[riddell] BRITISH NORTH AMERICA ACT, 1867 95 



Thereafter even after the Legislative Union in 1841, the two 

 Provinces remained different in their laws in respect of "property and 

 civil rights", Upper Canada being a Common Law, Lower Canada, a 

 Civil Law country. 



But the Province of Lower Canada did not abolish the English 

 Criminal law: accordingly the two Provinces had (substantially) 

 the same criminal law. 



Therefore when a division came to be made between Dominion 

 and Provinces in respect of Legislative Power, it naturally followed 

 that the Dominion would take the subject of Criminal Law and the 

 Province that of Property and Civil Rights. 



•Section 133. "Either the English or the French language may be 

 used by any person in the debates of the House of the Parliament 

 of Canada and of the Houses of the Legislature of Quebec; and both 

 those languages shall be used in the respective Records and Journals 

 of those Houses; and either of those languages may be used by any 

 person or in an}' pleading or process in or issuing from any Court of 

 Canada established under this Act, and in or from all or any of the 

 Courts of Quebec. 



"The Acts of the Parliament of Canada and of the , Legislature 

 of Quebec shall be printed and published in both those languages." 

 In the articles of Capitulation of Montreal there was nothing said 

 as to the French language and the demand that the Canadians should 

 continue to be governed according to La Coutume de Paris was 

 refused. But of course the French language continued to be used 

 except amongst the English newcomers. Proclamations, ordinances 

 etc., were printed in both English and French. Neither the Procla- 

 mation of 1763 nor the Acts of 1774 and 1791 made any provision 

 for language or made any change in the practice.^ 



In Upper Canada, all proceedings of every kind were after the 

 organization of the Province, in English, but provision was early made 

 for the French language being used in writs as against "a Canadian 

 subject by treaty or the son or daughter of such Canadian subject."^ 



When Lord Durham made his investigations resulting in the 

 Union, he reported "I entertain no doubt as to the national character 

 which must be given to Lower Canada; it must be that of the British 

 Empire; that of the majority of the population of British America; 

 that of the great race which must in the lapse of no long period of time 

 be predominant over the whole North American continent. Without 

 effecting the change so rapidly or so roughly as to shock the feelings 



1 Shortt & Doughty, pp. 8, 18, 27, Art. XLII, 401, sqq, 694 sqq. 



2 (1794) 34 George III, C. 2, S. 9 (U.C.). 



