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Council' dated the 16th May 1871, and Prince Edward's Island was admitted as from the 1st July 1873 by an Order in Council' dated the 26th July 1873. In 1876 the District of Keewatin was carved out of the North West Territories, and received a special form of government under the direction of the Lieutenant-Governor of Manitoba. By the British North American Act 1867 provision was made for the admission of Newfoundland, but it still remains a separate colony, though there is at present a movement in progress in the island in favour of Union.
The following brief outline of the Constitutional history of the various Provinces may prove useful to the student.
1. ONTARIO AND QUEBEC.
tion of the
After the conquest of Canada and its cession to England Constituby the capitulations of Montreal in 1760, confirmed by the Province of Quebec. treaty of the 10th Feb. 1763, the Crown by Letters patent constituted the Province of Quebec. General Murray was appointed Governor, and he was ordered to execute his office according to his commission and the accompanying instructions and such other instructions as he should receive, and according to all laws made with the advice and consent of the Council and Assembly. Power was given to him, with the consent of the Council and as soon as the circumstances would permit, to call an assembly of the free-holders and planters, and until this was done the Governor and Council were invested with "authority to make such rules and regulations as should appear to be necessary for the peace, order and good government of the Province."
The Instructions required members of the proposed No asassembly to take in addition to the oaths of allegiance and sembly supremacy a declaration against transubstantiation, but the French population who were Catholics refused to take such
1 See Appendix,
Uncertainty of laws.
tests, and the assembly though formally summoned never met'. The government therefore remained in the hands of the Governor and the Council.
The Council consisted of the Lieutenant-Governors of Montreal and Three Rivers, the Chief Justice, and eight others chosen from the residents in the Province. It possessed legislative as well as executive powers: the Crown retaining the right to disallow all laws.
Great uncertainty prevailed as to what laws were actually in force in the Province. Some thought that the effect of the conquest and of the proclamation of the 7th Oct. 1763 was to establish the law of England in all its branches, the French settlers maintained that the old Canadian laws remained unrepealed, whilst some of the leading lawyers held that the result of the proclamation was to introduce the Criminal Law of England and to confirm the Civil Law of Canada.
The Government of Quebec retained the above form until 1774 when the English Parliament gave a new Constitution to the Province by an Act known as the Quebec Report of Act. Previous to the passing of this Act the Crown by and Wed- Order in Council had directed Attorney-General Thurlow and Solicitor-General Wedderburne " to take into consideration several reports and papers relative to the laws and courts of judicature of Quebec and to the present defective mode of government in that Province and to prepare a plan of Civil and Criminal Law for the said Province and to make their several reports thereon." On the reports made in pursuance of these orders the Quebec Act was based'.
The new constitution recognised the religion of the French population by relieving Catholics from the necessity of taking the test oath, and enacts that the English Criminal
law was to prevail in criminal matters, but as regards property and civil rights recourse was to be had to the laws of Canada which were based on the customs that the French settlers had brought with them. The legislative power was The Legisplaced in the hands of a Council appointed by the Crown, 1, Council. consisting of not more than 23 and not less than 17 persons. No ordinance was to be passed unless a majority of the Council were present, and every ordinance was to be transmitted, within six months after its enactment, for His Majesty's approbation, and if disallowed was to be null and void from the time the disallowance was promulgated at Quebec.
war with Colonies.
Shortly after the passing of the Quebec Act war broke Results of out between England and her American Colonies. One result of the war was the immigration of a large number of British subjects into the Province. The new settlers located themselves chiefly in the west, along the banks of the St Lawrence, and in the neighbourhood of the lakes Ontario and Erie'. Serious complaints were made by the new British settlers of the state of affairs in the Province, and a demand was made for a constitution resembling that to which they had been accustomed.
In 1791 a bill was introduced by Pitt dividing the Pro- Bill introduced by vince into Upper and Lower Canada, the line of division Pitt. being so drawn as to give a great majority to the British element in Upper Canada and a great majority to the French settlers in Lower Canada. The measure was strongly opposed by Fox, who urged that the separation of the English and French inhabitants was most undesirable, and that general and political expediency required that the French and English should coalesce into one body, so that the different distinctions. of the people might be extinguished for ever. Many Canadians were opposed to the principle of the bill, and their
1 Christie, 1. p. 68.
agent, Mr Adam Lymburner, a merchant of Quebec, was heard at the bar of the House of Commons.
The Act divided Quebec into two provinces, Upper Canada Act, 1791. and Lower Canada. In each province the legislature was to consist of the Governor, a Legislative Council and a Legislative Assembly.
The Governor had power to give or withhold the royal assent to bills, or to reserve them for consideration by the Crown. He could summon, prorogue, or dissolve the legislature, but was required to convene the legislature at least once a year.
The Legislative Council in Upper Canada consisted of not less than 7, and in Lower Canada of not less than 15 members, chosen by the King for life, the Speaker being appointed by the Governor-General.
The Legislative Assembly was in counties elected by 40s. freeholders, and in towns by owners of houses of £5 yearly value and by resident inhabitants paying £10 yearly rent. The number and limits of electoral districts were fixed by the Governor-General. Lower Canada had 50 members, Upper Canada 16 members, assigned to their respective legislatures. The new Constitution did not prove a success. Serious the Con- differences arose between the Legislative Council and the stitution Legislative Assembly in regard to the control of the revenue and supplies, differences which were aggravated by the conflict that still went on between the French and English races. The state of Canada was brought before the House of Commons, but the House rejected the proposal to make any radical changes. The discontent resulted in the rebellion of 1837-8, and an Act was passed suspending the Constitution of Lower Canada2, and under its provisions a special 1 31 Geo. III. (i) c. 31. 2 1 & 2 Vic. (i) c. 9,
The Legislative Council.
The Act was passed, and is known as the Constitutional Act of 17911.
Council was appointed to administer the province. Lord Durham was appointed Governor-General, and was intrusted with large powers as high Commissioner for adjusting the relations and government of the two provinces. On his arrival he dissolved the special Council and appointed a new executive, and then proceeded to examine into the causes of the failure of the Constitution of 1791. The result of his inquiries was embodied in the famous Durham report presented to Parliament in 1839, in which he recommended the union of the two provinces and the introduction of responsible government. Lord John Russell brought forward a bill to carry out the former of these recommendations, and the bill became law on July 23rd, 18401.
This Act united the two provinces and established a Legislative Council of not less than 20 members, appointed 1840. for life by the Governor, and a legislative Assembly of 84 members, consisting of an equal number from Upper and Lower Canada. Toronto, Montreal and Quebec were to return two members each, certain other towns and the county constituencies one member each, power being given to the Governor to fix the limits of the constituencies. The number of representatives was not to be changed without the concurrence of two-thirds of the members of each House. A real property qualification to the amount of £500 was required of all members of the Assembly. As regards the revenue and expenditure certain fixed charges, amounting to about £75,000, were thrown on the consolidated fund, and all other expenditure was placed within the control of the Assembly.
It only remained for the home Government to give effect Responsi to that portion of the Durham report which recommended the ment. introduction of responsible government, and in a Despatch
1 3 & 4 Vic. (i) c. 35.