Chapter 1 – A History of the Vote in Canada
British North America 1758–1866
In the colonies that would later form Canada, the vote was a privilege reserved for a limited segment of the population—mainly affluent men. Eligibility was based on property ownership: to be eligible to vote, an individual had to own property or assets of a specified value or pay a certain amount in taxes or rent.
The law prohibited some religious, Indigenous, ethnic and other groups from voting. Women were also excluded by and large—initially by convention, later by statute. In short, only a fraction of the population could vote. Since then, the situation has improved markedly. In the following pages, we provide a brief history of the evolution of the franchise and voting practices in Canada.
Evolution of the right to vote was neither consistent nor ordered. The right to vote was not extended gradually and steadily to encompass new categories of citizens; rather, it evolved haphazardly, with the franchise expanding and contracting numerous times and each colony proceeding at a different pace. For example, the degree of wealth needed for eligibility changed several times, with the result that people who had been entitled to vote suddenly found themselves deprived of that right, only to have it returned sometime later. Similarly, laws were adopted from time to time that withdrew the right to vote from groups that had previously enjoyed it.
Moreover, there was often quite a discrepancy between legal provisions and reality. Early in Canada's history, voting conditions set out in the law opened the door to a host of fraudulent schemes that, in practical terms, restricted the voting rights of a significant portion of the electorate at various times. Here are some examples:
- Each electoral district usually had a single polling station.
- Votes were cast orally.
- Election dates differed from one riding to another.
- In each polling station, if a full hour passed in which no elector voted, the station was automatically closed.
How many voters, living far from their riding's only polling station, relinquished their right to vote rather than travel long distances in often harsh conditions? We will never know. Oral voting made it easier for votes to be bought; it also opened the door to intimidation and blackmail. Since each elector's vote was recorded in a document, bribers could easily tell whether the voters whose votes they had bought voted as instructed. Worse yet, the practice of closing polling stations when an hour had passed without any voters appearing led to numerous acts of violence. To win an election, an unscrupulous candidate could simply hire a gang of bullies to allow his supporters to vote, then bar the way to the polling station for an hour.
Such tactics, coupled with the fact that most candidates supplied unlimited free alcohol to voters during an election, resulted in riots that claimed at least 20 victims before 1867: three in Montréal in 1832; nine in Montréal, Vaudreuil, Beauharnois, Toronto, and the counties of Durham and Halton West in 1841; one in Northumberland County, New Brunswick, in 1843; one in Montréal in 1844; three in Belfast, Prince Edward Island, in 1847; two in Québec in 1858; and one in Saint John, New Brunswick, in 1866.
Finally, in addition to voters killed while trying to exercise the right to vote, how many were injured? History does not say, but the following description of a brawl that broke out at a Montréal polling station in 1820 leaves no doubt that voting could often be a risky business:
Passions ran so high that a terrible fight broke out. Punches and every other offensive and defensive tactic were employed. In the blink of an eye table legs were turned into swords and the rest into shields. The combatants unceremoniously went for each other's nose, hair and other handy parts, pulling at them mercilessly … The faces of many and the bodies of nearly all attested to the doggedness of the fighting.
Rather than expose themselves to such dangers, some voters, at least occasionally, no doubt relinquished the right to vote. As Canadian electoral law was amended to limit fraudulent practices and outbursts of violence, it ensured that a growing proportion of the population could exercise the right to vote.
Legislative assemblies and responsible government
Canadian parliamentary institutions began to take shape in the latter half of the 18th century. Though this book discusses elections following European colonization, we recognize that Canada's Indigenous peoples had developed their own systems of government long before the creation of parliamentary institutions in Canada. For example, many scholars date the beginning of the Haudenosaunee (Six Nations) Confederacy to the mid-15th century, although several argue that it began much earlier, even a millennium before the arrival of Columbus. The stories of Indigenous governance and representation are beyond the scope of this publication.
The first legislative assembly—an assembly of representatives elected by the people to enact legislation—was elected in Nova Scotia in 1758; Prince Edward Island followed suit in 1773, New Brunswick in 1785, then Lower Canada (Quebec) and Upper Canada (Ontario) in 1792. Executive authority still eluded these assemblies, however, remaining in the hands of egoxecutive council members appointed by colonial governors, who were in no way accountable to elected members or to the electorate. The consent of an assembly was required for a bill to become law, but bills originating in the assembly could be vetoed by Crown-appointed legislative councillors or governors, over whom the assemblies had no control.
In the first half of the 19th century, then, recognition of the principle of responsible government—not extension of the franchise—sparked reform efforts in the colonies of British North America. Politicians known as Reformers endeavoured, first and foremost, to achieve responsible government: ministers were chosen by the majority in the house of assembly (and forced to resign if they lost the confidence of that majority) and were accountable to it.
In 1836, Joseph Howe, known as the voice of Nova Scotia, expressed succinctly the objective of the Reformers of his time:
[A]ll we ask for is what exists at home—a system of responsibility to the people. (DCB X, 364) Colonial governors' opposition to such a change was backed up in London by successive secretaries of state for the colonies, whose attitude was summed up in a remark by Lord Bathurst, who apparently told a new governor on the eve of his departure for North America,
Joy be with you, and let us hear as little of you as possible. (DCB VIII, xxiv) This directive seems to have been followed scrupulously, for until 1828, the colonial office had only a vague idea of the discontent brewing for years in some colonies, particularly Upper and Lower Canada, where rebellions broke out less than 10 years later.
London's response—the 1838 appointment of Lord Durham as governor general, with a mandate to investigate the causes of unrest—did not produce immediate change. Durham recognized that the main source of problems for colonial governments lay in the fact that their executive councils were not responsible to the legislatures. He therefore recommended responsible government for each colony except Lower Canada. There, responsible government would have endowed the French with political control of the province. Durham therefore recommended that Lower Canada be merged with Upper Canada and that the new province be granted responsible government, with the expectation that the English element would predominate.
Fearing the loss of its authority, the British government rejected Durham's recommendations, apparently on the grounds that colonial governors would essentially become independent sovereigns if they began to act on the advice of a council of ministers.
London's inaction soon led to legislative impasse, as Reformers gradually gained control of colonial assemblies and refused to ratify legislation proposed by governors and their councils. The impasse was eventually resolved after Sir George Grey was appointed secretary of state for the colonies in 1846 and promised to grant responsible government to the largest North American colonies at the first opportunity.
The following year, Reformers won the Nova Scotia election; in February 1848 they took office, inaugurating the first responsible government in a British colony. Joseph Howe remarked that this victory had been won without
a blow being struck or a pane of glass broken, (DCB X, 365) forgetting to mention the role of rebellions in Upper and Lower Canada a decade earlier. A month later, in March 1848, it was the turn of Reformers in the Province of Canada to bring in their responsible government. Prince Edward Island and New Brunswick did likewise in April 1851 and October 1854, respectively.
Among the chief architects of this fundamental change in the shape of Canadian parliamentary institutions were the following Reformers: Joseph Howe and James Boyle Uniacke of Nova Scotia; Louis-Hippolyte La Fontaine, Augustin-Norbert Morin and Louis-Joseph Papineau of Canada East (Lower Canada); William Warren Baldwin and his son Robert Baldwin, Francis Hincks and William Lyon Mackenzie of Canada West (Upper Canada); George Coles of Prince Edward Island; and Charles Fisher and Lemuel Allan Wilmot of New Brunswick. Thanks to them and other Reformers, Canadians acquired the right not only to elect assembly members but to choose their governments.
The Great Britain of George III
While allowing its North American colonies to have legislative assemblies, London was deciding, through governors and their councillors, who would have the right to vote. The legislative assemblies of the Maritime colonies gained partial control in this area between 1784 and 1801, while Upper and Lower Canada did not do so until after their union in 1840. It was not until 1847, however, that London gave colonial assemblies the right to set their own rules on the naturalization of immigrants, thereby giving them full authority to determine who had the right to vote. Thereafter, each colony had the authority to confer the status of British subject, but this status was valid only on its own territory; if granted by London, such status was valid throughout the empire.
Initially, the rules governing the right to vote in the colonies of British North America tended to be modelled on those of the mother country. In the Great Britain of George III—the second half of the 18th century—several categories of individuals were denied the right to vote. First, the right to vote was based on property ownership: to be eligible to vote, an individual had to own a freehold (land free of all duties and rents), and this freehold had to generate a minimum annual revenue of 40 shillings, or £2 sterling; this immediately excluded the vast majority of the population.
Of the other groups denied the vote, women undoubtedly represented the greatest number. There was no decree or law prohibiting them from voting; rather, they had not voted for centuries by virtue of a tacit convention of English common law.
Nor could Catholics and Jacobites vote. Mostly Scottish and Irish Catholics, the Jacobites were supporters of James II, who had tried in vain to restore Catholicism in England in the late 17th century. By 1701, in an attempt to strengthen Protestantism, the English Parliament had passed acts establishing three oaths of state designed to exclude Catholics and Jacobites from public office. The first oath was one of allegiance to the king of England; the second, known as the oath of supremacy, denounced Catholicism and papal authority; and the last, the oath of abjuration, repudiated all rights of James II and his descendants to the English throne. Not only was swearing these oaths necessary to hold public office, but electors could be required to swear them before voting.
What is more, the law forbade Catholics to practise their religion, to acquire property through purchase or inheritance, to sit in Parliament and to vote. The prohibition on owning property was removed in 1778; a 1791 law allowed the open practice of their religion again, but they would not be given the right to vote until 1829. Jews also experienced exclusion, though indirectly. They were not explicitly denied the vote, but they refused to take the oaths of state, because they were to be taken
in the name of the Christian faith.
Immigrants and other new arrivals who were not British subjects and had not been in the colonies long enough to become naturalized citizens were the other sizeable group unable to vote. Once again, no law or decree prohibited them from voting; rather, common law prevented them from doing so and from owning property directly or through a lease or farm tenancy. In 1844, a law was passed allowing them to hold property through a lease or farm tenancy, and in 1870, a second law allowed them to purchase landed property directly; both laws also stipulated that they did not have the right to vote, even if they met the legal qualifications.
Since 1740, however, immigrants had been able to become British subjects and thereby gain the right to vote if they met three conditions: they had lived in Great Britain for seven years, they had taken the three oaths of state and they had received communion according to the rite of a reformed church (which was, in practice, the Church of England). These conditions prevented Catholic immigrants, as well as immigrants belonging to certain Protestant sects, such as Baptists and Methodists, from becoming British subjects.
On the whole, these restrictions were applied only partially and erratically in the North American colonies because of the different socio-economic conditions prevailing there. For example, such restrictions were not imposed in Lower Canada, for they would have contravened the spirit of the Quebec Act of 1774. The criteria also varied from colony to colony, with the result that those that formed Canada during the 19th century—Nova Scotia, Prince Edward Island, New Brunswick, Lower Canada, Upper Canada and British Columbia—joined Confederation with appreciably different electoral laws. The nature and evolution of these laws are the main focus of this chapter.
Nova Scotia: Cradle of Canadian Parliamentary Government
In 1713, under the Treaty of Utrecht, France ceded Nova Scotia to Great Britain but kept Île Royale (Cape Breton Island) and Île Saint-Jean (Prince Edward Island). The following year, a small British garrison was established at Port-Royal, Nova Scotia, now renamed Annapolis Royal. The 2,000 Catholic French-speaking Acadians living in the colony at the time agreed to swear an oath of allegiance containing a clause exempting them from bearing arms in the event of conflict with France. In the decades to come, despite every effort to attract colonists from New England, very few settled in Nova Scotia, while the number of Acadians multiplied at a rapid rate. In the circumstances, the British authorities considered it imprudent to let the colony have a legislative assembly.
- First elected assembly, made up of 22 men. Eligible to vote: Protestants age 21 or older who own a freehold of any value.
- Assembly gains statutory control of representation and the franchise.
- Assembly removes religious restrictions on eligibility to vote.
- First responsible government in British North America inaugurated.
- Right to vote separated from land ownership, extending the franchise to men over 21 who have paid taxes in the year preceding an election; number of electors increases by 30 percent.
- Universal male suffrage adopted (though it does not include First Nations people or people receiving financial assistance from government); number of electors increases by 50 percent. Nova Scotia is the first colony in North America to adopt male suffrage and the only one to do so before Confederation.
- Restrictive rules reintroduced—property ownership is again a criterion for eligibility.
- Rules in place at Confederation: to vote in a federal election held in Nova Scotia, electors have to be male, age 21 or older and own property of a specified value.
Following the War of the Austrian Succession (1744–1748), London finally decided to try to change the population makeup in Nova Scotia by encouraging emigration by non-English-speaking Protestants from Europe, mainly victims of religious wars there. Recruited mostly from Germany, but also from the Netherlands and Switzerland, about 2,600 such immigrants accompanied Colonel Edward Cornwallis, governor of Nova Scotia and founder of Halifax, when he sailed to Nova Scotia in 1749. That same year, Governor Cornwallis was given full authority to establish an elected assembly when he deemed it appropriate, but he delayed doing so indefinitely, as the colony was home to three to four times as many Acadians as Protestants.
In 1754, war broke out again between Great Britain and France. This time, the British demanded that the Acadians, who had previously remained neutral, take up arms. They refused. The British reaction was to deport them. In 1755, as their homes were burned down, about 7,000 Acadians were herded onto ships and dispersed among Britain's 13 American colonies and the West Indies; 2,000 to 3,000 more met the same fate in the years that followed.
Beginning in 1759, colonists from New England settled on the land confiscated from the Acadians, while other immigrants arrived from the British Isles. Thus, on the eve of the American Revolution (1775–1783), Nova Scotia had about 20,000 inhabitants, nearly half of whom had come from New England; the rest were either Acadians who had returned from exile or escaped deportation, or Irish, Scottish and English settlers.
The American Revolution changed the composition of Nova Scotia's population considerably. Following the Treaty of Versailles (1783), which recognized the United States, Loyalists—people living in the United States who had remained loyal to the British Crown—fled north by the tens of thousands. An estimated 35,000, including approximately 3,500 African Americans, settled in Nova Scotia, more than doubling its population. This massive influx led to socio-political tensions that would last for years, but it also prompted the establishment of new Maritime colonies in 1784: New Brunswick and Cape Breton.
When the governor of Nova Scotia called the 1758 election—which would lead to the formation of the first legislative assembly in Canadian history, made up of 22 members—the population was still quite small and made up of fairly recent arrivals. The conditions for eligibility to vote, therefore, had to be more liberal than in Great Britain to yield a sufficient number of voters. With the support of his councillors, the governor declared that any Protestant age 21 or older who owned a freehold of any value could vote. In addition, however, prospective voters could be asked to swear the three oaths of state; this prevented Catholics and Jews from voting. As for women, their status was the same as that of British women—they did not have the right to vote. In 1759, however, the governor and his council decided to restrict the vote to freeholders owning property generating an annual revenue of 40 shillings, as in Great Britain.
The arrival of the Loyalists prompted a change in conditions of eligibility. In 1789, the legislative assembly rewrote the rules of the game. Freeholders still had to meet the criteria established in 1759, but the right to vote was extended to anyone who owned a dwelling with his land, regardless of its value; to anyone who owned at least 100 acres of land, whether farmed or not; and to anyone who occupied Crown land by virtue of an occupancy permit. Finally, the legislative assembly abolished religious discrimination in the eligibility criteria, enabling Catholics and Jews to vote. These new measures favoured urban landowners, fishermen and Loyalists, a good many of whom had only an occupancy permit.
Compared to the rules prevailing in the Great Britain of George III, those established by the Nova Scotia assembly were quite liberal—perhaps even a little too liberal. In 1797, the assembly reconsidered and tightened the rules once again. In future, those occupying Crown land by virtue of an occupancy permit would no longer have the vote, nor would freeholders who had not formally registered their property at least six months before an election; owners of 100 acres or more of land would no longer have the vote unless they were farming at least 5 acres of it.
It was not until 1839 that the assembly changed the rules again. It upheld the right to vote of freeholders owning property generating an annual revenue of 40 shillings but withdrew it from owners of 100 acres of land and those who owned a dwelling with their land. However, property owners who met the same conditions as freeholders could now vote. In addition, mortgagors and co-owners were now eligible to vote, as were tenants, if they owned an interest in real property that earned them at least 40 shillings annually.
Twelve years later, in 1851, Nova Scotia took the significant step of detaching the right to vote from land ownership. The assembly declared that anyone age 21 or older who had paid taxes (in any amount) in the year preceding an election could vote. In ridings where taxes were not yet collected, only freeholders with property yielding 40 shillings a year could vote. The same law stipulated, however, that no woman could vote even if she met the legal requirements regarding taxes or property. The assembly added this clause because, during an election held in 1840, a candidate in Annapolis County had tried to get some 30 women who had the necessary qualifications to vote, common law notwithstanding.
In 1854, Nova Scotia became the first colony in British North America to adopt universal male suffrage—and it would be the only one to do so before Confederation. That year, the assembly adopted a law to the effect that British subjects age 21 or older who had lived in the colony for at least five years could vote. It kept the rule allowing freeholders with property generating a minimum annual revenue of 40 shillings to vote; this enabled a number of immigrants of British origin to vote even though they had not lived in the colony for five years. Like the electoral law of 1851, the 1854 act contained a restrictive clause stating that "Indians"footnote 1 and people receiving financial assistance from the government could not vote.
Further change, more regressive this time, came a decade later: the elimination of universal suffrage and a return to more restrictive rules. In 1863, Nova Scotia limited the right to vote to British subjects at least 21 years old who owned property assessed at $150 or more, or personal and real property assessed at $300 or more. The number of eligible British subjects was expected to increase, however, at least in theory, as immigrants now had to live in the colony for only one year to be declared British subjects.
Such were the rules that defined the Nova Scotia electorate in August and September of 1867, when the first Canadian federal election was held.
How is it that men who had to, for 20 years, obtain and determine the price they must attach to the noble right to elect or to be elected are not horrified at the thought of selling their vote or buying votes, at the thought of cowardly tampering with their participation in an election?
Prince Edward Island: A "Landless" Colony
In 1758, the British succeeded in taking possession of Île Saint-Jean, where it followed the same policy as had been pursued in Nova Scotia a few years earlier. Some 4,000 French and Acadian colonists were deported, but several hundred evaded capture by seeking refuge in the far corners of the island. In 1763, after the Treaty of Paris, the island was joined with Nova Scotia. Four years later, it was subdivided into 67 townships of about 20,000 acres each; these were distributed to individuals who had earned the gratitude of the British government for services rendered during the Seven Years' War. The lands were granted on certain conditions, one being that they be used for Protestant settlers, who were not to come from other British colonies. At the turn of the 19th century, some of these lands were joined, so that a few wealthy individuals, most living off the island, came to own vast expanses of land that they often refused to sell, preferring long-term leases to tenant farmers. By the middle of the century, not even a third of the farmers were freeholders, and it was not until 1895 that the government bought back the last estate from the remaining large landowner.
In 1769, the island was separated from Nova Scotia to form a distinct colony, and its first governor was instructed to establish an elected assembly when he deemed it appropriate. The population, almost exclusively Acadian, was still very small; the governor delayed. Between 1770 and 1773, about 800 Scottish settlers came to the island, increasing the population to more than 1,200; it was at this point that the governor decided to exercise his prerogative. The first house of assembly, which consisted of 18 members, was elected on July 4, 1773. The governor restricted the vote to freeholders and planters, but there were practically none of these on the island; almost all the residents were tenants or squatters living on land belonging to absentee landlords. With the consent of his councillors, the governor gave the vote to all Protestants living on the island, imposing no further restrictions related to age, nationality or gender. It was understood, however, that the island would follow the prevailing electoral practice in Great Britain, where neither children nor women could vote. For the time being, however, only Catholics were explicitly denied the vote, although Jews were effectively excluded as well, as voters could be required to swear the three oaths.
The viva voce system was more in accordance with the institution of the empire to which we belonged and more congenial to the manly spirit of the British people; and he would not therefore consent to abandon it in favour of the underhand and sneaking system of a vote by ballot.
After the American Revolution, only a few hundred Loyalists joined the Acadians and colonists of British origin. However, a change that affected the electorate was made in 1787. Protestant residents of rural areas would continue to have the vote, but in Princetown, Georgetown and Charlottetown, only freeholders would be allowed to vote; this obviously excluded tenants.
In 1801, the island's legislative assembly gained control of the rules governing voting rights but did not change the criteria. It even reiterated the ban on voting by Catholics. Because of the growing number of Irish and Scottish arrivals, Catholics were beginning to outnumber Protestants, even though initially the colony had been intended to receive only Protestant immigrants. It was not until five years later, with a rapid rise in the number of immigrants from the Highlands of Scotland, many of whom were destitute, that the assembly decided to restrict the right to vote. In rural areas, Protestant residents remained eligible to vote if they owned a freehold yielding at least 20 shillings a year, leased land for 40 shillings a year, or occupied and maintained land and paid annual rent of at least £3. In Princetown, Georgetown and Charlottetown, freeholders retained their right to vote, while those who maintained and occupied property, regardless of its value, acquired the same right.
To prevent squatters, labourers and transients from voting, the assembly imposed further financial restrictions in 1830. In future, freeholders in rural areas would have to own property yielding annual revenue of at least 40 shillings, not 20, and individuals occupying and maintaining property would have to be paying an annual rent of £5 (up from £3). Unchanged was the requirement that tenant farmers or leaseholders be paying an annual rent of 40 shillings. Freeholders in Princetown, Georgetown and Charlottetown retained the right to vote, but individuals responsible for maintaining a property had to occupy a building commanding an annual rent of at least £10. In addition, owners of real property producing annual revenue of at least £10 would be eligible to vote.
Before agreeing to the new electoral law, London demanded the removal of all clauses restricting the right to vote to Protestants, thus giving Catholics the vote. Six years later, Prince Edward Island passed a law prohibiting women from voting. This decision was surprising, as there appears to be no evidence that women had sought to exercise this right.
Prince Edward Island
- First elected assembly, consisting of 18 members. Eligible to vote: all Protestants on the island. There are no legislated restrictions, though convention dictates that women and children do not vote.
- Quakers enfranchised and allowed to stand for public office.
- Legislative assembly gains control of rules governing the right to vote (but does not change them at this time).
- Restrictions on voting by non-Protestants removed.
- Law passed explicitly limiting the franchise to men.
- Responsible government achieved.
- The practical equivalent of universal male suffrage introduced.
- Elected legislative council secured.
- Prince Edward Island joins Confederation with the most liberal electoral law of all the former colonies (only British Columbia's franchise is broader), but significant numbers are still disenfranchised: women, men over age 60 who own no land, and non-British arrivals who have lived on the island less than seven years.
Since the beginning of the 19th century, the assembly had been attempting to restrict the electorate by increasing the property requirements, mainly to bypass the Escheat party, which was calling for the lands of absentee owners to be confiscated and resold to those occupying and working the land. During the 1840s, Escheat supporters lost ground to the more moderate Reformers, who eventually achieved responsible government in 1851. Two years later, the assembly adopted a law authorizing the island government to purchase land from consenting landowners for resale in small parcels to their tenants.
Political tensions subsided, and in 1853, the assembly decided to broaden the electorate considerably. This time, the vote was extended to British subjects age 21 or over who had lived on the island for at least 12 months before an election and who were subject to the statutory labour law.footnote 2 As a result, all British subjects between the ages of 21 and 60 who had lived on the island for at least a year became eligible to vote. This was essentially the equivalent of universal male suffrage. In addition, the vote was granted to British subjects over age 21 who owned or had legal title to an urban freehold, or who owned rural or urban property producing annual revenues of at least 40 shillings. In other words, these landowners could vote more than once—in the electoral district where they lived (that is, where they were subject to the statutory labour law) and in the district where they owned property that met the eligibility requirements.
Moreover, like the other colonies of British North America, since 1847 Prince Edward Island had had the authority to enact regulations governing the naturalization of non-British settlers. Nearly all immigrants came from the British Isles and thus were already British subjects. It was not until 1863 that the assembly passed a law granting civil and political rights to non-British arrivals who had lived on the island for at least seven years.
Of the original colonies that formed Canada, Prince Edward Island had the most liberal electoral law when it joined Confederation in 1873, although a sizable fraction of its population was still prohibited from voting: women, anyone over 60 years of age who was not a landowner, and immigrants who had been living on the island less than seven years.
Cape Breton: A Colony Without Voters
With the capitulation of the fortress of Louisbourg in July 1758, Île Royale came under the control of the British. Five years later, after the Treaty of Paris, London joined Cape Breton with the colony of Nova Scotia; now Nova Scotia's electoral laws applied to Cape Breton. To reserve the operation of the coal mines and fisheries for the Crown, the British authorities had decided to give residents of Cape Breton occupancy permits, not freeholds. Suddenly, no Cape Breton resident could vote, since only freeholders could vote in Nova Scotia.
- Cape Breton is merged with Nova Scotia and becomes subject to its electoral law; no resident can vote, as no freeholds are permitted on Cape Breton, and only freeholders can vote in Nova Scotia.
- The colonies are separated again, but no legislative assembly is established.
- The colonies are rejoined; tenants on Crown land in Cape Breton gain the vote.
In 1763, Cape Breton was still occupied by a handful of Acadians who had evaded deportation. Between then and the end of the American Revolution in 1783, however, immigrants from the British Isles, particularly Scotland, settled there. Then in 1784, several hundred Loyalists arrived in Cape Breton, founding the city of Sydney. That same year, London separated Cape Breton from Nova Scotia, making it a distinct colony with its own governor and executive council. No legislative assembly was established, apparently for two reasons. First, the population was deemed to be too poor to support such an institution. Second, the vast majority of Cape Breton's population was made up of Catholic Gaelic-speaking Scottish settlers and Acadians, also Catholic, who spoke only French. To participate in the proceedings of a house of assembly under the British system of the time, an individual had to speak English and be a non-Catholic.
Cape Breton gradually became fairly prosperous. Early in the 19th century, residents began to demand a house of assembly, but London turned a deaf ear. In 1820, with the population of Cape Breton nearing 20,000, London decided to merge it with Nova Scotia again. The annexation occurred shortly after Nova Scotia's assembly had adjourned. As the laws of Nova Scotia did not yet apply to Cape Breton, the governor and his councillors decided who would have the vote in the newly annexed territory.
Giving the vote only to freeholders, as in the rest of Nova Scotia, would be tantamount to denying the vote to virtually the entire population of Cape Breton, as only a handful of speculators had been granted land under its system of tenure since 1784. Nearly all residents were therefore tenants or tenant farmers, leasing Crown land or land belonging to a land speculator. The governor and council finally decided to give the vote to tenants on Crown land, a decision that was subsequently ratified by the Nova Scotia assembly. Elsewhere in Nova Scotia, Crown land leaseholders would not obtain the right to vote until 1851, some 30 years later.
The people of Cape Breton were thus denied the right to vote for 57 years—from 1763 to 1820—an unenviable record for a British North American colony.
New Brunswick: A Fragmented Colony
When the British took Louisbourg in 1758, several small Acadian communities lay scattered across the vast territory of New Brunswick. Some, situated along the southern shore of the Baie des Chaleurs, would become towns like Caraquet, Shippagan and Miscou. Others were situated at the mouths of rivers that emptied into the Gulf of St. Lawrence, and still others on the north shore of the Bay of Fundy and in the Saint John Valley. As they had done elsewhere, the British conducted a deportation policy for several years, and, as elsewhere, many Acadians evaded deportation by fleeing to the bush, beyond the reach of English bayonets, particularly along the headwaters of the Saint John River.
- First elected assembly in New Brunswick, comprising 26 members. Eligible to vote: white males over the age of 21 who have lived in the colony for at least three months and agree to take an oath of allegiance.
- Votes of Catholic Acadians disallowed in a disputed election.
- First electoral law adopted—one of the strictest in British North America; it receives royal assent in 1795.
- Catholics and Jews gain the vote when the oath requirement is lifted.
- Vote withdrawn from women.
- New electoral law extends the franchise to include tradesmen, professionals and senior clerks (in addition to landowners) but still excludes most labourers and workers (who make up some 21 percent of men over the age of 16 in 1861). Voting by secret ballot introduced.
In 1763, New Brunswick did not exist as a separate jurisdiction but was part of Nova Scotia. British authorities lost interest in the region. Over the years, several hundred Acadian families returned from exile, while only a few thousand British emigrants settled there, mainly in the Saint John Valley. By the end of the American Revolution, New Brunswick was still sparsely populated.
The flood of Loyalists into Nova Scotia prompted profound change. The Loyalists dreamed of
a stable, rural society governed by an able tightly knit oligarchy of Loyalist gentry, (DCB V, 156) a dream that translated into a profound distrust of the innovative and democratic spirit of the Americans. Nova Scotia's existing population was largely of American origin and took a dim view of the massive influx of Loyalists. In 1784, to ease the political tensions caused by their arrival, London separated the territory of New Brunswick from Nova Scotia to accommodate Loyalist settlement. Between 15,000 and 20,000 Loyalists settled in New Brunswick; they were later joined by immigrants of Scottish, Irish and English origin.
Until the mid-19th century and even beyond, colonization of New Brunswick bore little resemblance to that of its sister colonies, Nova Scotia and Prince Edward Island. The colony consisted of a series of separate communities that had very little contact with each other, with the result that settlers in each isolated region were generally unaware of conditions elsewhere but vigorously supported any measure intended to meet their own needs. As a result, businessmen and politicians from the various regions represented conflicting interests and proposed divergent solutions. In this situation, the electorate tends to play a less significant role than when there are political parties promoting a platform or advocating specific measures affecting the population as a whole.
When New Brunswick obtained its status as a colony in 1784, the first governor was given the usual orders: to govern with the advice of his executive council until circumstances favoured the establishment of a legislative assembly. In the fall of 1785, the circumstances were favourable, and elections were held for the 26-member legislative assembly. The number of freeholders was extremely small, so the governor gave the right to vote to any white male age 21 or over who had lived in the colony at least three months and who agreed to take the oath of allegiance. But these liberal criteria disappeared in a flash when, the day after the first election, the losing candidate in Westmorland County complained to the legislative assembly that he had been defeated by the Acadian vote. In January 1786, the assembly resolved that those Acadian votes were not legal. The assembly then unseated the winning candidate and seated his opponent. In this way, the votes of Acadians were invalidated.
Five years later, the assembly adopted New Brunswick's first electoral law. It also reiterated its January 1786 resolution denying Catholics the vote, enabling sheriffs, who oversaw the elections, to discount the votes of anyone who refused to take the three oaths of state. Once again, Jews found themselves excluded by the same provisions that disenfranchised Catholics.
The requirements of the electoral law were among the strictest of any in the British North American colonies. To be eligible to vote in a given constituency, an individual had to be 21 or older and own property in the riding free of any duties or rents and assessed at £25 or more, or own similar property in another riding assessed at £50 or more. The requirements reflected the conservative mentality of the ruling class in New Brunswick, which had received a large proportion of the Loyalists who had previously held important civilian and military positions in Britain's 13 American colonies. This class was inclined to restrict the vote to major landowners. At the time the law was enacted, a number of settlers owned enough land to be eligible to vote, but a steadily growing number of poorer immigrants swelled the ranks of those ineligible to vote.
These restrictive requirements remained in force for more than half a century, with one exception: in 1810, the assembly did away with the mandatory three oaths, enabling Catholics and Jews to vote. In 1848, however, the assembly explicitly withdrew the vote from women who met the property requirements. The women's vote had been granted only once before, in the County of Kent in 1830. Had others attempted to have this repeated? From the legislative measure of 1848, it would seem so.
From about the 1820s, in the face of strict eligibility requirements, more and more people took to voting illegally, often going to the polling stations in such large numbers that election officials were unable to verify whether everyone was eligible. Following each general election, the ordinary business of the legislative assembly would often be paralyzed for days, even weeks, because members had to investigate contested elections, an increasingly common phenomenon.
The assembly procrastinated for several decades before adopting a new law in 1855 to extend the franchise. Still eligible to vote were all freeholders owning property assessed at £25 or more; they were joined by anyone whose annual income, combined with the value of his real and personal property, was at least £100. It was still necessary, of course, to be a British subject age 21 or older; a foreigner could obtain this status only after residing in the colony for seven years. In short, this legislation gave the right to vote to almost all property owners and to those in the upper income bracket, but it still excluded the vast majority of labourers and workers. At Confederation, New Brunswick's 1855 electoral law was still in effect.
Lower Canada: A British Colony Unlike the Others
July 1608: Samuel de Champlain founds Quebec. September 1759: Quebec surrenders to the British. In the intervening 150 years, a colony of French-speaking Catholics had put down roots in the St. Lawrence Valley and spread west and south into the land of the Illinois and to Louisiana. This was la Nouvelle France—New France. Compared to its neighbours—Britain's 13 American colonies—New France grew geographically by leaps and bounds; demographically, however, it moved at a snail's pace.
At the turn of the 18th century, New France consisted of four main colonies: at the periphery, Newfoundland, Acadia and Louisiana; in the centre, Canada, firmly entrenched in the St. Lawrence Valley but controlling a network of trading and military posts extending to Hudson Bay, the Great Lakes region and the Mississippi Valley. Because of its relatively large population, Canada dominated the rest of New France, but the total population was still only about 14,000. By contrast, Britain's 13 American colonies, huddled along the Atlantic coast between Acadia and Spanish Florida, was already home to some 275,000 settlers and enslaved Africans.
Under the Treaty of Utrecht, France ceded present-day Nova Scotia, as well as Hudson Bay and Newfoundland, to Great Britain in 1713. Fifty years later, under the Treaty of Paris, France ceded the rest of New France, keeping only the islands of Saint-Pierre and Miquelon, off the southern coast of Newfoundland, which remain French to this day. By then, the population of Britain's 13 American colonies was roughly 1.6 million (including Indigenous people and enslaved Africans), while Canada's was only about 60,000. That population had already developed characteristics that distinguished it from its neighbours to the south, however, who had remained closer to their European roots.
Within two generations, the French settlers in the St. Lawrence Valley had become "Canadianized," blending their European heritage with traits borrowed from First Nations. Aware that they enjoyed far more freedom than their counterparts in France, they referred to themselves as habitants rather than paysans. Driven by a spirit of egalitarianism, they usually proved resistant to hierarchy. They were commonly called "Canadiens / Canadians" to distinguish them from French sojourners in the colony who had not joined settler society. The colonial authorities—civilian, military and religious alike—complained regularly of the rebellious spirit of the Canadians.
Lower Canada, 1821
In 1821, there were 468 tenants in Saint-Roch, a suburb of Québec inhabited mainly by artisans, day labourers and construction workers. Rents were quite low in Saint-Roch, and two thirds of housing fell below the average annual rental of £11. As a result, a corresponding two thirds of tenants could not vote, as a tenant had to be paying an annual rent of £10 to be eligible to vote.
In 1752, a French military engineer visiting Canada, like many other chroniclers of the time, was struck by their profound sense of independence: "Canadians generally are unruly, stubborn and act only according to their fancy and whim …." (Franquet, 103, translation) In short, the French of the St. Lawrence Valley became Canadianized before the English of the 13 American colonies became Americanized, and this distinction became more pronounced over time.
In 1763, Great Britain was convinced, mistakenly, that it was inheriting a French society. English authorities did not fully understand the reality: that the former subjects of the king of France already formed a distinct people, more North American than European, and wanted to remain that way. By the Royal Proclamation of 1763, issued by George III, Canada became the Province of Quebec, and its first governor received the usual orders to call a legislative assembly when conditions allowed. This might be surprising at first glance, but less so when considered in light of the fact that London anticipated a strong influx of Protestant settlers from New England who would quickly outnumber the Canadians.
In the meantime, a major problem arose in 1764: the legal status of Canadians. Colonial authorities sought the opinion of legal experts, who finally declared that the conquered people were not subject to the
Incapacities, Disabilities and Penalties imposed upon Catholics in England. (DCB IV, xli)
Two years after the Royal Proclamation, only a few hundred British, mostly merchants and traders, had settled in the new colony, mainly in Québec and Montréal—nowhere near the influx expected. In late 1767, the governor was forced to note that, barring some "unforeseeable disaster," the numerical superiority of Canadians, far from diminishing, would increase. London therefore decided to revise its policy and, among other things, gave up the idea of permitting a legislative assembly. But the Canadians paid little attention, accustomed as they were to living by a precept common under the French regime: "Chacun parle en son nom et personne au nom de tous." ("Each one speaks on his own behalf and no one on behalf of everyone.")
Under the Quebec Act of 1774, the Province of Quebec was to be administered by a governor and an executive council. The Act also reinstated the Coutume de Paris as the civil code, replacing the common law, and retained the seigneurial system. But 10 years later, the "unforeseeable disaster" occurred: a wave of mostly Anglo-Protestant settlers, in the form of several thousand Loyalists, flooded the colony.
It was not a very big wave: some 10,000 to 15,000 immigrants, including about 2,000 Indigenous allies. All the same, it was enough to shift the demographic balance; the British minority jumped from 4 or 5 percent of the total population to between 10 and 15 percent. Some took up residence on the southeast shore of the Gaspé peninsula or in the Eastern Townships, but most settled north of Lake Ontario. The Loyalists wanted neither the seigneurial system nor the Coutume de Paris; they demanded English common law, the English system of land tenure and parliamentary institutions. London was forced to pay attention.
The Constitutional Act of 1791 established a new colony north of the Great Lakes: Upper Canada. The Province of Quebec became Lower Canada, retaining the Coutume de Paris and the seigneurial system. The Act also established the English land tenure system wherever land had not yet been transferred under the seigneurial system, notably in the Eastern Townships. Finally, to satisfy the British minority in Lower Canada, London agreed to houses of assembly. The legislative assembly of Lower Canada had 50 members, while that of Upper Canada had 16 members.
Having done this, however, colonial authorities could not restrict the vote to English-speaking settlers. The Constitutional Act therefore stipulated that anyone age 21 or older who had not been convicted of a serious criminal offence or treason and who was a British subject by birth or had become one when Canada was ceded to Great Britain, was entitled to vote if he or she had the necessary property qualifications. In rural areas, this meant owning land yielding at least 40 shillings a year, less any rent or charges owing. In urban areas, this meant owning a lot with a habitable dwelling generating annual revenue of at least £5, less any rent or charges owing; tenants paying an annual rent of at least £10 were also eligible to vote. The Act also stipulated that property conferring the right to vote could be owned or held under an occupancy permit issued by the governor and executive council.
Unlike women in the other British North American colonies, women in Lower Canada who met the property requirements could vote. Nothing in the Constitutional Act prevented them from doing so, and they were not subject to English common law. They therefore took to voting, apparently without arousing comment, until a tragic event altered the electoral landscape. During a by-election held in Montréal between April 25 and May 22, 1832, illegalities and acts of intimidation and violence occurred almost daily. On the 22nd day of voting, the authorities asked the army to intervene. The result: three Canadians shot dead by British soldiers.
Until then, the Reformers, led by Louis-Joseph Papineau, had supported women's right to vote; but they had a change of heart, believing that polling stations had become too dangerous for "the weaker sex." In 1834, the house of assembly adopted a law depriving women of the right to vote. Because of a legal technicality, however, London rejected the Act, and the women of Lower Canada retained the right to vote.
The electorate of Lower Canada, as defined by the Constitutional Act of 1791, was not altered between then and the creation of the Province of Canada through the union of Upper and Lower Canada in 1840. Political life in Lower Canada proceeded along essentially the same lines as in the other colonies of British North America: reform-oriented parties that demanded major political change opposed conservative parties more satisfied with the status quo. In Lower Canada, however, unlike elsewhere, the struggle among political parties was played out against a cultural backdrop: reformers promoted the interests of French-speaking Canadians, while conservatives advanced those of the English-speaking minority. As a result, Lower Canada was a British colony quite unlike the others.
In 1810, Governor James Craig complained bitterly, as officials of the French regime had done before him, about Canadians' spirit of independence and insubordination. He wrote, "It seems to be a favorite object with them to be considered as a separate Nation; la Nation canadienne is their constant expression." (Ryerson 1973, 45) And following the rebellion of 1837–1838, Lord Durham in turn noted:
I expected to find a contest between a government and a people: I found two nations warring in the bosom of a single state: I found a struggle, not of principles, but of races …. The circumstances of the early colonial administration excluded the native Canadian from power, and vested all offices of trust and emolument in the hands of strangers of English origin.
Then the man known among his contemporaries as Radical Jack because of his liberal ideas concluded:
There can hardly be conceived a nationality more destitute of all that can invigorate and elevate a people, than that which is exhibited by the descendants of the French in Lower Canada, owing to their retaining their peculiar language and manners. They are a people with no history, and no literature.
Lord Durham was right in pointing out the ethnolinguistic dimension of the constitutional struggles that had taken place in Lower Canada prior to his arrival. However, he overlooked the fact that many English-speaking people had sided with the Reformers because the latter defended principles they agreed with, such as responsible government and the election of legislative councillors by the people. His assumption that the bridges had been burned between the two language communities and that, therefore, the only solution was to establish the dominance of one over the other was belied by subsequent events. Lower Canada was definitely a British colony like no other.
Upper Canada: The Era of the Family Compact
Established by the Constitutional Act of 1791, Upper Canada inherited the same rules as Lower Canada for determining its voters. Yet these rules were not applied in quite the same way because Upper Canada, a colony founded specifically for the Loyalists, inherited common law rather than French civil law. Thus, from the outset, women were excluded from the electorate. Also excluded were members of certain religious sects, such as Quakers (members of the Society of Friends, who were relatively numerous in Upper Canada), Mennonites, Moravians and Tunkers, as their faiths forbade them from taking an oath. Under common law, an election officer or even a candidate for election could require a voter to take an oath of allegiance before casting a vote. This restriction would not be lifted until 1833, by an act of the British Parliament.
Upper and Lower Canada
- Constitutional Act establishes Upper and Lower Canada and sets voting rules. Eligible to vote: British subjects over 21 who have not been convicted of a serious criminal offence or treason and meet property ownership requirements. In Lower Canada, women have the vote, but in Upper Canada, the common law prevails, and women are excluded.
- First elected assemblies in Upper and Lower Canada. The legislative assembly of Upper Canada had 16 members; the house of assembly of Lower Canada had 50 members.
- Election violence in Montréal results in three deaths.
- Polling stations are deemed too dangerous for women; legislative assembly of Lower Canada adopts law denying them the vote; London disallows the law.
- Act of Union creates the Province of Canada by merging Upper and Lower Canada. Franchise remains as in Constitutional Act of 1791.
- First elected assembly in the Province of Canada: Canada East and Canada West each had 42 members.
- Successive measures exclude from voting judges, bankruptcy commissioners, customs officials, imperial tax collectors, paid election agents, court clerks and officers, registrars, sheriffs and their deputies, Crown clerks and assistant clerks, Crown land agents and election officials.
- Responsible government in the Province of Canada.
- Legislative Assembly of the Province of Canada standardizes electoral law of Upper and Lower Canada.
- First electoral law ordering preparation of electoral lists from property assessment rolls; measure abandoned in 1855 after lists remain unfinished; adopted again in 1859, after election fraud becomes widespread.
- First election held using registers (lists) of electors compiled through municipal assessment system.
Of all the eligibility criteria, however, the one concerning the definition of a British subject posed the most serious problem. It even started a kind of family quarrel among immigrants from the United States that would last several decades.
When the Constitutional Act came into force, some 10,000 Loyalists were living in Upper Canada. At the same time, westward migration in the United States was spilling over into territory north of the Great Lakes, where the authorities were offering Americans land free of charge or for a nominal sum. Over the years, immigrants from the United States flowed steadily into Upper Canada. These new settlers, unlike their predecessors, were not Loyalists and tended to support the Reformers in large numbers, whereas the Loyalists tended to favour the Conservatives.
In 1800, the Conservatives, who controlled the legislative assembly, started to become alarmed at the situation; they passed a measure to the effect that, to be eligible to vote, immigrants from the United States had to have lived in Upper Canada for seven years and have taken an oath of allegiance to the British Crown. In 1804, the Reformers won a majority in the assembly and tried to repeal the measure of 1800, but in vain. The legislative council, controlled by the Conservatives, opposed the move.
Repeated efforts by the Reformers became even more futile following an event that took place eight years later. On June 18, 1812, the president of the United States declared war on Great Britain. The population of Upper Canada was by then close to 94,000. Eighty percent of the population was of American origin, but less than a quarter of them were of Loyalist descent. When the American army tried to invade Upper Canada, the Loyalists and British settlers defended the territory, but most non-Loyalists remained neutral. This no doubt aroused the distrust of other Upper Canadians, and because the Conservatives still controlled the legislature, the Reformers' efforts continued to be frustrated.
From 1815 on, a steadily mounting number of immigrants from the British Isles chose Upper Canada as their destination. As British subjects, they had the right to vote, provided they met the property requirements. This time, fearing a loss of political control, the old colonists of American origin—Loyalists and non-Loyalists alike—joined forces. In 1821, the assembly decreed that an occupancy permit issued by the lieutenant-governor of Upper Canada was insufficient to obtain the vote.
Consulted on this point, legal experts in London concurred with the assembly's pronouncement. In their view, the Constitutional Act of 1791 was explicit: only an occupancy permit granted by the governor of Lower Canada could confer the right to vote. The governor had not granted such permits since the first general election, leaving this task to the lieutenant-governor. In addition, because it had become increasingly difficult since 1818 for immigrants to obtain a freehold, "annual batches of poor" (Ryerson 1968, 27) from the British Isles were swelling the ranks of the disenfranchised. Throughout the 1830s, settlers of British origin outnumbered even those of American origin, with the result that a sizable portion of the population of Upper Canada had no electoral voice.
In the meantime, the squabble among Upper Canadians of American origin died down. In 1828, with London's consent, the assembly adopted a law stating that foreigners who had settled in Upper Canada before 1820 would automatically become British subjects. The same act stipulated, moreover, that foreigners who had come to Upper Canada between 1820 and March 1, 1828, could obtain the status of British subject after living in the colony for seven years and taking an oath of allegiance. This act superseded the 1800 law.
In short, on the eve of the union of the Canadas, the criteria for voting in Upper Canada had become considerably more restrictive than those in force in Lower Canada, even though those criteria had originally derived from the same legislation. Why? Reformer William Lyon Mackenzie denounced the culprit in plain terms in 1833:
This family compact surrounds the Lieutenant Governor, and mould him, like wax, to their will; they fill every office with their relatives, dependants and partisans; by them justices of the peace and officers of the militia are made and unmade; … the whole of the revenues of Upper Canada are in reality at their mercy; — they are Paymasters, Receivers, Auditors, King, Lords and Commons!
Following his investigation of 1838, Lord Durham also did not mince words:
In the preceding account of … Lower Canada, I have described the effect which the irresponsibility of the real advisers of the Governor had in lodging permanent authority in the hands of a powerful party … But in none of the North American Provinces has this exhibited itself for so long a period or to such an extent, as in Upper Canada, which has long been entirely governed by a party commonly designated throughout the Province as the "family compact" … For a long time this body of men … possessed almost all the highest public offices, by means of which, and of its influence in the Executive Council, it wielded all the powers of government; it maintained influence in the legislature by means of its predominance in the Legislative Council ….
In short, the Family Compact effectively transformed Upper Canada into an oligarchy.
A Right in Jeopardy
|Place||Male Schoolteachers||Female Schoolteachers||Comments|
|Upper Canada||£30||£15||Without lodging|
|Lower Canada||£36||£18||Without lodging|
|Nova Scotia||£38-8s||£19-4s||With food and lodging|
|New Brunswick||£40||£20||Without lodging|
With such low annual incomes, it would be surprising if even one country schoolteacher was eligible to vote in British North America in 1848, since in rural areas, individuals had to own property of a certain value to be eligible to vote.
Lord Durham was given the task of identifying the causes of political unrest in the colonies of British North America and proposing solutions. His first recommendation was to give each colony responsible government—an idea London did not accept until some 10 years later. Radical Jack also proposed a second solution aimed at the one colony that was decidedly unlike the others—Lower Canada. Here, according to Durham's diagnosis, the political problem was coupled with a cultural one. His solution could not have been simpler: subjugate one of the two cultural groups to the other. The means also could not have been simpler: uniting Lower Canada with Upper Canada. Mathematically, Durham was right: every year since the end of the Napoleonic Wars, immigrants had been leaving the British Isles by the thousands to improve their lot in North America, while the inhabitants of Lower Canada could now depend only on themselves to increase their numbers. Durham calculated:
If the population of Upper Canada is rightly estimated at 400,000, the English inhabitants of Lower Canada at 150,000, and the French at 450,000, the union of the two Provinces would not only give a clear English majority, but one which would be increased every year by the influence of English emigration; and I have little doubt that the French, when once placed, by the legitimate course of events and the working of natural causes, in a minority, would abandon their vain hopes of nationality ….
The following warning accompanied Durham's recommendation:
I am averse 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 ….
London finally accepted Durham's recommendation for unification and, under the Act of Union of 1840, created the Province of Canada from the two provinces: Canada East, still commonly known as Lower Canada, and Canada West, or Upper Canada. But London ignored Durham's warning and gave each province the same number of representatives—42 members—even though Lower Canada had 150,000 more inhabitants than its neighbour. This measure would bear out Durham's prediction: it would tend to "defeat the purposes of union, and perpetuate the ideas of disunion." (Cornell et al., 214)
Vote for no man whose conduct in private and public life is not above suspicion, and inquire with due diligence before you give your suffrages.
All that remained was to get the population to support the union, a task London entrusted to the governor general of British North America, Lord Sydenham, a highly ambitious and self-assured man—
the greatest coxcomb I ever saw, and the vainest dog, as one of his contemporaries wrote in his personal journal. (DCB VII, 855) Sydenham soon realized that the success of his mission depended on the election of a group of representatives who supported the new regime. In Lower Canada, the largely French-Canadian population unanimously opposed the union, while in Upper Canada, ultra-Conservatives and extremist Reformers opposed it as well. But Sydenham knew that, under the terms of the Act of Union, the governor had the power to set the boundaries for certain ridings in cities and towns, appoint returning officers, select the location of polling stations and set the election date. Moreover, as governor, Sydenham was also commander-in-chief of the army and head of government. He was certainly not the type of person to trouble himself with scruples; in his view, the end justified the means.
Beginning in early 1840, he did everything possible to win the forthcoming election. "He plans and talks of nothing else," wrote his secretary. (Abella, 328) In Upper Canada, Sydenham acted like a party leader, naming most of the candidates he wanted to see elected. He made promises or threats, depending on the circumstances. For example, to persuade two candidates campaigning for votes in Bytown (now Ottawa) to withdraw, he offered them government positions. He also threatened to deprive voters of government grants if his candidate was defeated. He called on officials to back his supporters and appointed returning officers dedicated to his cause. By the fall of 1840, Sydenham was assured of a victory in Upper Canada. In mid-October, the Toronto Herald reproduced the list of 26 candidates who were also government employees and concluded, "His Excellency should nominate the whole of the members and not beguile us with 'shadows of a free election.'" (Abella, 332)
In Lower Canada, where he could hope to see only a few candidates elected, Sydenham resorted to other ploys. He shamelessly readjusted the boundaries of urban ridings. He cut off the mainly French-Canadian suburbs from ridings in the cities of Québec, Montréal and Trois-Rivières, keeping only the downtown English-dominated cores. Nearly all voters in the suburbs were thus deprived of the vote, since in the rural ridings to which the suburbs were now attached, tenants did not yet have the vote. To increase the Anglophone vote in Sherbrooke, Sydenham added on the neighbouring town of Lennoxville. By this single boundary change, the governor guaranteed the election of six of his candidates in a community where he had previously been assured of just one seat.
In each rural riding, Sydenham set up a single polling station, located not in the centre of the riding but at the perimeter and, where possible, in an English enclave. For example, in the riding of Terrebonne, the polling station was set up at New Glasgow, a small Irish and Scottish community at the northern extremity of the riding; the community was a few days' travel from the riding's centre, which had a strong French-Canadian majority. The same tactic was used in several other ridings, including Ottawa, Chambly and Berthier. Finally, by holding the election in early March, a time of year when the roads were virtually impassable, Sydenham could count on a low turnout among the French-Canadian electorate.
Since 1840, there is this demoralizing and subversive war on corruption, on opinion buying, on the overarching presence of all these disgraces that place the country second and bring a nation to its fall.
Not content with all these pre-election schemes, the governor intervened in the election itself. In Kingston, on the third day of voting, he dismissed an official named Robert Berrie, who the day before had voted against Sydenham's candidate. The other officials quickly got the message; most supported the governor, and the rest abstained from voting. In some ridings where the vote was close, such as London, the governor had land patents granted in extremis to his supporters but not to his opponents, thus ensuring victory. In the ridings of Beauharnois, Vaudreuil, Chambly, Bonaventure, Rouville, Montréal and Terrebonne, he sent gangs of ruffians armed with clubs and guns to take over the polling stations and prevent his opponents from voting. The toll: one dead in Montréal, two in Vaudreuil and three in Beauharnois. In Terrebonne, to avoid a bloodbath, the French-Canadian Reform leader Louis-Hippolyte La Fontaine withdrew his candidacy. Riots broke out in Upper Canada, and there were deaths in Toronto and in the counties of Durham and Halton West.
As commander-in-chief of the army, Sydenham did not hesitate to use the army for his own ends. He refused to send troops to protect 15 opposition candidates who sought protection, while granting the same protection to any of his supporters who requested it.
Through these and other underhanded tactics, Sydenham managed to win the election. In June 1841, he wrote proudly to Lord Russell, "I have gained a most complete victory. I shall carry the measures I want." (Abella, 343) He did not savour his victory for long, however, as illness forced him to resign a month later. Lord Sydenham certainly did not invent election strong-arm tactics, but he used them to an extent never seen before. After his departure, election morals continued to decline in the Province of Canada. In this regard, the Canada of 1867 inherited an unenviable legacy.
The Province of Canada: Changing Rules Reflect Instability
In 1840, the Province of Canada entered a period of political unrest that would intensify from the mid-1850s on, resulting in an impasse some 10 years later. One of the causes of this unrest was equal representation, which initially worked to Upper Canada's advantage and then soon worked against it. As early as 1850, the population of Upper Canada exceeded that of Lower Canada because of the heavy flow of immigrants. Ironically, what had been considered fair in 1840, when English Canadians were in the minority, became seen as unfair in 1850, when they were in the majority.
The Act of Union was based on the assumption that the English would support the governor and his partisans, while the French would remain in opposition, with no hope of office. The assumption was shattered when English-speaking Reformers, led by Robert Baldwin, built an alliance with French reformers, led by Louis-Hippolyte La Fontaine, to achieve responsible government. They prevailed in the 1847–1848 election. In March 1848, the incumbent Tory administration was defeated in the assembly, and Governor General Lord Elgin appointed a government of Reformers. Henceforth, the government had to command a majority in the assembly, a constitutional convention which is now firmly established.
Beginning in the early 1850s, Reformers in Upper Canada, led by Globe editor George Brown, demanded representation by population. Over the years, this demand gained popular support and played an important role during elections. At the same time, the unification of both provinces into a single one was incomplete, since each province maintained its own private law: common law was upheld in Upper Canada, and civil law was upheld in Lower Canada. Each province also had its own distinct school system. Therefore, a number of laws adopted by the assembly applied to only one of the assembly's two sections. Yet, all members still needed to vote on these laws.
As a result, the following problem arose: it was clearly possible for a law to be adopted despite being rejected by members of the section to which it applied. An oft-cited case is that of the denominational schools in Upper Canada, which were imposed by the predominantly French Catholic members of Lower Canada. However, the latter occasionally got a taste of their own medicine. The problem only got worse during the 1850s and 1860s, when the Conservatives forced themselves onto Lower Canada, while the majority of Upper Canadians supported the Reformers. Some proposed that a government could not remain in office without the support of a majority of both sections (called the double-majority rule), which, in fact, proved impossible to attain. In the years that followed, one coalition government after another fell, until the government machinery finally jammed in 1864. The system failed; it no longer truly met the needs of the people. Three years later, there would be a new constitutional compromise: Confederation.
The political uncertainty inherent in the Union was reflected in electoral law. During its brief life—just over a quarter of a century—the Province of Canada passed no fewer than four major election laws affecting the right to vote, as well as numerous other subsidiary acts and regulations that either restricted or expanded the electorate.
There is no inalienable right in any man to exercise the franchise.
Initially, the Act of Union in no way altered the eligibility criteria; it simply upheld those of the Constitutional Act of 1791. In time, however, these criteria underwent various changes in Upper and Lower Canada. In 1849, the Province of Canada passed a law intended to standardize the electoral law of Upper and Lower Canada. In rural ridings, British subjects age 21 or older who owned a freehold or land under the seigneurial system with an annual revenue, less charges, of 40 shillings were still entitled to vote. In urban ridings, owners of a plot of land with a dwelling yielding a net annual revenue of £5 could also vote, provided they were British subjects at least 21 years old. Tenants had the same right, provided they had lived in the city for the 12 months preceding an election and had paid an annual rent of £10.
On the face of it, this law reinstated the property requirements of the Constitutional Act, with one exception: in rural ridings, it no longer covered owners of property held through a permit issued by the governor. In urban ridings, the qualifications may have been held over from the early part of the century strictly for the sake of appearances: since the 1820s, there had been a general decline in the economic standing of labourers, artisans and workers, with the result that an annual rent of £10 in 1850 was proportionately higher than in 1800. Finally, the 1849 act prohibited women from voting—the result of a complaint by a defeated candidate in Halton West (Upper Canada) in an election four years earlier. The candidate protested that seven of the votes counted for his opponent had been from women, contrary to common law. The upshot was that women in Lower Canada, who had been able to vote since 1791 under French civil law, well and truly lost this right.
Also in 1849, the Province of Canada enacted legislation concerning voting by foreigners; it stipulated that all foreigners residing in the colony at the time of Union would now be considered British subjects and could exercise their political rights. Foreign immigrants who had come to the colony after Union could obtain the same status if they remained for seven years and agreed to take the oath of allegiance.
A new elections act affecting voters was adopted in 1853. In rural ridings, all British subjects age 21 or older could vote if they were on the assessment rolls as landowners, tenants or occupants of a property worth £50 or more or generating annual revenues of at least £5. In urban ridings, anyone whose name appeared on the assessment roll as a landowner, tenant or occupant of a property generating annual revenues of at least £7 and 10 shillings acquired the right to vote. This legislation was accompanied by a new measure: the preparation of electoral lists from property assessment rolls. The new qualifications became mandatory for all of Upper Canada and for the cities of Québec and Montréal; elsewhere in Lower Canada, they remained optional, as very few municipalities had assessment rolls.
While this law expanded the categories of voters, taking in tenants and occupants in rural ridings and occupants in urban ridings, it was still restrictive, as it raised the qualifications appreciably. In rural areas, it jumped by 250 percent, while in urban ridings, it rose by 150 percent. Moreover, the gap between the rural and urban qualifications was tending to narrow, an obvious indication of growing urbanization.
The next year, on the very eve of the 1853 act coming into force, the government found that there were still no electoral lists for Lower Canada and only a few for Upper Canada. It therefore passed a provisional act, extending the time allotted to prepare the lists by one year. This law made the use of the qualifications established in the previous year's act optional in both provinces. But by 1855, compilation of the electoral lists still remained largely unfinished; the government therefore decided to make the provisional law of 1854 permanent but gave up the idea of electoral lists. To avoid fraud resulting from the absence of lists, the government introduced a multitude of oaths. But in fact, the Act soon proved unenforceable.
In 1859—after an election in which so many false oaths were sworn that in some ridings, the number of votes cast was as much as triple the number of eligible voters—the government decided to remedy the situation. The assembly adopted the fourth elections act in less than 10 years. The new law returned to the provisions of the 1853 act and abolished once and for all the optional revenue requirement of 40 shillings in rural areas. Again, it became mandatory in both provinces to compile electoral lists from the assessment rolls. In rural areas, the vote was given only to British subjects age 21 or older who owned, leased or occupied landed property assessed at $200 or more or generating annual revenues of at least $20; in urban areas, the same categories of individuals had the vote, provided their property was assessed at $300 or generated annual revenues of at least $30.footnote 3 In the same year, 1859, the residency period required of foreigners to become British subjects was reduced to three years.
But in Upper Canada, some considered these qualifications too permissive, believing that they extended the franchise too far down the social ladder. In 1866, the government decided to change the way property assessment was done in Upper Canada, while increasing the property requirements for voting. Only landowners and occupants of property assessed at $600 in cities, $400 in towns, $300 in incorporated villages and $200 in townships could vote. In ridings where workers were numerous, this measure eliminated eligibility for many voters—more than 300 in the county of London, for example, and about 900 in Hamilton.
Along with the several elections acts, the government adopted a series of statutory measures designed to exclude from the vote persons who, by their position, exerted some influence in society. Thus, between 1844 and 1858, members of a number of groups—no doubt because they were thought to exercise a degree of influence in society—successively lost the right to vote; they included judges, bankruptcy commissioners, customs officials, imperial tax collectors, paid election agents, court clerks and officers, registrars, sheriffs and their deputies, Crown clerks and assistant Crown clerks, Crown land agents and all election officials.
These were the statutes in force at Confederation. The same categories of voters existed in both parts of the Province of Canada, but the property requirements were higher in Upper Canada than in Lower Canada.
British Columbia: The Importance of Being British
When it was founded in 1849, the colony of Vancouver Island (which was home to tens of thousands of First Nations people) had virtually no independent settlers; it was still just a fur trading post inhabited by employees of the Hudson's Bay Company. Under the circumstances, the governor felt obliged not only to postpone election of an assembly indefinitely, but to administer the colony without the aid of a council. In subsequent years, only a few dozen colonists came to settle there, but in London's eyes, this did not matter: democracy carried obligations. In 1856, the secretary of state for the colonies ordered the governor to call an elected assembly. He was instructed to allow all freeholders with at least 20 acres to vote, including absentee landowners, who could vote through their agents living on the land. In August of the same year, after the colony's 40-odd electors had voted, the seven members of the smallest legislative assembly in the history of British North America held their first session.
- British North America's smallest legislative assembly (seven members) is established on Vancouver Island and meets after an election in which about 40 people voted. Eligible to vote: freeholders with at least 20 acres.
- First election for one third of the members of a legislative council (other two thirds appointed by the Crown); each electoral district sets its own criteria for voting eligibility.
- Vancouver Island joins British Columbia. At the next election, no voting restrictions on the mainland except in New Westminster, where Chinese and First Nations people are excluded. Island districts allow voting only by landowners who are British subjects and meet the three-month residency test.
- Governor extends New Westminster rules to island districts.
- London imposes restrictions on the entire colony: eligibility restricted to male British subjects age 21 or older who can read and write English. Excludes First Nations people and immigrants of American origin.
- Voters approve joining Confederation. Just before British Columbia does so, new restrictions are added: six-month-residency rule, minimum property requirements and no taxes owing.
In 1859, it was decided that new eligibility criteria were needed to increase the number of voters. However, the presence nearby of a band of adventurers panning for gold in the Fraser River prompted conservatism on the part of the legislature. It gave the vote to male British subjects age 21 or older who had lived in the colony for four months and who met at least one of the following conditions: ownership of 20 acres of land; ownership, for three months or more, of property assessed at £50; six-months' occupancy of property generating annual rent of £12 or more; 12 months farming 20 acres of farmland as a sharecropper for at least one quarter of the crop; or the practice of surgery, medicine or law, or possession of a diploma from a British college or university. These selection criteria would still be in use when Vancouver Island joined British Columbia in 1866.
In 1857, the discovery of gold on land controlled by the Hudson's Bay Company prompted London to establish a new colony to protect its jurisdiction there. In August 1858, the territory of New Caledonia became a Crown colony known as British Columbia. More than 10,000 prospectors were already sifting feverishly through the gold-bearing sands along the Fraser River. They came mainly from the United States, but also from virtually every country in Europe. As they were a transient population, London postponed establishing parliamentary institutions in British Columbia.
In the meantime, in the hope of attracting British immigrants, land was sold cheap, but only to British subjects. In 1863, the authorities deemed that there were enough British colonists to warrant representative institutions for the colony. However, to ensure that the settled population outweighed the transient population, which had grown during the 1858 and 1862 gold rushes, the governor proposed to set up a legislative council with two thirds of its membership appointed by the Crown and the other third elected by the people. London agreed.
For the first election, the governor subdivided the territory into a number of electoral districts and allowed the residents of each district to define their own criteria for eligibility to vote. The citizens of the district of New Westminster decided that voters would have to be British subjects and have lived in the district for at least three months; voters also had to own a freehold assessed at £20 or more, lease property for an annual rent of at least £12 or own land—freehold or by pre-emptive right—assessed at £20 or more. Two other districts, Douglas and Lillooet, adopted the same rules. In the other more remote districts, there were no restrictions: anyone who wanted to could vote. The situation remained unchanged until Vancouver Island joined British Columbia in November 1866, a union prompted by the end of the gold rush.
The colonial government then decided to abolish the legislative assembly of Vancouver Island and retain the legislative council, extending it to include the new part of the colony. For the first election, the voter selection criteria varied from one electoral district to another. The three districts on Vancouver Island kept the rules established in the 1859 act, when the island was a separate colony. In the mainland districts, there were no voting restrictions. Only the district of New Westminster again took the initiative of setting conditions for exercise of the vote, though these were less restrictive than in 1863: voters had to have lived in the district for three months and be neither Chinese nor "Indian." In the other districts, anyone who wished to could vote.
In 1868, on the eve of another election, the governor decided that the rules in force in the district of New Westminster would also apply to the Vancouver Island districts. Two years later, it was London that imposed restrictions on the right to vote, applicable to the entire colony: the vote was restricted to male British subjects age 21 years or older who could read and write English. These conditions, particularly the last one, ruled out First Nations people (who constituted at least half the population), while the need to be a British subject excluded a large segment of the population of American origin. London imposed these restrictions on the eve of a referendum-style vote on whether British Columbia should join Confederation, clearly with a view to assuring British Columbia's approval.
The plan succeeded. In 1871, just before joining Confederation, British Columbia introduced further restrictions on the vote: to exercise the right, voters had to have been born British subjects, be at least 21 years of age, be able to read English and have lived in the colony for at least six months. They also had to own a freehold with a net value of $250 or a leasehold producing net annual revenues of $40, or occupy a dwelling generating net annual revenues of $40. Those who held a duly registered pre-emptive title on 100 acres of land or a duly registered mining licence could also vote. The same privilege was accorded to those who paid $40 or more annually for housing or $200 annually for room and board. In addition to meeting the conditions just outlined, the names of prospective voters had to have been published on an electoral list, and any taxes owing to the province had to be paid before a vote could be cast. Finally, the law prohibited from voting anyone convicted of treason or other serious crimes, unless they had been pardoned for the offence or had completed their sentence. Judges, police personnel and returning officers were treated the same way as criminals—they were deprived of the vote while in office.
Voters and Confederation
Ottawa, June 1864. All was not well. In less than four months, two successive governments had come to grief in the Province of Canada. No coalition government could rally or keep a large enough majority to establish its authority. To resolve the impasse, the leaders of the several political factions agreed to form a government whose first task would be to amend the constitution. One solution had been on the drawing board for several years: federating the various British colonies of North America. This solution would kill two birds with one stone: it would resolve the chronic political crisis in the Province of Canada and settle another problem, one of a financial nature.
Since 1850, British North America had been caught up in a frenzy of railway construction, particularly in the Province of Canada. Since 1857, however, Canada had had trouble paying the interest on money borrowed to pay for its railway system. Worse yet, the 2,000 miles of railway lines laid by 1860—there had been just 66 miles a decade earlier—were not generating enough revenue to cover operating costs or interest on the borrowed capital. With federation of the British colonies, the railway system could be extended a mari usque ad mare, thus making it profitable. Another important advantage of a federation was that it would stifle public objections in Great Britain to excess government spending on the military defence of the North American colonies.
There were two other objectives for Confederation: First, the separation of Canada West and Canada East and their re-establishment as two separate provinces—Ontario and Quebec. Each province would then regain control of its internal affairs. Second, the creation of a federal union with the other British North American colonies would provide a stopgap measure in the face of the United States' rejection in 1864 of the Reciprocity Treaty, which until then had established trade mainly on a North–South axis.
A federal union of the British colonies would stimulate trade among them by way of an inter-colony railway that could transport trade goods to the port of Halifax, which, unlike the St. Lawrence River, never froze over.
The issue of representation by population would also be solved by a House of Commons in which seats would be allocated based on population and by a Senate that would continue to represent Ontario and Quebec on an equal basis.
Unlike previous constitutions, Confederation was mainly the work of colonial politicians and businessmen, backed by a number of important London financiers and administrators. The plan was essentially drawn up in secret and without input from the electorate. John A. Macdonald, the plan's chief architect, did not hide his aversion to popular consultation. As he put it, "As it would be obviously absurd to submit the complicated details of such a measure to the people, it is not proposed to seek their sanction before asking the Imperial Government to introduce a Bill in the British Parliament." (Ryerson 1973, 354)
Delegates from the several colonies met in September 1864 in Charlottetown and again the next month in Québec, both times in camera. In the end, 72 resolutions were passed at Québec, and it was agreed that they should be approved by the local legislatures without consulting voters. But in March 1865, the government of New Brunswick was forced to hold a general election. The incumbent ministers, who favoured Confederation, suffered a crushing defeat.
The federal union plan marked time, as it was impossible to federate Nova Scotia and the Province of Canada without including New Brunswick. But there was still hope, as the cabinet formed in New Brunswick after the March 1865 election consisted of men whose only affinity with each other was their opposition to the Québec resolutions; they disagreed on most other political issues. Such a government would find it difficult to survive for long. In April 1866, after several cabinet members withdrew their support, the premier was forced to tender his government's resignation. Backed by the British and financed in part by politicians in the Province of Canada—and helped along by an attempted invasion by the Fenians, an Irish-American paramilitary group devoted to the liberation of Ireland—the Confederationist candidates won the subsequent election handily.
At the same time, the legislatures of the other Atlantic colonies took a stand on the federal plan: Newfoundland and Prince Edward Island were opposed; Nova Scotia was in favour. But in Nova Scotia, Joseph Howe mobilized public opinion in favour of putting the question to the people. The Fathers of Confederation, fearing defeat, turned a deaf ear. That fall, delegates from the colonies, with the exception of Newfoundland and Prince Edward Island, met in London to put the final touches on the plan. In October, John A. Macdonald, still haunted by the prospect of failure, warned one Canadian delegate already in England:
It appears to us to be important that the Bill should not be finally settled until just before the meeting of the British Parliament. The measure must be carried per saltum [in one leap], and no echo of it must reverberate through the British provinces till it becomes law … The Act once passed and beyond remedy the people would soon learn to be reconciled to it.
The British North America Act (now known as the Constitution Act, 1867), uniting New Brunswick, Nova Scotia and the Province of Canada in a single political entity and providing for the division of the latter into the provinces of Ontario and Quebec, was given royal assent on March 31, 1867, and came into force the following July 1.
John A. Macdonald and the other Fathers of Confederation had won their wager: they had established a new constitution without going to the voters. Nova Scotia struck back, however; in the September 1867 general election, the province sent a single federalist member (out of 19) to the House of Commons in Ottawa, while at the provincial level, all but two of the new members were anti-federalists. A few months later, delegates from the would-be secessionist province travelled to London to try to have the Constitution Act, 1867 repealed. Their efforts were in vain, but London did agree to have the federal government revise its policy on taxation, trade and fishing for Nova Scotia.
Having learned a valuable lesson, Prime Minister John A. Macdonald modified his strategy and decided not to impose Confederation on another colony without consulting the people through the polls. In the years that followed, his government negotiated agreements with Newfoundland, British Columbia and Prince Edward Island for their entry into Confederation. Once agreements had been reached with the leadership in each colony, Macdonald insisted that an election be held. In 1869, the Newfoundland electorate voted overwhelmingly against joining Confederation. Two years later, British Columbia voters had their turn, but given the presence of a strong movement for amalgamation with the United States, the province's electorate had been selected carefully by establishing eligibility requirements to ensure sufficient numbers of pro-federation voters. The ploy succeeded, and British Columbia joined the union. Finally, in 1873, the people of Prince Edward Island agreed to join Confederation.
In short, even though the Constitution Act, 1867 was the first Canadian constitution to be drawn up in Canada by elected Canadian politicians, only a small fraction of the voters in the founding colonies had been given an opportunity to decide their political future; the others were presented deliberately with a fait accompli. Since then, as subsequent events have shown, the relative influence of voters in Canadian parliamentary institutions has grown appreciably—to the point where today, politicians would not likely venture to act as the Fathers of Confederation did without consulting the electorate.
Return to footnote 1 The Indigenous peoples known today as First Nations were referred to then as "Indians" in both federal and provincial law. We use that term here only for historical accuracy and to avoid confusion in discussing the legal provisions governing the franchise. Indigenous peoples, also known as Aboriginal peoples, include First Nations, Inuit and Métis.
Return to footnote 2 This law required men between the ages of 16 and 60 to provide four days' labour (or the cash equivalent) each year for road building and maintenance.
Return to footnote 3 In effect, this was the same qualification as in 1853 but expressed in dollars instead of pounds sterling following a change in the currency system.