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The passing of the Constitutional Act, 1791, ushered in
the next chapter of Canadian Constitutional history. Almost as soon
as it was passed, though, new problems emerged.
This first section covering 1791 to 1837 looks at the adjustments
after the passing of the Constitutional Act and the roots
of the discord later in the period.
Topics in this section:
The Constitutional Act, 1791
Upper Canada Adopts English Law
Lower Canada: Two Systems
New Constitution, New Problems
Control Over Revenue and Expenses
Overlapping Authority
The Family Compact and Château Clique
British North America, 1791
The Constitutional
Act, 1791
The Constitutional Act was passed in order to meet the
demands of the Loyalists
and give the inhabitants of Québec the same rights as other
British subjects in North America. These were reflected in its provisions,
which (among other things):
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Repealed the parts of the Québec Act, 1774
dealing with the makeup and powers of government.
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Provided for an appointed legislative
council and an elected legislative
assembly.
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Gave power over taxation given to the assembly.
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Gave the Governor power to withhold assent to bills passed
by the legislative council and assembly.
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Declared that the Catholic faith should continue to be respected,
but made provisions for lands to be set aside to support the
Protestant clergy in each province (i.e.: clergy
reserves).
- Divided the province of Québec into two new provinces:
Upper Canada and Lower Canada.
Copyright/Source
Upper Canada Adopts English Law
As soon as the province was divided, moves were made to bring and
end to the civil code
in Upper Canada. A series of acts were passed in the next few years.
Lower Canada: Two Systems
In Lower Canada, dual systems developed. British
criminal law took a place beside French civil law; land was
granted in freehold
outside the seigneuries;
an elected assembly was established while maintaining the power
of the Catholic Church and seigneurial elite.
New Constitution, New Problems
The new constitution created its own problems:
1. Control over revenues and expenses.
2. Overlapping spheres of authority between
British and provincial parliaments.
3. An executive not responsible to the elected
Assembly.
Control Over Revenue and Expenses
From very early in this period, the Legislative Assemblies of both
provinces began to agitate for control of all finances. While they
could control taxation, the governors had access to certain Crown
revenues and the military budget, which was well supplied from Britain.
This allowed the governors to spend without having to consult the
assemblies.
Overlapping Authority
There was no line drawn between the spheres of authority of the
British Parliament and the assemblies. This resulted in conflicts
that created hostile relationships between the Assembly and colonial
officials, as well as with the governors, who usually supported
the British authorities.
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The executive (i.e. the Governor
and Legislative Council) was "irresponsible."
That is, it was financially and constitutionally
independent of the Assembly, and had the power
to dissolve the Assembly. This was no different
than in Britain - but in Britain the king would
rarely act unless his ministers approved. These
ministers were responsible to Parliament. In Canada
this led to abuses by governors on one hand, and
to more extreme attitudes and actions by the frustrated
colonial assemblies on the other.
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The Family Compact and Château
Clique
Matters were made worse by the fact that the executive was controlled
by a small group of friends and acquaintances of the governors,
connected by family, patronage
and similar conservative ideologies. The men who filled these positions
of authority often acted in their own interest rather than the interests
of the people of the province.
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In Lower Canada, the Château
Clique blocked reform efforts and continued to work toward
the assimilation of the French-speaking population.
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In Upper Canada, the arrogance of the Family
Compact offended many, and many blamed them for several
financial scandals.
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