for the time being, under military rule. There were three military
governors, General Murray at Quebec, Colonel Burton at Three
Rivers, and General Gage at Montreal. All three were subordinate
to Amherst, the Commander-in-Chief in North America, whose head
quarters were usually at New York. Amherst left for England in
1763, and was succeeded by General Gage, whose place was filled
by the transfer of Burton from Three Rivers, while the military
governorship of Three Rivers was entrusted to Colonel Haldimand,
one of the Swiss officers who deserved so well of England in North
America.
[Sidenote: The French Canadians at the time of the British conquest
of Canada.]
While Canada was still under military rule, and before the Peace of
Paris was signed, the British Government took steps to collect full
information as to their newly-acquired possession, with a view to
determining the lines on which it should be administered in future.
At the end of 1761 Amherst was instructed to obtain the necessary
reports, which were in the following year duly supplied by Murray,
Burton, and Gage in respect of Quebec, Three Rivers, and Montreal
respectively.[36]
Canada at this time contained little more than 70,000 white
inhabitants. The population, Murray thought, had tended to
decrease for twenty years past, owing to war, to the strictness
of the marriage laws, and to the prohibition of marriages between
Protestants and Roman Catholics; but he looked for a large increase
from natural causes in the next twenty years, the men being strong
and the women extremely prolific.
The Canadians, Murray wrote, were ‘mostly of a Norman race’ and,
‘in general, of a litigious disposition’. He classified them
into the gentry, the clergy, the merchants, and the peasantry or
habitants. The gentry or seigniors, descendants of military or
civil officers, the creation largely of Louis XIV, Colbert, and
Talon, he described as for the most part men of small means, unless
they had held one or other of the distant posts, where they could
make their fortunes. ‘They are extremely vain, and have an utter
contempt for the trading part of the colony, though they made no
scruple to engage in it, pretty deeply too, whenever a convenient
opportunity served. They were great tyrants to their vassals, who
seldom met with redress, let their grievances be ever so just.
This class will not relish the British Government, from which they
can neither expect the same employments or the same douceurs they
enjoyed under the French.’ Of the clergy he wrote that the higher
ranks were filled by Frenchmen, the rest being Canadian born, and
in general Canadians of the lower class. Similarly the wholesale
traders were mostly French, and the retail traders natives of
Canada. The peasantry he described as ‘a strong, healthy race,
plain in their dress, virtuous in their morals, and temperate in
their living’, extremely ignorant, and extremely tenacious of
their religion. At the time of writing, Murray and his colleagues
evidently anticipated more loyalty from the peasantry than from
the higher classes of Canadians. Protected in their religion,
given impartial justice, freed from class oppression and official
corruption, they seemed likely to develop into happy and contented
subjects of the British Crown. The sequel was, however, to show
that more support would accrue to the new rulers of Canada from
the classes which had something to lose than from the credulous
habitants.
‘The French,’ so ran Murray’s report, ‘bent their whole attention
in this part of the world to the fur-trade.’ They neglected
agriculture and the fisheries. ‘The inhabitants are inclinable
enough to be lazy, and not much skilled in husbandry, the great
dependencies they have hitherto had on the gun and fishing-rod
made them neglect tillage beyond the requisites of their own
consumption and the few purchases they needed.’ Gage wrote that
‘the only immediate importance and advantage the French king
derived from Canada was the preventing the extension of the British
colonies, the consumption of the commodities and manufactures of
France, and the trade of pelletry’. He noted how common it was
‘for the servants, whom the merchants hired to work their boats
and assist in their trade, through a long habit of Indian manners
and customs, at length to adopt their way of life, to intermarry
with them, and turn savages’. Burton’s report was to the same
effect: ‘The laziness of the people, and the alluring and momentary
advantages they reaped from their traffic with the Indians in the
upper countries, and the counterband trade they carried on with
the English colonies, have hitherto prevented the progress of
husbandry;’ and again, ‘The greatest part of the young men, allured
by the debauched and rambling life which always attend the Indian
trade in the upper countries, never thought of settling at home
till they were almost worn out with diseases or premature old age.’
It was a country and a people of strong contrasts, wholly unlike
their own colonies, that the English were called upon to rule. At
head quarters and near it there was a cast-iron system in Church
and State, trade monopoly, an administration at once despotic
and corrupt. Behind there was a boundless wild, to which French
restlessness, French adaptability for dealing with native races,
and the possibilities of illicit wealth called the young and
enterprising, who were impatient of control, and who could not
share the gains of corruption at Montreal and Quebec. In Canada
there was no gradual and continuous widening of settlement, such
as marked the English colonies in North America. In those colonies
development was spontaneous but, in the main, civilized; not
according to fixed rule, but not contrary to law, the law being
home-made and not imposed from without.
In Canada extreme conservatism existed side by side with complete
lawlessness. At one pole of society were a certain number of
obedient human beings, planted out in rows; at the other were
the wandering fur-traders, who knew no law and had no fixed
dwelling-place. Excluding the officials from France, ill paid and
intent on perquisites alone, and excluding French or Canadian
merchants, the main constituents in the population of Canada were
the seignior, the priest, the habitant, and the voyageur; of these
four elements it would be hard to say which was farthest removed
from citizenship, as it was understood in England and the English
colonies. Yet all these elements were to be combined and moulded
into a British community.
[Sidenote: Beginning of civil government.]
The beginning of civil administration in Canada under British
rule was the Royal Proclamation of 7th October, 1763, which has
been noticed in the preceding chapter. Before it was issued, an
intimation was sent to Murray that he had been selected as the
first civil governor of the new British province of Quebec. His
commission as governor was dated 21st November, 1763; and the Royal
Instructions, which accompanied the Commission, bore the date of
7th December, 1763; but it was not until August, 1764, that he took
up his new position and military rule came to an end.[37]
[Sidenote: General Murray.]
James Murray was still under forty years of age. He proved himself
a stanch, loyal, and capable soldier, resolute in critical times,
as when he defended Quebec through the trying winter of 1759-60,
and later, in 1781-2, held Minorca until his handful of troops,
stricken with famine and disease, surrendered their arms, as they
said, to God alone. His words and his actions alike testified
that he was a humane and just man. Like other soldiers, before
and since, having seen war face to face, he was more ready than
civilians who had not risked their lives, but breathed threatenings
and slaughter from a safe distance, to treat the conquered with
leniency.
[Sidenote: Difficulties of the situation.]
[Sidenote: Ill feeling between soldiers and civilians.]
He had many difficulties to contend with. Military matters did not
run smoothly. In September, 1763, there had been a dangerous mutiny
among the troops at Quebec. It was caused by an ill-timed order
sent out from home to the effect that the soldiers should pay for
their rations; and serious consequences might have followed but for
the prompt and firm attitude of the general and his officers. At
Quebec, Murray combined civil and military powers; but after civil
administration had been proclaimed, though his government included
the whole of the province as constituted by the Royal proclamation,
he was left without authority over the troops at Montreal, where
Burton jealously retained an independent military command. The
inevitable result was to fetter his action to a great extent, to
give to the Canadians the impression of divided authority,[38]
and to accentuate friction between soldiers and civilians, which
culminated in an assault at Montreal in December, 1764, on a
magistrate named Walker, who had made himself specially obnoxious
to the officers of the garrison. Two years later the supposed
perpetrators of the outrage were tried and acquitted, but the
affair left ill feeling behind it, and Walker remained an active
and pertinacious opponent of the British Government in Canada.
[Sidenote: The Protestant minority.]
Among the Canadian population there were various causes of unrest.
The priesthood were anxious as to their position and privileges.
The depreciation of the paper money, which had been issued under
the French régime, gave trouble. The law was in a state of chaos;
and, most of all, the first Governor of Canada had to withstand
the pretensions of the handful of Protestants, in 1764 about 200
in number, in 1766 about 450, who wished to dominate the French
Canadians, alien in religion and in race.
[Sidenote: Murray leaves for England and is succeeded by Carleton.]
Against the claims of this small but noisy and intriguing minority
Murray resolutely set his face, but the difficulties which arose
led to his being summoned home. He left Canada for England towards
the end of June, 1766, and though he retained the post of Governor
till April, 1768, he never returned to Quebec.
His successor was Guy Carleton, who arrived in Canada in September,
1766, and carried on the administration as Lieutenant-Governor
till 1768, when he became Governor-in-chief. Like Murray, he was
a soldier of distinction, and had been a warm personal friend of
Wolfe, who made him one of the executors of his will. He was born
in 1724, at Strabane in the north of Ireland, the third son of
General Sir Guy Carleton. He went into the Guards, was transferred
to the 72nd Regiment, and served in Germany, at Louisbourg, and, as
Quartermaster-General, with Wolfe at Quebec. He remained at Quebec
with Murray during the eventful winter of 1759-60; and, after
further active service at Belle Isle and Havana, he came back to
Quebec in 1766, to do more than any one man in war and peace for
the safety and well-being of Canada as a British possession.
[Sidenote: Conditions which led to the passing of the Quebec Act.]
The difficulties which Murray had been called upon to meet
confronted him also, and, like Murray, he saw the necessity as
well as the justice of resisting the extravagant claims of the
minority, and conciliating to British rule the large body of the
Canadian population. For nearly four years he remained at his
post, forming his views as to the lines on which Canada should
be remodelled. In August, 1770, he left for England on leave of
absence, and in England he remained until the Quebec Act had been
passed. The Act was passed in June, 1774, taking effect from the
1st of May in the following year; and in the middle of September,
1774, Carleton arrived again at Quebec. It is now proposed to
review the conditions which led to the passing of the Act, and the
policy which was embodied in it, omitting as far as possible minor
incidents and dealing only with the main features, which illustrate
the general course of British colonial history.
[Sidenote: The Conquest of Canada presented a new problem in
British colonial history.]
The acquisition of Canada presented to British statesmen a wholly
new problem. The British Empire had hitherto widened mainly by
means of settlement, for the seventeenth century, as far as Great
Britain was concerned, was a time of settlement, not of conquest.
Jamaica, it is true, had been taken from the Spaniards, and New
York from the Dutch; but, great as was the importance of securing
those two dependencies in the light of subsequent history, the
conquest or cession of both the one and the other was rather an
incident than the result of an era of war and conquest. Such an era
came with the eighteenth century; and, when the Peace of Utrecht in
1713 secured Great Britain in undivided possession of Newfoundland,
and confirmed to her the possession of the Acadian peninsula, and
of the Rock of Gibraltar, a notable outpost of the future Empire,
there was a beginning, though a small beginning, of territorial
expansion as the result of war.
[Sidenote: Canada was: (1) a continental area; (2) colonized
by another European race; (3) bordering on a sphere of British
colonization; (4) the home of a coloured race.]
The Seven Years’ War brought with it British conquest alike in
East and West; but in India the British advance was in some sort a
repetition on a wider scale of what other European nations had done
in the same regions. It was the natural outcome of trade rivalry,
and of white men coming among Eastern races. The conquest of
Canada, on the other hand, differed in kind from all that had gone
before in British history. The Imperial Government of Great Britain
took over a great expanse of continent, and became, by force of
arms, proprietor of a country which another colonizing race had
acquired by settlement. The new problems were how to administer
and to develop not a small island or peninsula but a very large
continental area, and how to rule a rival white race which from
the beginnings of colonization in North America had made that
area, or part of it, its own. To these two most difficult problems
was added a third, how to administer the new territory and to rule
the French colonists, so as to work in harmony with the adjacent
British colonies. Conquest and settlement, so to speak, overlapped.
If Canada had not been a French colony, and had been inhabited by
coloured men alone, or if Canada, as a French colony, had been in a
different continent from the British North American colonies, the
task of construction or re-construction would have been infinitely
easier. It would have been easier, too, if the French Canadians
had been the only inhabitants of Canada. But, as it was, one white
race conquered another white race, which in its turn had secured
mastery over a coloured race, and in the land of that coloured race
had not merely conquered or traded, but settled and colonized; and
the new conquerors were of the same kith and kin as settlers in the
adjoining territories, whose traditions were all traditions not
of ruling nor of conquering so much as of gradually acquiring by
settlement at the expense of the coloured race.
[Sidenote: Conditions which guided British policy in Canada as
embodied in the Proclamation of 1763.]
[Sidenote: Geographical division between the settled districts and
the hinterland.]
[Sidenote: The Indian question.]
[Sidenote: Necessity for attracting British colonists]
What had British statesmen to guide them in dealing with the
question, and what considerations led to the provisions which were
embodied in their first measure, the Royal Proclamation of 7th
October, 1763? It was evident, in the first place, that a line
could, if it was thought advisable, be drawn between the settled
parts of Canada and the Western territories, where the French had
only maintained outposts and trading stations. The government of
Quebec, therefore, which was the new colony, was, as has been seen,
limited to the districts of Quebec, Three Rivers, and Montreal,
and did not include the regions of the lakes, or the territories
of the Hudson’s Bay Company. In the second place, past experience
had proved that English dealings with the Indians had been very
much less successful than French management, the characteristic
features of which were personal relations with a despotic governor
and his authorized agents and representatives; and that the
Indians enjoyed more protection and were likely to develop greater
loyalty and contentment under a central authority--the Imperial
Government--represented and advised by Sir William Johnson, than
if left to bargain with and to resent encroachments by the various
British colonies. Consequently the proclamation reserved the
western hinterland ‘under our sovereignty, protection, and dominion
for the use of the said Indians’, in addition to safeguarding
the existing rights and lands of the natives within the borders
of the colonies. In the third place it was obviously desirable
to introduce into Canada a leaven of colonists of English race,
and more especially of colonists who had been trained to arms and
already knew the land and the people. Hence, just as in bygone
days Colbert and Talon, when colonizing Canada on a definite
system, planted time-expired soldiers along the St. Lawrence and
the Richelieu rivers, so the Proclamation of 1763 empowered free
land grants to be given in Canada, as well as in the other American
possessions of Great Britain, to officers and soldiers who had
served in the late war; and it also encouraged British settlers
generally by providing that, as soon as circumstances allowed, a
General Assembly was to be summoned ‘in such manner and form as is
used and directed in those colonies and provinces in America which
are under our immediate government.’[39]
[Sidenote: and for conciliating the French Canadians.]
[Sidenote: Desire to give British privileges to Canada.]
But most of all it was necessary to mete out fair and liberal
treatment to the new subjects, the French Canadians, and make
them contented citizens of the British Empire. This object,
Englishmen naturally argued, could best be attained, first, by
securing ‘the ancient inhabitants in all the titles, rights, and
privileges granted to them by Treaty’[40]; and secondly, by giving
the Canadians as soon as possible the laws and institutions
which British subjects valued and under which they had thrived,
by assimilating Canada as far as possible in these respects to
the neighbouring British colonies. Accordingly the Canadians were
from the first to enjoy the benefit of the laws of England, and
courts of justice were to be established with power to determine
all causes criminal and civil ‘as near as may be agreeable to the
laws of England’. The question of religion was ignored in the
proclamation; freedom of worship had already been guaranteed to
the Roman Catholics by the 4th Article of the Peace of Paris,[41]
and Murray’s instructions were that he should ‘in all things
regarding the said inhabitants, conform with great exactness to
the stipulations of the said treaty in this respect’. There the
matter was left for the moment, though Murray’s commission provided
that the persons who should be elected as members of the future
Assembly were to subscribe the declaration against Popery, enacted
in Charles the Second’s reign, which provision would have excluded
Roman Catholics from sitting in the Assembly.
[Sidenote: Liberal intention of the Proclamation of 1763.]
There is no question that the proclamation itself was conceived in
a wise and tolerant spirit. There was every intention to safeguard
the best interests alike of the French Canadians and of the
Indians; to give to the latter the protection of Imperial rule,
to give to the former the benefits of British laws, and as far as
possible the privileges of British citizenship. The proclamation,
too, was not drawn on hard and fast lines. As soon as circumstances
permitted, and not before, representative institutions were to be
introduced, and the laws were not to be necessarily the laws of
England, but ‘as near as may be agreeable to’ the laws of England.
[Sidenote: Murray’s Commission.]
[Sidenote: The Council of government.]
Murray’s commission as governor empowered him, ‘so soon as the
situation and circumstances of our said province under your
government will admit thereof, and when and as often as need shall
require, to summon and call General Assemblies of the freeholders
and planters within your government.’ But by the terms of the
commission a council was joined with the governor and Assembly
as the authority for making laws and ordinances, and the Royal
Instructions provided that, pending the calling of a General
Assembly, the governor was to act on the advice of his council in
making regulations, which would have the force of law, and which
were, as a matter of fact, styled ordinances, certain important
subjects, such as taxation, being excluded from their scope.
Thus, until representative institutions could be given to Canada,
legislative and executive authority was placed in the hands of
the governor acting on the advice of a nominated council. But the
council, again, was constituted on liberal lines, as its members
were to be the Lieutenant-Governors of Montreal and Three Rivers,
the Chief Justice of the province of Quebec, the Surveyor-General
of Customs in America for the Northern district, and ‘eight other
persons to be chosen by you from amongst the most considerable of
the inhabitants of, or persons of property in, our said province’.
From the first, therefore, it was intended that the unofficial
element in the council should outnumber the officials--evidence,
if evidence were wanted, that it was desired to govern Canada in
accordance with the wishes of the people.
[Sidenote: Courts of justice established.]
[Sidenote: Causes of the difficulties which arose.]
Immediately after civil government had taken the place of
military rule, an ordinance was, in September, 1764, promulgated,
constituting courts of justice, the law to be administered being
in the main the law of England, and trial by jury being introduced
without any religious qualification for jurymen. One provision in
the ordinance, it may be noticed in passing, abolished the district
of Three Rivers, which had hitherto been, like Montreal, in charge
of a Lieutenant-Governor. Thus Canada was started on its course as
a British colony, with the best intentions, the prospect of such
self-government as other American colonies enjoyed, British law
and justice, and above all a governor who was in sympathy with the
people, and earnestly worked for their good; but difficulties arose
almost immediately, and the causes of them are not far to seek.
[Sidenote: The religious question.]
It was the honest desire of the British Government to give liberty
to Canada, to treat it, not as a conquered country, but as a
British colony. Liberty, as the English understand it, has connoted
three things, representative institutions, British law and justice,
including especially trial by jury and the Habeas Corpus Act, and
freedom of conscience. But in past times to Protestants freedom
of conscience meant practical exclusion from the political sphere
of those, like Roman Catholics, whose creed was in principle an
exclusive creed; and therefore, in a Roman Catholic country under
Protestant supremacy, like Ireland or Canada in the eighteenth
century, representative institutions from the strong Protestant
point of view meant institutions which did not represent the bulk
of the population. In this matter, as in others, in the case of
Canada, English statesmen and English governors, though not at once
prepared to dispense with religious tests, were more liberally
inclined towards the ‘new subjects’, the French Canadians, than
were the English colonists in America; and the soldier Murray had
far more breadth of mind than the local lawyers and politicians
who prated of liberties which they had no intention of granting to
others.
[Sidenote: Murray’s letter to Lord Shelburne.]
[Sidenote: His opinion of the Protestant minority in Canada.]
Shortly after his return to England, in 1766, Murray expressed
his views as to the small Protestant minority in Canada in plain
outspoken terms. In a letter addressed to Lord Shelburne on the
20th of August in that year, he wrote, ‘most of them were followers
of the army, of mean education, or soldiers disbanded at the
reduction of the troops. All have their fortunes to make, and I
fear few of them are solicitous about the means when the end
can be obtained. I report them to be in general the most immoral
collection of men I ever knew, of course little calculated to make
the new subjects enamoured with our laws, religion, and customs,
far less adapted to enforce these laws and to govern.’ As the
Canadian peasantry, he continued, ‘have been taught to respect
their superiors and not get intoxicated with the abuse of liberty,
they are shocked at the insults which their noblesse and the King’s
officers have received from the English traders and lawyers, since
the civil government took place.... Magistrates were to be made
and juries to be composed from four hundred and fifty contemptible
sutlers and traders ... the Canadian noblesse were hated because
their birth and behaviour entitled them to respect, and the
peasants were abhorred because they were saved from the oppression
they were threatened with.’ Equally severe was his judgement on
‘the improper choice and the number of the civil officers sent
out from England’, ignorant of the law and language, rapacious,
and lowering the dignity of government. In short his letter[42]
was a wholesale condemnation of the representatives of the party
which claimed to represent British civic life in a newly-acquired
possession.
These men had bitterly attacked Murray, and no doubt Murray was
bitter in turn; but his strictures were largely justified. He had
lived for some years among the Canadians; he had commanded the
King’s troops; himself a man of high principle and good breeding,
he resented the mischief wrought by a low class of domineering
interlopers who, in the name of freedom, meant to oppress, and
painted as tyranny the policy which prevented oppression. A
continuance of military rule, which the Canadians understood, would
have been infinitely preferable to representative institutions in
which the overwhelming majority of the population would have had no
share.
[Sidenote: Character of American Protestantism.]
[Sidenote: Unfit men sent out from England.]
Carleton’s view was much the same as Murray’s. His sympathies
too were with Canada and the Canadians, and yet the forces and
the instincts on the other side are at least intelligible. It was
natural that, when war was over, in the train of the conquering
army there should drift into the conquered country a certain
number of adventurers, eager for official and professional gain,
exploiting the land and the people, indifferent to higher objects,
for they had not known them. They were an inevitable evil, such
as must be reckoned with in similar circumstances at all times
and in all places. It was natural too that Protestantism, when
ascendant, should be aggressive; and Protestantism in Canada
was borrowed from the New England States; it was the Puritanism
of past days, hardened by memories of the evil wrought by Roman
Catholic teaching among the natives of North America, the fruits of
which had been, times without number, a series of savage crusades
against the border villages of the British colonies. But the
British Government, with all its kindly intentions, was at fault
too; and the fault was the same evil which was poisoning political
life at home. Unfit men were being sent out from home, and the
subordinate instruments for carrying out a new policy, and making a
new régime congenial to those who were to live under it, were not
well chosen. Men were wanted at first rather than institutions. The
soldier governors were good, but the same could not be said of the
civilians and lawyers.
[Sidenote: Pouring new wine into old bottles.]
Once more, too, it must be noticed that the actual merits of
British statesmanship and policy militated against its success. It
was so keenly desired to give the new subjects all the privileges
enjoyed by the old, that too little account was taken of the
training, the wishes, and the present needs of the new subjects.
The Canadians were politically children. They had never known even
the semblance of representative institutions. They had from all
time been born and bred under authority--under the King, under
the Church, under the seigniors. They had learnt unquestioning
obedience, and could not at once be re-cast in a democratic mould.
The printing press, the Assembly for law-making and debate, the
standing quarrels with governors, the withholding of supplies,
the aggressive freedom in every form which characterized the
English communities in North America, all were alien to the French
Canadian. The wine might be good, but it was new, and pouring it
into old bottles could only have one result, the loss of the wine
and the bursting of the bottles. So also with British law and
justice: that too was new and largely unintelligible; the language
puzzled and confused, and the lawyers who came in found the
confusion profitable. Premature attempts or proposals to assimilate
only served to emphasize differences, and for the moment good
intentions paved the way to something like anarchy.
[Sidenote: Presentment of the Grand Jury in October, 1764.]
In September, 1764, the ordinance constituting courts of justice
was promulgated, and in the following month the Grand Jury at
Quebec made a presentment, enumerating a number of alleged
grievances, concerned not merely with the administration of
justice, but also with various matters which lay wholly outside
their sphere. ‘We represent,’ so the framers of the presentment
wrote, ‘that as the Grand Jury must be considered at present as the
only body representative of the colony, they, as British subjects,
have a right to be consulted, before any ordinance that may affect
the body that they represent be passed into a law.’ It was an
impertinent document, a kind of manifesto against the Government;
and, taken by itself alone, gave ample evidence of the class and
the temper of the men who were determined to make trouble in
Canada. It was signed by some French jurors as well as English, but
a supplement to it, signed by the English, or, at any rate, by the
Protestant members alone, protested against Roman Catholics being
admitted as jurors, and it soon appeared that the French jurors had
signed the main document in ignorance of its contents.[43] ‘Little,
very little,’ wrote Murray, ‘will content the new subjects, but
nothing will satisfy the licentious fanatics trading here, but the
expulsion of the Canadians who are perhaps the bravest and the
best race upon the globe, a race who, could they be indulged with
a few privileges which the laws of England deny to Roman Catholics
at home, would soon get the better of every national antipathy to
their conquerors and become the most faithful and most useful set
of men in this American Empire.’[44]
[Sidenote: Petition for recall of Murray.]
The Grand Jury’s presentment was followed by a petition for
the recall of Murray, drawn up in the next year and signed by
twenty-one persons, which accused him of military prejudice against
civil liberties, and of discouraging the Protestants and their
religion. It asked for a new governor of a less military type,
and for a House of Representatives composed of Protestants alone,
though Roman Catholics might be allowed to vote for Protestant
members. Never did a small minority make more extravagant claims,
or attack with greater want of scruple those who were trying to
hold the balance even.
[Sidenote: The ordinance of 1770.]
[Sidenote: The Quebec Act.]
Carleton succeeded Murray, and soon after his arrival showed
that he was as little disposed, as Murray had been, to submit
to dictation. A side issue had arisen as to the appointment and
precedence of members of the council, and, in answer to a protest
addressed to him by some of the councillors, he laid down that ‘I
will ask the advice and opinion of such persons, though not of the
council, as I shall find men of good sense, truth, candour, and
impartial justice; persons who prefer their duty to the King, and
the tranquillity of his subjects to unjustifiable attachments,
party zeal, and to all selfish mercenary views.... I must also
remind you that His Majesty’s service requires tranquillity and
peace in his province of Quebec, and that it is the indispensable
duty of every good subject, and of every honest man, to promote
so desirable an end.’[45] Still intrigue went on: religious
bitterness did not abate, as men spoke and wrote on either side:
legal confusion became worse confounded, and reports were made on
what was and what ought to be the state of the law, by the English
law officers of the Crown, by a delegate sent out from England,
and by Masères, the Attorney-General in Canada. One crying evil,
however, arising from the proceedings for the recovery of debts,
which were enriching magistrates and bailiffs and reducing Canadian
families to beggary, was remedied by Carleton in an ordinance dated
1st February, 1770, which among other provisions deprived the
justices of the peace of jurisdiction in cases affecting private
property.[46] It was a righteous ordinance, and those who had
profited by the old system raised an outcry against it, but in
vain. Eventually the Quebec Act was passed in 1774, the provisions
of which must now be considered.
[Sidenote: Its objects.]
‘The principal objects of the Quebec Bill,’ we read in the _Annual
Register_ for 1774,[47] ‘were to ascertain the limits of that
province, which were extended far beyond what had been settled as
such by the King’s Proclamation of 1763. To form a legislative
council for all the affairs of that province, except taxation,
which council should be appointed by the Crown, the office to be
held during pleasure; and His Majesty’s Roman Catholic subjects
were entitled to a place in it. To establish the French laws, and
a trial without jury, in civil cases: and the English laws, with a
trial by jury, in criminal; to secure to the Roman Catholic clergy,
except the Regulars, the legal enjoyment of their estates, and of
their tythes from all who were of their own religion. These were
the chief objects of the Act.’
[Sidenote: Extension of the boundaries of the province of Quebec.]
It has been seen that, under the Proclamation of 1763, the province
of Quebec included the settled part of Canada, as far as the point
where the 45th parallel of latitude intersected the St. Lawrence,
midway between Montreal and Lake Ontario. Outside the province
were the Labrador coast from the river St. John to Hudson Straits,
which, with the island of Anticosti and other small islands in
the estuary of the St. Lawrence, was placed ‘under the care and
inspection’ of the Governor of Newfoundland; the government of Nova
Scotia, including at the time Cape Breton Island, the territory now
forming the province of New Brunswick, and the island of St. John,
afterwards Prince Edward Island; the territories of the Hudson’s
Bay Company; and the great undefined region of the lakes and the
Ohio as far as the Mississippi. The Quebec Act restored to Canada
or, as it was still styled, the province of Quebec, the Labrador
coast and Anticosti, and included in it, within the lines which
the Act prescribed, the Western territories for which England and
France had fought so hard.
[Sidenote: The Labrador coast added to the province of Quebec.]
The reason for re-annexing the Labrador coast to Canada was
that since 1763, when it had been placed under the Governor of
Newfoundland, there had been constant disputes and difficulties as
to the fishing rights on that coast. It was the old story, so well
known in the case of Newfoundland itself, of a perpetual struggle
between those who lived on or near the spot, and the fishermen
who came over the Atlantic from English ports, and who wanted the
fisheries and the landing-places reserved for their periodical
visits. The Governor of Newfoundland in the years 1764-8 was an
energetic man, Sir Hugh Palliser, who built a fort in Labrador,
and set himself to enforce the fishing rules which prevailed in
Newfoundland. But the Labrador fisheries, it was contended, were
of a more sedentary nature than those of the Newfoundland Banks,
sealing was as prominent an occupation as cod-fishing;[48] the
regulations which kept Newfoundland for the Dorset and Devon
fishing fleets could not fairly be applied to the mainland, and the
coast of Labrador should be placed under regular civil government,
and not be left in the charge of the sea captains who held
authority in Newfoundland.
It was really a case, on a very small scale, of England against
America; and the interesting point to notice is that the opponents
of the Newfoundland régime included alike French Canadians and
New Englanders. The few settlers on the Labrador coast, and the
fishermen and sealers who came either from Canada or from the
New England states, were all concerned to prevent Labrador from
being kept, like Newfoundland, as a preserve for Englishmen, and a
nursery for English sailors; and it illustrates the confusion of
thought which existed among the opponents of the Quebec Act that,
in the debate on the Act, we find Chatham, the champion of the
rights of the American colonists, denouncing the provision which
gave back Labrador to Quebec, on the ground that it would become
a nursery for French instead of English sailors, forgetful that
the system which he wished to perpetuate, had been persistently
obstructed by the men of Massachusetts, forgetful too that true
statesmanship conceived of the French Canadians, on sea or land, as
future loyal citizens of the British Crown.
[Sidenote: Inclusion of the western hinterland in the province of
Quebec.]
But the extension of the boundaries of the province of Quebec on
the Atlantic side was after all a small matter, though the most was
made of it for party purposes. Nor could exception be taken to the
enlargement of the province to the north and north-west, until it
reached the territories which had been granted to, or were claimed
by, the Hudson’s Bay Company. Far more important and more debatable
was the inclusion of the western and south-western regions, which
had been left outside the government of Quebec by the Proclamation
of 1763.
[Illustration:
=Canada under the Quebec Act 1774.= from T. Pownall’s map of the
Middle British Colonies of N. America, London 1775. _to face
page 81_
B. V. Barbishire, Oxford, 1908
]
It will be remembered[49] that these territories had not been
included in the province of Quebec for three reasons: that their
incorporation with the conquered province might have been held to
be an admission that the British title to them only dated from
the conquest of Canada, that their annexation to any particular
province would have given to that province a preponderating
advantage in regard to trade with the Indians, and that the
extension to them of the laws and administration of the province
of Quebec would have necessitated the establishment of a number of
military garrisons throughout the territories. The first of these
three objections was, in fact, taken in the debates on the Quebec
Bill. ‘The first object of the Bill,’ said Mr. Dunning in the House
of Commons on the 26th of May, 1774, ‘is to make out that to be[50]
Canada, which it was the struggle of this country to say, was not
Canada.’ The second objection was clearly potent in the minds of
the partisans of the old British colonies, who opposed the Bill.
It would seem that when the Proclamation of 1763 was issued, the
British Government had contemplated passing an Act of Parliament,
constituting a separate administration for the Western territories,
but the plan, whatever it was, never came to the birth;[51] and,
as the King had foreseen, ‘great inconvenience’ had arisen ‘from
so large a tract of land being left, without being subject to the
civil jurisdiction of some governor’.[52] This inconvenience the
Quebec Act tried to rectify by bringing these western lands under
the government of Canada.
The line now laid down, on the motion of Burke in the House of
Commons, was carried from the point where the 45th parallel of
latitude intersected the St. Lawrence to Lake Ontario, up Lake
Ontario and the Niagara river into Lake Erie, and along the
southern or eastern shore of Lake Erie, until it met the alleged
frontier of the state of Pennsylvania, or, if that frontier was
found not to touch the lake, up to the point nearest to the
north-western angle of Pennsylvania. From that angle it skirted the
western boundary of Pennsylvania down to the Ohio, which river it
followed to the Mississippi.
[Sidenote: Claims of Pennsylvania.]
In the debate in the House of Commons a petition was presented
from the Penns, claiming that part of the province of Pennsylvania
was situated to the north-west of the Ohio, and Lord North offered
no opposition to the petition, on the ground that the Bill was
not intended to affect existing rights. On a map of 1776, after
the passing of the Act, Pennsylvania was shown as jutting out at
an acute angle into Lake Erie, and the boundary line, identical
with the western frontier of the state, started from the lake
near Presque Isle, and struck the Ohio at Logs Town, west of Fort
Duquesne and slightly east of Beaver Creek, leaving to Pennsylvania
the whole course of the Alleghany, and Fort Duquesne or Pittsburg.
It will be noted that, further east, the line, being drawn along
the St. Lawrence and the lakes, excluded from Canada the whole
country of the Six Nations, which had been demarcated as Indian
Territory by the Agreement of 1768.[53] The net result was to leave
the boundary line south of the St. Lawrence, where it had been
drawn in 1763, as far as the intersection of the 45th parallel with
the river, and thence to follow the waterways up to the point in
the southern shore of Lake Erie where the old French route to the
Ohio left the lake. From the Atlantic up to this point the present
international line between Canada and the United States is not far
different at the present day, though more favourable to the United
States, especially where, since the Ashburton Treaty of 1842, the
state of Maine runs northward into the provinces of Quebec and New
Brunswick. But, by carrying the boundary from Lake Erie to the Ohio
and down the Ohio to the Mississippi, all the Illinois country and
all the western lands, for which English and French had contended,
were confirmed to Canada.
[Sidenote: Reasons for the extension of the province.]
There were good reasons for taking this step. Eleven years had
passed since the territories in question had been left as an Indian
reserve. Events move quickly in a border land, and encroachments
grow apace. The time had come for some defined system, some
recognized law and government. As far as there were permanent
settlers in these regions, they were, it would seem, although the
contrary was averred in the House of Commons, French rather than
English; and it would be more palatable for colonists of French
origin to be incorporated with Canada than to be absorbed by the
purely English colonies. The native population would unquestionably
be better cared for under the government of Quebec than under the
legislatures of Pennsylvania and Virginia. The waterways still,
as in old times, made communication easier from Canada than from
the southern colonies; and to those colonies, on the brink of war
against the mother country, the mother country could hardly be
expected to entrust the keeping of the West.
[Sidenote: Arguments urged against it.]
On the other hand there was bitter and intelligible opposition
to the annexation to Canada of ‘immense territories, now desert,
but which are the best parts of that continent and which run on
the back of all your ancient colonies’.[54] The decision which
was now taken meant cutting off the existing English colonies
from the West; and, in view of the other provisions of the Act,
the incorporation of the new territories with Canada placed them
under an administration in which there was at the time no element
of self-government and which gave formal recognition to the Roman
Catholic Church. It was, in short, or seemed to be, an admission
that the old claim of Canada to the regions of the Ohio, against
which, while Canada was still a French possession, the British
Government and the British colonies had alike contended, was after
all a valid claim; and it was, or seemed to be, a pronouncement
that in years to come the future of the Western lands was to be
shaped on Canadian principles and Canadian traditions, rather than
on those which had moulded and inspired the ever-growing colonies
of the British race.
It has been argued that true statesmanship would, in accordance
with the plan which had been at one time contemplated, have
constituted the territories beyond the 45th parallel a separate
province under the Crown, separate alike from Canada on the one
hand, and from Pennsylvania and Virginia on the other. This
might possibly have been a preferable course; but, as subsequent
experience showed in the case of Upper Canada, an inland colony,
whose only outlet is through other provinces, is always in a
difficult position; and the multiplication of communities in North
America had already borne a crop of difficulties. Moreover, the
particular circumstances of the time accounted for the decision
which was taken, as they accounted also for the strong antagonism
which that decision called forth. In the same session in which
the Quebec Act was passed, the British Parliament had already
enacted three punitive laws against the recalcitrant colony of
Massachusetts; one closing the harbour of Boston; another altering
the legislature, and giving to the governor the power of appointing
and removing the judges, magistrates, and sheriffs; and a third
empowering the trial of persons accused of capital offences in the
discharge of their public duties to be held outside the limits
of the province. If it was thought necessary thus to limit the
liberties of one of the English colonies by Imperial legislation,
it would have been hopelessly illogical to enlarge the borders
of others among the sister communities; and if the only possible
alternative was to keep the Western territories directly under the
Crown, it was simpler, and involved less friction and debate, to
attach them by a single clause in a Bill to the existing province
of Quebec, than to treat them as a separate unit and to provide
them with an administration and a legislature by a separate law.
Furthermore, their annexation to Canada outwardly, at any rate,
strengthened at a critical time the one province in America where
the Crown still held undivided sway.
[Sidenote: Sections in the Act which dealt with the religious
question.]
The fifth, sixth, and seventh sections of the Act dealt with
religion. They provided for the free exercise of the Roman
Catholic faith by the members of that Church, subject to the
King’s supremacy as established by the Act passed in the reign of
Queen Elizabeth; but they substituted a simple oath of allegiance
for the oath required by Queen Elizabeth’s statute, and they
confirmed to the Roman Catholic clergy ‘their accustomed dues and
rights’. Protestants were expressly exempted from these payments;
but the Act provided that, from such dues as they would otherwise
have paid, provision might be made for the encouragement of the
Protestant religion and the maintenance of a Protestant clergy. In
other words, freedom of religion was guaranteed, the establishment
of the Roman Catholic Church was recognized by law, and the
principle of concurrent endowment was introduced.
[Sidenote: Other provisions of the Act.]
The eighth section of the Act restored Canadian law and custom in
civil matters, and confirmed existing rights to property, with the
exception of the property of the religious orders. The eleventh
section continued the law of England in criminal matters. The
twelfth, laying down that it was at present inexpedient to call an
Assembly, provided for a nominated Legislative Council, consisting
of not more than twenty-three and not less than seventeen members,
no religious test being imposed. The next section withheld from
the council the power of taxation, such additional taxes as were
deemed necessary being imposed by a separate Act of the Imperial
Parliament.[55]
[Sidenote: The Act embodied a compromise.]
[Sidenote: Opposition to it.]
[Sidenote: Inconsistency of the opponents.]
Such were the principal provisions of the Quebec Act. It embodied
a fair and reasonable compromise. In part the Government retraced
their steps; they restored Canadian civil law, they postponed
indefinitely a representative legislature, but they gave what
could under the circumstances be suitably and prudently given,
religious toleration, trial by jury in criminal matters, and a
council to which the Crown could call representatives of all creeds
and interests. The Bill was attacked in the House of Lords, and
in the House of Commons; and, even after it had become law, in
1775, Lord Camden in the House of Lords, and Sir George Savile
in the House of Commons, presented petitions from the British
inhabitants of the province of Quebec against the Act and moved for
its repeal. The corporation of London petitioned against it. The
American colonists made it the text of the manifesto to the people
of Canada, which has already been noticed.[56] In the debates in
Parliament various points were taken. Fox argued that, as the Bill
gave tithes to the Roman Catholic clergy, it was a money Bill,
and should not have originated, as it did originate in the House
of Lords. Others criticized the absence of any provision for the
rights of Habeas Corpus,[57] and the abolition of trial by jury
in civil cases; but the main attack was on the lines that the law
gave formal recognition to the Roman Catholic Church, that it
withheld popular representation, and that it extended these two
unsound principles to new territories whose lot should rather have
been cast with the English colonies. Reference was made to the
case of the colony of Grenada, in which limited representation in
the popular Assembly had been given to Roman Catholics; but the
opponents of the Quebec Act had not the courage to declare for a
popular Assembly for Canada, without any religious test, for it
would have meant an almost exclusively Roman Catholic legislature.
They were at one and the same time fighting for the Protestant
minority and contending for popular representation, but Protestant
claims and popular representation in Canada were hopelessly at
variance. This made the case of the opposition weak, and this was
the justification of the Act. Lord Chatham denounced it as a most
cruel, oppressive, and odious measure. Burke tried to appeal to
popular prejudice against the Canadian seigniors. He attacked them,
and he pressed the claims of the Protestant minority on the ground
of their commercial importance, descending to such clap-trap as
that in his opinion, in the case in point, one Englishman was worth
fifty Frenchmen. The tone of the opposition was unworthy of the
men, but minds had been so embittered and judgements so clouded by
years of wrangle and debate on the American question, that the Act
for the better government of Canada was viewed by the opponents of
the ministry and the partisans of the colonies mainly as a case of
French against English, and Papists against Protestants. None the
less, the Act was a just and generous measure, and, when Carleton
returned to Canada in September, 1774, his reception by the leading
French Canadians showed that they appreciated it. Because, when
war came, the Canadians as a whole stood aloof in a quarrel which
was no concern of theirs, and some of them joined the revolting
colonies, it was argued in the English Parliament that the Act had
not conciliated them, and therefore stood condemned; but history
has proved that this view was not true. No one measure or series of
measures can at once obliterate differences of race, language, and
creed; but, passed as it was at a time of failures, recrimination,
and bitterness, the Quebec Act stood and will to all times stand to
the credit of English good sense, in dealing with the actual facts
of a difficult position, and the feelings and prejudices of an
alien people.
FOOTNOTES:
[16] _Travels into North America_, by Peter Kalm, Eng. Transl.;
1770, vol. i, pp. 264-5.
[17] Montcalm’s letters, however, to which reference is here
made, are held to have been forged by a Jesuit or ex-Jesuit named
Roubaud. See Mr. Brymner’s _Report on Canadian Archives_ for
the year 1885, p. xiii, &c., and Note E, p. cxxxviii. See also
Parkman’s _Montcalm and Wolfe_, 1884 ed., vol. ii, pp. 325-6, Note.
[18] _History of England in the Eighteenth Century_, 1882 ed., vol.
iii, chap. xii, p. 272.
[19] From the anonymous _Lettre d’un habitant de Louisbourg_, edited
and translated by Professor Wrong, Toronto, 1897, p. 58.
[20] As to the authenticity of Montcalm’s letters, see above, note
to p. 31.
[21] Sir G. Cornewall Lewis, in the _Essay on the Government of
Dependencies_, chap. vi, writes that the North American colonies
‘had not been required at any time since their foundation to
contribute anything to the expenses of the Supreme Government,
and there is scarcely any habit which it is so difficult for a
government to overcome in a people as a habit of not paying’.
[22] _Wealth of Nations_: chapter on the ‘Causes of the Prosperity
of New Colonies’.
[23] _Wealth of Nations_: chapters on the ‘Causes of the Prosperity
of New Colonies’, and on the ‘Advantages which Europe has derived
from the Discovery of America and from that of a Passage to the
East Indies by the Cape of Good Hope’.
[24] The Greek colonies will be remembered to the contrary. Some of
them speedily outgrew the mother cities in wealth and population,
but then they were wholly independent.
[25] _The American Revolution_, 1899 ed., Part I, chap. ii, p. 101.
[26] See above, p. 38.
[27] Chapter on ‘Causes of the Prosperity of New Colonies’.
[28] The above, however, was not Adam Smith’s view. In the chapter
‘Of the Advantages which Europe has derived from the Discovery of
America, &c. &c.’ he writes, ‘The late war was altogether a colony
quarrel, and the whole expense of it, in whatever part of the world
it may have been laid out, whether in Germany or the East Indies,
ought justly to be stated to the account of the colonies.’
[29] It is very difficult to state the case quite fairly as between
the mother country and the colonies. In the first place a broad
distinction must be drawn between the New England colonies and the
more southern colonies. The New Englanders, who had the French on
their borders, made far more sacrifices in men and money than the
southern colonies, some of which, owing to remoteness, took no
part in the war. The efforts of Massachusetts, and the military
expenditure incurred by that colony, are set out by Mr. Parkman in
his _Montcalm and Wolfe_, 1884 ed., vol. ii, chap. xx, pp. 83-6.
In the next place, the regular regiments, though the whole expense
of them was borne by the mother country, were to a considerable
extent recruited in the colonies. The Royal Americans, e.g. were
entirely composed of colonists. At the second siege of Louisbourg
the English force consisted, according to Parkman, of 11,600
men, of whom only 500 were provincial troops, and according to
Kingsford of 12,260, of whom five companies only were Rangers.
The expedition against Ticonderoga, excluding bateau men and
non-combatants, included, according to Kingsford, 6,405 regulars
and 5,960 provincials. Parkman gives 6,367 regulars and 9,034
provincials; this was before the actual advance began, and probably
included bateau men, &c. Forbes’ army contained 1,630 regulars out
of a total of 5,980 (Kingsford). Wolfe’s force at Quebec, in 1759,
numbered 8,535 combatants, out of whom the provincial troops only
amounted to about 700 (Kingsford. See also Parkman’s _Montcalm and
Wolfe_, Appendix H). Amherst, in the same year, in the campaign on
Lakes George and Champlain, commanded 6,537 Imperial troops and
4,839 provincials. [The respective numbers in the different forces
are well summed up in the fifth volume of Kingsford’s _History of
Canada_, pp. 273-4.]
[30] It is interesting to notice that as early as 1652 a proposal
emanated from Barbados that colonial representatives from that
island should sit in the Imperial Parliament.
[31] Grenville carried a resolution in the House of Commons in
favour of the Stamp Act in 1764. The Act received the Royal Assent
in March, 1765, and came into operation on November 1, 1765.
[32] O’Callaghan’s _Documentary History of New York_, vol. ii
(1849), MSS. of Sir William Johnson; this was at a public meeting
of the Six Nations with Sir William Johnson, July 3, 1755.
[33] Sir W. Johnson to the Rev. Mr. Wheelock, October 16, 1762.
_Documentary History of New York_, vol. iv. Paper relating
principally to the conversion and civilization of the Six Nations
of Indians.
[34] See O’Callaghan’s _Documentary History of New York_, 1849,
vol. i, Paper No. 20, pp. 587-91.
[35] General Murray to Lord Shelburne, London, August 20, 1766. See
Kingsford’s _History of Canada_, vol. v, p. 188.
[36] See _Documents Relating to the Constitutional History of
Canada_, 1759-91 (Shortt and Doughty), pp. 37-72.
[37] The delay was probably due to the provisions of the fourth
clause of the Treaty of Paris, by which eighteen months were to be
allowed to the subjects of the French king in Canada, who wished
to leave the country, to do so. The treaty was signed on February
10, 1763, and was ratified by England on February 21, 1763; the
eighteen months were to run from the date of ratification, but
civil government in Canada began on August 10, 1764, i.e. eighteen
months from the date of the treaty itself.
[38] ‘The Canadians are to a man soldiers, and will naturally
conceive that he who commands the troops should govern them.’
Murray to Halifax, October 15, 1764. Shortt and Doughty, p. 153.
[39] The words, ‘under our immediate government,’ did not
connote what would now be called Crown colonies as opposed to
self-governing colonies, but colonies which held under the Crown
and not under proprietors.
[40] The Lords of Trade to Lord Egremont, June 8, 1763. Shortt and
Doughty, p. 104.
[41] Part of the 4th Article of the Peace of Paris in 1763 ran as
follows: ‘His Britannic Majesty, on his side, agrees to grant the
liberty of the Catholic religion to the inhabitants of Canada;
he will in consequence give the most precise and most effectual
orders, that his new Roman Catholic subjects may profess the
worship of their religion according to the rites of the Romish
Church, as far as the laws of Great Britain permit.’
[42] The letter is printed in full in the fifth volume of
Kingsford’s _History of Canada_, pp. 188-90.
[43] For these documents see Shortt and Doughty, pp. 153, &c.
[44] October 29, 1764. See Shortt and Doughty, p. 167.
[45] October, 1766: Shortt and Doughty, pp. 194-5.
[46] For this ordinance see Shortt and Doughty, p. 280. Carleton’s
dispatch of March 28, 1770, which enclosed the ordinance, explained
the reasons for passing it, and submitted in evidence of the
abuses which had sprung up a letter from an ex-captain of Canadian
militia, will be found printed in Mr. Brymner’s _Report on Canadian
Archives_ for 1890 (published in 1891), Note A.
[47] p. 75
[48] A French Canadian petition to the King, drawn up about the end
of 1773, referred in the following terms to the Labrador question:
‘We desire also that His Majesty would be graciously pleased to
re-annex to this province the coast of Labrador, which formerly
belonged to it, and has been taken from it since the peace. The
fishery for seals, which is the only fishery carried on upon this
coast, is carried on only in the middle of winter, and sometimes
does not last above a fortnight. The nature of this fishery, which
none of His Majesty’s subjects but the inhabitants of this province
understand; the short time of its continuance; and the extreme
severity of the weather, which makes it impossible for ships to
continue at that time upon the coasts; are circumstances which all
conspire to exclude any fishermen from old England from having any
share in the conduct of it.’ (Shortt and Doughty, pp. 358-9.)
[49] See above, p. 6, and Shortt and Doughty, p. 111.
[50] See _Canadian Constitutional Development_, Egerton and Grant,
p. 28.
[51] See Shortt and Doughty, p. 381. Paper as to Proposed
extension of Provincial Limits: ‘The King’s servants were induced
to confine the government of Quebec within the above limits,
from an apprehension that there were no settlements of Canadian
subjects, or lawful possessions beyond those limits, and from a
hope of being able to carry into execution a plan that was then
under consideration for putting the whole of the interior country
to the westward of our colonies under one general control and
regulation by Act of Parliament.... The plan for the regulation of
the interior country proved abortive, and in consequence thereof
an immense tract of very valuable land, within which there are
many possessions and actual colonies existing under the faith
of the Treaty of Paris, has become the theatre of disorder and
confusion....’
[52] See above, p. 5, and Shortt and Doughty, p. 108.
[53] See above, p. 59.
[54] _Annual Register_ for 1774, p. 77.
[55] The Quebec Act was 14 Geo. III, cap. 83, and its full title
was ‘An act for making more effectual provision for the government
of the Province of Quebec in North America’. The Quebec Revenue
Act was 14 Geo. III, cap. 88, and its full title was ‘An act to
establish a fund towards further defraying the charges of the
Administration of Justice and support of the Civil Government
within the Province of Quebec in America’. Much was heard of this
latter Act in the constitutional wrangles of later years in Lower
Canada.
[56] See above, p. 60.
[57] The opponents of the Quebec Act maintained that it took away
the right of Habeas Corpus. Thus petitions from English residents
in Quebec, dated November 12, 1774, complained, in respect to the
Quebec Act, ‘That in matters of a Criminal Nature the Habeas Corpus
Act is dissolved:’ and again, ‘That to their inexpressible grief
they find, by an Act of Parliament entitled an act for making
more effectual provision for the government of the province of
Quebec in North America, they are deprived of the Habeas Corpus
Act and trial by juries:’ and again, ‘an Act of Parliament which
deprives His Majesty’s ancient subjects of all their rights and
franchises, destroys the Habeas Corpus Act and the inestimable
privilege of trial by juries’ (Shortt and Doughty, pp. 414-18). The
Government on the other hand contended that before the Quebec Act,
the Statute of Habeas Corpus was not in force in Canada, although,
both before and after the Act, the Common Law right existed. Thus
Wedderburn, the Solicitor-General, before the Quebec Act was
drafted but while the subject matter was being considered by the
Government, reported, ‘It is recommended by the Governor, the Chief
Justice, and the Attorney-General, in their report, to extend the
provisions of the Habeas Corpus Act to Canada. The inhabitants
will, of course, be entitled to the benefit of the writ of Habeas
Corpus at Common Law, but it may be proper to be better assured
of their fidelity and attachment, before the provisions of the
statute are extended to that country’ (Ib. 300); and in November,
1783, Governor Haldimand reported that he was going to propose an
ordinance for introducing the Habeas Corpus Act, ‘which will remove
one of the ill-grounded objections to the Quebec Act, for though
that law had never been introduced into the province, people were
taught to believe that the Quebec Act had deprived the inhabitants
of the benefit of it’ (Ib. 499). The point at issue, and it is not
free from doubt, was whether the introduction _en bloc_ of the
English criminal law into Canada, brought with it _ipso facto_
the introduction of the Habeas Corpus statute. Haldimand passed
his ordinance in 1784 under the title of an ‘Act for securing the
liberty of the subject and for the prevention of imprisonments
out of this province’. The preamble stated that ‘The Legislature
could not follow a better example than that which the Common Law of
England hath set in the provision made for a writ of Habeas Corpus
which is the right of every British subject in that kingdom’.