Union Act (1840-41)

Claude Bélanger,

Department of History,

Marianopolis College

The Constitutional Act of 1791 created two types of difficulties to the British authorities in North America:

• By dividing the old Province of Quebec into two separate political units (Upper and Lower Canada) it first caused economic difficulties. The division of the province had been made to primarily satisfy the Loyalists who had been unhappy to live in a province with a French-Catholic majority, under a legal system abhorrent to the newcomers and lacking representative institutions; the Loyalists had desired the reshaping of the institutions of the province along the lines of the Royal Proclamation of 1763. While the British government obviously desired to accommodate the Loyalists in most of their demands, it was faced with the prospect of satisfying 10 000 Loyalists while displeasing 160 000 Canadiens who wished things to continue to remain much as they were. The solution had been to create two colonies out of the Province of Quebec: Upper Canada (Southern Ontario of today) would be given the institutions desired by the Loyalists while the Canadiens would keep control of Lower Canada (Southern Quebec of today) and retain the institutions that they cherished. In achieving this compromise very little thought had been given to the economic consequences of dividing the province.

• Since the early days of New France, the Great Lakes-St. Lawrence region had been perceived as a single geographic and economic unit as it was the main avenue of penetrating to the heart of the continent; the unity of this line of communication had been essential in the days of the pre-eminence of the fur trade and the early 19th century reinforced this view further. As the population on the continent moved further west and the grain trade developed, the Great Lakes-St. Lawrence route became a vital link in the shipping of an increasing number of products to Europe. Well situated along the communication system, the ports of Montreal and Quebec City developed tremendously in the first quarter of the 19th century; they drained not only the commerce of the northern half of the Great Lakes but also that of the American part of the region; milling facilities were established in Montreal to refine the grain into flour for re-export to Europe. In time, however , the commercial interests of the British merchants' class of Lower Canada were threatened by the establishment of the American Erie Canal system which, completed by 1825, could transport western products more cheaply to Europe than the all-Canadian route could. The response of the Canadians was to build a Canadian Canal system which could rival that of the Americans. This venture necessitated the close co-operation of the governments and legislatures of the two Canadian colonies.

• The Assembly of Lower Canada, made up in majority of the representatives of the Canadiens, did not see much advantage of levying heavy taxes in the province to build canals largely situated in Upper Canada. If the transportation system was to be modernised, the Canadiens wished to see improvements in the local transportation system first before any money was to be diverted into what they perceived as the British merchants' grandiose continental projects. The frustrations of the merchants' class with what they perceived as an anti-commercial attitude led them to loudly demand the reunification of the two Canadas so that a new Assembly, largely composed of anglophones they hoped, would implement their economic program. This vision of the situation was strengthened by the difficulties in apportioning the customs revenues between the two provinces . Governments at the time were largely supported by taxes levied on products as they entered the territory they controlled. As all imports came through the ports of Quebec City and Montreal, the province of Lower Canada enjoyed a favourable economic position as it was in a position to tax not only the trade of Lower Canada but also that ultimately earmarked for Upper Canada. In 1822, the British government had intervened and forced a sharing between the two provinces, of all customs revenues (Canada Trade Act, UK 3 Geo. IV, C. 119); both colonies of course felt discriminated against and the issue continued to plague the two colonies until 1840-41 when the Union was achieved.

• The second set of difficulties created by the Constitutional Act was national in nature. Implicit in the arrangement of 1791 was the thought that the Loyalists had been given a province while the Canadiens would control the other. It was thus natural for the Canadiens to have imagined that, within Lower Canada, they would be able to do pretty much as they pleased. However, that did not turn out to be the case. What the British government gave with one hand it removed with the other. While it is true that a province with a French majority had been created with French laws and the seigneurial system, on the other hand, judicial appointments, the civil service, the patronage, the nominations on the Executive and Legislative Councils continued to be given largely to anglophones. The absence of responsibility in government permitted the cliques that  dominated the Executive and Legislative Councils to frustrate the desire for reform expressed by the largely francophone legislature.

• The members of the Councils,  the Chateau Clique as they were called,  also used their positions of power and prestige to subvert the essentially French character of the province: attempts were made to introduce English commercial laws to replace the French legal system, large scale British immigration was encouraged so that the French majority be diluted, the seigneurial system was threatened with abolition, new land was largely withheld from the Canadiens, English rather than French laws were applied in the Eastern Townships, gerrymandering was heavily used to bolster the anglophone representation in the Assembly, challenges were made to the position of the French language in the courts from time to time and in the Assembly. When these, and other measures, failed to produce the result of assimilating the Canadiens and that the latter started to challenge the economic domination of the merchants class, the Lower Canadians British resurrected the old idea of a union between Upper and Lower Canada.

All of the union projects (1810, 1822) proposed before 1840 stemmed largely from these two conditions : the union was necessary to assure the economic health of the two territories and to dilute the political power of the French. Durham, in his Report that directly led to the enactment of the Union Act of 1840-41, particularly stressed the national struggle in Lower Canada and went as far as to state that "Lower Canada must be English, at the expense, if necessary, of not being British." Several groups of anglophones in Lower Canada encouraged the British government along this line of thinking; British merchants from Montreal wrote: "Sans l'union cette population gardera sa prépondérance dans le gouvernement du pays et naturellement elle ne cessera pas d'elle-même d'être française"; the same sentiments were expressed in a petition from the inhabitants of the Eastern Townships ("Avec plus de protection, nous pourrions rapidement avoir la majorité et démentir cette opinion abusive qu'ont les Canadiens français de vouloir rester un peuple distinct") and in the editorials of the Montreal Gazette where it was claimed that "the leading object of the Union is to assimilate the French inhabitants of this Province to the laws, language and institutions of Great Britain" (Nov. 28, 1839).

In the wake of the Rebellions of 1837-38, and of the Durham Report, the British government yielded rapidly to these pressures and enacted on July 23, 1840 the Union Act (3 and 4 Vict. C. 35). The Act contained 62 articles of which the most important were:

Art. 1. The Union of Upper and Lower Canada shall be declared by a Proclamation of the Governor-general in the next 15 months; this union is made to "secure the rights and liberties and promote the interest of all classes of Her Majesty's subjects." The province is to be known as the Province of Canada.

Art. 3. There shall be one Legislative Council and one Assembly. "Her Majesty shall have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, welfare, and good government of the Province of Canada. "

Art. 4. The Governor shall appoint the Legislative Councillors; there are to be at least 20 such councillors; more may be thereafter appointed.

Art. 5. The Legislative Councillors are appointed for life.

Art. 12. In the Legislative Assembly of the Province "the parts of the said Province which now constitute the Provinces of Upper and Lower Canada shall [ . . .] be represented by an equal number of representatives ."

Art. 13 to 17. divide the Electoral districts of Upper Canada in such a way as to multiply their former number .

Art. 18 to 20 regroup the Electoral districts of Lower Canada in such a way as to reduce their former number .

Art. 24-25. elections are proclaimed by the Governor .

Art. 28. To run in elections, a candidate must own property worth £ 500 "above all rents , charges , mortgages and encumbrances."

Art. 31. Parliament shall last for four years unless the government decides otherwise.

Art. 37. The Governor may assent, withhold assent or reserve any bill passed by the Legislative Assembly and Council.

Art. 38. The British government may, within two years of its passage, disallow a bill passed by the Assembly and Council and assented to by the Governor.

Art. 4l. All official journals, entries and written or printed proceedings of the Council or the Assembly, all writs of summons and elections and all writs of public documents "shall be in the English language only: Provided always, that this enactment shall not be construed to  prevent translated copies of any such documents being made, but no such copy shall be kept among the records of the Legislative Council or Legislative Assembly, or be deemed to have the force of an original record."

Art. 42. Final adjudication regarding Ecclesiastical (clergy reserves, Roman Catholic tithes, etc. ) or Crown Rights (Crown reserves) shall rest with the Parliament of Great Britain.

Art. 43. Questions of duties, navigation and regulation of commerce with any other parts of the world are to be decided by the British Parliament; duties collected here are to be applied for the use of the Province of Canada.

Art. 44. Judges are appointed by the Governor "with the advice and consent of the Executive Council."

Art. 45. All the powers of the Governor are to be exercised with the advice and consent of the Executive Council.

Art. 46. All laws, statutes and ordinances which were in effect in Upper Canada and Lower Canada continue in force "as if this Act had not been made" and "as if the said two Provinces had not been united." The Legislature may, however, change them in the future.

Art. 50. All duties and revenues of Upper and Lower Canada "shall form one consolidated revenue fund to be appropriated for the public services of the Province of Canada."

Art. 51. A permanent Civil list of £75 000 is created. These revenues shall be used to pay the salaries of the Governor and judges.

Art. 54. In return for the permanent Civil list, the Crown surrenders "all territorial and other revenues now at the disposal of the Crown."

Art. 55. The public debts of Upper and Lower Canada are consolidated into one.

Art. 57. All money bills are introduced first in the Legislative Assembly.

Art. 58. The Governor may create townships.

In several respects, the Union Act showed unfairness toward Lower Canada:

Art. 1 Eliminated the small amount of self-government the Canadiens had enjoyed between 1791 and 1838.

Art. 12 Required equality of representation between the two sections of the province even though Lower Canada had a population which exceeded that of Upper Canada by 200 000 people (L.C. had 650 000 people and Upper Canada had only 450 000).

Art. 28. With a Lower Canadian population on the average much poorer than that of Upper Canada, it will be difficult for the average Canadien to run in elections because of the high property qualification.

Art. 41. The French language is reduced to a second class status,  that of a translation language.

Art. 46. The French civil law system may be threatened by the existence of an anglophone majority in the House.

Art. 50. Revenues were higher in Lower than Upper Canada.

Art. 55. The consolidation of the public debts of Upper and Lower Canada is in fact a fictional one since Lower Canada entered the Union with a credit balance of $190 000 while Upper Canada had a debt of $5 900 000. (Different sources provide different figures)

It became evident from the start that the Union Act did not have a chance to stand the test of time for three reasons:

• The lack of responsibility in government was sure to displease every reformer in the province and the problems evident in the period of 1791 to 1840 were bound to resurface.
• The Union of Upper and Lower Canada could only be successful if both partners saw a distinct advantage in such a union and if the principle of duality was respected; however, it is clear from the start that the Union was set up as an instrument of assimilation founded on the domination of one people over another.
• To be successful the Union would have had to call on the loyalty of all of the people in the province; with equality of representation the members of the two sections will tend inevitably, to speak out in favour of their section of the Province; thus, sectionalism is bound to appear rapidly because the unity of interests of the people of the two sections of the Province was not great enough to counterbalance their great difference.

Thus, the failure of the Union Act, as the main cause of Confederation, could have been predicted from the beginning...  The Union, with its clear intent of assimilation, was to generate trauma and political realignment in Quebec. Its effects were to be felt for over a century in the ultramontane form of nationalism that dominated the province for so long and in the ideology of ‘la survivance’ .

© 1998 Claude Bélanger, Marianopolis College