was appointed a Judge of the Court of Error and Appeal. He then removed
to Toronto, where he has ever since resided. Upon the elevation of Mr.
Justice Strong to a seat on the Bench of the Supreme Court at Ottawa, in
October, 1875, Mr. Burton became, and still continues to be, the Senior
Justice of the Court of Appeal for this Province. He has filled his
position worthily, and with acceptance to the public and profession. He
has delivered many important judgments. One of these, in the case of
_Smiles vs. Belford et al._, is of special interest to persons connected
with literary pursuits. The plaintiff was the well-known Scottish
writer, Samuel Smiles, author of "The Life of George Stephenson,"
"Industrial Biography," and various other works of a similar character
which have enjoyed great popularity among the young. The defendants were
a firm of publishers in Toronto. The case came before Judge Burton in
the month of March, 1877, by way of appeal from a judgment previously
rendered by Vice-Chancellor Proudfoot; and the effect of Judge Burton's
decision was to affirm the Vice-Chancellor's conclusions. It was held
that it is not necessary for the author of a book who has duly
copyrighted the work in England under the Imperial statute 5 and 6
Victoria, chapter 45, to copyright it in Canada under the Canadian
Copyright Act of 1875, with a view of restraining a reprint of it there;
but that if he desires to prevent the importation into Canada of printed
copies from a foreign country he must copyright the book in Canada. The
judgment is an elaborate one, and well worthy of the careful perusal of
literary men.
LORD DORCHESTER.
Prominent among the band of heroes who accompanied Wolfe on his
memorable expedition against Quebec in 1759 was a gallant hero who held
the rank of Lieutenant-Colonel in the British army, and whose name was
Guy Carleton. He was an intimate personal friend of General Wolfe, and
was at that time thirty-seven years of age, having been born in 1722, at
Strabane, in the county of Tyrone, Ireland. He had embraced a military
career in his earliest youth, and had already done good service on more
than one hotly-contested field. He had served with distinction under the
Duke of Cumberland on the Continent, and had acquired the reputation of
a brave and efficient officer. He was destined to attain still higher
distinction, both in military and civil affairs, and to preserve for his
king and country the realm which Wolfe died to gain. He has been called
"the founder and saviour of Canada," and if these terms are somewhat
grandiloquent, it must be admitted that they are not altogether without
justification. "If," says a well-known Canadian writer, "we owe to Wolfe
a deep debt of gratitude for the brilliant achievement which added new
lustre and victory to our arms, and placed the ensign of Great Britain
on this glorious dependency of the empire, where he fought and bled and
sacrificed a life his country could ill spare, we assuredly, also, owe
much to those brave and gallant men who preserved this land when
conquered, through dint of hard toil, watchful vigilance, and loss of
blood and life."
Guy Carleton's friendship with Wolfe, who was four years his junior,
dated from their early youth. There are many friendly and affectionate
references to him scattered here and there throughout Wolfe's published
letters, and it is evident that their friendship was founded upon the
highest mutual respect and esteem. Wolfe seems to have lost no
opportunity of pushing his friend's fortunes, and to his patronage the
Lieutenant-Colonel was indebted for many signal marks of favour. When
the General was appointed to take charge of the operations against
Quebec, he was informed by Pitt that he would be allowed to choose his
own staff of officers. He accordingly forwarded his list of names to the
Minister, and among them was that of Colonel Carleton, to whom he had
assigned the office of Quartermaster-General. Carleton, however, had
made himself obnoxious to the King by passing some slighting remarks on
the Hanoverian troops--a most heinous offence in the eyes of the
Elector. When the Commander-in-Chief submitted the list to the
Sovereign, His Majesty, as was expected, drew his pen across Carleton's
name, and refused to sign his commission. Neither Pitt nor Wolfe was
likely to humour the stubborn monarch's whim. Lord Ligonier was
therefore sent a second time into the royal closet, but with no better
success. When his lordship returned to the Prime Minister he was
ordered to make another trial, and was told that on again submitting the
name he should represent the peculiar state of affairs. "And tell His
Majesty likewise," said Mr. Pitt, "that in order to render any General
completely responsible for his conduct, he should be made, as far as
possible, inexcusable if he should fail; and that, consequently,
whatever an officer entrusted with a service of confidence requests
should be complied with." After some hesitation Ligonier obtained a
third audience, and delivered his message, when, obstinate and
unforgiving as the old King was, the sound sense of the observation
prevailed over his prejudice, and he signed the commission as requested.
And so it came about that Colonel Carleton accompanied the conqueror of
Quebec in the capacity of Quartermaster-General on that memorable
expedition, which was fraught with such important consequences to both.
The story of the siege of Quebec is already familiar to readers of these
pages. The only further reference to that siege necessary to be made in
this place is to chronicle the fact that Colonel Carleton was severely
wounded in the hand on the plains of Abraham, and was only a few paces
distant from his commander when the latter received his death-wound. For
his services on that eventful day he was advanced to the dignity of a
Brigadier-General. The next important event in his life necessary to
record was his accession to the Governorship of Canada, as successor to
General Murray. He was already regarded with great favour by the
colonists, who had begun to look up to him as a protector. His character
and conduct have been variously judged, some attributing his wisdom and
gentleness to native goodness of heart, others to a prudent and
far-seeing policy. There is no necessity for inquiring too curiously
into his motives. Suffice it to say that he was regarded with the
highest favour and admiration by the colonists. The Government of his
predecessor, General Murray, had, at the outset, been an essentially
military Government, and had been the reverse of popular with French
Canadians generally. During his _regime_ the French Canadians seem to
have been morbidly given to contemplating themselves as a conquered
people, and to have been ever ready to avail themselves of any pretext
for establishing a grievance. Nor were such pretexts altogether wanting.
The civil and criminal law of England had been introduced into the
colony by royal proclamation, and Courts of King's Bench, Common Pleas,
and Chancery had been established for its administration. Now, the law
of England was a system of which the French Canadians knew nothing, and
for which they could hardly be expected to have much enthusiasm. Trial
by jury was an especial bugbear to them. It was incomprehensible to them
that any man who was conscious of the goodness of his cause should wish
to be tried by twelve ignorant men; men who had never studied the
principles of law, and who were very imperfectly educated. That a suitor
should prefer such a tribunal to an erudite judge, whose life had been
spent in the study of jurisprudence, was, to the French Canadians of
those days, pretty strong evidence that the said suitor had little
confidence in the justness of his plea. Moreover, trials were carried on
in the English language, of which the French Canadians in general knew
little more than they knew of English law. A native litigant was
compelled to plead through an interpreter, and not seldom through an
interpreter who could be bribed. Even the higher officials of the courts
were sometimes appointed for political reasons, and were utterly unfit
for positions of trust. It is not too much to say that there were
flagrant instances in which judicial decisions were literally bought and
sold. General Murray's report on the condition of the colony, published
after his return to England in 1766, affords indisputable evidence that
the alleged grievances of the French Canadians were not wholly
imaginary. The ex-Governor cannot be suspected of any undue prejudice in
favour of the native population. He describes the British colonists of
the Province as being, with a few exceptions, the most immoral
collection of men he had ever known. Most of them, he alleged, had been
followers of the army, of mean education, or soldiers disbanded at the
reduction of the troops, who had their fortunes to make, and who were
not very solicitous as to how that end was accomplished. They were
represented as persons little calculated to conciliate the natives, or
to increase the respect of the latter for British laws. The officials
sent out from the mother country to conduct the public service are
described as venal, mercenary, and ignorant. "The Judge fixed upon to
conciliate the minds of 75,000 foreigners to the laws and government of
Great Britain," says the report, "was taken from a jail." Both the Judge
and the Attorney-General were unacquainted with the Civil Law and with
the French language. The chief offices of state were filled by men
equally ignorant, who had bought their situations for a price. Such a
state of things was little calculated to endear British rule to the
French Canadians. The picture is a dark one, but hardly darker than the
facts justified. And such was the posture of affairs when Guy Carleton
succeeded to office as Murray's successor.
He was wise enough to perceive that such a system could not be lasting,
and just enough to desire the establishment of a better one. Scarcely
had he succeeded to office before he made some important changes among
the higher state officials. He deposed two obnoxious councillors, and
set up two better men in their stead. He then turned his attention to
law reform. Previous to the Conquest, the law in vogue in the Province
had been a modification of the Civil Law known as the "Coutume de
Paris." This system, abridged and modified so as to meet the
requirements of the colony, he set himself to reëstablish. Under his
direction some of the leading French lawyers set to work at the task of
compilation. Upon the completion of this work he crossed over to
England, taking the compilation with him for the approval of the
authorities there. He met with strong opposition, and for some time it
seemed doubtful whether he would be able to accomplish the object of his
mission. He was subjected to repeated examinations before the law
officers of the Crown, and before Committees of the House of Commons.
Thurlow, the Attorney-General, opposed the measure with all the forensic
learning he could summon to his aid. The Mayor and Corporation of London
also threw the weight of their influence into the same scale. The great
Edmund Burke exhausted against it all his unrivalled powers of rhetoric.
Finally a compromise was effected, and the famous "Quebec Act" was
passed. It repealed all the provisions of the royal proclamation of
1763, annulled all the acts of the Governor and Council relative to the
civil government and administration of justice, revoked the commissions
of judges and other existing officers, and established new boundaries
for the Province. It released the Roman Catholics in Canada from all
penal restrictions, renewed their dues and tithes to the Roman Catholic
clergy from members of their own Church, and confirmed all classes
except the religious orders and communities in full possession of their
property. The French laws were declared to be the rules for decision
relative to property and civil rights, while the English law was
established in criminal matters. Both the civil and criminal codes were
liable to be altered or modified by the ordinances of the Governor and a
Legislative Council. This Council was to be appointed by the Crown, and
was to consist of not more than twenty-three, nor fewer than seventeen
members. Its power was limited to levying local or municipal taxes, and
to making arrangements for the administration of the internal affairs of
the Province; the British Parliament reserving to itself the right of
external taxation, or the levying of duties on imports and exports.
Every ordinance passed by this Council was to be transmitted within six
months, at farthest, after enactment, for the approbation of the King,
and if disallowed, was to be void on its disallowance becoming known at
Quebec. Such were the principal provisions of the Quebec Act, under
which Canada was governed for seventeen years. There can be no doubt
that its enactment was largely due to Carleton's representations, and it
is not to be wondered at if, when he returned to Canada in the autumn of
1774, he was received with rapturous enthusiasm by the French Canadians,
who made up nearly the entire population of the colony. The Legislative
Council, composed of one-third Catholics and two-thirds Protestants, was
inaugurated. The "Continental Congress," which was then in session at
Philadelphia, made vain overtures to the Canadians to join them in
throwing off the British yoke. The French Canadians believed that they
had more to lose than gain by a change. They had not even yet much love
for British institutions, but they thought they saw a disposition on the
part of the Imperial authorities to accord to them some measure of
justice, and were not disposed to rebel. They were moreover greatly
attached to the Governor who had fought so gallantly on their behalf.
"The man," says M. Bibaud, "to whom the administration of the Government
had been entrusted had known how to make the Canadians love him, and
this contributed not a little to retain, at least within the bounds of
neutrality, those among them who might have been able, or who believed
themselves able, to ameliorate their lot by making common cause with the
insurgent colonies."
A time soon arrived when the fealty of the French Canadians was to be
subjected to a stern and an effectual test. On the 19th of April, 1775,
the revolt of the American colonies assumed a positive shape, and the
skirmish at Lexington took place. The colonists then proceeded to strike
what they believed would prove a deadly blow to Great Britain on this
continent. American forces under the command of Ethan Allen and Benedict
Arnold passed over to Canada, believing that they would find the country
an easy prey. Crown Point, which was invested with a very small
garrison, was compelled to yield to the invaders. A similar result
followed the attack of the Americans on Fort Ticonderoga, and the
capture of the only British sloop of war on Lake Champlain gave them
entire supremacy in those waters. Then General Carleton manned himself
"to whip the dwarfish war from out his territories." He at once
determined to recover the forts which had been lost, and proceeded to
raise a militia. But when he appealed to the French Canadians to flock
to the side of their seigniors in accordance with the old feudal customs
for which they professed so much veneration, and which he himself had
been instrumental in restoring to them, he found that he could not count
upon their aid. The seigniors, indeed, were most of them chivalrous and
willing enough, but the peasantry refused to lift hand in a quarrel
which was not of their seeking. Much eloquence has been wasted in
attempting to prove that the French Canadian habitans refused on
principle to rally at this juncture. It has been said that their hearts
warmly sympathized with the struggle of the Americans for freedom, and
that they believed that to aid Great Britain would be to strike a blow
at liberty itself. The facts of the case do not justify any such
assumption. Looking back upon that memorable rebellion by the light of
the hundred years which have elapsed since its occurrence, there are not
many right-thinking persons of British blood who will be disposed to
regret its issue. But the "shot heard round the world," of which Emerson
so eloquently sings, produced no echo in the hearts of French Canadians.
They were simply indifferent. They had no stomach to draw their swords
and perform military service in behalf of a cause which did not appeal
to their enthusiasm. Whatever sympathies they had were undoubtedly
enlisted on the side of the Americans, but these were too weak to impel
them to endanger their lives. They had enjoyed an interval of peace, and
many of their most pressing grievances had been redressed. They owed a
debt of gratitude to their Governor, and they were willing to repay it
by passive fealty; but they were as lukewarm as erst were the people of
Laodicea. It was in vain that the seigniors mustered their tenants and
expatiated on the nature of feudal services, and the risk of
confiscation which they would incur by refusing to render such services
in this hour of need. They almost to a man denied the right of their
seigniors to exact military services from them. In a word, they refused
to fight. The Governor was thus placed in an extremity. He had only two
regiments of troops at his disposal--the 7th and the 26th. Their
combined strength was about 850 men. The British colonists were even
less disposed to draw sword than the native Canadians. The American
Congress believed the Canadian people to be favourable to their cause,
and resolved to strike a blow which should be decisive. They despatched
a force of nearly 2,000 men into Canada by way of the River Richelieu,
under the command of Generals Schuyler and Montgomery. Another
expedition, consisting of a force of 1,100 men, under Colonel Benedict
Arnold, was simultaneously despatched from Boston to Quebec by way of
the Rivers Kennebec and Chaudière. The campaign was not badly planned.
The larger of these forces was to capture the forts on the way from
Albany to Montreal. Upon reaching Montreal that town was to be captured
and invested, after which a descent was to be made to Quebec and a
junction formed with Arnold.