Documents Relating to the Constitutional History of Canada

Already the accumulation of materials relating to Canadian history secured by the Canadian Archives is very voluminous, and of such range and value that it will henceforth be impossible to make any considerable contribution to Canadian history without drawing upon these resources.

Now that these collections are adequately housed in a separate building, it is possible for all who wish to consult them to do so with facility and comfort. However, in a country of such vast extent as Canada, it requires both time and means for more than a very limited number to avail themselves of these valuable accumulations at first hand. Hitherto, also, the pressing demands of the more immediate needs of life leave, for most, little leisure for the cultivation of those studies connected with the origin and significance of our national institutions, the right comprehension of which may have an important bearing on the future stability of national life.

In order that the character of the records accumulated by the Archives department may be made known to the public, and that the advantages to be derived from an acquaintance with these materials may be equally shared by teachers, students and citizens of Canada generally, in all parts of the country, it has been considered advisable to select and publish in a connected form, a number of the more important and representative documents relating to specific features of Canadian national development. The present volume is the first of a short series which will embody the leading documents relating to Canadian constitutional history. The collection is intended to furnish, in the shape of authentic copies of original documents, a survey of the gradual development of the Canadian system of government and of the various forces which, in co-operation or conflict, had much to do with determining the lines along which our destiny as a nation was to be unfolded. It has been sought to make the series of documents sufficiently full and representative of all the constituent elements and interests of the country, to furnish a basis for an intelligent and independent judgment on the part of those making a careful study of them; while the notes and references will enable the reader to follow the natural connections of the documents with each other and with a still wider range of first hand materials, most of which will also be found in the collections of the Canadian Archives.

This first volume contains only documents relating to the central portion of Canada known at the time as the Province of Quebec, between the period of the Cession and the passing of the Constitutional Act in 1791. In order to present a natural historical development of the constitution, the documents are arranged as nearly as possible in chronological order. They consist of both primary and secondary materials. The primary documents are preceded and followed by a number of closely related papers, such as petitions, reports, letters and proceedings indicative of the forces which prepared the way for the more formal expressions of the general policy or system of governThese in turn are followed by other secondary documents showing the practical consequences of the adoption of this or that policy or system of government.

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6-7 EDWARD VII., A. 1907 The documents and papers may be classified as follows, the first two sections covering the central or pivotal documents.

I. Terms of Capitulation and Treaties, determining the limits of the colony and the conditions under which it was ceded or held.

II. Royal Proclamations, or British Statutes determining the basis and character of the government to be established and maintained in the colony.

III. Commissions and Instructions issued to the various Governors, giving in further detail the system of government and administration to be established in the colony, and the general policy to be followed.

IV. Such ordinances or laws passed by the local legislative body as prescribe, under the authority of Royal Proclamations or British Statutes and Instructions to the Governors, the courts of law and the general system of justice to be administered in the colony.

V. Special reports, of a more or less official nature, from various Boards, or servants of the Crown in Britain or Canada, setting forth the actual conditions of the country, from a constitutional point of view, and proposing lines of policy or necessary changes in the constitution of the country.

VI. A body of miscellaneous papers, furnishing the connecting links and general constitutional atmosphere of the central documents of the foregoing classes. These consist of

(a) Petitions and counter-petitions expressing the wishes and aspirations of the inhabitants of the country, or of those in Britain having special interests in Canada, as to the form of government, the system of laws, and the general administration of justice.

(b) Minor reports from the Governors and other officials in the colony, Memorials and Proceedings setting forth the political condition of the country, Minutes of Council and Reports of Committees of Council relating to the system of government or administration.

(c) Correspondence, official, semi-official, or private, between the Canadian Governors and the British Secretaries of State, and between these and others occupying official or at least influential positions in Canada or Britain, discussing, shaping, or advising as to the policy of government, or the condition and wishes of the people.

In considering the documents presented under these various classes, the question of most interest to those wishing to make use of the volume will relate to the principle or principles upon which the documents here give were selected from the general mass of materials bearing upon the constitutional development of Canada during the period covered. In answering this question we may take up the sections in order.

The documents which fall within the first three classes leave very little room for choice, as they are limited in number and definite in character. The first section in cludes the Capitulations of Quebec and Montreal, and the two Treaties of Paris of 1763 and 1783. Section II includes the Proclamation of 1763, the Quebec Act and the Constitutional Act. Section III includes the Commissions and Instructions to Governors, &c. In order to economize space, since the Commissions cover, though only in a partial degree, much the same ground as the Instructions, samples only are given to indicate their nature. Special features, such as Dorchester's Commission in 1786 to be Governor

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and Commander in Chief in all the British North American Colonies, are fully indicated in the correspondence and notes. Where the Instructions to one Governor are continued for his successor with little or no alteration, they are not repeated in full, only the alterations or additions being given. However, where important changes in policy were being discussed or had taken place, as in 1768, 1775, and 1786, the Instructions are given in full, even though considerable sections of them remain unchanged, it being important at such periods to see the relation of the old to the new elements. This sec. tion includes also various additional or special Instructions which were issued to the Governors during their periods of Office.

Section IV. covers the series of Provincial Ordinances from 1764 to 1789, establishing the Provincial Courts and prescribing, subject to the British Statutes and Instructions, the system of law and procedure to be observed therein.

In Section V. there is more choice of materials, though there is little difficulty in determining which are the most essential documents, as that is largely indicated by the importance attached to them alike at the time and afterwards, as evidenced by the repeated references to them in the other documents and correspondence of the period. The only difficulty here has been in procuring authentic copies of all the documents of this description referred to. Though the great majority of these reports have been discovered among the State Papers, or in other authentic form, a few of them have not as yet been secured. The Reports of Carleton and Hey in 1769 have not yet been found, though the substance of the former is fairly well indicated in the criticism of it made by Mr. Maseres, (see p. 258). This indicates that the Governor had simply recapitulated in the Report his views as frequently expressed to the Home Government in his correspondence with the Secretaries of State, Lords Shelburne and Hillsborough. It has also been impossible up to the present to trace among the State Papers the reports on the Government of Quebec made by Solicitor-General Wedderburn and Attorney-General Thurlow, in 1772 and 1773, though a supplement to the Solicitor-General's report containing its essential features has been found among the Dartmouth Papers. We have therefore been constrained to take these papers in their incomplete form from Christie's History of Lower Canada, Vol. I. The Report of the Board of Trade of September 2nd, 1765, cited in another report of the same date, given at p. 171 and referred to in note 3 on the same page, as not having been discovered, has since come to light in a volume lately received at the Archives but as yet uncalendared. It will be found in Volume Q-18A, p. 131. These are practically the only cases in which we have failed to trace the more essential documents of this class.

The reports in this Section, beginning with that of Murray in 1762 and ending with the series of Reports of 1787, where they are of a general nature, naturally contain. much material which has but little direct bearing on constitutional questions. However, where the report is homogeneous and not too voluminous, as in the case of Murray's, it has been produced in full, that the reader may be enabled to obtain a general survey of the conditions of the Colony. In other cases, where the report is very extensive and is the product of a series of committees dealing with different sections of the colonial interests, as in the case of the Report of 1787, only those sections are given which have a more direct bearing on the constitutional problems of the country. At the same time the general character of the whole report is sufficiently indicated, and

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