Canada’s Constitutional Act Summary

  • Last updated on November 10, 2022

One of a series of acts that created a constitution for Canada, the Constitutional Act of 1791 divided the territory into Lower Canada and Upper Canada and created a system that attempted to appease the very different political desires and expectations of British and French Canadians.

Summary of Event

England’s defeat of France during the Seven Years’ War (known in North America as the French and Indian War) resulted in Great Britain’s acquisition, in 1763, of New France, the former holdings of France on the North American continent. This acquisition posed an immediate problem for Britain: how to govern the newly acquired territory. After a series of failed experiments, the British parliament adopted the Canada Constitutional Act of 1791. [kw]Canada’s Constitutional Act (1791) [kw]Act, Canada’s Constitutional (1791) [kw]Constitutional Act, Canada’s (1791) Constitutional Act, Canada (1791) British Canada French Canada Canada;Constitutional Act [g]Canada;1791: Canada’s Constitutional Act[2950] [c]Government and politics;1791: Canada’s Constitutional Act[2950] [c]Laws, acts, and legal history;1791: Canada’s Constitutional Act[2950] Carleton, Sir Guy Pitt, William, the Younger

The principal difficulty posed to Britain in governing its newly acquired territory was that the two primary groups of inhabitants, French colonists and Canadian Indians, had no previous experience with British methods of colonial government, had cultures that differed profoundly from that of the British, and had been at war intermittently for two centuries with the inhabitants of the British colonies to the south. For France, Canada had been a colony of exploitation, but Great Britain had never practiced direct governance of colonies of exploitation. The British favored privatization of colonies of exploitation, as was the case in India.

The task of governing Canada was profoundly influenced by developments in the British colonies to the south. These were colonies of settlement, and under British rule, Canada became converted from a colony of exploitation to a colony of settlement. Britain’s task, then—at least as it appeared to the governmental leaders in Great Britain—was to determine the best way to assimilate a new acquisition so different from those colonies to the south that had been British from the outset (or almost so, in the case of New York). The constitutional development of Canada in this period was an outstanding example of the famous British pragmatism at work.

The first Canadian constitutional document, the Proclamation of 1763, Proclamation of 1763 had been issued as a royal proclamation following earlier precedents establishing that government of the colonies arose from royal prerogative. It separated Quebec from the other conquests of 1763. For Quebec, it established a rudimentary system of government by a royal governor assisted by a general assembly to be drawn from the inhabitants. Such an assembly would have the authority to pass laws, subject to approval by the governor and the government in Great Britain, which were to conform with existing British law as far as possible. In actuality, this assembly never met. Nevertheless, even this rudimentary attempt to assimilate the new conquests to the prevailing system of government in the older British colonies proved unworkable. It took no account of the profound cultural differences between the inhabitants of Quebec, the French-speaking“habitants,” and their semifeudal superiors, the seigneurs. Roman Catholics could not participate in any general assembly because they would have had to deny their adherence to the Roman Catholic Church. All disputes among the French Canadians previously had been settled by French civil law; laws similar to British common law were wholly unfamiliar and unacceptable to them.

Accordingly, the British parliament intervened with the Quebec Act of 1774, Quebec Act (1774) ending in the process the old concept that government in the colonies arose from royal prerogative. This act (heavily promoted by the governor, Guy Carleton) recognized the right of the French inhabitants to continue to practice their religion and stipulated that their priests were to continue to receive the payments to which they had formerly been entitled. French civil law was to govern in the province, but English criminal law was to prevail. The act pacified the French Canadians but infuriated the colonists to the south and played a role in arousing the Americans to declare independence.

When that declaration came, sparking the American Revolution, the Canadians did not join the dissidents to the south. Their decision perhaps resulted from the fact that their right to continue in the old ways had been recognized by the Quebec Act. The American Revolution American Revolution (1775-1783);and Canadian independence[Canadian independence] Canadian independence and American Revolution nevertheless had a profound effect on Canada, for it brought a large influx of loyalists into the territories, individuals whose background was wholly British. Although these settlers refused to renounce their allegiance to Great Britain, many shared with the American revolutionaries a desire for self-government. The need to meet this aspiration resulted in the creation of the third British constitutional document, the Constitutional Act of 1791, passed by the ministry of William Pitt the Younger.

This act began by recognizing the difficulty of having the same system of government for the French Canadians as for settlers of British origin. Accordingly, Quebec was divided into two parts: Lower Canada, comprising the lower St. Lawrence lands inhabited by the French Canadians, and Upper Canada, including the upper St. Lawrence River Valley and a corridor west to Lake Huron. Upper Canada’s inhabitants were overwhelmingly of British origin. The French Canadians again were guaranteed the free exercise of their religion and, as in the Quebec Act, were provided with an oath to be administered upon taking public office that did not violate their adherence to the Roman Catholic Church.

The act provided that both provinces would be governed by an executive appointed by the British government, with the advice of a legislative council and a legislative assembly. The council was to be appointed by the British government on the advice of the governor, and those appointed would hold office for life. The legislative assembly was to be elected by the inhabitants. The legislative assembly passed all laws, which however became operative only with the assent of the governor, the council, and the British government.

The act retained for the British government the final authority to approve or disapprove legislation passed by the assembly. The executive remained wholly independent of the legislature, even though in Great Britain at that time the executive was formed by the majority in Parliament. Although the act went part of the way toward satisfying the demands of the settlers of British or American origin for self-government, as the numbers of this group increased it became less and less acceptable to them. Not a few settlers were Americans who took advantage of the favorable terms on which land could be acquired in Canada but who brought with them the same attitudes toward self-government as had prevailed in the United States they had left. They demanded full self-government.

Significance

The Canada Constitutional Act of 1791 effectively bifurcated Canada, both territorially and, more important, culturally and politically. In Lower Canada, as the number of inhabitants of British origin increased, the division between those settlers and the French Canadian majority became more evident. The governor and legislative council were almost entirely of British origin, although some governors, such as Guy Carleton, sought to balance the picture by protecting the interests of the French Canadians against economic exploitation by the British contingent. The legislative assembly, by contrast, was almost wholly French Canadian in its makeup.

Perhaps one of the most divisive issues in the years following 1791, until the Constitutional Act was suspended in 1840, was the question of access on the part of the executive to funds not controlled by the legislative assembly. The lack of the “power of the purse” meant that the popular representatives in the legislative assembly lacked the ultimate weapon to control the actions of the executive. This lack represented the continued refusal of the British government to allow all taxation to be based upon the consent of the governed. In time, it sparked the revolt of 1837, which shook Canada to its roots and brought about the replacement of the Constitution of 1791 by a system of genuine self-government.

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Creighton, Donald Grant. Dominion of the North: A History of Canada. Cambridge, Mass.: Riverside Press, 1944. A history of Canada from the earliest French explorations to 1940. Although it treats constitutional developments only as they arise historically, it gives a good overall view.
  • citation-type="booksimple"

    xlink:type="simple">Lower, Arthur M. Colony to Nation: A History of Canada. Toronto: Longmans, 1946. One of the best accounts of Canadian history. The background of constitutional developments is explored in greater detail than in Creighton’s work.
  • citation-type="booksimple"

    xlink:type="simple">Mallory, J. R. The Structure of Canadian Government. Toronto: Gage, 1984. Although this is a description of modern Canadian government, the introduction provides historical background.
  • citation-type="booksimple"

    xlink:type="simple">Manning, Helen Taft. British Colonial Government After the American Revolution. 1933. Reprint. Hamden, Conn.: Archon Books, 1966. Sets Canadian developments in the broader picture of an evolving system of imperial governance.
  • citation-type="booksimple"

    xlink:type="simple">Nelson, Paul David. General Sir Guy Carleton, Lord Dorchester: Soldier-Statesman of Early British Canada. Madison, N.J.: Fairleigh Dickinson University Press, 2000. Comprehensive biography of Carleton, examining his administration of Canada between 1759 and 1796.
  • citation-type="booksimple"

    xlink:type="simple">Tanguay, J. Fernand, ed. Canada 125: Its Constitutions, 1763-1982. Introduction by Gerald A. Beaudoin. Montreal: Éditions Méridien, 1992. The primary source for Canadian constitutions; the texts of all of them are reprinted. The introduction is by Canada’s primary constitutional scholar.

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