Prior to the British North America Act of 1867, the British government made four failed attempts to govern their colonies in North America. Finally, in 1846, they got the point and gave in — they ordered the Governors of all of their colonies to accept responsible party government. The British government no longer wanted the hassle, the cost, nor the responsibility of their colonies, because, simply put, they no longer had any use for the colonies. Britain was moving in the direction toward free trade, so the colonies would not have a favoured spot in the economy, as they did in the old mercantilist system.
1 Twenty one years after the colonial secretary ordered the acceptance of responsible party government, Canada became a nation of its own — finally, the Canadians did something the British had hoped they would do. The British North America Act was to be our constitution for over one hundred years: it lasted longer than all four of the other constitutional attempts put together. Each one of these acts, in one way or another, was intended to assimilate the French Canadiens and harmonize the colony, and each one, in turn, failed.
The Royal Proclamation Act of 1763, passed shortly after the end of the Seven Years War, lasted eleven years until 1774, when the Quebec Act was passed. That failed Act gave way to the Constitutional Act of 1791, which amazingly lasted 50 years, despite the terribly contentious issues it raised. The final constitution the British government gave Canada before she became her own nation was the Act of Union, passed in 1841. In October 1763, Britain passed the Proclamation Act as a constitution to universally govern all of the new acquisitions Britain had gained as a result of the Treaty of Paris. 2 Two main points should be discussed.
The first, concerning government, it stated that the new colonies were to have a government modelled on that of the Thirteen Colonies — meaning that they would have an elected representative assembly. In Quebec, there were some problems in the implementation of that style of government. Firstly, Governor Murray was understandably nervous about a newly-conquered people having such control over the affairs of the colony. Secondly, British law made it illegal for Catholics to hold positions in the government, and it seemed extremely unrealistic to have an assembly that represented only the 200 Protestant colonists.
(This upset the English merchants so bad that they were able to get Murray recalled in 1768. ) What was actually put into place was a Crown colony government, much like that of the old French regime: it consisted of the Governor, appointed by the King; and the Executive Council, handpicked by the Governor. 3 Second, in regards to the legal system, the Act stated that British law would be used in all situations, criminal and civil, and that the English language would be used in those courts. However, Murray thought it would be unfair to get rid of all traces of the old system, so he made a compromise.
What he established was a three-tiered system where the highest (Court of King's Bench) and the lowest (Justice of the Peace) levels of law were governed by English law, and the English language was used in all proceedings. The middle level, the Canadien Court, continued to be governed by Canadien law and the French language would be used in the proceedings. 4 As a systematic way to assimilate the French Canadiens, the Proclamation Act failed. Few of the changes ordered in the Act were actually carried out, because exceptional circumstances gave Murray the leeway to adjust things.
Murray thought that to successfully govern the colony meant to make as few disruptions as possible. In fact, despite the anti-Catholic sentiments so common to the Anglicans, Murray sought to forge an alliance with the Catholic Church, because he realised that the Church held a great deal of power when it came to changing the opinions of the Canadiens. 5 His successor, Governor Carleton, felt much the same way, and it was because of his recommendations that the Quebec Act was passed in 1774. 6
Carleton had recommended the reinstatement of French civil law, the seigniorial system of landholding, and the right for the Catholic Church to collect the tithe,7 because he felt that if he worked through the natural leaders of Canadien society (the seigneurs and the priests), he would be able to get the loyalty of the Canadiens. 8 Their loyalty was much needed, because the colonists south of the border were stirring. If Canada was stabilized, and he had their loyalties, he would have a place to deal with the arising problems in the Thirteen Colonies.
Catholics were now allowed to hold public office; Carleton even appointed half a dozen seigneurs to his council. However, the colony was still not given an elected assembly, which further angered the English — they had assumed that with the recall of Murray, they would get an assembly. 9 Again, the legal system was changed around. Regarding criminal cases, British law and language was still used, but regarding civil rights and property laws, Canadien law and the French language would be used. Carleton also received instructions to implement British commercial law, but he hid them and completely disregarded them.
10 As a way for Carleton to buy the loyalties of the Canadiens so they would fight alongside the British in the coming Revolution, the Quebec Act failed. They stayed neutral in the fight, and as a result of this neutrality, after the revolution, Carleton became dictatorial: despite provisions in the Quebec Act that allowed the Canadiens to participate in government, they declined. Even though the Constitutional Act of 1791 has been called a "recipe for resentment and confrontation,"11 it lasted longer than the first two attempts combined: fifty years.
The problem to be addressed by this act was the colonists' increasing demands for an elected representative assembly, and the problems raised by governing the two different cultures that were present: the Loyalists in the western part of the colony, and the French Canadiens in the east. There were three main components to this act. First, the colony was to be divided into two colonies: Upper Canada and Lower Canada. Second, each colony was given the right to an elected representative assembly.
and third, these new assemblies were given very little real power — in fact, they were little more than glorified debating clubs. 12 One other part of the act that was quite important was the setting aside of the Crown and Clergy Reserve Lands. One seventh of all the lands went to the Crown, and in Upper Canada, one seventh of the their land went to the Anglican Church. (This provision was not made in Lower Canada because the Catholic Church already owned one fifth of all of the seigniorial holdings. ) Three enormous issues arose as a result of this act.
The first, which was common to both colonies, was a "built-in tension" between the Governor and his executive council and the elected assembly. The question was: "Did power come from the people or the King and his representatives? "13 The second, specific to Upper Canada, was the controversy over the Clergy Reserves. Other Protestant sects wanted their share of the lands — they made up the majority of the population, but the Anglicans were the ruling class. 14 And the third issue is a problem that is still evident today, that back then, was specific to Lower Canada.
This was the escalation of the French-English conflict — the Constitutional Act marks the point in history when this conflict first flared out into the open. 15 As a way to separate the English from the French and therefore make it easier to govern the two groups, this act failed. All it succeeded in doing was further polarizing the population of Lower Canada: the English still wanted to "un-Frenchify" the province, and the Canadiens still thought that the English had too much power. 16 The issues raised by the Constitutional Act festered for forty six years and culminated in the bloody rebellions of 1837 and 1838 in both colonies.
In the aftermath of these rebellions, "Radical Jack" Durham was sent to assess the discontent and make recommendations on how to solve the problems. The Act of Union, passed in 1841, was based on the report that Lord Durham made in 1839. What he recommended in that report was the reunion of the Canadas to create a colony that had two provinces, Canada East (Lower Canada) and Canada West (Upper Canada). The key point was that in the new assembly, each province would get the same amount of representatives — even though Lower Canada had a much larger population.
17 Again, we see another attempt at the assimilation of the Canadiens — it was thought that the new unified provincial assembly would have an instant Anglo majority; all it would take was time. The Act of Union failed for two reasons. Firstly, Louis Lafontaine of Canada East and Robert Baldwin of Canada West — both of whom were reformers — used a sort of "Three Musketeers"-type strategy: they worked together, despite cultural and linguistic differences, to get the responsible government they wanted.
Secondly, their timing was extremely important: they were "saved by the bell. " At the time they were fighting Metcalfe for control, the British government ordered the acceptance of responsible party government in all of their colonies. 18 Baldwin's and Lafontaine's successors would end up being the Fathers of Confederation and set in motion the birth of a new nation. However, MacDonald and his colleagues were only able to achieve what they did because of the path-paving that their predecessors did for them.
In each of these miserably failed acts there were lessons to be learnt, and those constitutional failures were imperative in the growth of our nation and how we have turned out as a people. Any political successes that we've had can be traced through our history as part of a larger learning process. But, on the flip side of that, any problems or issues that are significant in our lives today — such as that of the always-threatening Quebec Referendum — can also be traced throughout our history; mistakes that we still haven't learned from, constantly injured feelings and a harbouring of a great deal of distrust.
But, for better or for worse, working in the time periods they did, with the attitudes that were prevalent then, our past political leaders worked with what they had. Unfortunately, present-mindedness is difficult to escape, making the ability to maintain an objective point of view almost impossible. Hind sight is 20-20, and I think that despite the problems raised by these four acts, they should be viewed as part of the learning experiences of — and growing pains felt by — a young nation.