Constitutional Act 1791

The Constitutional Act 1791 (Acte constitutionnel de 1791) was an Act of the Parliament of Great Britain which was passed during the reign of George III. The act divided the old Province of Quebec into Lower Canada and Upper Canada, each with its own parliament and government. It repealed the Quebec Act 1774. The act remained in force until 1841, when it was largely repealed by the Union Act, 1840, which reunited the two provinces into the new Province of Canada. Some provisions relating to the clergy reserves remained in force. The remaining provisions of the act were repealed over time, with final repeal in 1966.

History
The act reformed the government of the Province of Quebec (1763-1791) to accommodate, amongst other Loyalists, the 10,000 United Empire Loyalists who had arrived from the United States following the American Revolution. The Province of Quebec, with a population of 145,000 French-speaking Canadiens, was divided in two when the act took effect on 26 December 1791. The largely unpopulated western half became Upper Canada (now southern Ontario) and the eastern half became Lower Canada (now southern Quebec). The names Upper and Lower Canada were given according to their location along the St. Lawrence River. Upper Canada received English law and institutions, while Lower Canada retained French civil law and institutions, including feudal land tenure and the privileges accorded to the Roman Catholic Church.

The legislative Council for the Affairs of the Province of Quebec, with its subset Executive Council cabinet, was continued and reinforced by the establishment of freeholder-elected legislative assemblies. These elected assemblies led to a form of representative government in both colonies; the Province of Quebec had not previously had a legislative assembly.

The Constitutional Act attempted to create an established church by forming the clergy reserves, that is, grants of land reserved for the support of the (Protestant) Church of England. Income from the lease or sale of these reserves, which constituted one-seventh of the territory of Upper and Lower Canada, from 1791 went exclusively to the Church of England and, from 1824 on in a complex ratio, the (Presbyterian) Church of Scotland. These reserves created many difficulties in later years, making economic development difficult and creating resentment against the Anglican church, the Family Compact, and the Château Clique, although it did eventually lead to the growth of an Ottawa neighbourhood known as The Glebe. The act was problematic for both English and French speakers; the French Canadians and the Roman Catholic church in Quebec felt they might be overshadowed by Loyalist settlements and increased rights for Protestants, while the new English-speaking settlers felt the French still had too much power. However, both groups preferred the act and the institutions it created to the Quebec Act which it replaced.

The act is often seen as a watershed in the development of French Canadian nationalism as it provided for a province (Lower Canada) which the French considered to be their own, separate from English-speaking Upper Canada. The disjuncture between this French-Canadian ideal of Lower Canada as a distinct, national homeland and the reality of continued Anglo-Canadian political and economic dominance of the province after 1791 led to discontent and a desire for reform among intellectual segments of the French and English of Lower Canada. The frustration of French and English Patriots over the nature of Lower Canadian political and economic life in the province fuelled the Lower Canada Rebellion of 1837–38.

Subsequent legislative history and repeal
Most of the Constitutional Act, 1791 was repealed by the Union Act, 1840, which merged Lower Canada and Upper Canada into the new Province of Canada. The provisions which were not repealed at that time mainly related to the clergy reserves. The remaining provisions were amended from time to time, and the act was finally repealed for the purposes of British law in 1966.

The act did not originally have a short title, but by custom, it became known as the Constitutional Act, 1791 in Canada. The British Parliament gave it a short title in 1896: Clergy Endowments (Canada) Act 1791. This title was based on the fact that the provisions relating to clergy endowments were the only part of the act still in force at that time. The short title is not the common name of the act in Canada. The federal government, the Supreme Court of Canada and academics continue to refer to it as the Constitutional Act, 1791.