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History of Toronto and County of York in Ontario
Part I: Chapter XVI. The Constitution of 1791


THE party, mainly composed of traders and agents of English mercantile houses, who had been baffled by the Quebec Act in their scheme of making their own class supreme over the French Canadians, had never ceased to foment disturbance in the Legislative Council; among those in England who were opposed to the war against the Thirteen Colonies; and even among the seigneurs, some of whom were now desirous of an elective Assembly. At the end of his term of office, Carleton, in accordance with instructions from the English Ministry, formed a sort of Camarilla in the Legislative Council; a Privy Council of five members, nominated by the Governor. This caused some discontent among the members of the Legislative Council not included in this new Cabinet. Chief Justice Livius, in particular, questioned the action of the Governor, and demanded the production of the instructions upon which he acted. Carleton, in consequence of this, deprived Livius of his office. On the matter being brought before the Board of Trade in England, it was decided that Carleton had acted illegally. In consequence of this dispute, Carleton resigned office and left-Canada. to which he had done signal service in holding Quebec against Montgomery, in driving the American invaders from our frontier, and in conciliating by just treatment the French Canadian people at a most dangerous crisis, notwithstanding the pertinacious opposition of the English Colonial office seekers.

Carleton was succeeded as Governor by General Haldimand, a Swiss soldier in the British pay, who took office in 1778. Unlike Carleton, he was of a hard, stern, and despotic disposition. In proportion as it became evident that the United States were about to succeed in their assertion of independence, so did Haldimand increase the severity of his rule in Canada. He forced on Canada the oppressive exactions against which the Puritans of England had risen in revolt a century before; compulsory enlistment, and enforced statute labour. On the slightest suspicion of discontent with his rule, or of sympathy with the American Revolution, even such sympathy as was openly avowed by the English Opposition, he committed the suspects to prison, and kept them there for months without the pretence of a trial. With a meanness characteristic of the crafty and suspicious race, which has furnished the mercenaries and lackeys of every European despotism, he descended to violate the sanctity of private correspondence. The Postmaster-General had frequently found the European and other mail bags lying open in the Governor's office, and the letters, with broken seals, scattered on the floor. It must be remembered that in those days a Governor-General was not the mere titular shadow of departed power, not the harmless dispenser of civil speeches with which we of the Canada of 1884 are familiar. In those days the Governor-General ruled the country with an absolute authority permitted to no king of England since the Stuart tyrants were executed or expelled. Numbers of citizens were arrested on the merest suspicions ; the most innocent were never safe from a long incarceration ; a man would disappear, none knew how, and months might pass before his anxious family knew in what dungeon he was immured. The Swiss adventurer was careful, however, to confine Hs high-handed measures to the French Canadians. The English settlers, he knew, regarded him as an alien, and might, if roughly handled, turn the current of public opinion against his administration in England.

As was the Governor, such were his underlings. The mode of administering justice had become a public scandal. Ruinous fines were imposed by judges who sat on the bench drunk, or who refused to hear evidence on the ground that they already knew all about the case, or declined to investigate a charge, because the person inculpated was, in the judge's opinion, incapable of anything of the sort. One stranger was arrested on suspicion, without any definite charge being brought against him. It was reported that he was a young French noble, one of Lafayette's suite. The sentry m front of the prison was ordered to watch whether the prisoner showed his face at the window of his cell, and if so, to fire at him. And when those who had been thus imprisoned were at length set free, they could get no satisfaction from the Government as to the crime with which they had been charged. But Haldimand, in one instance, mistook the man he had to deal with. A French Calvinist merchant of Montreal, named Du Calvet, is entitled to the honour of being recorded in Canadian history as the first assertor of Liberal principles in Canada. In the darkest time of tyranny, when the French majority had not an idea beyond their narrow exclusiveness of race and religion; when the English minority sought representative institutions only as a means of oppressing others, Du Calvet raised and has left on record his protest on behalf of equality for all races and creeds, for representative and responsible government, and for free public school education. This admirable citizen, of whom no mention is made in most so-called histories of Canada, was suspected by the Swiss Governor of correspondence with the Americans, on what grounds Du Calvet was never able to ascertain. He was suddenly seized by a body of soldiers, who carried him from his home in Montreal, taking also his money and papers. He was hurried to Quebec, where he was confined on board a ship of war, and afterwards n a dark and loathsome dungeon, called the "black hole," used for punishing refractory soldiers of the garrison of Quebec. He was thence removed to the Recollet Convent, which, under Haldimand's regime, had been turned into a prison for political offenders, the common jail not being large enough to accommodate the victims. He was detained there for two years and eight months, and was then liberated, but could gain no explanation as to why he was imprisoned or why he was set free. The same thing, as has been stated, had been done in the case of many others, and none of them had the courage to challenge the constitutional right of the Governor to exercise this system of irresponsible inquisition. But Du Calvet was made of sterner stuff. As soon as the prison doors closed behind him, he travelled to London, and obtaining an audience of the king's ministers, stated the wrongs he had sustained, and requested that Haldimand might be recalled in order that, being on English ground, he might be prosecuted. But those were the palmy days of Toryism, when not only the king, out his governors, could do no wrong. The ministers turned a deaf ear to Du Calvet's complaints. He appealed to another tribunal, the public. He published a volume of letters which he had scattered broadcast over England and Canada. They were terse, often eloquent, and bore the impress of truth. He detailed in simple, forcible language, the persecutions to which he had been subjected, and told how his enemy, the Swiss Governor, sought to influence the Court of Justice against him by taking his seat on the bench beside the judges. He drew a striking picture of the corrupt and despotic government of Canada, the peculations of public money, and the persistent refusal to permit the use of French law, m violation of the English Parliament's Quebec Act of 1774. Finally, he demanded for Canada constitutional government, as the basis of French law for French Canadians in civil cases; in criminal cases trial by jury; permanent tenure of office during good conduct for all judges; the Governor-General to be subject, like other citizens, to the law, an elective assembly; Canada to be represented in the English Parliament ; freedom of conscience for all sects alike; liberty of the press; and free education by parochial schools. Du Calvet's proposition for Canadian representation in the English Parliament was indeed chimerical, though less chimerical than the form in which the same notion has been revised in the recent craze called Imperial Federation. But there was something to be said for it at the time. Canada was merely a dependency of England, governed by a satrap sent out by the Home "Ministry. There were no newspapers worthy of the name; no telegraphs, no rapid transit to England, none of those thousand means by which in our days a complaint against official wrong-doing is sure to make itself heard.

Du Calvet was evidently a man far in advance of his time. His book did not produce any immediate result, but it was widely read in England, and no doubt laid the foundation of that intelligent sympathy with Canadian aspirations for self-government which manifested itself so beneficently in Pitt and Fox in that century, and in Melbourne and Lord Durham m the next. Haldimand's one service to Canada was his aiding in the settlement of the immigrants who sought a home here at the close of the American war. Of that immigration an account will be given in a subsequent chapter. A more questionable service was his granting to the Iroquois an enormous quantity of the most valuable land in Canada, six miles on either side of the Grand River, from its mouth to its source. It is true that these savages had sided with the British in the American war, but they were paid for their services, and as to their " loyalty," it seems absurd to talk of such a sentiment in the case of these unstable, shiftless tribes who were ever ready to turn against England or America, according to the changes of fortune, and whose atrocities disgraced whatever banner they fought under. Haldimand's action condemned to nearly a century's barrenness thousands of acres of the best land in Canada.

Haldimand's term of office lasted for six years. The duties of Governor were performed for a time by Lieutenant-Governor Hamilton and by Colonel Hope; but in 1785 the office was conferred on Sir Guy Carleton, now Lord Dorchester, who landed at Quebec in October, 1785. On his arrival Lord Dorchester found considerable political discontent. The Legislative Council was regarded as a mere court for registering the decrees of the executive. Allsop, who had led the opposition m behalf of the English settlers in Quebec, had been expelled from the Council. Petition after petition was now sent to the English Parliament. One, signed both by the English and French Canadian colonists, asked that the English law of habeas corpus might be introduced into Canada, m order to secure the colonists, French and English, from such arbitrary arrests as those practised by Haldimand. They also prayed, in rather vague terms, but aiming, it is to be supposed, at an elective assembly, that all Canadians, without distinction of race or creed, might enjoy the rights, privileges, and immunities of British subjects. Counter petitions were sent from the Legislative Council, who, of course, did not wish any portion of their power to be shared with an elective assembly. An address was moved and carried, praying the king to maintain intact the constitution of 1774. Mr. Grant moved an amendment in favour of an elective assembly, but he was promptly voted down. The Tory ministers of George III. naturally took sides with the colonial oligarchy. Habeas corpus they would grant; to demand trial by jury, or an elective assembly, was little better than disloyalty. In spite of this discouragement, petitions in favour of an elective assembly continued to pour in, and Lord Dorchester was directed to collect authentic information on the political and industrial state of the colony. An enquiry was therefore set on foot on such questions as the administration of justice, education, agriculture, and statistics ; to each of these, a committee was appointed by the Legislative Council. That appointed to consider the working of the e>"sting system of administering justice ascertained that the grossest abuses and irregularities prevailed. Their investigation led to results which were strengthened by those ar^ved at by the Committee on trade, the merchants examined before whom demanded the adoption in its entirety, of English law, including, in all cases, trial by jury. These merchants stated that no uniform system existed in the practice of the Canadian tribunals ; some decided according to French, some according to English law; while some pursued an independent course of their own, which they called equity.

The Committee on territorial proprietorship showed its British prepossession by giving derisions that feudal tenures should be done away with. Such tenures, it was maintained, were progressive, and hindered the settlement of the country. The seigneurs, however, made most determined opposition to any change which would curtail their hereditary rank and emoluments as a privileged class, and it was resolved that no alteration of the feudal tenures should be recommended. The report of the committee on education manifested a more progressive spirit. At that time there existed no means of supplying education outside of the priesthood and the religious orders. Even those were of the scantiest. There were absolutely no schools whatever in the country parishes. In Montreal and Quebec the seminaries still diffused a little "dim religious light." The excellent educational system of the Jesuit College at Quebec had fallen with the fall of the order. Nor did the bishop of Quebec, when applied to by the leading men of the diocese, think that the colony was advanced enough to support a university. He was examined before the committee, and he sought the restoration of the buildings of the Jesuits' College, then used as a barracks, promising to establish therein classes in civil law, mathematics, and other branches of learning, preparatory to a university being founded. As to female education, the only schools were those attached to the convents of Montreal and Quebec.

The Committee recommended elementary schools in all parishes, district schools for arithmetic, French and English grammar, and practical mathematics and land surveying; also a university to teach the sciences and liberal arts, to be governed by a board composed of leading officials and citizens. A coalition was now formed between the British settlers and those of the French who desired a representative form of government. The former disclaimed any wish to seek political preponderance for their own race. The united party were termed "Constitutionalists," and were actively opposed by the Legislative Council and its adherents, as well as by a numerous and respectable body of the French Canadians who looked on all change with apprehension, and desired only that the provisions of the Quebec Act of 1774, with regard to their own laws and language, should be carried out. Endless petitions and counter petitions were sent by both parties to the English Parliament. On the eve of the great French Revolution, there had arisen in England a -strong tendency to favour liberal opinion, as was seen in the speeches of Fox, and till the session of '93 brought about a reaction, in those of Pitt and Burke. This ensured a careful and favourable reception of the very moderate demands of the Constitutionalists. Another feeling then strong in the minds of English statesmen contributed to the same result: the desire to secure British America against the United States, to maintain it in thorough attachment to England, both as the limit to the aggrandizement of the Americans, and as a military basis, whence, in case of war, troops could be poured across their frontier. A difficulty had arisen by the sudden formation of a considerable population of English-speaking Protestants, numbering over twelve thousand, who had lately settled along the shore of Lake Ontario, and on the Bay of Quinté. It was clearly absurd to impose French law on these people, who could not understand the language. The difficulty: was solved by a new constitution, laid before the English Parliament by William Pitt, who was then Chancellor of the Exchequer, he having previously submitted a draft of it to Lord Dorchester. The main provisions of the Act of 1791 were, (1) the division of the old Province of Quebec into two new provinces, Upper and Lower Canada, with separate legislatures; (2) the concession of an elective assembly to each Province.

The debate on this important measure elicited ts warm approval by Fox, who. however, objected to the proposed division into two provinces, and wished the legislative council as well as the assembly to be elective. The illustrious Edmund Burke also spoke in favour of constitutional government for Canada. The bill was passed unanimously. It is known in our history as "The Constitutional Act of 1791." Besides providing that the old Province of Quebec be divided into the two Provinces of Upper and Lower Canada, it enacts that a legislative council and assembly be established in each province; the council to consist of not fewer than seven members in Upper Canada, not fewer than fifteen in Lower Canada, these to be chosen by the Crown. Both Provinces were to be divided into electoral districts in order to return representatives to the Legislative Assemblies; the Governor-General to define the limits of the electoral districts, and the number of representatives; in Lower Canada the number of the members to be not less than fifty, in Upper Canada not less than sixteen. All laws to receive a vote, in each case, by mere majority, of assent from both the council and the assembly, and in addition the approval of the Governor as representative of the Crown. There was also for each Province, an executive council, consisting of the Governor and eleven gentlemen nominated by the Crown.

It seems strange that the British settlers, who had been such ardent constitutionalists, were dissatisfied with the new constitution. They feared, and with some reason, that they would be swamped politically by an alien race and an intolerant religion. They looked on the new settlement on the lake shores as a band of pitiable exiles; they had not patience to wait for the gradual effect of the mighty power of English speech and Protestantism on a race that has never been a progressive one, and a church which cannot co-exist with the spread of education. Above all, they could not forecast the magnificent future of the younger and greater Canada.


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