LORD DORCHESTER AND THE CANADA ACT OF 1791
[Sidenote: Carleton’s second term as Governor of Canada.]
Sir Frederick Haldimand, who had succeeded Carleton and had
governed Canada with conspicuous ability during the later years of
the American War of Independence, left on the 15th of November,
1784. After an interval of nearly two years Carleton succeeded
him.[189] Carleton had been Commander-in-Chief at New York from
May, 1782, till November, 1783, refusing to evacuate the city until
he had provided for the safe transport of the large number of
Loyalists who wished to leave. In April, 1786, he was appointed for
the second time Governor of Canada. He was created Lord Dorchester
in the following August, and he arrived at Quebec on the 23rd
of October in the same year, being then sixty-two years of age.
He remained in Canada till August, 1791, when he took leave of
absence until September, 1793, and he finally left in July, 1796.
The whole term of his second government thus lasted for ten years.
During his first government he had been Governor of the province of
Quebec alone, but in April, 1786, he was appointed ‘Captain-General
and Governor-in-Chief’ not only of the province of Quebec--the
boundaries of that province being now modified by the terms of
the Peace of 1783--but also of Nova Scotia,[190] and of the
newly-created province of New Brunswick, receiving three separate
commissions in respect of the three separate provinces. Thus he
was, or was intended to be, in the fullest sense Governor-General
of British North America.
[Sidenote: House of Commons debate on Carleton’s pension.]
Before he went out, a debate in the House of Commons, towards
the end of June, 1786, gave evidence of the high repute in which
he was held. William Pitt, Prime Minister and Chancellor of
the Exchequer, presented a Royal Message, asking the House, in
consideration of Carleton’s public services, to enable His Majesty
to confer a pension of £1,000 per annum upon Carleton’s wife,
Lady Maria Carleton, and upon his two sons for their several
lives. The pension, it was explained, had been promised by the
King in 1776, but partly by accident and partly by Carleton’s
own wish the grant had been postponed. It was recounted by one
of the speakers that ‘when all our other colonies had revolted,
he (Carleton) by his gallantry, activity, and industry saved the
city of Quebec, and by that means the whole province of Canada’;
and when one malcontent--the only one--Courtenay by name, denied
that Carleton had rendered any services, asserting with wonderful
hardihood, that ‘Sir Guy had by no means protected Quebec. It was
the inhabitants in conjunction with Chief Justice Livius (whom
General Carleton afterwards expelled from his situation) that
protected it’, another member, Captain Luttrell, rejoined that ‘In
the most brilliant war we ever sustained, he was foremost in the
most hard earned victories, and in the most disgraceful contest
in which we ever were engaged, he alone of all our generals was
unconquered’. But the most delightful tribute to Carleton was paid
by Burgoyne, when the resolution had been agreed to and was being
reported. Referring to the help which Carleton had given him
in his fateful expedition, he said ‘Had Sir Guy been personally
employed in that important command, he could not have fitted it out
with more assiduity, more liberality, more zeal, than disappointed,
displeased, and resentful against the King’s servants, he employed
to prepare it for a junior officer’. Burgoyne then went on to
testify to the uprightness of Carleton’s administration, ‘the
purity of hand and heart with which he had always administered
the expenditure of the public purse.’ The pension was sanctioned
unanimously, to date from the 1st of January, 1785.[191]
[Sidenote: Population of Canada in 1784.]
[Sidenote: The first canals in Canada.]
In 1784, before the full tale of Loyalist immigration was yet
complete, Canada, including the three districts of Quebec, Three
Rivers, and Montreal, had a population of 113,000,[192] the towns
of Quebec and Montreal containing in either case between 6,000
and 7,000 residents. This was really the population of what was
afterwards the province of Lower Canada, exclusive of Ontario and
the Maritime Provinces which were the main scenes of Loyalist
settlement. The overwhelming majority of the population in the
province of Quebec, as Canada, other than the Maritime Provinces,
was styled prior to the Act of 1791, consisted of French Canadians,
and the citizens of British birth were still comparatively few in
number: but, as has been seen, the incoming of British citizens
was actively in process under Haldimand’s administration; and
during the same administration a beginning was made of the canals
which have played so great a part in the history of Eastern
Canada. Between the years 1779 and 1783, mainly for military
reasons, Royal Engineers under Haldimand’s directions constructed
canals with locks round the rapids between Lake St. Francis and
Lake St. Louis above Montreal, and in 1785 proposals were first
made--though not at the time carried into effect--for a canal to
rectify the break in navigation on the Richelieu river, caused by
the rapids between St. John’s and Chambly, and so to give unimpeded
water-communication between Lake Champlain and the St. Lawrence.
This latter project was of great importance to Vermont, which had
not yet been admitted as a state to the American Union.
Thus Dorchester came back to the land of the St. Lawrence and the
great lakes amid indications of a new era with wider developments
and corresponding difficulties. He came back as the man who had
saved Canada in war, had given to the French Canadians the Quebec
Act, and had stood firm at New York for protection of the Loyalists.
[Sidenote: The political situation in 1786.]
It was not an easy time for any man, however popular, who was
responsible for the security and the welfare of Canada. British
garrisons still held the frontier posts which, by the Treaty of
1783, Great Britain was bound to hand over to the United States,
viz., Detroit, Michillimackinac, Erie or Presque Isle, Niagara,
Oswego, Oswegatchie, and, on Lake Champlain, Point au Fer and
Dutchman’s Point. The Indians were at open war with the Americans
down to the year 1794, claiming as their own the lands to the north
of the Ohio; and they were embittered against the English, because
no provision had been made in the treaty to safeguard their rights,
their homes and their hunting grounds. The Americans in their turn
were irritated by the withholding of the forts, and suspected the
English of instigating Indian hostilities and encouraging Indian
claims. Meanwhile the internal affairs of Canada were rapidly
growing more complicated, and the constitutional question pressed
for solution.
[Sidenote: Lord Dorchester on the Quebec Act.]
Writing on the 13th of June, 1787, to Thomas Townshend, Lord
Sydney, who was then Secretary of State,[193] Lord Dorchester
pointed out that the Quebec Act had been introduced at a time when
nothing could be thought of in Canada but self-defence. It came
into force at the outbreak of the war, and the first Council held
under its provisions was overshadowed by American invasion.[194]
The Act, therefore, owing to circumstances, had never really been
given a fair trial; yet it may be questioned whether the very
great difficulty of adjusting conflicting interests in Canada,
of bringing the old and the new into harmony, and of devising a
system of government, which would ensure comparative contentment
at the time and give facilities for future development, was really
increased by the fact that wars and threats and rumours of wars
clouded the first half century of the history of Canada as a
British possession. The evil of distracting attention from internal
problems, of interrupting and foreshortening political and social
reforms was counterbalanced by the wholesome influence of common
danger. As the removal of that influence had led to the severance
of the old North American colonies from Great Britain, so the
actual or possible hostility of the United States made the task of
holding Canada together easier than it would otherwise have been,
and, by preventing constitutional questions from absorbing the
whole energies of the government and the public, tended to produce
slow and gradual changes in lieu of reforms so complete as possibly
to amount to revolution.
[Sidenote: Petition for a free constitution.]
[Sidenote: Counter petition from French Canadian seigniors.]
[Sidenote: Petition from disbanded Loyalist soldiers for a separate
province.]
On the 24th of November, 1784, immediately after Haldimand’s
departure, a petition for a free constitution was addressed to
the King by his ‘ancient and new subjects, inhabitants of the
province of Quebec’. The petitioners asked, among other points,
for a House of Representatives or Assembly, with power to impose
taxes to cover the expense of civil government; for a Council of
not less than 30 members, without whose advice no officer should
be suspended and no new office be created by the governor; for a
continuance of the criminal law of England, and of the ancient
laws of the country as to landed estates, marriage settlements
and inheritances; for the introduction of the commercial laws
of England; and for the embodiment in the constitution of the
Habeas Corpus Act. It will be remembered that an ordinance had
lately been passed by the Legislative Council, on the 29th of
April, 1784, ‘For securing the liberty of the subject and for the
prevention of imprisonments out of this province,’[195] but the
petitioners wished to have the right of Habeas Corpus laid down as
a fundamental rule of the constitution. The petition purported to
be from the ‘New Subjects’, i. e. the French Canadians, as well
as from those of British extraction; but among the signatories
hardly any French Canadian names appeared, and a counter petition
was signed by French Canadian seigniors and others, deprecating
the proposed change in the system of government. ‘This plan’, they
wrote, ‘is so much more questionable, as it appears to us to aim at
innovations entirely opposed to the rights of the King and of his
Government and to detach the people from the submission they have
always shown to their Sovereign.’ In April, 1785, a petition was
presented in London by Sir John Johnson on behalf of the disbanded
soldiers and other Loyalists settled above Montreal, asking for the
creation of a new district separate from the province of Quebec,
whose capital should be Cataraqui, now Kingston, and that ‘the
blessings of the British laws and of the British Government, and
an exemption from the (French) tenures, may be extended to the
aforesaid settlements’.[196]
[Sidenote: Debate on Mr. Powys’ Bill in the House of Commons April,
1786.]
On the 28th of April, 1786, Mr. Powys, a private member of the
House of Commons called attention in the House to the petition of
1784;[197] and, in view of the fact that two years had passed since
it was presented, and that the Government had taken no action upon
it, he moved for permission to bring in a Bill to amend the Quebec
Act and ‘for the better securing the liberties of His Majesty’s
subjects in the province of Quebec in North America’. The object of
the Bill, which had been drafted in the previous year, was to limit
the power of the governor, for the mover complained that the Quebec
Act had ‘established as complete a system of despotism as ever was
instituted’, and stated that the aim of his measure was ‘to give
the inhabitants of the province of Quebec a system of government in
the particulars he had mentioned, founded on known and definitive
law. At present the government of that province rested altogether
on unfixed laws, and was a state of despotism and slavery’. The
Bill purported to give to the Canadians in the fullest measure the
right of Habeas Corpus, except in case of rebellion or of foreign
invasion, when it might be suspended, but only for three months
at a time, and only by ordinance of the Legislative Council; to
give trial by jury in civil cases at the option of either of the
parties; to take from the governor the power of committing to
prison by his own warrant, and of suspending judges and members
of the Legislative Council; while the last clause increased the
numbers of the council. It was supported by Fox, who took the
opportunity to denounce the Quebec Act ‘as a Bill founded upon a
system of despotism’, and by Sheridan; but the majority in a very
thin House rejected it, agreeing with Pitt that, in view of the
contradictory petitions which came from Canada, it would be well to
wait until Carleton went out and reported upon the feeling of the
country.
Petitions continued to come in. In June, 1787, Lord Dorchester
wrote to Lord Sydney that with the increase of the English
population the desire for an Assembly would increase, but that he
himself was at a loss for a plan, and that a more pressing matter
was a change in the tenure of land. In the following September
Lord Sydney replied, in somewhat similar terms, that there was no
present intention to alter the constitution, but that the King
would be advised to make a change in the system of land tenure.
[Sidenote: Adam Lymburner heard before the House of Commons.]
[Sidenote: Fox and Burke on the Quebec Act.]
In 1788 Adam Lymburner, a merchant of good position in Quebec, was
sent as a delegate to London, to represent the views of the British
minority in the province; and on Friday, the 16th of May, 1788, he
was heard at the bar of the House of Commons, in support of the
petitions which had been presented. He called attention mainly to
the confused state of the law in Canada, and to the defects and
anomalies in the administration of justice. A debate followed on a
motion by Mr. Powys[198] to the effect that the petitions deserved
the immediate and serious consideration of Parliament. The mover
once more attacked the Quebec Act of 1774, characterizing it ‘as
a rash and fatal’ measure and, when challenged to state what
he considered to be the points of greatest urgency, specified
‘the rendering the writ of Habeas Corpus a matter of right, the
granting independence to the judges, the lessening of the servility
and dependence of the superior officers of justice, and the
establishing a House of Assembly’. Fox, Sheridan and Burke spoke as
usual against the Government, denouncing Pitt for pleading that,
in view of the divergent views held in Canada, the Government
should be given more time to obtain further information from Lord
Dorchester. The whole of Lord Dorchester’s evidence on the Quebec
Bill, said Fox, who professed great respect for Lord Dorchester
himself, ‘contained opinions wholly foreign to the spirit and
uncongenial with the nature of the English constitution. Lord
Dorchester, therefore, was the last man living whose opinion he
would wish to receive upon the subject.’ Burke spoke of the Quebec
Act as ‘a measure dealt out by this country in its anger under
the impulse of a passion that ill-suited the purposes of wise
legislation’.
It was true that two years had passed since the previous discussion
on the subject in the House of Commons, and that nothing had been
done in the meantime; but the hollowness of the debate was shown
by the stress laid by the Opposition speakers on the subject
of Habeas Corpus. The recently passed ordinance had given to
Canadians the right of Habeas Corpus, but it was argued that the
grant was temporary only and that the Crown which had given the
right and confirmed the ordinance might take it away, whereas no
time should be lost in providing that Canadians, like all other
British subjects, should enjoy it ‘as a matter of right and not as
a grant at the will of the Crown’. There was little evidence among
the speakers that they either knew or cared for the wishes of the
great majority of Canadians, those of French descent: no suspicion
seems to have entered into their minds that institutions which
suited Englishmen might not be the best in the world for men who
were not of English birth: it was assumed that clever speakers in
the House of Commons were better judges of the requirements of a
distant British possession than the man on the spot with unrivalled
knowledge of local conditions. The debate well illustrated the
prejudice and half knowledge with which partisan legislators
in England approach colonial problems, and it afforded a good
explanation of the grounds on which the common sense of England let
the brilliant debaters talk harmlessly in opposition and entrusted
the real work of the country to William Pitt. It ended in a motion,
agreed to by the Prime Minister, that the House would take the
subject into their earnest consideration early next session.
[Sidenote: Lord Dorchester’s views opposed to division of the
province.]
[Sidenote: Outline of the Canada Act.]
Following on the debate, Sydney wrote to Dorchester on the 3rd
of September, asking for the fullest possible information before
the next discussion should take place, and intimating that a
division of the province was contemplated. On the 8th of November
in the same year, Lord Dorchester replied, giving his views on
the political situation. In the districts of Quebec and Montreal,
exclusive of the towns, he estimated the proportion of British
residents to French Canadians as one to forty; including the
towns, as one to fifteen; and including the Loyalist settlements
above Montreal, as one to five. The demand for an Assembly, he
considered, came from the commercial classes, that is to say, from
the towns where the British were most numerous: the seigniors and
country gentlemen were opposed to it, the clergy were neutral,
the uneducated habitants would be led by others. His own opinion
was that a division of the province was at present unadvisable;
but, should a division be decided upon, there was no reason why
the western districts should not have an Assembly and so much of
the English system of laws as suited their local circumstances,
care being taken to secure the property and civil rights of the
French Canadian settlers in the neighbourhood of Detroit, who
had increased in numbers owing to the fur trade. A year later,
on the 20th of October, 1789, he was informed by Grenville, who
had succeeded Sydney as Secretary of State, that the Government
had decided to alter the constitution of Canada and to divide the
province of Quebec, a draft of the Bill which was to be introduced
into Parliament for the purpose being enclosed for an expression
of the governor’s views, with blank spaces to be filled up on
receiving from him information as to certain points of detail.
[Sidenote: Difficulties of the situation.]
Curiously complex were the conditions which the Bill was intended
to meet. Assuming that the population of Canada had been
homogeneous and of British descent, and assuming that Canada
had been a single, well-defined colony, so that no question
of subdivision could arise, it would still have remained a
most difficult problem to decide within what limits political
representation should be given and how far it should involve
responsibility and real self-government. The British demand in
Canada was for institutions to which Englishmen had always been
accustomed, and which the old North American colonies of Great
Britain had enjoyed. The petition of November, 1784, showed that
the demand included right of taxation and a certain control over
the Executive. This last point seems subsequently not to have been
pressed, though it involved the essence of self-government, had
been prominent in the disputes between the old colonies and the
mother country, and had been emphasized in Canada by the fact that
on the one hand the Home Government had conspicuously misused its
patronage in making appointments in Canada, and that on the other,
two strong governors, Carleton and Haldimand, in time of war and
in face of disloyalty, had not hesitated so to put forth their
strength as to incur the charge of being arbitrary.
But the population of Canada was not homogeneous, and the colony
was obviously not one and indivisible. Even among the English
residents there was diversity of interest. Those who lived in
the districts of Quebec and Montreal, and for whom Lymburner
spoke, were opposed to a division of the province, because the
main body of subjects of English birth was to be found in the new
settlements in Upper Canada. These newcomers, on the contrary, had
much to gain by being severed from French Canada and incorporated
into a separate colony. The British minority again in the old
province contended that half the number of the representatives
to be elected should be assigned to the towns where the number
and the influence of the English residents was greatest, Quebec
and Montreal containing at the time one Englishman to every two
Canadians; thus town and country interests were pitted against
each other. Meanwhile the overwhelming majority of the population,
the French Canadians, set little store by the representative
institutions which the English desired to enjoy. They had never
known them and therefore never valued them, and they had reason to
fear that any change might tend to give more power to the English
minority accustomed to a political machinery which was novel to
themselves. The habitants thought only whether their taxes would be
increased, and whether new laws and customs would be substituted
for those which they understood; the seigniors dreaded losing
their feudal rights; the priests their privileges and authority.
There was a very strong element of conservatism in French Canada
running counter to the demand for political reform, and even in
Upper Canada, in the district over against Detroit, and at some
other points, there was a small minority of French settlers whose
interests, as Dorchester had pointed out, could not be overlooked.
[Sidenote: The question of land tenure.]
Almost as important and fully as pressing as the question of
political representation was that of land tenure. Was the land
system of the future, especially in Upper Canada, to be the
cumbrous feudal tenure which Louis XIV had imported from the Old
to the New World? or was it to be assimilated to the land laws
of England? Were other laws too, and was the legal procedure,
especially in commercial matters, to be on French or English lines?
Partly through confusion as to what was the law of the land, and
partly because such judicial appointments as that of Livius were
not calculated to inspire respect for the personnel of the judges,
the administration of justice in Canada at this time had been hotly
assailed, and a long local inquiry into the subject began in 1787,
but seems to have produced little or no result in consequence of
the passing of the Canada Act.
When there were so many difficulties to be faced and met, it was
fortunate that the thorny questions of language and religion were
not added to the number. The religious question had been settled
by the Quebec Act, and all that was required was to make definite
provision for the Protestant clergy, while not interfering with the
rights which had been confirmed to the Roman Catholic priesthood.
As to language, for good or for evil, no attempt seems to have
been made by the Imperial Government to substitute English for
French; the oaths prescribed by the terms of the 1791 Act were to
be administered either in English or in French as the case might
require, and the first elected Assembly of Lower Canada agreed not
to give to either tongue preference over the other.[199]
[Sidenote: Grenville’s dispatch and letter.]
[Sidenote: Arguments for a division into two provinces]
[Sidenote: based upon the grant of representative institutions.]
The terms of Grenville’s dispatch to Dorchester of the 20th
October, 1789, in which he enclosed the draft of the proposed
Act, and of the Private and Secret letter which he wrote at the
same time, are interesting as showing the grounds on which Pitt’s
Government had come to the decision to divide Canada into two
provinces and to give popular institutions in either case.[200]
Grenville wrote that the general object of the plan adopted by
the Government was to assimilate the constitution of the province
of Quebec 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 trying to effect this
object it was necessary to pay attention to the ‘prejudices and
habits of the French inhabitants’, and most carefully to safeguard
the civil and religious rights which had been secured to them
at or subsequently to the capitulation of the province. This
consideration had largely influenced the Government in favour of
dividing the province into two districts, still to remain under
the administration of a Governor-General, but each to have a
Lieutenant-Governor and separate Legislature. The Government,
Grenville continued, had not overlooked the reasons urged by Lord
Dorchester against a division of the province, and they felt that
great weight would have been due to his suggestions, had it been
intended to continue the existing form of administration and not
to introduce representative institutions; but, the decision having
been taken to establish a provincial legislature to be chosen
in part by the people, ‘every consideration of policy seemed to
render it desirable that the great preponderance possessed in the
upper districts by the King’s ancient subjects, and in the lower
by the French Canadians, should have their effect and operation
in separate legislatures, rather than that these two bodies of
people should be blended together in the first formation of the
new constitution, and before sufficient time has been allowed
for the removal of ancient prejudices by the habit of obedience
to the same government and by the sense of a common interest’.
Grenville’s private letter, which supplemented the public dispatch,
showed that a lesson had been learnt from the late war with the
American colonies. ‘I am persuaded,’ he wrote, ‘that it is a point
of true policy to make these concessions at a time when they may
be received as a matter of favour, and when it is in our own power
to regulate and direct the manner of applying them, rather than to
wait till they shall be extorted from us by a necessity which shall
neither leave us any discretion in the form nor any merit in the
substance of what we give.’[201] The last paragraph of the letter
gave another reason for making the proposed changes without further
delay, and that was that ‘the state of France is such as gives
us little to fear from that quarter in the present moment. The
opportunity is therefore most favourable for the adoption of such
measures as may tend to consolidate our strength, and increase our
resources, so as to enable ourselves to meet any efforts that the
most favourable event of the present troubles can ever enable her
to make’. The letter was written after the taking of the Bastille
and the outbreak of the French Revolution, when Lafayette was in
demand at home and not likely to make further excursions into
American politics; but the words implied that France was still in
the eyes of British statesmen the main source of danger to Great
Britain, especially in connexion with Canada, and that the grant
of representative institutions to British and French colonists
in Canada was likely to strengthen the hands of Great Britain as
against her most formidable rival.
[Sidenote: Policy of the British Government determined by the
results of the War of American Independence.]
[Sidenote: Proposed safeguards to the grant of popular
institutions.]
[Sidenote: Suggestion to give titles to members of the Upper
Chamber.]
[Sidenote: Lord Dorchester opposed to the suggestion.]
The correspondence shows clearly that the outcome of the War of
American Independence had inclined the British Government to give
popular representation to the remaining British possessions in
North America. On the other hand there are passages in it which
should be noted, indicating that ministers were anxious at the same
time to introduce certain safeguards against democracy, which
had been wanting in the old North American colonies. Grenville’s
dispatch stated that it was intended to appoint the members of
the Upper Chamber, the Legislative Council, for life and during
good behaviour, provided that they resided in the province. It
also stated that it was the King’s intention to confer upon those
whom he nominated to the Council ‘some mark of honour, such as a
Provincial Baronetage, either personal to themselves or descendible
to their eldest sons in lineal succession’, adding that, if there
was in after years a great growth of wealth in Canada, it might be
possible at some future date to ‘raise the most considerable of
these persons to a higher degree of honour’. The object of these
regulations, he wrote, ‘is both to give to the Upper Branch of the
Legislature a greater degree of weight and consequence than was
possessed by the Councils in the old colonial governments, and to
establish in the provinces a body of men having that motive of
attachment to the existing form of government which arises from the
possession of personal or hereditary distinction.’ In writing as
above, Grenville did not state in so many words that the Government
contemplated making appointment to the Legislative council
hereditary in certain cases, but merely that it was proposed to
give some title to certain members of the Council, which title
might be made hereditary; nor was any clause dealing with the
subject included in the draft of the Bill which was sent to Lord
Dorchester. The latter, however, rightly understood that what Pitt
and his colleagues had in their minds was to give to each of the
two provinces, into which Canada was to be divided, an Upper House
which might develop into a House of Lords; and his answer was that,
while many advantages might result from a hereditary Legislative
Council distinguished by some mark of honour, if the condition of
the country was such as to support the dignity, ‘the fluctuating
state of property in these provinces would expose all hereditary
honours to fall into disregard.’ He recommended, therefore,
that for the time being the members of the Council should merely
be appointed during life, good behaviour, and residence in the
province.
[Sidenote: Permissive clauses embodied in the Bill.]
When the Bill was introduced into Parliament, the provisions
dealing with this subject were chiefly attacked by Fox, who
expressed himself in favour of an elected council, though with a
higher property qualification than would be required in the case
of the Lower House or Assembly. The clauses were carried in a
permissive form, empowering the King, whenever he thought fit to
confer upon a British subject by Letters Patent under the Great
Seal of either of the provinces a hereditary title of honour, to
attach to the title at his discretion a hereditary right to be
summoned to the Legislative Council, such right to be forfeited
by the holder for various causes including continual absence from
the province, but to be revived in favour of the heirs. Nothing
came of this attempt to create a hereditary second chamber in the
two provinces of Upper and Lower Canada: no such aristocracy was
brought into being as when the French King and his ministers built
up the French Canadian community on a basis analogous to the old
feudal system of France; but, nevertheless, Pitt’s proposals cannot
be condemned as fantastic or unreal. They were honestly designed to
meet a defect which had already been felt in the British colonies,
and which must always be felt in new countries, the lack of a
conservative element in the Legislature and in the people, the
absence of dignity and continuity with the past, and the want of
some balance against raw and undiluted democracy which has not, as
in older lands, been trained to recognize that the body politic
consists of more than numbers.
[Sidenote: The Executive Council.]
The original draft of the Bill contained no provision for the
appointment of an Executive Council distinct from the two houses
of the Legislature. A clause to that effect was inserted by Lord
Dorchester in the amended draft which he sent back, but it did not
appear in the Act in its final form; though there is a reference
in the Act to ‘such Executive Council as shall be appointed by
His Majesty for the affairs’ of either province; and one section
appointed the governor and Executive Council in each province a
court of civil appeal. In his covering dispatch Grenville asked
Lord Dorchester to state the number and names of the persons whom
he might think proper to recommend to the King for seats on the
Executive Council, and added that it was not intended to exclude
members of the Legislative Council from the Executive Council, nor
on the other hand to select the Executive Councillors exclusively
from the Legislative Council. Grenville went on to suggest that it
might be well that some persons should be members of the Executive
Council in both of the two districts or provinces. The net result
was that the Executive was still to remain wholly independent
of the Legislature, or at any rate of the popular house in the
Legislature, and therefore the main element of self-government was
to be withheld. It was left for Lord Durham, after long years of
friction between the Executive and the Legislature, to emphasize
the necessity of giving to the popular representatives the control
of the Executive, making them thereby responsible for the good
government of the people whom they represented.
[Sidenote: Crown Lands’ funds.]
In his secret letter to Dorchester, Grenville referred to ‘the
possibility of making such reservations of land adjacent to all
future grants as may secure to the Crown a certain and improving
revenue--a measure which, if it had been adopted when the old
colonies were first settled, would have retained them to this hour
in obedience and loyalty’. Crown land funds are not yet wholly
extinct in the British colonies. For instance, in the Bahamas,
side by side with the revenue voted by the local Legislature,
there is a small fund independent of the Legislature and at the
disposal of the Crown alone; but the revenue derived from the fund
is not sufficient to pay the salaries of the Executive officers,
even if it were thought desirable to apply the money to such a
purpose. Barbados, with its time-honoured constitution, to which
Barbadians are passionately attached, is a good instance of a
colony possessing representative institutions but not responsible
government. Here there are no Crown funds, and the salaries of
the public officers, from the governor downwards, are voted
by the elected representatives, though the higher Executive
appointments, with some exceptions, are in the gift and under the
control not of the Legislature but of the Crown. In this and in
other instances, where local conditions, including the fact of
an overwhelming preponderance of coloured men over white, have
made for a compromise, a system, illogical in theory and unsound
in practice, has, by mutual forbearance, continued to work,
though not always without friction. But on any large scale, and
especially where the majority of the residents in a colony are of
European birth, the position is impossible and can only be defended
as a temporary expedient. Yet, in spite of the War of American
Independence and the lessons which it taught, the world was not in
the days of Pitt old enough for the British ministry to contemplate
colonial self-government in its full expression. Nor, in truth,
were the conditions of Canada sufficiently advanced to have made
the introduction of responsible government either practicable
or desirable. Hence Grenville cast about for an expedient which
might reduce the probability of a conflict between the Executive
and the Legislature, and sought for it in the establishment of a
fund which would belong to the Crown alone and be expended by the
Crown in paying its officers. If his policy had been consistently
carried out, and an adequate revenue, not derived from taxation,
been secured to the Crown, the result would have been greatly to
strengthen the independence of the Executive by making the salaries
of the officers independent of the vote of the Assembly. In the
end the bitterness of the struggle for popular control might have
been thereby increased, but in the meantime the petty squabble
year by year over voting supplies, and the mean withholding of pay
from this or that officer, because he happened to be unpopular at
the moment, might have disappeared. The constitutional troubles
which subsequently became so acute in Lower Canada, connected more
especially with the attempt to obtain a Civil List, were due to
the fact that the revenues of the Crown were not sufficient to
cover the expenses of the public service without the aid of votes
from the popular Assembly. It was this constant friction which had
preluded the War of Independence, and this it was which Grenville
hoped to avoid by establishing an adequate fund in the colony at
the disposal of the Crown alone.
[Sidenote: Chief Justice Smith.]
[Sidenote: His proposals for a general Legislature for the British
North American Provinces.]
But a wider and more statesmanlike safeguard against the evils
of colonial democracy in the eighteenth century was proposed
in connexion with this Canada Act, though not by the Imperial
Government. The post of Chief Justice of Canada, which Livius had
held, was now after a long interregnum filled by the appointment of
William Smith, who had been born in the state of New York, had been
Chief Justice of that state, and, coming to England with Dorchester
after the Peace of 1783, had been appointed to succeed Livius
and had accompanied the Governor-General out to Canada. Invited
by Dorchester to give his views upon the draft of the Bill which
Grenville had sent out, he embodied them in a remarkable letter
which was forwarded to the Home Government. The Bill, he thought,
greatly improved ‘the old mould of our colonial governments, for
even those called the Royal provinces, to distinguish them from
the proprietary and chartered republics of the Stuart kings, had
essential faults and the same general tendency’; but he missed
in it ‘the expected establishment to put what remains to Great
Britain of her ancient dominions in North America under one
general direction, for the united interests and safety of every
branch of the Empire’. It was when the old North American colonies
became prosperous that the evils inherent in their system produced
their full effect, and he dreaded lest the prosperity which he
predicted for the two provinces of Canada might again in time work
ruin, unless what he considered to be the one main safeguard were
provided from the beginning of constitutional government. ‘Native
as I am of one of the old provinces,’ he wrote, ‘and early in the
public service and councils, I trace the late revolt and rent to a
remoter cause than those to which it is ordinarily ascribed. The
truth is that the country had outgrown its government, and wanted
the true remedy for more than half a century before the rupture
commenced.... To expect wisdom and moderation from near a score
of petty parliaments, consisting in effect of only one of the
three necessary branches of a parliament, must, after the light
brought by experience, appear to have been a very extravagant
expectation.... An American Assembly, quiet in the weakness of
their infancy, could not but discover in their elevation to
prosperity, that themselves were the substance, and the governor
and Board of Council were shadows in their political frame. All
America was thus, at the very outset of the plantations, abandoned
to democracy. And it belonged to the administrations of the days
of our fathers to have found the cure, in the erection of a power
upon the continent itself, to control all its own little republics,
and create a partner in the legislation of the Empire, capable of
consulting their own safety and the common welfare.’
Such a power the Chief Justice outlined in ‘Proposed Additions to
the New Canada Bill for a General Government’, which he enclosed
in this noteworthy letter, prefacing them as clauses ‘to provide
still more effectually for the government, safety, and prosperity
of all His Majesty’s dominions in North America, and firmly to
unite the several branches of the Empire’. Provision was made in
them for a Legislative Council and General Assembly, which, with
the Governor-General, were to legislate for all or any of ‘His
Majesty’s dominions and the provinces whereof the same do now or
may hereafter consist in the parts of America to the southward
of Hudson’s Bay and in those seas to the Northward of the Bermuda
or Somers Islands’. So many Legislative Councillors were to be
appointed for each province by the Crown for life, subject to the
conditions attached to membership of the Legislative Council in
either of the two Canadas by the proposed Act; while the members
of the General Assembly were to be elected by the provincial
Assemblies. The Crown might appoint an Executive Council, and was
to be confirmed in full Executive authority over all and any of the
provinces, while the acts of the General Legislature were to be
subject to disallowance by the Crown, ‘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’.
[Sidenote: Chief Justice Smith’s views supported by Lord
Dorchester.]
Lord Dorchester forwarded these proposals with a few words
indicating that he was in general sympathy with the views of the
Chief Justice. He wrote of the scheme of a general government for
British North America as one ‘whereby the united exertions of His
Majesty’s North American provinces may more effectually be directed
to the general interest and to the preservation of the unity of
the Empire’. They were the proposals of a trained lawyer, of an
American colonist of standing and position who had thrown in his
lot with the mother country as against the revolting colonies,
and who stated in the letter from which passages have been quoted
above, that for more than twenty years, that is to say through all
or nearly all the years of strife with the colonies, he had held
the same view as to the radical defect in the relations between
Great Britain and her colonies and the remedy which might have been
applied at an earlier date. How far, we may ask, did Chief Justice
Smith truly diagnose the disease, if disease it was, that had
proved fatal to the old British Empire in North America? How far
did he indicate what, if the disease had been taken in time, would
or might have been an adequate remedy? and how far did he outline
the Canadian Dominion of later days and anticipate views which are
widely held at the present time as to the future of the British
Empire?
[Illustration:
_to face page 257_
=THE TWO CANADAS=
under Constitutional Act of =1791=
and
=THE MARITIME PROVINCES=
From a map of 1823, in the Colonial Office Library
B. V. Barbishire, Oxford, 1908.
]
[Sidenote: Democracy in America was coeval with its colonization.]
[Sidenote: It should have been controlled from within, not from
without.]
It has been attempted to show in a previous chapter that the spirit
of independence in the American colonies, which in the end was
embodied in political severance from Great Britain, was as old as
their origin, and drew its strength from the fact that they had
always been practically independent. This was the starting-point of
the Chief Justice’s argument. ‘All America,’ in his words, ‘was, at
the very outset of the plantations, abandoned to democracy’, and
the separate colonies which at the time when he wrote, had been
federated into the United States, were ‘little Republics’. Those
little Republics, according to the ordinary colonial contention,
the mother country had neglected in the weakness of their infancy,
while she had tried to oppress them when they became prosperous and
valuable. Chief Justice Smith read history differently. According
to his view they were quiet until they had grown to strength, and
then they discovered that the ultimate power of government rested
with themselves and not with the mother country. The remedy, he
thought, should have been found not so much by giving greater power
to the Imperial Government as by establishing in America itself
an authority controlling the separate Assemblies of the separate
states, which body would have been a ‘Partner in the legislation of
the Empire’.
[Sidenote: The grounds on which Chief Justice Smith advocated a
General Legislature for British North America.]
It was no new conception that the states should have been in
some sense federated while still under the British flag. Various
governors, and men like Franklin, had proposed or contemplated some
such measure, in order to correct the weakness of the separate
provinces as against the common foe in Canada, while Canada
belonged to France, and in order to minimize the difficulties which
the Imperial Government found in dealing with a number of separate
legislatures at least as jealous of each other as they were of the
Home Government. But the Chief Justice’s retrospect was based on
somewhat different grounds. He would have had a federal legislature
in order to control the provincial legislatures. He would have
corrected democracy in America by, in a sense, carrying democracy
further. He would have nothing of the maxim _divide et impera_;
but, as democracy was born on American soil, on American soil
he would have constituted a popular authority wider, wiser, and
stronger than the bodies which represented the single provinces.
It was a very statesmanlike view. He saw that one leading cause
of the rupture between Great Britain and her colonies had been
the pettiness of the American democracies, the narrowness of
provincial politics, the intensity of democratic feeling cooped up
in the small area of a single colony as in a single Greek city,
the personal bitterness thereby produced in local politicians,
and the obvious semblance of oppression when a great country like
England was dealing with one small state and another, not with a
larger federated whole. A federal legislature would have exercised
home-grown American control over the American Assemblies; it
would have given a wider and fuller scope to American democracy,
enlarging the views, making the individual leaders greater and
wider in mind; it would have been the body with which England would
have dealt; and the dealings would have been those of ‘Partners
in the legislation of the Empire’. This was in his mind when he
earnestly recommended that the grant of constitutional privileges
to the Canadian provinces should be from the first accompanied by
the creation of a general government for British North America,
including the maritime provinces as well as Upper and Lower Canada.
[Sidenote: The General Legislature contemplated by Chief Justice
Smith would have been a subordinate Legislature.]
[Sidenote: The Chief Justice did not contemplate colonial
self-government in its fullest form.]
But, if this general government was to be a partner in the
legislation of the Empire, it was clearly to be, in the view
of the Chief Justice, a subordinate partner. The last of his
proposed additions to the Bill began in the following terms:
‘Be it further enacted ... 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.’ In other words he re-affirmed the
principle, which the old colonies had rejected, that they were
subordinated to the Parliament of the mother country as well as
to the Crown; and he showed clearly in the clause empowering the
Crown to appoint Executive Councils apart from the Legislature,
that the Executive power was to rest not in British North America
but in Great Britain. The general government of British North
America was to be a partner in the legislation of the Empire, but
not in the Executive, and even in the legislative sphere it was
to take a second place. Theoretically, and to some small extent
practically also, the Dominion Parliament is still a subordinate
partner in legislation, so far as Imperial questions are concerned;
but, since the days of Lord Durham, colonial self-government has
included control of the Executive in the colony. Chief Justice
Smith had therefore not contemplated or foreshadowed the colonial
self-government of the future.
But that he had not done so was not due to want of statesmanship.
He was rather still intent on seeking after a solution of the
problem which later thinkers and statesmen held to be insoluble.
The grant of responsible government in after times was not so
much an act of constructive wisdom as a wise recognition of what
was at the time impossible. To give to the colonial legislatures
the control of the Executive was to remove them practically from
the control of the mother country, and thereby to concede to
these communities the full right of self-government. The first
corrective of this grant was on similar lines to those which Chief
Justice Smith prescribed, viz., to federate the self-governing
communities in a given area, to place their separate legislatures
under a general legislature, and, as the legislatures controlled
the Executive, to limit the provincial executive authorities by
a general executive authority, the control being exercised from
within not from without, and small democracies being rectified by
creating from among themselves a larger and a stronger democratic
body. It still remains for the wisdom of the coming time to carry
the constructive work further; if human ingenuity can devise a
practical scheme, again to extend the principle of democratic
representation and control; and to constitute a body which, with
the Crown, shall, alike in legislation and in the sphere of the
Executive, make the great self-governing provinces in the fullest
sense partners in the Empire. In short, the point which it is here
wished to emphasize is that whereas self-government was conceded
not as a solution of the problem but as a final recognition that
the problem was insoluble, men have come to realize that after all
what was intended to be final was only a necessary preliminary to
the possible attainment of an object, which had been relegated to
the land of dreams and speculations.
[Sidenote: The Act of 1791.]
The views of the Chief Justice were not embodied in the law which
was eventually passed in 1791. Pitt had pledged himself to deal
with the Canadian question in the session of 1790, but in that
year Great Britain was on the brink of war with Spain, owing to
the seizure by the Spaniards in 1789 of British trading vessels in
Nootka Sound, an inlet of what is now known as Vancouver Island.
The matter was adjusted by the Nootka Sound Convention of 28th
October, 1790, after which Vancouver began his voyages of survey
and discovery along the Pacific Coast of North America; and, the
hands of the British Government being free, a Royal Message to the
House of Commons, dated the 25th of January, 1791, announced that
it was the King’s intention to divide the province of Quebec into
two provinces to be called Upper and Lower Canada, whenever His
Majesty was enabled by Act of Parliament to make the necessary
regulations for the government of the said provinces. The message
further recommended that a permanent appropriation of lands should
be made in the provinces for the support of a Protestant clergy.
[Sidenote: Proceedings in Parliament.]
On the 4th of March Pitt introduced the Bill. On the 23rd of
March Lymburner was heard at the bar of the House on behalf of
its opponents. He took objections, among other points, to the
division of the province, to the creation of hereditary Legislative
Councillors, to the small number of members who were to constitute
the Assemblies, and to making the Assemblies septennial instead
of triennial. The passage of the Bill through Committee in the
House of Commons was chiefly remarkable for the historic quarrel
between Burke and Fox on the subject of the French Revolution
which was dragged into the debate. There was no real opposition
to the measure, though Fox opposed the division of the province,
the hereditary councillors, the small numbers assigned to the
Assemblies, and the large provision made for the Protestant clergy.
The duration of the Assemblies was reduced from seven years to
four, and the number of members in the Assembly of Lower Canada was
raised from thirty to fifty. Thus amended the Bill was read a third
time in the House of Commons on the 18th of May, and received the
Royal Assent on the following 10th of June, one of its sections
providing that it should take effect before the 31st of December,
1791, and another that the Councils and Assemblies should be called
together before the 31st of December, 1792. It had been intended
that Dorchester should be present in London during the passing of
the Act, in order to advise the Government on points of detail, but
the dispatch informing him that the Act had already been passed
crossed him on his way to England.
[Sidenote: Omissions from the Act.]
[Sidenote: It contained no definition of the boundaries of Upper
and Lower Canada.]
The omissions from the Act are as noteworthy as its contents.
The Bill, both as presented to Parliament and as finally passed
into law, contained no description of the line of division
between Upper and Lower Canada, or of the boundaries of the two
provinces. In the draft which Grenville sent out in 1789 there was
a blank space, in which Dorchester was invited, with the help of
his surveyor-general, to insert a description of the boundaries;
but, wrote Grenville in his covering dispatch, ‘there will be a
considerable difficulty in the mode of describing the boundary
between the district of Upper Canada and the territories of the
United States, as the adhering to the line mentioned in the
treaty with America would exclude the posts which are still in
His Majesty’s possession and which the infraction of the treaty
on the part of America has induced His Majesty to retain, while,
on the other hand, the including them by express words within
the limits to be established for the province by an Act of the
British Parliament would probably excite a considerable degree of
resentment among the inhabitants of the United States.’ Grenville
accordingly suggested that the Upper Province might be described by
some general terms such as ‘All the territories, &c., possessed by
and subject to His Majesty and being to the West or South of the
boundary line of Lower Canada, except such as are included within
the present boundaries of the government of New Brunswick’.
Uncertainty as to what was or was not British territory affected
among other matters the administration of justice. It was from this
point of view that Dorchester mainly regarded it when he wrote in
reply to Grenville, ‘the attainment of a free course of justice
throughout every part of His Majesty’s possessions in the way least
likely to give umbrage to the United States appears to me very
desirable’. He returned the draft of the Bill with the blank filled
in with a precise description of the dividing line within what was
beyond dispute Canadian territory, and with the addition of some
general words including in the Canadas all lands to the southward
‘now subject to or possessed by His Majesty’, but he reported at
the same time that the Chief Justice was not satisfied that the
terms used would answer the purpose. Eventually the Government
left out the whole clause, omitting also all reference to another
difficult point which had been raised and which had affected the
administration of justice in connexion with the fisheries in the
Gulf of St. Lawrence, viz., the boundary line between Lower Canada
and New Brunswick. Parliamentary debate on a very awkward question
was thus avoided, and the Act contained no provision which could
give offence to the United States.
[Sidenote: How the boundaries were defined.]
But it was absolutely necessary to draw some dividing line, and to
give some description of the boundaries, however vague. Accordingly
the following very cautious course was taken. A ‘description of the
intended boundary between the provinces of Upper Canada and Lower
Canada’, being Lord Dorchester’s clause with the omission of the
general words referred to above, was printed as a Parliamentary
Paper,[202] while the Bill was before the House; and this line
of division was embodied in an Order in Council issued on the
following 24th of August, with the addition of the words ‘including
all territory to the Westward and Southward of the said line,
to the utmost extent of the country commonly known as Canada’.
The line of division was set out again in the new commission to
Lord Dorchester, which was issued on the 12th of September, 1791,
the two provinces of Upper and Lower Canada being specified as
comprehending all such territories to the Westward and Eastward
of the line respectively ‘as were part of our said province of
Quebec’.
[Sidenote: Administration of Justice hardly mentioned in the Act,]
[Sidenote: Nor did it contain any definition of the respective
powers of the two Chambers.]
On the important subject of administration of justice the Act was
almost silent. One section only had reference to it, constituting
the governor or lieutenant-governor and Executive Council in
either province a court of appeal in civil matters, as had been
the case in the undivided province. Nor was any attempt made to
define the powers of the Legislative Council and Assembly in
relation to each other; but, in sending out the Act, Dundas, who
had succeeded Grenville, reminded Dorchester of ‘the disputes and
disagreements which have at times taken place between the Councils
and Assemblies of the different colonies respecting the right
claimed by the latter that all Bills whatsoever for granting money
should originate with them’, and he laid down in general terms that
the principle, ‘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’.
[Sidenote: Contents of the Act.]
Out of the fifty sections which composed the Act, no less than
thirty-two related to the constitution and legislative powers of
the Councils and Assemblies in the two provinces. In Upper Canada
the Legislative Council was to consist of not less than seven
members, and the Assembly of not less than sixteen. In Lower
Canada the minimum fixed for the Council was fifteen, and for the
Assembly fifty. The electoral qualification was, in the country
districts, ownership of real property to the net annual value of
forty shillings, and in the towns of £5, or in the alternative in
the latter case a rental qualification of £10 per annum.
[Sidenote: Provision for Protestant clergy.]
Of the remaining sections eight related to the endowment and
maintenance of Protestant clergy and to providing parsonages
and rectories for the Church of England. The wording of these
sections, and the system of clergy reserves which they introduced,
proved a fruitful source of controversy in after years. The Act
continued the existing system by which Roman Catholics paid their
dues to the Roman Catholic Church, while the tithes on lands
held by Protestants were applied to the support of a Protestant
clergy. It then went on, in accordance with the terms of the Royal
Message to the House of Commons, to provide that there should be
a permanent appropriation of Crown lands for the maintenance and
support of a Protestant clergy, bearing a due proportion to the
amount of Crown lands which had already been granted for other
purposes, and that all future grants of Crown land should be
accompanied by an appropriation, for the same object of maintaining
a Protestant clergy, of land equal in value to one-seventh of the
amount which was granted for other purposes. The intention was
that the establishment and endowment of Protestant clergy should
proceed _pari passu_ with the alienation of lands for settlement,
so that each township or parish in either province should have its
Protestant minister. So far the general term Protestant was used,
but provisions followed authorizing the erection and endowment of
parsonages or rectories in every parish or township ‘according to
the Establishment of the Church of England’, the incumbents to
be ministers of the Church of England, and to be subject to the
ecclesiastical authority of the Church of England bishop. It was
also enacted that, while these provisions relating to religion
and to Crown lands might be varied by Acts of the provincial
legislatures, before any such Acts received the Royal Assent, they
were to be laid before the Imperial Parliament, and, if either
House presented an Address to the King praying that His assent
should be withheld, such assent could not be given. The Act, though
obscurely worded, in effect established and endowed the Church
of England in both provinces alike, while confirming the rights
which had already been conceded to the Roman Catholic Church. The
provision made for the Church of England was, at any rate on paper,
very ample, inasmuch as, while Crown lands were being assigned for
its maintenance, the liability of Protestant land-owners to pay
tithes was not abolished. Dundas, however, in his dispatch which
enclosed copies of the Act, intimated to the governor that it was
not desired permanently to continue the burden of the tithe, if
the land-owners would in lieu subscribe to a fund for clearing the
reserve lands and building the parsonage houses. Fox attacked these
sections in the Act, and he also criticized a suggestion which Pitt
made that a Church of England bishop might be given a seat in the
Legislative Council.
[Sidenote: The first Church of England bishops in British North
America.]
It may be noted that the Act specifically mentioned the Bishop of
Nova Scotia as the spiritual authority for the time being over
such ministers of the Church of England as might be appointed to
the two Canadas. The Bishopric of Nova Scotia dated from 1787, and
was the first, and in 1791 the only, Church of England bishopric
in British North America, the Bishop--Bishop Inglis, having been
a Loyalist clergyman in the city of New York. In 1793 a separate
Bishop of Quebec was appointed, and in 1799 the Secretary of State
authorized the building of a metropolitan church at Quebec, which
was completed for consecration in 1804, and at the centenary of
which in 1904 the Archbishop of Canterbury was present. There
were indications at this time that the Protestants in Canada,
most of whom were not members of the Church of England, might be
inclined to unite within it, and it was hoped that the building and
endowment of a metropolitan church might tend to such union and to
placing the Church of England in the position of the Established
Church of Canada.
[Sidenote: Provisions relating to land tenure, and to taxation by
the Imperial Parliament.]
The provisions in the Act which related to religion were followed
by three very important sections dealing with land tenure. The main
grievance of the settlers in Upper Canada was met by providing that
land grants should there be made on the English system of free and
common soccage. The same system was made optional in Lower Canada
at the will of the grantee, but in that province the seigniors
were not finally abolished until the year 1854. In 1778 an Act
of Parliament had been passed[203]--too late in the day--which
abolished the tea duty in the North American colonies, and laid
down that no duty should in future be imposed by the British
Parliament on any colony in North America or the West Indies for
revenue purposes, but only for the regulation of commerce, and on
the understanding that the net produce of such duties should be at
the disposal of the colonial legislatures. Similar provisions were
inserted in the Canada Act of 1791, and, in introducing the Bill,
Pitt explained that, ‘in order to prevent any such dispute as had
been the cause of separating the thirteen states from the mother
country, it was provided that the British Parliament should impose
no taxes but such as were necessary for the regulation of trade and
commerce; and, to guard against the abuse of this power, such taxes
were to be levied and to be disposed by the Legislature of each
division.’