UK, House of Lords, “Government of Canada”, vol 55, cols 561-571 (9 July 1840)

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Date: 1840-07-09
By: UK (House of Lords)
Citation: UK, HL, “Government of Canada“, vol 55 (1840), cols 561-571.
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On the report of the Canada Government Bill being brought up, and several amendments agreed to,

Lord Ellenborough adverted to clause 12, which enacts that The parts of the said province which now constitute the provinces of Upper and Lower Canada respectively, shall be represented by an equal number of representatives; And proposed, as an amendment, the omission of the word “equal.” He made that proposition because he conceived the enactment to be highly unjust. They were taking on themselves to legislate for both these provinces; whereas they well knew that it was impossible for one of these provinces to express any opinion at all on the subject to which the bill related. Now, he did not think it was probable— nay, he conceived it to be most improbable

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—that the people of Lower Canada would be content with this arrangement. How stood this case? Lower Canada contained a population of 700,000 souls, and possessed the whole navigation of the river St. Lawrence to the sea; while Upper Canada, with no such advantage, contained only 400,000 inhabitants. When the inequality between the two provinces was so great, it afforded a strong reason for supposing that Lower Canada would not be content with the proposed division of the representation.

But he objected to this division on another ground. He objected to it because, while in the first instance it inflicted injustice upon Lower Canada, it would ultimately prove unjust to Upper Canada. If the population of that province increased, as it assuredly would, by means of extensive immigration, then in a few years its numbers would preponderate, and the weight of representation, as compared with numbers, would be in favour of Lower Canada. The Upper Province would feel the injustice of this unequal representation, which could not be remedied, unless Parliament again interfered. He therefore objected to this arrangement, because it would now be unjust to Lower Canada, and at a future time it would work equal injustice to Upper Canada. It was, he conceived, particularly unjust to adopt such a rule of representation now, when the Lower Province was incapable of expressing any opinion on it. If the inhabitants of Lower Canada were afforded such an opportunity, he was sure that they would not agree to the proposition.

Viscount Melbourne was understood to say, that if the population of Upper Canada hereafter increased in the manner to which the noble Lord alluded, it would be in the power of Parliament to revise the measure.

Lord Ellenborough said, that his views upon this point were borne out by the opinion of the Earl of Durham, who, in his report, stated— I am adverse to every plan that has been proposed for giving an equal number of members to the two provinces in order to attain the temporary end of out-numbering the French, because I think the same object will be obtained without any violation of the principles of representation, and without any such appearance of injustice in the scheme as would set public opinion, both in England and America, strongly against it; and because, when emigration shall have increased the

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English population in the Upper Province, the adoption of such a principle would operate to defeat the very purpose it is intended to serve. It appears to me that any such electoral arrangement, founded on the present provincial divisions, would tend to defeat the purposes of union, and perpetuate the idea of disunion.

Amendment negatived.

Lord Ellenborough said, he trusted that their Lordships would agree to the proposition which he was now about to make, which he considered to be just in itself, and perfectly reasonable. It offered, in his opinion the only prospect by which this measure was likely to be rendered advantageous to this country, and conducive to the prosperity and tranquillity of Canada. The proposition which he was about to make had reference to an alteration in the proposed system of representation.

Their Lordships had already determined that the members representing the upper and lower province should be equal for each province. Now, his object was to make such an arrangement as that the number of representatives for Lower Canada should be so distributed as to render it most satisfactory to the great majority of the population. The bill in this respect proceeded on a principle of which he greatly disapproved. Thus it proposed to give to Sherbrooke a member, while it excluded the town of William Henry, which was of more importance. Why was this? He could see no other reason for it except that the population of the former was in a great degree English, which was not the case with the latter. With the same feeling the bill proposed to give to a constituency of 2,300 persons the right of nominating a member, while it consolidated eight counties into four, and gave to each, the population amounting to 30,000 persons, the right of electing a single Member.

This was done for the purpose of, as it was called, upholding the British interest. It was just as if, in case an alteration was proposed in the Reform Bill of this country, it was desired that the small county of Rutland should continue to send two Members to Parliament, because it happened at the time to return two Whigs, while the two divisions of Devonshire, were required to be consolidated, and to return only two Members, because they had previously sent two Conservatives to Parliament. The spirit in which this bill was conceived was precisely the spirit that dictated the penal

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laws against the Roman Catholics of Ireland. The object of the bill evidently was to deprive, as far as possible by a legislative enactment, the people of Lower Canada of French origin—of any share at all in the Government of the united province. To that principle he entirely objected. It was not found to work advantageously where it had been put in force, and it would be found not to operate advantageously now, because it was in itself unfair and unjust. If they distrusted the people of Lower Canada, why let them take steps to deprive them of all power at once; but if they felt confidence in that people, let them show by their proceedings that such was the fact, and let them so act as to inspire confidence on the other side.

Even in private life, where confidence was shown, it was almost uniformly met by corresponding confidence. But if they took a middle course—if they adopted half measures—if they showed a distrustful spirit —if they feared to go the whole length, but endeavoured by trick and chicanery to deprive these people of a just representation, they would ultimately find their efforts unsuccessful, and they deserved so to find them, because such a proceeding was contrary to the principles of good Government, and was inconsistent with the dictates of common sense. He proposed that, so far as it could be done, they should give such a representation to Lower Canada as would be satisfactory to the people of that country. In endeavouring to find a ground for such a representation, he would have recourse to the Act passed in 1829, which was acquiesced in by the Government of that time, and the amendments to which, proposed by the Legislative Assembly, were agreed to by the Legislative Council.

He allowed great weight to the opinion of the noble and gallant Lord on the cross bench, and he was willing to adopt his suggestion on this point—as far as they could be adopted, consistently with other provisions of the bill. He was willing that every county now existing in Lower Canada should send one member to the Legislative Assembly. He wished to act with those people on a broad and liberal principle, and not to send them into the colonial parliament with angry recollections, and feelings hostile not only to the union of the two provinces, but to the connexion with this country. When the town of Three Rivers was allowed to elect

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a member, he could not see why the town of William Henry, which was a large place, should be deprived of a similar right, on the colourable pretext that it was necessary to support what was called the British interest. The bill gave two members to Quebec, two to Montreal, one to Three Rivers, and one to Sherbrooke. He wished to add four to these, raising the number of representatives for the Lower Province from 42 to 46. If that were acceded to, it would consequently be necessary, as the principle of equality of representatives for each province was determined on, to raise the number of representatives for Upper Canada also to 46.

On that point he conceived the suggestion of the noble and gallant Lord on the cross-bench might be advantageously adopted. When this bill was introduced to the House of Commons by her Majesty’s Ministers it contained a provision for district councillors. It was consistent with that provision that the number of the members of the Legislature should be diminished, but when that provision was struck out of the bill, the number of legislators was too few for the local government of that country. Let noble Lords recollect that all the parish roads and bridges, which by the bill were intended to be thrown on these district councils, would be cast upon the United Legislature.

The United Legislature would also have to take into their consideration the propriety of altering, continuing, or renewing about 150 acts of Parliament, and it was utterly impossible, with the present number of Members, that they could get through so much business. He did not find fault with those who had thrown out those clauses, but in his opinion they might have received some modification, and he was convinced that under the present plan it would be impracticable to govern the united province. It had been said that this measure was founded on the plan of Lord Durham; but this was not the plan of Lord Durham, nor anything like it. Lord Durham’s plan was, to unite all the provinces, and give a separate legislature to each separate province, for the purpose of local government. That was an intelligible plan. The business of the general legislature would have been principally business of a judicial character, affecting the whole union, and provincial matters affecting each province would have been settled by

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its own legislature. That, he repeated, was an intelligible plan, and every one who considered the condition of our North American provinces would soon be brought to doubt whether it might not ultimately be necessary to adopt some such plan, at least if it was intended to preserve those provinces, because the great object which we had to accomplish was to give the colonists a feeling of nationality, Now, we never should preserve those provinces if we gave them a bad government, such as they must have if we cast upon the united Legislature the duty of legislating about the minute details. Let their Lordships consider what that Legislature was, and of what it was to be composed.

The members who came from the two most distant points of the province, united as it was to be, would traverse a distance equal to the distance between the Straits of Calais and the Straits of Messina, and in point of the time taken up in travelling would be more distant from each other than London was from Bombay. Now that legislature, so composed, was to deal with the question of every road and bridge of the most trifling kind that could exist throughout the whole of the intermediate space, the greater part of which intermediate space being in a state which closely resembled that of Britain in the time of the Druids. He must say that he liked the bill of the Government as it was originally introduced, better than the measure as it now stood. He thought that what the Government originally proposed, subject to amendments, was practicable; but the bill which their Lordships had before them was impracticable, and he thought that nothing could justify us in giving to the people of Canada a government which must be bad. The Ministers of the Crown had certainly succeeded in getting a majority in the Legislature for the people of British origin, but he bade them beware lest that majority should turn into a majority hostile to the connexion with this country, owing in Lower Canada to the manner in which we had treated them, and in Upper Canada to causes which it was not necessary for him to specify. It was for these reasons that he hoped that her Majesty’s Ministers would reconsider the state of the representation, with the view of doing away with, at the least, that additional cause of discontent.

Viscount Melbourne entirely agreed

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with the general principles laid down by the noble Baron, that the share of the representation given to the Lower Province should be given in a fair and honest manner, and one that would secure the cordial concurrence of its inhabitants in the working of this bill. He could not, however, agree in the violent censure which the noble Baron had cast upon the measure, or in the charge of fraud which be had brought against the provisions of this bill. On the contrary he was fully persuaded that, when their Lordships carefully considered the position of the two provinces, and the real facts of the case, they would come to the conclusion that the measure as it now stood was not liable to any of the imputations which the noble Lord had cast upon it.

The noble Baron had been guilty of a great exaggeration when he said that the bill was conceived in the same spirit as the penal laws by which it was so long attempted to abolish the Catholic religion, and to keep down and depress the Roman Catholic population of Ireland. He thought that the present arrangement had been framed on right principles of representation, and when the noble Baron said that a small county sent to the Legislature a Member, when two larger counties were united and formed one electoral district, sending but one Member, he must say that he thought it had been agreed, even by those who were the strongest Reformers, that it was highly desirable that some Members should be elected by a larger, and some by a smaller constituency, and therefore he could not think that any just exception existed on this ground.

With respect to the noble Baron’s complaint about taking away a member from the town of William Henry, and giving one to Sherbrooke, he thought it was not of sufficient importance to justify any change in the arrangement proposed. He knew that the town of William Henry was a very small town, and that it was not likely to be larger, but Sherbrooke was increasing in population. As to the counties which had been united and formed under the bill one electoral district, the population was not large even when the two counties were united, and by no means too large to be represented by a single member. The counties were also comparatively small in point of extent, and lie had been told, that from their situation and the nature of the soil, the population was not likely to

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increase in any very great degree. With regard to any alteration in the boundaries and divisions established by the Colonial Act of 1829, he knew very well that nothing was more difficult to manage, and nothing more likely to create dislike, alienation, and offence, than to make any unnecessary change in old boundaries. The bill, therefore, retained the limits marked out by the act of 1829, so far as was possible, and those exceptions to which the noble Baron had adverted were the only instances of departure from them. The act of 1829 was assented to by the Government of which the noble Baron formed a part. That assent, however, created surprise in some minds, because that act was in reality a scheme of the French dominant party to increase their own power; and, in fact, it was framed by M. Papineau, to establish and consolidate his own influence and authority. The ancient divisions of the country, as he understood, were those which were established by this bill; and, therefore, the bill did not interfere with the ancient divisions of the country, but with the divisions marked out by the act of 1829. Now, admitting that it would be unjust to make any territorial arrangement for the purpose of giving predominance to a particular party, yet, when an arrangement had been brought about in order to further the views of a party, it was not unfair to restore matters to the state in which they were before. He must say the representation was arranged on what appeared fair and equitable grounds.

Lord Ellenborough was quite sure, that if the noble Viscount had read, as he had taken the trouble to do, the report of the Canadian commissioners, he would not be satisfied that the arrangement made by the act of 1829 was perfectly fair. Now, so far was it from being the case that these small counties were taken to increase the French majority, that they were given to increase the English party, and the average number of English returning a member was 3,500, while the average number of French returning a member was 6,500. When he said that this bill was conceived in the spirit of the penal laws against the Catholics of Ireland, he did not mean that the framers of this bill would interfere with the Roman Catholic population of Canada. On the contrary, he believed that their religion, their institutions, and their establishments would be preserved inviolable.

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The Earl of Ripon recollected perfectly well, that when the act of 1829 passed, a very considerable portion of the English population of Lower Canada felt that that act would be by no means beneficial to them. It would be a very unfortunate circumstance if Sherbrooke were shut out of the bill. It was one of the most thriving towns in the country, and was situated in a rather important point on the southeastern frontier, near to the United States. With respect to the clauses appointing district councils, he thought that it was a great improvement to leave them out of the bill. He did not think it desirable, in a measure of this kind, to introduce details, for the due execution of which we must refer to the local legislature.

The Marquess of Lansdowne said, that, perhaps, the noble Baron opposite was not aware that the whole of these territorial distributions, and the whole of the act, had been published in the Canadian newspapers, and opportunity had been given for remonstrances from the districts affected, yet no objection had been made to the arrangement. There had been petitions against the whole bill, but not one had been presented to their Lordships against this particular grievance of territorial distribution. It was fair, then, to presume, that the arrangement had not given dissatisfaction to the inhabitants of the colony. The noble Baron had also omitted to notice, that in this bill there was a specific clause, enabling the Legislature of Canada to alter these proportions, if they thought fit.

In the 26th clause of the bill, their Lordships would find that there was power given to the Legislature of Canada to alter the apportionment of representatives to be chosen by the counties, ridings, cities, and towns respectively, and to make a new and different apportionment of the number of representatives to be chosen in and for those parts of the province of Canada, which now constituted the provinces of Upper and Lower Canada, and in and for the several districts, counties, ridings, and towns in the same. Now, this clause in the bill contained a provision to enable the Legislature of Canada to alter the apportionment of the representation; and, as they were on the spot, they had better means of doing justice in the distribution than the noble Baron or any other Member of their Lordships’ House, and they had better means of altering the distribution if it was unequal in its character, and unjust

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in its tendency. Thus, for instance, if, in a few years, the town of Sherbrooke was found not to be of sufficient importance to return a member, a new adjustment might take place, and that in a manner infinitely more satisfactory to the people of Canada than if the noble Baron’s views were carried into effect by the present bill. The noble Lord had compared the existing state of Canada to England in the time of the Druids. If the noble Lord had chosen to travel a little further down in English history, to the period of the Heptarchy, he would find it quite as difficult to traverse England then as Canada at the present time. Yet history informed them, that England acquired at that period a degree of stability, power, and solidity from the union which then took place, which had laid the foundation of all her subsequent prosperity. In his opinion, they would do wisely to leave the adjustment of these matters and the constitution of municipal councils to the wisdom of the provincial Legislature.

The Earl of Gosford begged to remark, that the noble Viscount was in error in stating, that Papineau was the chief framer of the bill of 1829. The person chiefly occupied in framing that measure was a very intelligent Scotchman, named Nelson. With respect to Montmorency and Sherbrooke, which under the new arrangement it was proposed should return only one member, he had to observe that the population of Montmorency was 10,000, instead of 7,000 or 8,000, as stated by the noble Viscount. He thought that an additional member should be given to this district.

Amendment withdrawn.

The Bishop of Exeter wished to call their Lordships’ attention to the 26th clause, which required a larger concurrence on the part of the representatives than would be found possible in practice. It required the concurrence of two-thirds of the Members for the time being, not of those only who were actually present. There was another point which he was astonished that the acuteness of noble Lords had not before detected. It was, that these people, when they met, could not possibly understand each other. He was assured that, even in the Lower Province, the members sate together night after night, and a member of French extraction could not exchange a word with his neighbour, who was of English extraction.

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It was the lawyers alone that could speak both languages, and the accomplishment of speaking the French language was very rare in the Upper Province. It reminded him of a circumstance which he had met with in one of the reports of the Education Commissioners for Ireland, where a schoolmaster in the province of Connaught could not speak a word of Irish, and the boys could not speak a word of English; but this was in Ireland.

Lord Ashburton referred to the Legislatures of Belgium and Holland, when those countries were united—where German, French, High Dutch, and Low Dutch, were all spoken by the members; also to the state of Louisiana, and other states, where a similar inconvenience to that pointed out by the right rev. Prelate had been apprehended; yet the members had been found to understand each other much better than had been anticipated.

The Bishop of Exeter thanked the noble Baron for the illustration derived from Belgium and Holland, which had flown off with a mutual repulsion that led to a degree of commotion which he hoped never to witness in Canada. This bill had been described as unjust and tyrannous, and to this description he wished to add the word “absurd.”

The Marquess of Lansdowne remarked, that no inconvenience was felt in one of the oldest constitutions in Europe—the Swiss Diet—where French was exclusively spoken by one portion, and German by the other.

Report agreed to. Bill to be read a third time.

Bill read a second time.

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