of Eng. ist in writing and is only to be deduced land.
from practice; but surely the power which Mr. Stanley, now Secretary of State, gave our Commons have acquired of forcing the orders for paying the official persons out of Crown into any course of proceeding, is that part of the revenue which had not been rather an incidental consequence, than a surrendered by Lord Ripon. And it was function deliberately assigned. But, be this in the year 1833, that the Assembly first speculation correct or not, we may confidentproposed to make a fundamental alteration ly say that it has not been the practice of in the Constitution of 1791, by making the the House of Commons to compel the Legislative Council elective.
Crown by refusing to vote supplies into any In 1834 the same contumacy prevailed
course or measure unconnected with the in the Assembly, and in this year a fresh vote of supply; or to refuse to support an appeal was made to the British Parliament, army for any other reason than that of disand a new committee appointed to consider approving of the purpose for which it was the petition of the Assembly. of this, Mr. to be employed. The power of the ComRoebuck was the mover, and from his mons, it is true, has no limit but such as is speech I we learn that the Assembly
fancied imposed by their own discretion. itself acting in the spirit of the English Discretion may be abused; and it is an Constitution, and imitating our recognized inherent evil of absolute power, in the bands and habitual practice.
whether of one man, or of one or more But here is a two-fold mistake, first, in bodies of men, that it
a wrong with out a remedy. There is no absurdity or in
justice of which a Sovereign, whether King * Parl. Deb. xl. 229.
+ See Elliot, p. 19, and Min. Ev. 1834 (96 of or Parliament, may not be guilty, without 1837), p. 40.
any technical infringement of the law. # No. 37, of 1837, p. 75; No. 392 of 1836, p. 11. every empire one such evil
, one such liabili. To Sir Ja. Kempt, 6 June, 1833, 96 of 1837, ty to abuse, must exist, but it is one good ll Elliot, p. 19. Parl. Deb, 3d Ser. xxil. 767.
• Parl. Deb. 3d Ser. xxii p. 771.