generally, subject to provincial alterations. The old French law,
which was in existence previously to the year 1663, is still the law
of property, with some exceptions, in Lower Canada. None of the laws
enacted in France since that period, extended to the colony unless
enregistered there. This is the reason why the ordinance of 1673, for
the better regulation of trade, is not in force. The criminal laws of
England were transplanted into the colonies, by 14 Geo. iii. c. 83,
and, of course, none passed since that period can become law in the
Canadas, unless they are particularly specified and included in their
provisions. Properly speaking, the Canadas have no commercial code.
Great confusion sometimes arises respecting the decisions according to
the English custom of merchants, and those made under the old French
code, and actions at law are frequently settled according to what
appears to be the principle of natural justice, rather than according
to established precedent. This surely conveys a reflection upon the
wisdom of the provincial legislature; but the fact is, that the
mercantile community is not sufficiently represented in the house of
assembly for Lower Canada.
Lower Canada is divided into three judicial districts—of Quebec, the
Three Rivers, and Montreal, the boundary line being drawn nearly at
right angles with the St. Lawrence.
There are but three courts of justice—the Court of Appeal, the King’s
Bench, and the Summary Court. The governor sometimes sits as president
of the Court of Appeal; but the chair is more often filled by one of
the chief justices. The court is formed by all the members of the
executive council.
The Court of King’s Bench is divided into a superior and inferior
court. The latter has jurisdiction only where the matter in dispute
is of the value of ten pounds or under. There are a chief justice and
three puisnè judges at Quebec; the same at Montreal, and a district
judge at the Three Rivers. When the superior court is held at this
latter place, it is held by one of the chief justices, two puisnè
judges, and the district judge. The summary courts have jurisdiction
over property to the value of one hundred francs, and are held once a
month before a commissioner appointed by the provincial government,
on petition from the country inhabitants. Quarter sessions are held
regularly before three magistrates, with much the same power as in
England, for the punishment of offences against the criminal law; and
petty civil cases may be disposed of daily by one or more magistrates.
A magistrate is required to have property of the real actual value of
300_l._, and the oaths upon taking office are very strict.
A barrister may act as an attorney and solicitor at the same
time,—which, as in the United States, appears to have originated
in the impossibility of making the profession pay, without such an
arrangement. Pleadings may be written in either language, and English
and Canadian French are spoken almost indiscriminately in the courts.
I have observed great and unavoidable confusion in the inferior court
of King’s Bench—the judges, counsel, solicitors, clients, and witnesses
all talking occasionally at the same time in either language, just as
it may happen; and in the midst of the uproar, the Stentorian voice
of the officer of the court may be heard as he endeavours to restore
tranquillity by calling out Silence! (English), Silence! (French),
in quick succession. But the proceedings in the superior court are
conducted with all the decorum of an English court of justice; and
the old jealous British lion, painted in the king’s arms over the
heads of the judges, frowns grimly upon the scene, with a pair of
eyebrows sufficient to inspire even ermined dignity itself with awe
and veneration. Many of the powers belonging to a court of equity,
are exercised by the court of King’s Bench under the old French law.
It grants injunctions by a process termed a sequestre. It takes care
of the property of minors, and appoints curators of the persons and
property of lunatics. The law of entail by a limitation, called a
“substitution fidei commissaire,” is well known in Lower Canada, but
seldom acted upon.
The attention of the legislature has of late been called to the state
of the law of dower and mortgage, both of which are often productive
of great confusion and actual injustice. Supposing there has been no
renunciation of her dower by the marriage contract, the wife upon
her marriage is entitled to a dower of one-half of the estate of
inheritance then in the possession of her husband; and this dower is
of itself an estate of inheritance which descends to her children,
supposing they take nothing by the “communautè,” an arrangement by
which the wife is entitled to one-half of all property real and
personal, acquired subsequently to the marriage. A communautè may exist
with a settlement or without one, as in the case I have proposed.
At the death of the wife in the life time of the husband or _vice
versâ_, the law permits the children to elect—between one-half of
the property in communautè to be enjoyed immediately, and the real
estate which would have formed the dower of the wife had she survived
her husband, which is not to be divided amongst them till after the
death of the surviving parent. It sometimes happens that the husband
and wife have joined in the sale of the estate, perhaps for the present
benefit of the children, and with their knowledge. This sale, however,
cannot deprive the children of their estate of inheritance in the dower
after the decease of the wife, and although it is justly reckoned
disgraceful for the children to claim the estate from a purchaser under
such circumstances, yet it is sometimes done in cases where there was
nothing left to be divided in communautè. A gentleman informed me that
such an instance had occurred to himself. He had purchased an estate,
and had been in possession about twenty years. It had been sold by
the husband and wife upwards of forty years; but they were both still
living, and he was much surprised one day at being informed by the
children, that at the decease of their mother, they intended to come
upon him for the amount of the dower, as there was no prospect of
receiving any thing by the communautè.
Till lately, under the then existing law of mortgage, a purchaser could
seldom be sure of buying an unincumbered estate; a previous possessor
in want of money might have been before a notary and have borrowed
of a dozen different persons, on what is called a tacit mortgage. No
title deeds were required by the lender, but all the property of the
borrower is liable for the amount borrowed; and claims of this kind
were constantly made upon estates even after the possessor, who had
taken all pains to clear them off, had reason to think himself secure
in the enjoyment of them. But by a bill that passed the legislature in
1828, newly purchased property is cleared against creditors who do not
put in their claims within four months, the rights of widows and minors
forming an exception.
No writ can issue to secure the person of a debtor in the common gaol
until all his property real and personal has been sold, the real
property having been advertised in the Gazette for four months. At the
expiration of that period, attempts are sometimes made by a fraudulent
debtor or his friends, to evade imprisonment by a purchase in the
debtor’s name of real property to a trifling amount, which must be
again advertised, and so on; although of course wherever the attempt
to defraud can be made apparent, the courts of justice will interfere.
In cases of a commercial nature where a judgment has been obtained, the
debtor has the right of being enlarged, upon giving security that he
will not leave the limits of the city.
In general, the Canadian farmers when old and unable to work, make
over their property by a notarial writing to one of their sons, on
condition of his paying a certain sum of money to his other children;
a custom which has the effect of preventing too great a division of
real property. In the deed, which is rather curious, it is stipulated
that the old man is to be supported by his son; that he is to receive
from him a certain quantity of tea, sugar, and tobacco; he is to be
furnished if necessary with a horse to ride to chapel on Sundays and
festivals; and when dead a certain number of masses are to be said for
his soul.
The governor of Lower Canada is assisted by an executive council,
composed of any persons whom he chooses to recommend to his majesty
for appointment. The legislative council, of which the members are
also appointed by the king for life, and the Lower House, or House
of Assembly, consisting at present of eighty-four members. The Chief
Justice is the Speaker; and the puisnè judges of Quebec are members
of the Legislative Council; but it is in contemplation to procure
an act of Parliament to remedy this unconstitutional arrangement.
Independently of the objection that could be urged against it as an
abuse, the judges find ample employment for their time in their other
avocations. They were placed there as a matter of course when the
colony was in its infancy; but the reasons have ceased as the colony
has increased in wealth and population. The Legislative Council is
composed of the principal officers of the province, and other persons
of consideration. Their number is unlimited, but is usually about
thirty. The members of the House of Assembly are elected in the same
manner as the members of the House of Commons in England. Quebec and
Montreal return four members each. There are but two boroughs; William
Henry or Sorel returning one member, and the “Three Rivers” returning
two members. The other members are returned by counties, but no
qualification whatever is required of any. This is an advantage in a
young country, where society is comparatively small, and wealth is so
often separated from talent. The qualification necessary for a voter is
real property to the annual value of forty shillings. In the towns the
payment of ten pounds a-year rent is sufficient, and single women are
allowed to vote. The sittings of the Legislative Council, and the House
of Assembly, do not usually occupy more than ten weeks in the year,
commencing about the middle of January.
By far the larger proportion of the House of Assembly are of the
radical persuasion. Like the rest of the old French Canadians, they
have a strong negative attachment to the British government: because
they are satisfied with the protection they enjoy, and are aware that
they could not exist without it; but their proceedings evince little
actual gratitude or affection for the mother country. Their grievances,
whether they are those that really do exist, or those that are to
be traced in the imaginary discontents of a few leading demagogues,
being frequently discussed with more than constitutional jealousy, and
with more petulant vehemence than is merited by the redressing and
conciliatory spirit of the British government. And yet when we consider
the events that are passing in Europe, it is not singular that such
should be the conduct of a people, of whom it is said, that when a
constitution was first talked of, they would have preferred that their
country should have continued under the direction of a governor and
council, or rather under that of a governor alone.
During the last session a bill passed the house of assembly, for an
allowance to the members of 10_s._ a-day, beside their travelling
expenses, but was rejected by the legislative council. Nevertheless
when the Supply Bill came under consideration, the house of assembly
tacked on the desired amount for the payment of their members, and
the bill in that state was most inconsistently consented to by the
legislative council.
Another instance of unconstitutional irregularity may be mentioned.
The 31st of Geo. iii., c. 31, declares who shall be qualified to sit
as members of the assembly, but it creates no disqualification to
sit and vote in persons accepting offices of trust and profit, after
their election. By this act also, no bill reserved by the governor for
the royal signature shall have any force or authority within either
province, unless his majesty’s assent thereto shall be signified
within the space of two years from the day on which the bill shall
have been presented for his majesty’s assent by the governor. In the
year 1830, after various proceedings in the same matter, a bill for
the disqualification of persons accepting government offices, until
re-elected, from sitting in the legislative assembly, was passed by
both houses, and the governor thought it of sufficient importance to
reserve it for the royal assent. Two years, as we have seen, is allowed
for the signification of his majesty’s pleasure, and if no answer is
given in that time, the bill passes into a law forthwith. The bill was
sent to England, and long before the time had expired, the impatient
house of assembly entered a resolution on their journals, that any
member accepting an office under government shall be considered as
vacating his seat _ipso facto_, with the capability of being
re-elected. As to the justice of the case, there can be no doubt; but
when they themselves had commenced the application in a constitutional
manner, their subsequent attempt to fly in the face of the prerogative
does not reflect much credit on their loyalty.
The net revenue of Lower Canada for the year 1830, was 128,345_l._
3_s._ 4_d._, being an increase of 5200_l._ over the preceding year.
The bulk of this sum is at the disposal of the provincial legislature;
and is expended in the country on internal improvements of every kind.
The proposed civil list for the year 1831 amounted to 19,500_l._; but
14,000_l._ of this is all that is asked of the province by the royal
message, besides a reservation by virtue of the prerogative, of what
are termed the casual and territorial revenues of the crown, such as
the rents of the Jesuits’ estates, rents of the king’s posts, &c.
&c., which, to use the words of the governor’s message, of the 23d of
February, 1831, can operate in no degree as a tax upon the people, or
tend either in their nature, or in the mode of their collection, to
impede or impair the prosperity of the province. But nevertheless the
committee of the house of assembly have resolved never to compromise
what they call the natural and constitutional right of watching over
and controlling the receipt and expenditure of the whole revenue. Will
they object when the remuneration of their clergy is thrown upon them,
as is contemplated by the British government?
It would be tedious, and far beyond the limits of this work, to enter
into a detail of all the grievances complained of by the house of
assembly; many of them have been, or are in the way of being, remedied,
and they may be found in the report of the committee of the house
of commons on the affairs of the Canadas, in 1827. They complain in
their petition to parliament that the affairs of the province were
growing worse under the existing government; that the value of land
was diminished; that there was a waste of the public revenue; that
the enactment of beneficial laws was rejected by one branch of the
legislature composed of persons dependent on the government; that the
creditor of the government had not sufficient remedy; that sufficient
security was not required of persons having the disposal of the public
moneys; that the independence of the judges was not sufficiently
consulted; and they asked for the appointment of a resident agent for
the colonies, in England, &c. &c.
One of the schemes at present in agitation in the house of assembly
is the entire dissolution of the legislative council; a measure which
that more loyal body do not exactly relish, and on the 31st of March,
1831, they passed a number of resolutions expressive of their loyalty,
and respectfully setting forth their grievances at the same time. In
the report of a special committee of the house of assembly appointed
for taking into consideration the governor’s message, in which his
majesty, relying on the liberality and justice of the legislature of
Lower Canada, invites them to consider the propriety of making some
settled provision for such portion of the civil government of the
province, as may upon examination appear to require an arrangement of
a more permanent nature than those supplies which it belongs to the
legislature to determine by annual votes; it was resolved, that as
information relative to the expenditure of the sum demanded for casual
expenses, and divers services, and of the manner in which the rents of
the Jesuits’ estates, and the other casual and territorial revenues,
are applied, was still refused by the British government; they had
therefore deemed it inexpedient to make “aucune allocation permanente
ulterieure pour les depenses du gouvernement;”—the legislative council,
in their resolutions noticed above, having expressed a cordial
disposition to concur with his majesty’s government in making such an
arrangement.
The Jesuits’ estates, the convent, and the seminary, hold the city of
Quebec in signory. The convent of the Jesuits is now converted into a
barrack, and forms one side of the market-place in the upper town. By
the way, I should recommend any traveller to visit the market-place in
the lower town, where he will see some of the old French Canadians,
with their long pig-tails tied up with eel-skins. The order of the
Jesuits was suppressed at the conquest of the colony by the British.
Government took possession of the estates belonging to them, and has
since enjoyed the whole revenue, amounting to about 2500_l._ per
annum; and though frequently applied to by the provincial legislature,
has thought fit to conceal the manner in which it has been employed.
Amongst other expenses, those incurred in the building the episcopal
church, were, it is said, defrayed from this source.
Before I quitted Quebec, I was present at a ball, given by a lady and
gentleman who had been united for the first time that day fifty years,
and were again married on that morning by a Catholic priest.
* * * * *
I returned from Quebec to Montreal by the John Bull steam-boat,
probably the largest river boat in the world. Montreal is considerably
larger than Quebec, and contains 50,000 inhabitants. Its front towards
the river will be much improved by a fine quay which is now building.
The principal objects are the convents and the new Catholic cathedral,
a very large and handsome specimen of the simple gothic; but its
internal decorations do not correspond with its majestic exterior.
The view from the mountain of Montreal, nearly 700 feet high, is of
the same kind, but I think inferior to the view from the ramparts of
Quebec. The city is nearly two miles distant, and is seen to great
advantage lying along the bank of the magnificent St. Lawrence, whose
broadly expanded waters can be followed by the eye for many a league,
both above and below the city. On the opposite side, the country is
one vast flat plain, from which the isolated mountain of Chambli, and
another peak at a few miles distance, abruptly arise; and by relieving
the monotony of the view, have the merit of giving it a decided tone
and character, to which it would not otherwise be entitled. The horizon
is formed by the bold outline of the distant mountains of Vermont, and
those of the eastern part of the state of New York.
I left Montreal to make an excursion up the Ottowa. The beauty of this
river, the situation of Bytown, and the Rideau canal, were themes
of admiration with every one who had seen them. I went on board a
steam-boat at the village of La Chine, and in a few hours we were in
sight of St. Ann’s, and alongside the rapids, which we passed by means
of a short canal. About this spot the clear but dark-coloured “Ottowa
tide” is chequered by many a green isle, if they can be so called, when
clothed, as I saw them, in the diversified and brilliant colours that
characterise the foliage of the American forest during the autumn.
Every variety of green can be discerned—from the darkness of the fir,
to the silvery leaf of the poplar or the willow—while the unaccustomed
eye is delighted by the bright yellow of the fading hickory, and the
admirable finish which is given to the picture, by the broad patches
of deep and actual crimson of the sumach and the soft maple. I must
again repeat, that I have seen nothing of the kind that can equal the
surpassing beauty of an American forest in “the fall.” It may with
justice be compared to the brilliancy of a bed of tulips. We entered
the lake of the Two Mountains, so called from two lofty hills on the
right. On the top of one of them, Mount Calvary, is a chapel built by
the Jesuits, and connected with the Indian village on the margin of
the lake by a line of chapels, placed at intervals in the pathway. Its
sudden appearance in the bosom of the forest, is extremely effective
and picturesque. Immediately behind the Indian village is a large
bank of white sand, which in the distance may be easily taken for
a well-cleared stubble field. At Carillon we were obliged to leave
the steam boat, and proceed by land to the town of Grenville, along
the side of the canal, cut for the purpose of avoiding the rapids of
the “Long Saut,” which, when the river is swollen, are said to be
exceedingly violent, even more so than those of the St. Lawrence. I
found the banks on both sides of the river were cleared and cultivated
to a degree that far exceeded my expectations, whilst the unfinished
canal gives employment to several hundred poor emigrants, who were
living chiefly in log-houses along the road-side, ranged amongst many
other dwellings of a better description.
The Ottowa, although perceptibly inferior to the St. Lawrence in width
and volume, is still one of the largest second-rate rivers in North
America. Below Carillon, which is thirty-five miles from St. Ann’s,
I observed nothing excepting the foliage I have mentioned, that an
acquaintance with American scenery had not rendered familiar; but on
approaching Grenville a lofty range of hills, containing rich mines
of plumbago, ranges very majestically on the north bank of the river,
which in many places is widened to a surface equalling that of a small
lake, with its shores broken by majestic headlands. Soon afterwards,
cultivation comparatively ceases, and the river bears a resemblance to
the wilder part of the Ohio above Louisville, excepting that the forest
trees on its banks and islands, are not so lofty as those of the latter
river.
Bytown is 65 miles from Grenville and 120 from Montreal. It is divided
into an upper and lower town; containing many excellent houses. Thirty
years ago, there was scarcely an habitation in the vicinity, excepting
that of Philemon Wright, Esq., a Bostonian, and one of the best farmers
in Canada, who with singular enterprise and sagacity, foresaw that at
no very distant period it must become a place of importance, and as the
Americans would say, “located himself” in the untouched forests of the
Ottowa. A new world has sprung up around him, and he now predicts, with
great appearance of truth, that Bytown will become the capital of the
country: a glance at the map will shew the justice of his reasoning.
The Ottowa or Grand river, runs through the country for about 500
miles above Bytown. In its course it is joined by several considerable
streams, by means of which a water communication can be extended to
Hudson’s bay on the north; and on the south it is connected with Lake
Huron, which is not more than 100 miles distant, through the medium
of Lake Nipisany; and as the Saut de St. Marie, at the foot of Lake
Superior, is said to be 800 miles nearer Montreal than to New York, it
is highly probable that a considerable proportion of the product of
the country around the great lakes, even from the further part of Lake
Michigan, will find its way to the Ottowa.