SESSIONAL PAPER No. 18

(9.)

(10.)

site for the said general Government; or from nominating and appointing thereto from time to time, such persons as he shall think fit to compose the same Executive Council, or to execute such offices or from removing therefrom any person or Persons whom he may think fit to remove.

And be it also Enacted by the same Authority that it shall and may be lawful for His Majesty to give Authority to his said Governor General, or the person exercising that trust, on his arrival in either of the provinces within his commission, to assume the authority and to perform all the duties and functions which the Lieutenant Governor thereof, might exercise and perform; and the powers and authority of such Lieutenant Governor shall be suspended & so continue during the time of the Governor General's being within the same province; and that it shall also be lawful for His Majesty to give to the said Governor General for the time being, tho' absent in some other province of His General Government, authority respecting any act of any of the Provinces of such nature and tendency as His Majesty may see cause by His Royal Instruction to describe, to suspend the execution of such Act until His Majesty's Pleasure shall be signified respecting the same; to which end it shall be the duty of the person administering the Government in every Province subject to the Governor General's Authority, to transmit to him a copy of every bill to which he has assented as soon as possible after the enacting of the same into a law; and shall upon the suspension thereof by the Governor General immediately cause the same to be made known by proclamation under the great seal of his Province, in the manner most effectual for making the same universally known to the Inhab itants of the same Province, and all others whom the same may concern.

And be it further enacted by the Authority aforesaid, that nothing in this Act contained shall be interpreted to derogate from the rights and Prerogatives of the Crown for the due exercise of the Royal and executive authority over all or any of the said Provinces; or to derogate from the Legislative Sovereignty and Supremacy of the Crown and Parliament of Great Britain; but the Acts of Legislation of either of the said Provinces, as well as the Acts of the Governor General and the Legislative Council and General Assembly so to be made, shall be subject to the Royal dis-allowance as exercised heretofore respecting the laws of any of the British Provinces, and the said Dominions and all the Provinces into which they may be hereafter divided shall continue and remain to be governed by the Crown and Parliament of Great Britain as the supreme Legislature of the whole British Empire. D.

Endorsed. D.

In Lord Dorchesters to Mr. Grenville N° 15

of 8th February 1790.

CLAUSE RE TRIAL OF CRIMINAL OFFENCES.1

And whereas it may so happen that Offences may be committed, whicn as the Law now stands, may be only triable and punishable in England by virtue of divers Statutes, as Treason or Murder perpetrated in foreign parts, and yet the Offender may be taken and imprisoned for such offence, in one or other of His Majesty's Provinces in America.

Be it therefore enacted by the Authority aforesaid that such offender may be tried and punished, in such of His Majesty's Provinces where he may happen to be imprisoned, and for that purpose may be proceeded against before Commissioners of Oyer and Terminer constituted from time to time

1 This is clause E, (Q 44-1, p. 77) drawn up by Chief Justice Smith, and referred to in Dorchester to Grenville p. 676, as also in Smith to Dorchester, p. 685.

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under the Great Seal of the Province, as nearly as may be according to the Course in the realm of England for the Trial of Offences of the like nature. Endorsed.

.E.

D.

Your Lordship's dispatch N° 15 was not received here till the 18th of April. The Session of Parliament was then so far advanced that it was not thought proper to bring forward at that time the proposed bill for regulating the Government of Quebec, especially as several of the observations stated by Your Lordship on the subject were of a nature to require previous consideration, and as it then appeared probable that I might receive from Your Lordship any further suggestions which might occur on a fuller examination of the plan and that I might perhaps be able to avail myself of Your Lordship's personal assistance in the course of the summer.

The discussions which have arisen with Spain having induced His Majesty to direct me to state to Your Lordship the necessity of your continuing for the present in Quebec, and it being uncertain whether even in the Supposition of an amicable adjustment of that business, it could be terminated soon enough to allow of my transmitting to Your Lordship this season His Majesty's permission to return to England, I have thought it right to state to Your Lordship in this manner some particulars which have occurred to me on the subject of Your Lordship's dispatch above mentioned and its inclosures.

There will certainly be considerable difficulty in any mode of describing the boundaries of Upper Canada 'till some precise adjustment is made with the United States, relative to those points in which the Treaty of 1783 has not been carried into execution by the contracting parties. This subject is now under the consideration of Government, and it is not improbable that some person may be sent from this Country with powers to settle those points. But if such settlement shall not have taken place previous to the time of bringing forward the Quebec bill in the next Session of Parliament, I am inclined to believe the most adviseable mode of avoiding the difficulty in question will be that of leaving the Boundaries to be fixed by His Majesty.

This would enable the King to provide for the point to which the clause B inclosed in Your Lordship's dispatch relates-If any other mode should be adopted the object of that clause will be attended to.

No material objection occurs to me to the numbers proposed by Your Lordship for the first formation of the Legislative Councils or Houses of Assembly in the two Provinces, especially as I must necessarily rely so much upon Your Lordship's judgment in that respect-If I were to wish any alteration it might perhaps be to lessen the numbers of which the Legislative Councils are to consist in the first instance-and this with a view to having the means of greater selection with respect to the persons to be first

1 Canadian Archives, Q 44-1, p. 152. To follow the discussion of the various sections of the bill requires a reference to the first and second draughts of it. See pp. 667 and 677.

2 The despatch of Feb. 8th, enclosing, among other papers, the second draught of the Constitutional Bill. See p. 674.

3 The difficulty with Spain arose over the capture of certain British vessels at Nootka Sound, on the north west coast of America. It was feared for a time that war would be the result, with the possibility of the United States being drawn into it at the instance of Spain, owing to the difficulties about the western posts, &c.

The clause drawn up by the Chief Justice relative to the boundaries between Quebec and New Brunswick. See p. 684.

SESSIONAL PAPER No. 18

named, on the characters and conduct of whom so much depends. The mode suggested, for ascertaining the circles, or districts for elections appears unobjectionable.

The

More difficulty seems to occur with respect to the proposed extension of the qualification of Eligibility to persons born under the dominion of foreign princes, and not within those provinces which have been conquered by His Majesty's arms. naturalization bills in Great Britain always contain a clause of exclusion from Seats in either House of Parliament, and there seems to be great objection to giving any similar right by provincial naturalization. Unless therefore I should hear from Your Lordship that there are any persons whom in Your Lordship's opinion it would in the present moment be particularly desirable not to exclude and who would not fall under the description of Eligibility as it before stood I incline to think it should not be altered.

Some doubt occurs to me whether it would be desireable to extend the disqualifying clauses in the manner proposed by Your Lordship. It is true unquestionably that persons of the descriptions mentioned are not entitled to political honours or consequence, but the means of discouraging them within the province seems to be a consideration rather of local provincial regulation, and not naturally to form a part of a law on which the Constitution of the Province is to be grounded.

After much enquiry and consideration, and after receiving the opinions of professional men upon the subject it does not appear to me to be practicable to introduce into the proposed bill any considerable or material articles of Commercial Law, and the insertion of those of smaller importance would not be desireable. Unless therefore I

should receive any further suggestion on that subject from Your Lordship, it is my present intention not to add to the bill any clause of that nature, although I cannot but confess that I have taken this resolution with considerable reluctance, and apprehension of the possible effect which it may have on the British Commerce.

The difficulties of which the Merchants have complained with respect to the Commercial Laws of Canada and which certainly by no means appear to me to have been entirely unfounded, though in some instances, I think they have been exagerated, seem nevertherless rather to have arisen from the uncertainty of those Laws than from the positive defects of any one particular system. That uncertainty might perhaps be removed immediately by provisions to be adopted by the local Legislature of the Province, and it must ultimately be done away by an uniform and consistent administration of Justice which it will be the duty of His Majesty's Ministers to secure to the King's subjects by such means as will under the proposed system be left in His Majesty's discretion. I am not quite satisfied that this will be fully sufficient to obviate the objection drawn from the prejudices of those persons of whom the Legislature of Lower Canada must in great measure be composed, and from the natural operation of those prejudices in questions of Commercial Laws. But the difficulty appears to me unavoidable and not to be of sufficient weight to prevent the adoption of the proposed system if right in other respects.

It is certainly very desireable that the benefits of an exchange from tenure in fief to common Socage should not be confined to the persons holding immediately of the King but should be extended to their under-tenants. But it seems necessary that some mode of compensation should be settled by which the person holding of the King might receive an adequate return for the value of the rights which he would lose by such conversion, unless it is understood that the benefit derived to the tenant in capite from the extinguishing the feudal rights of the King, would in all cases be greater than the loss incident to him upon the surrender of his rights over his under-tenants. This as far as

I understand the present system of tenures in Canada, I imagine would not be the case, and it would therefore be necessary to make some provision for this difficulty.

Whether it is possible to establish any general rule or fixed proportion of compensation to be made by the under-tenant to his Lord in lieu of the feudal services and payments to which he is now subject, or whether it would be necessary in each distinct case to have recourse to some mode of appraisement or valuation, and what mode could be best adapted for that purpose, I am not sufficiently informed to decide, and I must therefore request that Your Lordship will with the assistance of His Majesty's Chief 18-3-44

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Justice, and any other Persons whom you may think competent to advise you upon it, give a particular attention to this point and transmit to me such a clause as shall be judged effectual for the object which I have mentioned. In framing such a clause attention will of course be paid by the persons drawing it to the nature and operation of the different clauses in the Stat: 12 Car. 2 Cap. 24, by which Socage holding was made general in this Kingdom. If any compensation is to be paid by the under-tenant to his Lord on such Conversion, it seems necessary to provide that the Conversion shall not take place but by mutual consent.

Proper attention will be paid to Your Lordship's suggestions with respect to the Commencement of the Bill, but the intermediate establishment of a separate Government in Upper Canada according to the form of that created by the present Quebec Act does not appear adviseable.

The formation of a general Legislative Government for all the King's Provinces in America,1 is a point which has been under Consideration, but I think it liable to considerable objection-The principle of uniting the executive Government, has already been acted upon, and is one which I think of material importance to the British Interests in America.

The other Clauses suggested by the Chief Justice will be considered by His Majesty's Law Servants. I am &c. &c.

W. W. Grenville

DUNDAS TO DORCHESTER.2

(No. 2)

The Right Honble

Lord Dorchester
My Lord,

Whitehall, 16th September 1791.

In the letters which were written to your Lordship by my Predecessor, Lord Grenville, I find you were long ago fully informed by his Lordship of His Majesty's intention of dividing His Province of Quebec into two separate Governments, to be called the Province of Upper Canada, and the Province of Lower Canada, and of Regulations which were proposed to be made in consequence, for the better Government of that part of His Majesty's Dominions. In pursuance of that intention I am now to inform your Lordship that a Bill was introduced into Parliament and passed during the last session, intituled "An Act to repeal certain parts of an Act passed in the Fourteenth year of His Majesty's Reign intituled An Act for making more effectual Provision for the Government of the Province of Quebec in North America; and to make further provision for the Government of the said Province," a Copy of which I inclose together with a Commission under the Great Seal, revoking your former Commission of Governor of the Province of Quebec, and vesting you with the Chief Government of the two Provinces beforementioned and also Instructions under the Royal Sign Manual applicable to the Regulations which His Majesty under the Act, has thought fit to establish.

In framing the Instructions to Your Lordship with respect to the Quorums of the Legislative Councillors and of the Members of the Assembly for Lower Canada, some difficulties occurred in fixing on the number which might be proper to compose such Quorums, and on a consideration of the subject, it was rather thought adviseable that the number of which such Quorums should consist, should be left to those Bodies to determine. The mode which His Majesty's Servants recommend for adjusting this point,

1 Referring to the proposed clause on that subject submitted by the Chief Justice. See p. 687.

2 Canadian Archives, Q 52, p. 213. Henry Dundas was a noted politician of the period, who had boxed the compass among the political parties of the time and finally attached himself to Pitt, with whom he gained special favour. After filling several important offices, he became Secretary of State for the Home Department, on June 8th, 1791. In 1802 he was raised to the peerage as Viscount Melville and Baron Dunira.

SESSIONAL PAPER No. 18

is either by an Act of the Legislature, or what may perhaps equally answer the purpose, that of making the regulation now to be fixed upon, a standing order of each of the two Houses respectively, and I have it in Command to desire that your Lordship will on the first meeting, recommend this object to their consideration, and likewise the forming other such Rules or standing Orders for regulating the Form of proceeding in the Council & Assembly. respectively, as may be most conducive to the regular dispatch of Business.

Your Lordship will find on a perusal of the Act that the number of Representatives of which the Assembly of Lower Canada was originally intended to consist has been considerably increased. This measure will render a new Distribution necessary instead of that which was proposed by Your Lordship in your letter to Lord Grenville1 No. 15, and I wish Your Lordship particularly to consider whether for the sake of convenience and dispatch in deciding upon Elections and preventing the inconvenience of too great a number of Electors, the Towns of Quebec and Montreal might not for that purpose be divided into two separate and distinct Districts, and that these Towns should return Four Members each, by electing Two in each District. your Lordship will see by the Copy of a Paper delivered to me by Mr Lymburner, that he proposes that each of the Towns of Quebec and Montreal should chuse seven Members each, but that arrangement His Majesty's Servants entirely disapprove of, and would be sorry that such a distribution should on any account take place.

2

When your Lordship shall have considered this subject maturely, and have arranged your Plan for the Representatives to be chosen by each of the Towns and Circles respectively, you will as soon as conveniently may be issue your Proclamation accordingly.

According to the best opinions which I can obtain it seems to me adviseable that excepting in the instances of Trois Rivieres St. John & William Henry, each of the other Circles and Towns or Townships in Lower Canada should elect one Representative, and as the Extent of the several Towns from the introduction of new Settlers and from the probable increase of Population will hereafter be likely to be enlarged, it seems to be desireable that for the same purpose of preventing too great a number of Electors for any place, that limits should now be fixed within which the Electors for the Representatives of the Towns should be resident, and whenever the number of new Inhabitants resident within the limits adjacent and possessed of qualifications to vote for Towns or Townships shall encrease so as to render it expedient that they should be represented in the House of Assembly, a new Town or Township shall in like manner be established within fixed limits for the purpose of separately electing an additional Representative in the House of Assembly, and so on from time to time as often as the occasion may require.

Your Lordship has I have no doubt been informed of the disputes & disagreements which have at times taken place between the Councils & Assemblies of the different Colonies respecting the Right claimed by the latter that all Bills whatsoever for granting Money should originate with them. The principle itself as far as it relates to any question of imposing burthens upon the Subject is so consistent with the Spirit of Our Constitution that it ought not to be resisted at the same time it would be prudent, if possible, to avoid any unnecessary discussion of its application in minute cases, & above all that it should not be so extended by overstrained refinements as to produce embarrassment & perplexity in the progress of Public business.

As there does not at present appear to be sufficient provision for the support of the Protestant Clergy either in Upper Canada or in Lower Canada, the collection of Tythes has under the Act of the present year been suffered to continue; But your Lordship will understand that it is not wished to continue this burthen longer than is necessary for the competent provision of the Clergy If therefore the Proprietors of Lands liable to the payment of Tythes shall be induced to concur with your Lordships 1 See p. 674.

2 The paper mentioned follows this despatch, and is given in Q 52, p. 219.

3 The following extracts from a letter from the Society for the Propagation of the Gospel, addressed to Lord Sydney, will indicate the influences at work to secure from the Government an adequate provision for the Protestant religion. "The Society for Propagation of the Gospel in foreign parts, having under