Chapter V: Lord Dorchester and the Canada Act of 1791 (2)

The omissions from the Act are as noteworthy as its contents. The Bill, both as presented to Parliament and as finally passed into law, contained no description of the line of division between Upper and Lower Canada, or of the boundaries of the two provinces. In the draft which Grenville sent out in 1789 there was a blank space, in which Dorchester was invited, with the help of his surveyor-general, to insert a description of the boundaries; but, wrote Grenville in his covering dispatch, ‘there will be a considerable difficulty in the mode of describing the boundary between the district of Upper Canada and the territories of the United States, as the adhering to the line mentioned in the treaty with America would exclude the posts which are still in His Majesty’s possession and which the infraction of the treaty on the part of America has induced His Majesty to retain, while, on the other hand, the including them by express words within the limits to be established for the province by an Act of the British Parliament would probably excite a considerable degree of resentment among the inhabitants of the United States.’ Grenville accordingly suggested that the Upper Province might be described by some general terms such as ‘All the territories, &c., possessed by and subject to His Majesty and being to the West or South of the boundary line of Lower Canada, except such as are included within the present boundaries of the government of New Brunswick’.

Uncertainty as to what was or was not British territory affected among other matters the administration of justice. It was from this point of view that Dorchester mainly regarded it when he wrote in reply to Grenville, ‘the attainment of a free course of justice throughout every part of His Majesty’s possessions in the way least likely to give umbrage to the United States appears to me very desirable’. He returned the draft of the Bill with the blank filled in with a precise description of the dividing line within what was beyond dispute Canadian territory, and with the addition of some general words including in the Canadas all lands to the southward ‘now subject to or possessed by His Majesty’, but he reported at the same time that the Chief Justice was not satisfied that the terms used would answer the purpose. Eventually the Government left out the whole clause, omitting also all reference to another difficult point which had been raised and which had affected the administration of justice in connexion with the fisheries in the Gulf of St. Lawrence, viz., the boundary line between Lower Canada and New Brunswick. Parliamentary debate on a very awkward question was thus avoided, and the Act contained no provision which could give offence to the United States.

[Sidenote: How the boundaries were defined.]

But it was absolutely necessary to draw some dividing line, and to give some description of the boundaries, however vague. Accordingly the following very cautious course was taken. A ‘description of the intended boundary between the provinces of Upper Canada and Lower Canada’, being Lord Dorchester’s clause with the omission of the general words referred to above, was printed as a Parliamentary Paper,[202] while the Bill was before the House; and this line of division was embodied in an Order in Council issued on the following 24th of August, with the addition of the words ‘including all territory to the Westward and Southward of the said line, to the utmost extent of the country commonly known as Canada’. The line of division was set out again in the new commission to Lord Dorchester, which was issued on the 12th of September, 1791, the two provinces of Upper and Lower Canada being specified as comprehending all such territories to the Westward and Eastward of the line respectively ‘as were part of our said province of Quebec’.

[Sidenote: Administration of Justice hardly mentioned in the Act,]

[Sidenote: Nor did it contain any definition of the respective powers of the two Chambers.]

On the important subject of administration of justice the Act was almost silent. One section only had reference to it, constituting the governor or lieutenant-governor and Executive Council in either province a court of appeal in civil matters, as had been the case in the undivided province. Nor was any attempt made to define the powers of the Legislative Council and Assembly in relation to each other; but, in sending out the Act, Dundas, who had succeeded Grenville, reminded Dorchester of ‘the disputes and disagreements which have at times taken place between the Councils and Assemblies of the different colonies respecting the right claimed by the latter that all Bills whatsoever for granting money should originate with them’, and he laid down in general terms that the principle, ‘as far as it relates to any question of imposing burthens upon the subject, is so consistent with the spirit of our constitution that it ought not to be resisted’.

[Sidenote: Contents of the Act.]

Out of the fifty sections which composed the Act, no less than thirty-two related to the constitution and legislative powers of the Councils and Assemblies in the two provinces. In Upper Canada the Legislative Council was to consist of not less than seven members, and the Assembly of not less than sixteen. In Lower Canada the minimum fixed for the Council was fifteen, and for the Assembly fifty. The electoral qualification was, in the country districts, ownership of real property to the net annual value of forty shillings, and in the towns of £5, or in the alternative in the latter case a rental qualification of £10 per annum.

[Sidenote: Provision for Protestant clergy.]

Of the remaining sections eight related to the endowment and maintenance of Protestant clergy and to providing parsonages and rectories for the Church of England. The wording of these sections, and the system of clergy reserves which they introduced, proved a fruitful source of controversy in after years. The Act continued the existing system by which Roman Catholics paid their dues to the Roman Catholic Church, while the tithes on lands held by Protestants were applied to the support of a Protestant clergy. It then went on, in accordance with the terms of the Royal Message to the House of Commons, to provide that there should be a permanent appropriation of Crown lands for the maintenance and support of a Protestant clergy, bearing a due proportion to the amount of Crown lands which had already been granted for other purposes, and that all future grants of Crown land should be accompanied by an appropriation, for the same object of maintaining a Protestant clergy, of land equal in value to one-seventh of the amount which was granted for other purposes. The intention was that the establishment and endowment of Protestant clergy should proceed _pari passu_ with the alienation of lands for settlement, so that each township or parish in either province should have its Protestant minister. So far the general term Protestant was used, but provisions followed authorizing the erection and endowment of parsonages or rectories in every parish or township ‘according to the Establishment of the Church of England’, the incumbents to be ministers of the Church of England, and to be subject to the ecclesiastical authority of the Church of England bishop. It was also enacted that, while these provisions relating to religion and to Crown lands might be varied by Acts of the provincial legislatures, before any such Acts received the Royal Assent, they were to be laid before the Imperial Parliament, and, if either House presented an Address to the King praying that His assent should be withheld, such assent could not be given. The Act, though obscurely worded, in effect established and endowed the Church of England in both provinces alike, while confirming the rights which had already been conceded to the Roman Catholic Church. The provision made for the Church of England was, at any rate on paper, very ample, inasmuch as, while Crown lands were being assigned for its maintenance, the liability of Protestant land-owners to pay tithes was not abolished. Dundas, however, in his dispatch which enclosed copies of the Act, intimated to the governor that it was not desired permanently to continue the burden of the tithe, if the land-owners would in lieu subscribe to a fund for clearing the reserve lands and building the parsonage houses. Fox attacked these sections in the Act, and he also criticized a suggestion which Pitt made that a Church of England bishop might be given a seat in the Legislative Council.

[Sidenote: The first Church of England bishops in British North America.]

It may be noted that the Act specifically mentioned the Bishop of Nova Scotia as the spiritual authority for the time being over such ministers of the Church of England as might be appointed to the two Canadas. The Bishopric of Nova Scotia dated from 1787, and was the first, and in 1791 the only, Church of England bishopric in British North America, the Bishop--Bishop Inglis, having been a Loyalist clergyman in the city of New York. In 1793 a separate Bishop of Quebec was appointed, and in 1799 the Secretary of State authorized the building of a metropolitan church at Quebec, which was completed for consecration in 1804, and at the centenary of which in 1904 the Archbishop of Canterbury was present. There were indications at this time that the Protestants in Canada, most of whom were not members of the Church of England, might be inclined to unite within it, and it was hoped that the building and endowment of a metropolitan church might tend to such union and to placing the Church of England in the position of the Established Church of Canada.

[Sidenote: Provisions relating to land tenure, and to taxation by the Imperial Parliament.]

The provisions in the Act which related to religion were followed by three very important sections dealing with land tenure. The main grievance of the settlers in Upper Canada was met by providing that land grants should there be made on the English system of free and common soccage. The same system was made optional in Lower Canada at the will of the grantee, but in that province the seigniors were not finally abolished until the year 1854. In 1778 an Act of Parliament had been passed[203]--too late in the day--which abolished the tea duty in the North American colonies, and laid down that no duty should in future be imposed by the British Parliament on any colony in North America or the West Indies for revenue purposes, but only for the regulation of commerce, and on the understanding that the net produce of such duties should be at the disposal of the colonial legislatures. Similar provisions were inserted in the Canada Act of 1791, and, in introducing the Bill, Pitt explained that, ‘in order to prevent any such dispute as had been the cause of separating the thirteen states from the mother country, it was provided that the British Parliament should impose no taxes but such as were necessary for the regulation of trade and commerce; and, to guard against the abuse of this power, such taxes were to be levied and to be disposed by the Legislature of each division.’

Thus Canada was endowed with representative institutions, and entered on the second stage in its history as a British possession. It was divided into an English province and a French province, in order as far as possible to prevent friction between two races not yet accustomed to each other. For the English province English land tenure was made the law of the land, in the French province it was only made optional. Taxation of members of one religion for the upkeep of another found no place in the Act, nor did taxation of a colony by the mother country for the purposes of Imperial revenue. The popular representatives were in the main given control of the moneys raised from taxes: and no doubt was left as to who had the keeping of the people’s purse.[204] On the other hand the Executive power was left with the Crown, and the waste lands provided possibilities of a revenue by which the government might be supported apart from the taxes, and by which an Established Church might be maintained apart from the tithes. The Imperial Parliament too retained the power of regulating commerce, while making no money out of the colony by any commercial regulations. It was in short a prudent and tolerant half-way Act, wise and practical in view of the times and the local conditions, and it was evidence that England and Englishmen had learnt good and not evil from the War of American Independence. A study of Canadian history, with special reference to the Quebec Act of 1774 and the Canada Act of 1791, and the results which flowed from them, leads to the conclusion that in either case the British Government of the day tried most honestly and most anxiously to deal with a very complicated problem on its merits; that every effort was made by the ministers of the Crown to mete out fair and considerate treatment to the majority of the resident population in Canada; and that those who framed and carried the laws guided themselves by living facts rather than by _a priori_ reasoning. But it is also impossible to resist the conclusion that at almost any time from 1783 onwards, until the Canadian Dominion came into being, there was little to choose between the arguments for retaining a single province, and those for constituting two provinces. In any case it was inevitable that the provisions of the Act of 1791 should give rise to new complications of various kinds; and apart from specific questions, constitutional and otherwise, there were two very practical difficulties which necessarily arose from the division of the province of Quebec. The first was an Executive difficulty, of which more will be said presently. From the date of the Act there was increasingly divided authority in the Canadas. The second was a financial difficulty arising from geographical conditions. One of the two provinces had the keeping of the other, so far as regarded access from and to the sea.

[Sidenote: Financial difficulties between the two provinces.]

As the line of division was drawn, Upper Canada, like the Transvaal at the present day, was compelled to import all sea-borne articles through territory under the administration of another government, either through Lower Canada or through the United States. The St. Lawrence being the high road of import and export, Lower Canada commanded the trade of Upper Canada. Therefore, in order to collect a customs revenue, it was necessary for the Upper Province either to establish customs houses on the frontier of Lower Canada--a measure which would probably have been ineffective and would certainly have involved much inconvenience and expense, or to come to some arrangement whereby a certain proportion of the duties levied at Quebec, which was the port of entry of Lower Canada, would be handed over to the administration of the Upper Province. The latter course was taken, and in 1795, a provisional arrangement was made, by which the proportion was fixed for the time being at one-eighth. The record of what followed is a record of perpetual friction, of commissions and temporary arrangements confirmed by provincial Acts. It was suggested that the boundaries of the provinces should be altered, and that Montreal should be included in and be made the port of entry of Upper Canada, but the suggestion was never carried into effect. As the population of Upper Canada grew, the discontent increased. In 1818 one-fifth of the duties was temporarily assigned to Upper Canada. Then a complete deadlock ensued, which ended with the Imperial Canada Trade Act of 1822. By arbitration under the terms of that Act the proportion which Upper Canada was to receive was in 1824 raised to one-fourth; and when Lord Durham reported, it was about two-fifths. In his report Lord Durham referred to the matter as ‘a source of great and increasing disputes’, which only came to an end when the two provinces were once more united under the Imperial Act of 1840.

[Sidenote: The position in Canada when the new Act came into force.]

The Canada Act took effect on the 26th of December, 1791. Dorchester was then in England, and Sir Alured Clarke, Lieutenant-Governor of the province of Quebec under the old system and Commander of the Forces in British North America, was acting for him. Under the new Act Clarke was appointed Lieutenant-Governor of Lower Canada, while the Lieutenant-Governorship of Upper Canada was conferred upon Colonel Simcoe, both officers being subordinate to Dorchester as Governor-in-Chief. Dorchester had left Canada on the 18th of August, 1791, and did not return till the 24th of September, 1793. His prolonged absence was unfortunate in more ways than one. Technical difficulties arose owing to the absence of the Governor-in-Chief, for, as soon as the new Act came into force, Clarke’s authority was confined by his commission to Lower Canada. The practical effect too was that Simcoe started on his new charge with a free hand and found it irksome, when Dorchester returned, to take a second place. Added to this were the complications caused by the French declaration of war against Great Britain in February, 1793, the hostilities between the United States and the Indian tribes on the border land of Canada, and the persistent and increasing bitterness in the United States against Great Britain, caused partly by sympathy with the French Revolution and the intrigues of French agents, and partly by the British retention of the frontier forts and supposed British sympathy with the Indians.

However, the political arrangements in Canada were carried into effect without any appreciable friction. Clarke, a man of judgement and discretion, did not hurry matters in Lower Canada. He divided the province into electoral districts, and summoned the Legislature for its first session at Quebec on the 17th of December, 1792, when the Act had been in force for nearly a year. The session then lasted into May. Simcoe arrived at Quebec on the 11th of November, 1791; but, as no Executive Council had yet been constituted for Upper Canada, he could not be sworn in as Lieutenant-Governor and take up his duties until the following midsummer, Upper Canada being in the meantime left without any governor or lieutenant-governor. In July, 1792, he issued a proclamation at Kingston, dividing Upper Canada into districts, and on the 17th of September the new Legislature met for the first time at Newark, on the Canadian side of the Niagara river, near where that river flows into Lake Ontario. The Lieutenant-Governor fixed his head quarters at ‘Navy Hall’, a building constructed in the late war for the use of the officers of the naval department on Lake Ontario. It stood by the water’s edge, nearly a mile higher up the river than Newark; and on the bank above, in the war of 1812, covering the buildings below, stood the historic Fort George. The session was a short one, closing on the 15th of October, but important work was done. English law and procedure, and trial by jury, were established, while proposals for taxation and the state of the marriage law gave a field for difference of opinion and debate. When the session was over, Simcoe reported that he found the members of the Assembly ‘active and zealous for particular measures, which were soon shown to be improper or futile’, and the Council ‘cautious and moderate, a valuable check upon precipitate measures’.[205]

[Sidenote: Simcoe.]

John Graves Simcoe, the first Lieutenant-Governor of Upper Canada, was the son of a naval officer who died when serving under Admiral Saunders in the fleet which helped to take Quebec. The son, who derived his second name from another sailor, his godfather Admiral Graves, was born in 1752. He was born in Northumberland, but after his father’s death, his mother made her home in Devonshire. He was educated at Exeter Grammar School, at Eton, and at Merton College, Oxford, and he joined the army in 1771, when he was nineteen years old. He served with much distinction in the War of Independence, in which he commanded a Loyalist Corps, known as the Queen’s Rangers. When the war ended, he held the rank of lieutenant-colonel. After his return to England in bad health he spent some years at his family home in Devonshire, he married, and in 1790 became a member of Parliament, sitting for the borough of St. Mawes in Cornwall. His Parliamentary career was very short, for in 1791, before he was yet forty years of age, Pitt appointed him to be Lieutenant-Governor of Upper Canada. He left Canada in 1796, and soon after he reached England he was sent out as Governor to St. Domingo. After a few months in the island, the state of his health compelled him to come home. He became a lieutenant-general, and was appointed to be Commander-in-Chief in India in succession to Lord Lake, but he never took up the appointment. Prior to going out he was sent to Lisbon in 1806 on a special mission, was taken ill, and brought home to die. He died at Exeter in October, 1806. There is a monument to him by Flaxman in Exeter Cathedral[206], and in Canada his name is borne by Lake Simcoe.

He was not only a good soldier, but a capable, vigorous, public-spirited man, well suited in many ways to be the pioneer governor of a new province. He was strong on questions of military defence and a great road maker. He made Yonge Street, the road from Toronto north to Lake Simcoe, called after Sir George Yonge then Secretary of State for War and afterwards for a short time Governor of the Cape; and he made Dundas Street, christened after the Secretary of State for the Colonies, which then started from the point on Lake Ontario where the city of Hamilton now stands and, running west, connected with the river Thames.

[Sidenote: York or Toronto.]

[Sidenote: Simcoe’s views as to the seat of government for Upper Canada.]

Toronto owed much to him, but not under its present name. The name Toronto had been borne in old times by Lake Simcoe, and on the site of the present city of Toronto the French had in 1749[207] built a fort, named Fort Rouillé. The place had come to be known as Toronto, but in 1792[208] the new name of York came into vogue, and in the autumn of the following year, 1793, Simcoe reported that that name had been officially adopted ‘with due celebrity’, in honour of the successful storming of the French camp at Famars near Valenciennes by the force under the command of the Duke of York on the 23rd of May, 1793. It was not until 1834, when the city was incorporated, that the old name of Toronto was restored. Simcoe wrote of Toronto Harbour as ‘the proper naval arsenal of Lake Ontario’; but it was not here that he would have placed the seat of government. Strongly convinced of the necessity of opening communication between Lake Ontario and the upper lakes, without making the long round by the waters of Lake Erie and the Straits of Detroit, in 1793 he explored the peninsula between the three lakes of Ontario, Erie and Huron; and on a river, running westward into Lake St. Clair, known at that date as the La Tranche river and afterwards as the Thames[209], a place which was christened London and where there is now a city with 40,000 inhabitants, seemed to him to be the most suitable site for the political centre of Upper Canada. His view was that the seat of government should be inland, presumably because it would be more central in respect to the three lakes, and also because it would be further removed from the danger of raids from the neighbouring territory of the then unfriendly republic. It is interesting to note that, in a dispatch expressing an opinion to the above effect, Simcoe added that sooner or later the Canadas might be divided into three instead of two provinces and Montreal be made the centre of an intermediate government. Dorchester held, as against Simcoe, that Toronto should be the seat of government, and his view prevailed. The Legislature of Upper Canada met at Newark for the last time in May, 1796, shortly before the fort of Niagara on the opposite side of the river was handed over to the Americans,[210] and from 1797 onwards, Simcoe having left in the meanwhile, it met at Toronto.

[Sidenote: Friction between Dorchester and Simcoe.]

Before Dorchester returned to take up again the duties of Governor-in-Chief, Simcoe had formed definite views as to the civil administration and the military defence of Upper Canada; and it is not surprising that the keen, active-minded soldier and administrator, who was little more than forty years of age, did not on all points see eye to eye with the veteran governor now verging on seventy; or that, when he differed, he was not inclined to subordinate his opinions to those of Dorchester. Thus we find Dorchester sending home correspondence with Simcoe with the blunt remark that the enclosures turned on the question whether he was to receive orders from Simcoe or Simcoe from him. In his long official career Dorchester had been much tried. At the time of the War of Independence, he had been badly treated by his employers in England and had felt to the full the mischief and inconvenience caused when those employers divided their confidence and communicated with one subordinate officer and another, thereby encouraging disloyalty and intrigue. The correspondence of these later years points to the conclusion that the iron had entered into his soul and that, with the weariness of age growing upon him, he had become somewhat querulous, unduly apprehensive of loss of authority, and over-sensitive to difference of opinion. There seems to have been no love lost between him and Dundas, while the latter was Secretary of State, but all through the last stage of his career the key-note was dread of divided authority.

[Sidenote: Dorchester’s views in favour of a Central Legislature and a strong Executive.]

We have seen that he had not favoured the policy of dividing the province of Quebec into two provinces, and that he had shown sympathy with Chief Justice Smith’s proposals for establishing a general government for British North America. In the summer of 1793, after the Canada Act had come into force but while he was still in England on leave, he raised again this question of a central government for all the King’s provinces in British North America, receiving an answer from Dundas to the effect that the measure would require a new Act of Parliament and that in Dundas’ opinion it would not add to the real strength or happiness of the different provinces. After his return to Canada Dorchester took up his text again, laying stress on the necessity of welding together the different provinces. In existing conditions he saw a revival of the system which had caused rebellion and the dismemberment of the Empire. While the United States were pursuing a policy of consolidation, the aim of the King’s Government seemed to be to divide and sub-divide and form independent governments. All power, he continued, was withdrawn from the Governor-General, and instructions were sent directly from home to inferior officers, so that the intermediate authority was virtually superseded. Everything was favourable to insubordination, and the fruits of it might be expected at an early season. This was in February 1795, when the governor was smarting under what he considered to be unjust censure by the Home Government; and, though he remained in Canada for some time longer, he continued to show, by the tone of his dispatches, that he entirely disapproved of the existing régime. In November, 1795, he wrote of ‘all command, civil and military, being disorganized and without remedy’; in the following May he wrote that ‘this unnatural disorder in our political constitution, which alienates every servant of the Crown from whoever administers the King’s Government, leaving only an alternative still more dangerous, that of offending the mass of the people, cannot fail to enervate all the powers of the British Empire on this Continent’; and in June he wrote, that the old colonial system was being strengthened with ruinous consequences.

[Sidenote: Relations of the Governor-in-Chief and Lieutenant-Governors.]

It is not easy to decide how much ground there was for his complaints. If the situation was difficult, the difficulty had partly arisen from the bad custom, of which he had availed himself, of allowing governors and other holders of posts in the colonies to remain for an inordinate time at home while still retaining office and receiving the pay attaching to it. At the very time when he was most wanted in Canada to carry out the division of the two provinces, and to make the central authority of the Governor-in-Chief strongly felt from the first, he had remained away for fully two years, thereby allowing the new system to come into being and to make some progress before there was any Governor-in-Chief on the spot. Coming out to Canada he found the Lieutenant-Governors corresponding direct with the Home Government, and it was hardly reasonable to insist that they should be debarred from doing so, provided that, as the Duke of Portland, who succeeded Dundas, pointed out, the Governor-in-Chief was supplied with copies of the correspondence. An analogous case is that of Australia at the present day. The governors of the separate states correspond directly with the Colonial Office, sending copies of important dispatches to the Governor-General of the Commonwealth. Had Dorchester not been absent, when Simcoe took up his appointment in Upper Canada, and had his mind not been prejudiced by bitter memories of the days of Germain, it is possible that friction might not have arisen. On the other hand the limits of the authority of the Governor-in-Chief and of the Lieutenant-Governors in the British North American provinces seem not to have been clearly defined, with the result that, as years went on, the Governor-in-Chief gradually became little more than Governor of Lower Canada, and the Lieutenant-Governor of Upper Canada became, in civil matters, governor of that province in all but the name. When Lord Dalhousie was appointed Governor-in-Chief, Sir Peregrine Maitland, then Lieutenant-Governor of Upper Canada, asked the Secretary of State for a ruling on the subject; and Lord Bathurst’s answer, dated the 9th of February, 1821, was that ‘So long as the Governor-in-Chief is not resident within the province of Upper Canada, and does not take the oaths of office in Upper Canada, he has no control whatever over any part of the civil administration, nor are you bound to comply with his directions or to communicate with him on any act of your civil government. To His Majesty you are alone responsible for the conduct of the civil administration’. If, on the other hand, the Governor-in-Chief were to take up his residence in Upper Canada and be sworn into office, the Secretary of State laid down that the functions of the Lieutenant-Governor would be entirely suspended. By this date, therefore, the two appointments had become exclusive of each other. At a later date, when Lord Durham was going out to Canada, Lord Glenelg, then Secretary of State, emphasized still more strongly the independence of the Lieutenant-Governors. When sending Lord Durham his commission, he wrote on the 3rd of April, 1838, of the position which the Governor-General or Governor-in-Chief had up to that date held in regard to the other provinces. ‘With the title of Governor-General, he has, in fact, been Governor of the province of Lower Canada only, and has been prohibited from resorting to any of the other provinces, lest his presence should supersede the authority of the respective Lieutenant-Governors, to whose administration they have been confided.... Hitherto it has not been the practice to carry on official correspondence between the Governor-General and any of the Lieutenant-Governors. The Governor-General and the Lieutenant-Governors have severally conducted their separate administrations as separate and independent authorities, addressing all their communications on public affairs to the head of this department, and receiving from the Secretary of State alone instructions for their guidance.’ The result of dividing Canada into two provinces was necessarily to create two governors. One was intended to be subordinate to the other, but the subordination gradually became nominal only. The political problems of Lower Canada were so difficult and so important as to absorb the full time and attention of the Governor-in-Chief; no railways or telegraphs facilitated communication; and the British North American provinces, instead of being controlled by a central executive authority, for good or evil went their own way.

[Sidenote: Dorchester’s opposition to fees and perquisites.]

It has been seen that during Dorchester’s first government, he had experienced no little difficulty in dealing with Livius, the contumacious Chief Justice of Quebec. In the earlier period of his second government, he had, on the contrary, a wise and loyal fellow worker in Chief Justice Smith. Soon after the governor returned to Canada for the last time, towards the end of 1793, Smith died and his place was taken by Osgoode, the Chief Justice of Upper Canada, who did not enjoy Dorchester’s confidence to the same extent as his predecessor. But Osgoode’s appointment was made the occasion for putting into practice a reform which Dorchester, to his lasting honour, had urgently pressed upon the notice of the Imperial Government, the abolition of fees and perquisites, and the payment of judges and other public officers by adequate salaries alone. Dorchester himself, when he first took up the government of Canada in 1766, had refused to take the fees to which he was legally entitled; and in the last years of his Canadian service he wrote on this subject in no measured terms. In a dispatch dated the last day of December, 1793, and written in connexion with the vacant chief justiceship, he referred to the system of fees and perquisites as one which ‘alienates every servant of the Crown from whoever administers the King’s Government. This policy I consider as coeval with His Majesty’s Governments in North America, and the cause of their destruction. As its object was not public but private advantage, so this principle has been pursued with diligence, extending itself unnoticed, till all authority and influence of government on this continent was overcome, and the governors reduced almost to mere corresponding agents, unable to resist the pecuniary speculations of gentlemen in office, their connexions and associates’. He added that whatever tended to enfeeble the Executive power in British North America tended to sever it for ever from the Crown of Great Britain. Subsequent dispatches were to the same effect. In June, 1795, he reported having disallowed certain small claims by subordinate officers, expressed regret that gentlemen in Britain should look to America for a reward for their services, and laid down that officers should be paid sufficient salaries to place them above pecuniary speculations in the colonies. The next month he wrote in the same strain with reference to the Customs officials and the collection of revenue: and a year later he again insisted that such officers should not receive indirect emoluments, that the local administration should not be warped and made subservient to fees, profits, perquisites ‘and all their dirty train’, and that the national interests should not be sacrificed to gentlemen who possessed or were looking out for good places for themselves and their connexions. Running through the dispatches is insistence on the principle that the Executive must be strong, that it can be strong only if the officers are duly subordinate to the representative of the Crown, that loyal subordination can only be produced by paying proper salaries and abolishing perquisites, and that the loss of the old North American colonies had been largely due to abuses which had lowered the dignity and the authority of the Crown, alienating from it the confidence and the affections of the people.

[Sidenote: Dorchester criticized by Dundas for plain speaking as to the Americans.]

[Sidenote: War between the Americans and the Indians.]

The censure, if censure it can be called, which Dundas had passed on Dorchester, and which caused the latter to tender his resignation, was connected with the attitude which Dorchester felt it necessary to take up towards the United States after his return to Canada in the autumn of 1793. The Treaty of 1783 had settled, or purported to settle, the boundaries of Canada as against the United States, but it had not settled the boundaries of the United States as against the Indians, and the Indians manfully maintained their right to the territory north of the Ohio river. In November, 1791, an American force under General St. Clair, who had commanded at Ticonderoga at the time of Burgoyne’s advance, was badly defeated in the Miami country to the south-west of Lake Erie. The British Government and the Canadian authorities made various efforts to mediate between the contending parties, but the government of the United States was not disposed to accept such mediation, though British officers were asked to be present at conferences which were held in the summer of 1793 between representatives of the various Indian tribes and commissioners of the United States. No result came from these negotiations, the Indians demanding that the Ohio should be the boundary, the Americans definitely refusing to comply with the demand, and in the following year fighting began again.

[Sidenote: American sympathy with France.]

[Sidenote: Genet, French minister to the United States.]

The French Revolution had for some years been gathering strength. In the autumn of 1792 France had been declared a Republic; and the execution of the King on the 21st of January, 1793, was followed on the 1st of February by a declaration of war against Great Britain. The French also declared war against Spain, the power which now held New Orleans and Louisiana west of the Mississippi. The position in North America became at once very critical and very dangerous. Popular feeling in the United States ran strongly in favour of France. The Republicans of the New World were enthusiastic for the people who had enabled them to gain their independence and who, having put an end to monarchy in France, were preparing to insist upon the adoption of a Republican system elsewhere in Europe. Sympathy with France in the United States implied enmity to England, and Thomas Jefferson, Washington’s Secretary of State, was pronounced on the side of the French alliance, representing the views of the Republican party as opposed to the Federalists, the latter being headed by Alexander Hamilton and Jay and supported by the unrivalled influence of Washington himself. On the 22nd of April, 1793, Washington--with popular feeling strongly against him in the matter--issued a declaration of neutrality. At the same time, Genet, sent from France as representative of the new Republic, reached Charleston. With complete disregard of international law, which, when the French Revolution was at its height, had largely lost its meaning, Genet proceeded to make the United States a base for war against Great Britain and Spain, fitting out privateers, sending agents to Canada, planning a campaign against Louisiana. For some months the popularity of his country and his cause, the unpopularity of Great Britain, and the sympathy which Jefferson the Secretary of State had with his views, enabled him, in Washington’s words, to set the acts of the American Government at defiance with impunity and to threaten the Executive with an appeal to the people; but gradually Washington’s firmness and the Frenchman’s own outrageous pretensions had due effect; and, before a year had passed, Genet was, early in 1794, on the demand of the American Government, replaced by another minister.

[Sidenote: Danger of war between Great Britain and the United States.]

[Sidenote: Dorchester’s views.]

It was while the bitterness of feeling against England in the United States was most intense that Dorchester returned to Canada. St. Clair had been replaced in command on the Ohio frontier by General Anthony Wayne, a soldier who had proved his worth in the War of Independence, a man of strong words and actions, and war seemed to be imminent. ‘Soon after my return to America,’ Dorchester wrote in the following year, ‘I perceived a very different spirit’ (from that of the British Government) ‘animate the United States, much heat and enmity, extraordinary exertions, some open some covert, to inflame the passions of the people, all things moving as by French impulse rapidly towards hostilities, and the King’s Government of Lower Canada in danger of being overwhelmed, so that I considered a rupture as inevitable.’ Yet, as he said, he knew well that the British Government were anxious to maintain friendship and peace with the United States; there was no private inclination of his own to the contrary; nor, if there was, had he any force in Canada to back his views. In a previous dispatch, which was dated the 25th of October, 1793, almost immediately after his return, after having pointed out the likelihood of war and the necessity for reinforcements, he had written, ‘The interests of the King’s American dominions require peace, and I think the interests of the States require it still more, though their conduct both to us and the Indians has created many difficulties.’ He looked, he added, to a great future for the States and for the white race generally in North America, but not through war. ‘Not war, but a pure and impartial administration of justice under a mild, firm and wise government will establish the most powerful and wealthy people.’

[Sidenote: His firm attitude towards the United States.]

[Sidenote: Protest of the American Government against Dorchester.]

[Sidenote: Dorchester’s resignation.]

Dorchester then was wholly averse to war; but being on the spot he saw more clearly than ministers in England that, the people of the United States being minded for war, want of preparation and appearance of timidity on the British side were likely to bring it on, that plain speaking and firm action might have a good effect. Simcoe, who was responsible under him for the frontier of Upper Canada, seems to have been of the same mind. Accordingly, in replying to two Indian deputations, one in the autumn of 1793, the other on the 10th of February, 1794, Dorchester took occasion to speak out, condemning the aggression of the United States which, he said, had nearly exhausted the patience of Great Britain, and referring to war between the two nations as imminent. At the same time, as a counterblast to Wayne’s advance in the Ohio territories, and as an outpost in the case of a movement against Detroit, he ordered a fort to be constructed and garrisoned on what were called the Miami rapids on the Maumee river, south-west of Lake Erie, near the site where a fort had been constructed and held during the War of Independence. Copies, or what purported to be copies, of the governor’s speeches, and reports of his action, reached the American Government in due course, and Randolph, who had succeeded Jefferson, protested, characterizing them as ‘hostility itself’. In view of this protest Dundas, in July, 1794, by which time Jay, Washington’s emissary of peace, had arrived in England, addressed a mild remonstrance to Dorchester, expressing fear that what had been said and done might rather provoke hostilities than prevent them; and upon receipt of this dispatch in the following September Dorchester tendered his resignation. The Duke of Portland, who succeeded Dundas, was at pains to retain the old governor’s services, but, though nearly two years intervened before Dorchester actually left Canada, the correspondence which passed in the interval showed his anxiety to be gone, now that the danger of war between Great Britain and the United States had for the moment passed away.

[Sidenote: Jay’s treaty signed.]

[Sidenote: The border forts transferred to the United States in 1796.]

The most critical time was in the year 1794. In America the forces which make for war were strongly in evidence. On the other side of the Atlantic--to the lasting credit of both the British and the American Governments--representatives of the two countries were working hard for peace. In the spring of 1794 Washington nominated John Jay, Chief Justice of the United States, to be a special envoy to Great Britain with a view to settling, if possible, the outstanding points of dispute between the two nations. The Senate confirmed the nomination, and in June Jay reached England and entered into negotiations with Lord Grenville. The result was that on the 19th of November following Jay and Grenville signed the well-known treaty which is associated with the American statesman’s name, and which provided for an immediate or prospective settlement of many if not of most of the questions at issue. The treaty was bitterly attacked in the United States by the Republican party and those who sympathized with France. Jay, Hamilton, even Washington himself were denounced and reviled; but the government had sufficient backing in the country to procure the assent of the Senate to the terms of the treaty, with the exception of one article, in the session of 1795; Washington ratified it in August, 1795; and in the following year the measures for carrying it into effect were voted by a small majority in the House of Representatives. Under its provisions, in that same year, 1796, the border forts were handed over to the United States.

[Sidenote: Wayne defeats the Indians.]

Meanwhile the war between the Americans and Indians ran the normal course of such wars. The white men suffered some reverses; but, with a strong body of regular troops supplemented by Kentucky militia, and with the help of fortified posts constructed along the line of advance, Wayne by August, 1794, had worn down the Indians and menaced the British fort on the Maumee river, to whose commandant, Major Campbell, he addressed threatening letters. On either side, however, the orders were to abstain from blows, while Jay and Grenville were negotiating, and the conclusion of the treaty ensured the abandonment by the British troops of this outpost of Detroit as well as of Detroit itself. Next year, on the 3rd of August, 1795, Wayne concluded the Treaty of Greenville with the Western Indians. Under its terms the Americans advanced their boundary beyond the Ohio, but still left to the Indians on the south of Lake Erie and in the peninsula of Michigan lands of which the treaty definitely recognized them to be owners, and where they were to dwell under the protection of the United States.

[Sidenote: Dorchester and Simcoe leave Canada.]

In September, 1795, the Duke of Portland wrote to Lord Dorchester telling him that General Prescott would be appointed Lieutenant-Governor of Lower Canada and would leave for Canada in the spring, so that Dorchester could suit his own convenience as to returning to England. At the same time the Secretary of State repeated his regret that Dorchester had determined to retire. Prescott arrived on the 18th of June, 1796, and on the 9th of July Dorchester embarked for England. His ship was wrecked on the shore of Anticosti island, but he reached England in safety in September, and died in a good old age in the autumn of 1808. Simcoe, in the meantime, had, in December, 1795, applied for leave of absence on account of ill health, suggesting that Peter Russell, the senior councillor, should in his absence administer the government of Upper Canada, and tendering his resignation if the leave could not be granted. His wish was complied with, and, after being detained for some time at Quebec, he came back with the returning ships of the autumn convoy and was in London in 1796, two months after Dorchester’s arrival. Canada saw him no more, and, as has been told, he died at a comparatively early age, outlived by the old Governor-in-Chief whose control had fretted his impetuous spirit.

[Sidenote: Lord Dorchester’s services to Great Britain and Canada.]

In the colonial history of Great Britain Lord Dorchester’s place is or ought to be second to none. Men should be measured by the times in which they live, the lands in which they serve, the conditions which they are called upon to face. It did not fall to Carleton’s lot to be borne on the flowing tide of British victories, to be a leader in successful wars, to be remembered as one who struck down England’s foes and added provinces to her empire. Nor was it given to him to bear rule in times of settled peace, when wisdom and statesmanship are called on to gather in and store the harvest, to consolidate, to develop, to reform, to enrich, to give security and beneficent measures to trusting and expectant multitudes of the human race. Providence set the span of his active life while his country’s fortunes were running out on the ebb-tide of adversity; his public services were coincident with Great Britain’s depression; and the part of the Empire in which he served was the scene of her defeats. No men of good English type cheered and supported him at home, the patriotism which inspired his life was unknown alike to the ministers who preceded William Pitt and to an Opposition which, as embodied in Fox, lost all sense of proportion, and almost all sense of duty, or principle. Yet he held Quebec and saved Canada. Men turned to him to gather up the fragments after the War of Independence; and he reconciled French Canada to British rule and held the balance even between conflicting races and creeds. Open warfare, political intrigue, in every form and from every quarter, from without and from within, beset his path. Those he served and those by whom he was served were in turn disloyal to him. Colonial questions, such as in times of profound peace and goodwill, and after generations of experience, are yet almost insoluble, confronted him, without precedent, without guidance, in their most uncompromising form. He faced them, and through all the mire and mud in which England and English civilians and soldiers and sailors wallowed in these miserable years, he carried one name at any rate which stood for dignity, uprightness, and firm prescient statesmanship. It is not to the credit of English memories or English perception that his name has outside Canada passed into comparative oblivion. If ever a man had temptation to despair of or be untrue to his country, and if ever a man’s character and work redeemed his country and his country’s cause in unworthy times, that man was Carleton.

A great figure in the colonial history of Great Britain as a whole, in the history of Canada he is very great indeed. His character is poles apart from that of old Count Frontenac, and yet he filled in some sort a similar place. Both were soldier-governors; both came back to rule a second time; in either case the individual personality of a firm masterful man was the saving feature of a time of life and death for the colony. Carleton had none of Frontenac’s ruthlessness and arrogance, he had not his French quick wit; but either man in his turn, the one at the end of the seventeenth century, the other towards the end of the eighteenth, was in the fullest sense the saviour of Canada.

[Sidenote: General Prescott succeeds Dorchester.]

Dorchester did not actually cease to be Governor-in-Chief of Canada until the end of April, 1797, some months after his return to England. He was then succeeded in the office by Prescott, who in the meantime had been Lieutenant-Governor of Lower Canada and Commander-in-Chief of the British forces in North America, having been sworn in at Quebec on the 12th of July, 1796. Robert Prescott, of Lancashire descent, was an old man when he was sent to Canada. Born in 1725, he was seventy-one years of age, only one year younger than Dorchester. He was a Lieutenant-General in the army and had seen much fighting, principally in North America and the West Indies. He had served under Amherst and Wolfe, at Louisbourg and Quebec. He had fought in the War of American Independence and been present at the battle of Brandywine. In 1794 he was in command of the force which took Martinique from the French and, as civil governor of the island, he earned the goodwill of French and natives alike by his tact and humanity.[211] Thus he had a good record when he was chosen to succeed Lord Dorchester, and, though his rule in Canada was short and stormy, when he left, there was abundant evidence of his popularity.

[Sidenote: Intrigues of the French minister in the United States against Canada.]