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The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions in favour of the assembly’s powers during the debate on the Act in Parliament are reviewed, illustrating this point. While the 1791 Act did not embody an explicit bill of rights, its provisions for quadrennial elections based on a broad franchise without distinctions of race, religion or even gender marked a significant advance over prerogative constitutions, as did its commitment to representation by population and its implicit recognition of the French language as a language of political debate in Lower Canada. The movement from prerogative to statutory constitutions, it is argued, was a response to, rather than a reaction against, the constitutional contestation arising from the American and French revolutions.

Rearguard or Vanguard? A New Look at Canada’s Constitutional Act of 1791