The Constitutional Act of 1791 was an Act of the British Parliament creating Upper Canada and Lower Canada. Although it was a first step towards Canadian Confederation, its rigid colonial structures also set the stage for rebellion in the two Canadas. The Act was also notable for a voting franchise that was inclusive by the standards of the late 18th and early 19th centuries, particularly as it included women in Lower Canada who owned property.

Loyalist Pressure

The Act came into effect on December 26, having received royal assent the preceding June. It enshrined constitutional changes that were part of the reorganization of British North America that took place under the pressure of thousands of Loyalists seeking refuge after the American Revolution.

Modelled on the earlier creation of the provinces of New Brunswick and Cape Breton in 1784, a constitutional bill was prepared by William Wyndham Grenville to ensure the development of British parliamentary institutions in territory then governed by the Quebec Act of 1774. According to its author, the bill's general purpose was to "assimilate" each colony's constitution to that of Britain.

Province of Quebec Divided

The bill had four main objectives: to guarantee the same rights and privileges as were enjoyed by loyal subjects elsewhere in North America; to ease the burden on the imperial treasury by granting colonial assemblies the right to levy taxes with which to pay for local civil and legal administration; to justify the territorial division of the Province of Quebec and the creation of separate provincial legislatures; and to maintain and strengthen the bonds of political dependency by remedying the constitutional weaknesses of previous colonial governments. This involved bolstering the authority and prestige of the governor by making him a true representative of the imperial power, and limiting the powers of the elected colonial assemblies by creating independent legislative councils whose appointed members comprised an aristocratic body modelled on the House of Lords and devoted to the interests of the Crown (see Château Clique; Family Compact).

Foundation for Conflict

The Act guaranteed continuity of ownership of lands held under the seigneurial system in Lower Canada and created the Clergy Reserves in Upper Canada.

By giving Upper Canada a provincial constitution and a separate existence, and by favouring British colonization there, Britain took the first steps on the path that led, ultimately, to the creation of the Canadian Confederation. Nevertheless, many historians have considered that the Act's failure to establish responsible government and its distribution of financial powers, in favour of the appointed councils, as factors contributing to the political conflict of the early 19th century (see Rebellions of 1837).

A Wider Franchise

Under the Act, voters were simply described as “persons” who were at least 21 years old and “natural” citizens or subjects of the monarch who had not been convicted of a serious criminal offense or treason. Importantly, voters must also own land or property of a certain value (in urban areas, tenants could also vote if they paid a minimum amount in rent). As this value was set quite low in the late 18th and early 19th centuries, the result was a relatively broad franchise. Moreover, as women were not specifically excluded by the Act, this enabled women of property to vote in Lower Canada.

In Lower Canada, women’s property and inheritance rights were determined by the Custom of Paris (the Coutume de Paris). Under French law — unlike English Common Law, which prevailed in most other British colonies — property was shared between husbands and wives, although it was administered by the husband. If the husband died, his widow received half of their shared property. Women in Lower Canada therefore had greater access to property than elsewhere in the British colonies. As the Custom of Paris continued to apply to civil matters after 1791, women of property in Lower Canada could vote under the Act (although this was not always applied in practice). Overall, women voted in around 15 districts in Lower Canada between 1791 and 1849, when the legislature passed a bill to remove women’s right to vote. (See Women’s Suffrage.) However, in Upper Canada women were subject to English Common Law and were therefore excluded from voting under the Constitutional Act of 1791.