Читать книгу The Life of John Graves Simcoe - William Renwick Riddell - Страница 21

Table of Contents

The Canada or Constitutional Act of 1791 which, with a few amendments, was the written Constitution of Upper Canada as well as of Lower Canada for forty years, is an admirably drawn piece of legislation.

Simcoe in the Speech from the Throne on opening the First Parliament of Upper Canada, September 17, 1792, said: “I have summoned you together under the authority of an Act of Parliament of Great Britain .... which has established the British Constitution and also the forms which secure and maintain it in this distant country”: and in closing the Session, he said that the Constitution of the Province was “the very image and transcript of that of Great Britain”.^[1]

In form, there was not a little justification for this claim.

As representing the King there was to be a Governor, Lieutenant-Governor or some Person appointed by the Sovereign to administer the Government within the Province—all laws to be effective must be assented to in His Majesty’s name by such representative. The same form was followed at Westminster; but the Royal veto had been long obsolete and the Royal Assent had always been given to a Bill which had been passed by Parliament from the time Queen Anne refused it to the Scotch Militia Bill of 1707^[2]. But the Governor^[3] in the Province had the right and the duty when a Bill was presented to him for the Royal Assent, to exercise his discretion subject to the Instructions he received from the Home Administration, the so-called “Royal Instructions”: he might give the Royal Assent, whereupon the Bill became law and a copy was transmitted forthwith to the Secretary of State—the King might then within two years of its receipt, disallow it, and it would then become null and void from the time the Governor made the disallowance known by Proclamation or Message to the Houses of Legislature. Or the Governor might withhold the Royal Assent: or he might reserve the Bill for the signification of the Royal Pleasure—if a Bill was reserved, it was not to become law until the Governor signified by Proclamation or Message to the Legislature that it had been laid before the Sovereign and assented to^[4].

The Act contemplated Instructions in this regard to be given to the Governor: and in fact, Royal Instructions were given to Dorchester, and Simcoe was directed to conform to them. He was to see to it that certain rules should be followed in the form of the Bills and “no Bill in any other form shall be assented to by you in our Name”. Each different matter was to be dealt with in a different law; no clause to be used in any law, foreign to its title: no perpetual clause in any temporary law: no existing law to be modified by general words, but to specifically named: all laws for raising money, or imposing fines to state that the money, &c., is for the Sovereign for the public uses of the Province and to be accounted for through the Commissioners of the Treasury^[5]. Assent was to be refused to all Bills for Naturalising Aliens, for Divorce, for allowing Aliens to hold or inherit land: also to laws enacted for less than two years except in cases of imminent necessity or immediate temporary expediency: also (without express leave granted for the purpose) to any law containing provisions previously disallowed by the King, and to Bills creating Paper Bills or Bills of Credit to be legal tender^[6]. If any Bill respecting private property should be passed without having the rights of the Sovereign and all persons and corporation not mentioned in it saved, Assent was to be withheld, and the Bill reserved for the Royal Pleasure, as also every other Bill considered by the Governor to be of an extraordinary nature or requiring the special consideration of the Home Authorities^[7]. There was another case of great importance in which Bills must be reserved for the Royal Pleasure—that is, those relating to exercise of any form of religious worship, or penalties or disqualification for that same, or the dues of the Clergy, &c.^[8].

It will be seen that the position of the Colonial Governor was not the same as that of the King: he had a discretion, the King had none, but he was limited by his Instructions, the King had none^[9].

In Westminster, there were two Houses: and the analogy in the Colony was not very remote. The Upper House was the Legislative Council: this in Upper Canada was to consist of not fewer than seven members of at least twenty-one years of age, and British subjects by birth, naturalization or cession. They had a life tenure of office subject to vacating the seat by taking any Oath of Allegiance to any foreign Power or residing out of the Province for four years without leave of the Sovereign or for two years without leave of the Governor or by being attainted of Treason^[10]. They were to be summoned by an Instrument under the Great Seal of the Province by the Governor on his being authorized so to do by the Sovereign by an Instrument under his Sign Manual^[11].

The most interesting provision concerning the Legislative Council is one that was entirely novel in Colonial Constitutions—authority was given to annex to any hereditary title of rank, honour, or dignity in the Province, the hereditary right of being summoned to the Legislative Council. This was, of course, in analogy with the House of Lords in England, and it contemplated an hereditary peerage.

This provision was probably not due to the suggestion and influence of Simcoe; but that he approved of it is clear. In a letter to Sir Joseph Banks, President of the Royal Society, written, January 8, 1791, he says:—“I hope to have a hereditary Council with some mark of nobility”. We find him later when speaking of “the just Aristocracy which the Canada Bill has provided for”, saying:—“I have always estimated this power as barring the avenues to disaffection and sedition by making a Constitutional provision against those turbulent talents which may otherwise with great facility gain a more than aristocratic ascendancy over a people composed as are the generality of Colonists and who by the possession of such means may be capable and desirous of disturbing the operations of the Government .... I have always contemplated this aristocratic power as being the truest safeguard of the Sovereignty against such machinations particularly in a Province where the direct weight of the Executive is as a feather and it possesses none indirectly ....”^[12]. At another time, we find him writing in an official despatch: “It has been justly considered that the principal cause of the American Revolt was the want of an aristocratic power which might afford a legal provision for the fair claims and just ascendancy of honourable ambition and not suffer it to waste its energy in dissatisfaction and discontent”^[13]. The Government had been considering for some time the Constitution to be given the Canadian Provinces and, at least as early as 1789, had concluded that an aristocratic part of the Constitution was necessary—they said: “To the want of an intermediate power to operate as a check both on the misconduct of the Governors, and on the democratical spirit which prevailed in the Assemblies, the defection of the American Provinces may perhaps be more justly ascribed than any other general cause that can be assigned”: moreover, “a respectable aristocracy” they considered “a support and safeguard to the monarchy”. While it was thought that a mark of honour or distinction might be annexed to the station of Legislative Councillor even with descent to their families, it was always to be “understood that the station itself was not descendible”^[14]. It was, then, the intention to confer upon the persons called to the Legislative Council, “some mark of Honour such as a Provincial Baronetage either personal to themselves or descendible to their eldest sons in lineal succession”: but no provision to that effect was included in the Draught of the Bill proposed^[15].

Dorchester thought that “many advantages might result from an hereditary Legislative Council distinguished by some mark of Honour, did the condition of the country concur in supporting this dignity: but the fluctuating state of property in these Provinces would expose all hereditary honours to fall into disregard”^[16]; and no hereditary Honour was provided for in the Draught Bill prepared by him with the assistance of the Chief Justice of the Province of Quebec, William Smith^[17].

Precisely when and by whom the clause in the Bill as passed was introduced, does not appear—there were many opinions. Lord Thurlow thought that an hereditary aristocracy “placed in hands unequal to it, will only be despised, but if lodged with families of permanent consideration will grow .... into an independent interest”^[18].

Grenville had the somewhat odd scheme already noted of forming an hereditary aristocracy without the actual right to be summoned to the Legislative Council^[19].

When the motion came up in the House of Commons for leave to introduce the Bill, March 14, 1791, Pitt said that it was proposed to “annex the dignity of a member of Council to every title of honour that might be conferred on the inhabitants of each Province”^[20]. The Bill being reported, in the debate on its recommittal, Fox objected to hereditary powers and hereditary honours for these Colonies—“It seemed to him peculiarly absurd to introduce hereditary honours in America, where those artificial distinctions stunk in the nostrils of the natives .... these powers and honours (were) wholly unnecessary”^[21].

The debate when the consideration of the Bill was resumed, took an extraordinary turn, columns of speeches were made on the French and American Constitutions, &c., and little on the Bill—Pitt, however, said that he “had suggested his intention to propose as the Bill in fact did propose, an hereditary Council in imitation of our House of Lords, whereas the Right Honourable gentleman (Mr. Fox) had suggested that an elective Council would be preferable”: Fox urged an elective Council—he had not made up his mind whether the Members should be elected for life or a term of years—with an electorate of “persons of property”, as he believed that “property was and had ever been held to be the true foundation of aristocracy”. The House divided on the clause providing hereditary legislators and it was carried by a vote of 88 to 39. In the Lords, Lord Rawdon thought that “the experiment of hereditary nobility which the Bill set forth .... could not be attended with any good effect but would rather be a dangerous and unnecessary scheme”: but the clause was adopted^[22].

It is one more instance of the irony of history that the clause which brought more and more acrimonious discussion than any other turned out in the event to be wholly academic; no Governor and no Government ever thought of acting upon it^[23].

In the Legislative Council, the Speaker was appointed by the Governor under the Great Seal of the Province: this was in analogy with the practice at Westminster where the Speaker of the Upper House was the Lord Chancellor^[24].

The popular House was in the Act styled “Assembly”: power was given to the Governor to summon an Assembly, to divide the Province into “Districts or Counties or Circles and Towns or Townships” and to declare the number of representatives for each—also to nominate Returning Officers, the whole number of members to be elected not to be less than sixteen. Writs for the election were to be issued, the voters to be British subjects by birth or naturalization or cession, over twenty-one, who had freehold lands in the constituency^[25] of the yearly value of Forty Shillings sterling if the constituency were a “District or County or Circle”, or in the case of a “Town or Township”, who were possessed of a dwelling house and lot of ground in the constituency in freehold of the yearly value of Five Pounds Sterling or being resident for twelve months before the Election, had paid one year’s rent, for the dwelling house in which they resided, of Ten Pounds Sterling or upwards. This corresponded to the well known division in England of constituencies into County and Borough—or, as we now say, Rural and Urban. Persons attainted of Treason or Felony were disqualified.

In the House of Commons, Fox strenuously protested against what he considered the excessive qualification required of electors. “In England a freehold of forty shillings was sufficient: five pounds were necessary in Canada .... the qualifications on a house .... still higher .... ten pounds.” This he said was part of “an attempt to undermine and counteract the professed purport of the Bill, namely, the introduction of a popular government into Canada”: he did not, however, press this objection so far as to call for a Division on it: nor did he do so in the matter of the number of members which he said was entirely too small. “Sure he was that sixteen was a good number for an aristocracy, but by no means for a democracy”^[26]. There was no qualification for Member of the Assembly provided for in the Act; but no “Minister of the Church of England or .... Minister, Priest, Ecclesiastic or Teacher .... of the Church of Rome or .... any other Profession of Religious Faith or Worship” could be a member nor could a Member of the Legislative Council. Members were required to take an oath in the form prescribed before being permitted to sit or vote in the Assembly^[27].

By analogy with the House of Commons at Westminster, the Speaker of the Assembly was always in fact elected by the House: but there is no provision in the Act for such election. Other provisions of the Act will be left for discussion in the proper place.