^ / /\ f) r i GIFT OF JANE Ko^^ATHER Digitized by tine Internet Archive in 2007 witii funding from IVIicrosoft Corporation iittpV/www.archive.org/detaiis/constitutionaihiOOwatsrich THE CONSTITUTIONAL HISTORY OF CANADA THE CONSTITUTIONAL HISTORY OF CANADA. BY SAMUEL JAMES WATSON, LIBRARIAN LEGISLATIVE ASSEMBLY OF ONTARIO. VOLUME I. TORONTO: ADAM, STEVENSON & COMPANY 1874. ,^3 Entered accordinK to the Act of the Parliament of Canada, in the year One Thousand Eight Hundred and Seventy-three, by Samuel James Watson, in the office of the Minister of Agriculture. v^ ^:^ Hunter. Rose & Co.. Printers and Binders, Toronto. TABLE OF CONTENTS. CHAPTER I. PAGE The Capitulation of Canada, 1760 — Social condition of the people 9 CHAPTER II. Royal Proclamation of 1763 — Introduction of the Laws of England 16 CHAPTER III. The French and British desire a House of Assembly ... 22 CHAPTER IV. The British Government refuse Canada a House of Assembly —Class Legislation— The Quebec Bill of 1774 27 CHAPTER V. Canada and the Thirteen Colonies protest against the Quebec BiU 37 CHAPTER VI. Dissatisfaction of the majority of the French Canadians — American overtures and invasion ... ... ... ... 46 CHAPTER VII. Antagonism of Seignior and Peasant— The Peasants refuse Military service to the Seigniors 53 VI TABLE OF CONTENTS. CHAPTER VIII. PACE The Status of the Roman Catholic Church— The Peasants refuse it political obedience 57 CHAPTER IX. Peril of the Province — American attack on Quebec — Defeat and expulsion of the Invaders 62 CHAPTER X. Colonial Misgovemment — French Canadian Legislative Councillors oppose jETafte^s Corpws 66 CHAPTER XL Revival of the French Laws — Nature of these Laws . . 70 CHAPTER XII. Laws of Inheritance — Detestation of Primogeniture ... 74 CHAPTER XIII. Feudal Tenure — Peasant Servitudes .. 77 CHAPTER XIV. The Canadian Reign of Terror 82 CHAPTER XV. Peace between Great Britain and the United States — Its effects on Canada 87 CHAPTER XVI. The people entreat for Constitutional Government — Opposi- tion of the Legislative Council — Deplorable condition of Canada 89 CHAPTER XVII. The Nation-Builders of Upper Canada 93 CONTENTS. VU CHAPTER XVIII. PAGE Canada in the British Parliament — The King's Message .. 97 CHAPTER XIX. British Merchants in Eastern Canada oppose the new Bill ... 102 CHAPTER XX. Fox and Pitt on the New Constitution 107 CHAPTER XXI. The Constitutional Act, 1791 116 CHAPTER XXII. The defects of the Constitutional Act 126 CHAPTER XXIII. The First Parliament of Upper Canada — Abolition of Negro Slavery 130 CHAPTER XXIV. The gift of Religious Liberty to Canada 137 CHAPTER XXV. Canada Past and Present 140 Index ... 146 THE CONSTITUTIONAL HISTORY OF CANADA. CHAPTER I. 1760 : SOCIAL CON- DITION OF THE PEOPLE. In camp, before Montreal, September 8, 1760, the Empire of France in North America melted away in fifty-five Articles of Capitulation.* Of these Articles, the twenty-seventh was, as it were, the anchor by means of which the battered barque of the French Canadian race, tossing about on the perilous sea of change, found bottom, grappled and floated. In this Article, Vaudreuil requested " the free exercise of the Catholic, Apostolic, Eoman religion.'' He asked, further, " that the people shall be obliged by the English * "Annual Register," 1760, pp. 230. Great Britain was represented by- General Amherst, France by the Marquis of Vaudreuil. "The peace of Aix- la-Chapelle (18th Oct., 1748) between England and France, could not be said to extend to the colonies. . . . The ink of the treaty was not dry when the French took possession of the mouth of the river St. John. Neverthe- less, in 1750, commissioners from both nations met to try and agree upon a frontier— but in vain. The French Government persisted in the prepos- terous pretension to connect their possessions in Canada with those of Louisi- ana by a chain of forts which were to shut out the English from the vast region beyond, and impede trade and communication." — Crowe, " History of France," vol. iv. p. 258. fJO CONSTITUTIONAL HISTORY OF CANADA. Government to pay to the priests the tithes and all the taxes they were used to pay under the Government of His Most Christian Majesty." To these proposals Amherst replied — " Granted, as to the free exercise of their religion. The obligation of paying the tithes to the priests will depend on the King's pleasure." * The British General, in adjudicating on the Articles of Capitulation, refused to deal with the question of the future government of Canada. He confined himself to the pledging of the faith of Great Britain for full religious liberty, which is amongst the noblest of natural and ac- quired rights, and the source and fountain of them all. After the Capitulation, the formative pressure of mili- tary rule began to work on Canada. But the system, which lasted about four years, was never before nor since so tenderly administered.t From 1760 to 1763, the British conquest of Canada was a military, not a diplomatic fact. But, at Paris, on the 1 0th of February, 1763, in the terms of the fourth clause of the Treaty of Peace, the King of France, amongst other con- * The legal right of the French Canadian clergy to the tithes was granted to them fourteen years afterwards by the Quebec Act (1774). t In 1773, ten years after the abolition of military law, the Seigniors, a class, of course, apart from the rest of the people of Canada, in a petition to the King of England complained that a civil government, based on the laws of England, had succeeded to the military rule. See the " Maseres Papers," p. 113. [Maseres had been Attorney-General of the province from Septem- ber 1766 to September 1769 ; afterwards he was created in England Cursitor- Baron of the Exchequer. He stands, for many reasons, high above the Anglo-Canadian officials of his time. He was the warm and constant friend of the policy of giving to Canada a constitutional government.] CONSTITUTIONAL HISTORY OF CANADA. 11 cessions, "ceded and guaranteed to His Britannic Majesty, in full right, Canada, with all its dependencies." * King George the Third, on his part, "agreed to grant the liberty of the Catholic religion to the inhabi- tants of Canada. He would consequently give the most precise and most effectual orders that his new Roman Catholic subjects might profess the worship of their reli- gion, according to the rites of the Romish Church, as far as the laws of Great Britain permitted." t To the storm and alarm of the conquest, there suc- ceeded, for the people of Canada, a calm, unbroken by war, and full of peace and promise. To the peasant- inhabitants, who composed the vast majority of the population, the change of rulers was a blessing palpable and permanent. At the time of the Conquest, the seig- niors and the peasants constituted two important factors in the problem of a new Government. The seigniors were entitled, according to the code of feudalism, to erect courts, and to preside in them as judges. They could administer what was known as "haute, moyenne et basse justice." i They could take cognizance of all crimes com- mitted within their jurisdiction, except murder and trea- * See " Chalmers' Collection of Treaties," vol. i. pp. 476-494. ■l" The nominal military law in Canada ceased with the consummation of the treatj- of peace hetween Great Britain and France. The continuance of the law was co-existent with the hostility between the two powers. It seems to have been sanctioned more as a precaution against a possible demonstration by the Canadians on behalf of France while at war with Great Britain, than as an active instrument of government. During its continuance, the French laws, in all civil cases, were administered by French Canadians. See the "Maseres Papers," page 113. I " Superior, Ordinary and Inferior Justice." 12 CONSTITUTIONAL HISTORY OF CANADA. son.* If they did not, in the French period, exercise their tyrannous rights over the lives, limbs and liberties of their vassals, it was because they were too poor to organize the machinery of Seigniorial Courts, build dun geons and retain jailors and executioners, t That it was this power to crush, which was wanting to the seigniors, and not the spirit, may be seen in their complaint of the hardship of not being permitted, under British rule, to exercise their feudal jurisdiction.:}; The peasant owed compulsory military service to the king ; to the seignior, crushing feudal obligation. The Crown was the upper, the lord was the nether millstone, between which the French- Canadian vassal was ground down into a bellicose, tax-paying atom, whirling all his life round the camps pitched against the thirteen British Colonies, and round the coffers of his masters. But, with the Conquest, the peasant came within the rim, and was destined, ere long, to come under the ample centre of the shield of the British Constitution. He was no longer liable to be dragged from his wilderness-farm, to make war, hundreds of miles away, in the wilds of the distant West, on the Frontiersmen of the British Colo- * Bouchette, " History of Can." vol. i. p. 377. t Maseres, p. 162. The expenses of a Seigniorial Court would for the most part, have exceeded the whole value of the Seigniory. The average value of the Seigniories, in the French period, did not amount to more than fifty or sixty pounds stg. per annum. "The rich society of the Priests of St. Sulpicius, of Montreal, who are owners of the whole Island of Montreal, besides several other Seigniories," drew an income of more than £4,000 stg. a year. (This was written in 1775. X Maseres Papers, p. 163 CONSTITUTIONAL HISTORY OF CANADA. 13 nies.* The feudal curb of the seignior was taken out of the vassal's mouth, broken, and cast away for ever. The beak and talons of the Crown were plucked from the breast of the wasted husbandman. He was no longer compelled, by a mandate of the Intendant, issued before- hand, to sell in the market, at a fixed price, the hard- won products of his farm.t At the time of the conquest, the population was above 65,000 souls. J That portion of it which was " noble", in the phrase of heraldry, was represented by about twenty- two families. § Some of these nobles possessed seigniories ; but they were absentees eleven months in the year. The other fractional part they employed in a flying visit de- voted to the sweeping up of their feudal dues. The peasants looked upon their lords in the light of tax- gatherers, wringing money out of labour, to spend it in luxury in Quebec and Montreal. The feeling of the peasants towards their seigniors was fear, not affection. This experience, however, is as wide as the circuit of Europe, and as old as feudalism. In the injuries done to * See, in " Cavendish Debates on the Quebec Bill," the evidence offGovenior Carleton, pa^e 105. He stated before the committee of the House of Commons, " Under the French the spirit of the government was military, and conquest was the chief object ; ver}' large detachments were sent up every year to the Ohio, and other interior parts of the continent of North America. This drew them from their land, prevented their marriages, and great numbers of them perished Since the conquest they have enjoyed peace and tranquillity." t See "Maseres Papers," page 140, where it is stated the inhabitants of the towns deemed it a great misfortune that the peasant was allowed to .sell his products at the highest price he could obtain. The Intendant was an oflBcer whose duty it was to manage the matters of finance, police and justice. t statement of Quebec Act, 1774. § " Maseres Papers," pp 164-168. 14 CONSTITUTIONAL HISTORY OF CANADA. him by his seignior, the Canadian peasant could only suffer ; redress he had none.* The people who were not " noble," and who were more than 999 out of a thou- sand, were well pleased that the battering-ram of the Common Law had broken down the fortress of unjust privilege which, in the period of French domination, had walled in the noble from the consequences of his acts^ But it was only in what may be styled his personal and political status, and his release from war-service, that the Canadian peasant was a gainer. The new rule did not emancipate him from the thraldom of feudal obliga- tions in respect to the tenure of his land. Nearly a century after the conquest, t Canada, at the imperative bidding of justice and necessity, was compelled to lift from the peasant's shoulders and to place upon her own, the crushing burden of feudalism, mountainous with the accumulated evils of centuries. In old France, long before and some time after the Conquest, the nobility abounded in multitudes. Like so many social locusts, they swarmed upon and devoured every green thing. J But there was not found prey for them all. Many of them, elbowed out of France, were driven into Canada. § Their functions, in its military * " Maseres Papers," pp. 168-169. t 1854. JSee Crowe, " History of France,' vol. 4, p. 157. §Abb6 Saint Pierre, quoted in the "Maseres Papers," pp. 16U,100, and writing about the year 1740, estimated the number of noblo families in France at no less than 50,000. Maseres, on this computation, reckons the number of noble persons in France— men, women and children— at not less than 250,000, or, perhaps, 800,000. *' Many of these," Maseres adds, " it may well be imagined, are miser- ably poor." CONSTITUTIONAL HISTORY OF CANADA. 15 government, were little better than those of titled camp- followers. Some of them, however, were brave soldiers ; many of them fattened on favouritism. British rule meant, for this class, loss of military employment, enforced idleness, or honest labour.* Many of them understood the signs of the times, took advantage of the terms of capitulation, sold out their properties and returned to France, t It is matter of historical interest that it was in Canada, so long the colony of the hot-bed of European aristocracy, where first that family of feudal fungi were thinned out by new husbandmen, and by the force and pressure of the times. § This event, of such far-reaching import to the future growth of the oft-imperilled germ of our poli- tical liberties, was one of the most vital results of the Conquest. * By the French feudal law, a nobleman who engaged in trade forfeited his patent of nobility. t " Maseres," p. 170, says : " The English Government was happily rid of that part of the inhabitants of this new acquired Province who were most likely to be discontented under it." The Abb6 Raynal, quoted by '* Maseres," p. 171, speaks much more severely of the nobles in Canada. He styles them " these despicable creatures " (ces 6tres mfiprisables). He asks if the colony has not gained immensely in being relieved of all these lazy nobles who had fastened themselves upon it for so long a time— of these insolent nobles who, in Canada, entertained contempt for all sorts of labour ? § Governor Carleton in 1774, ("Cavendish Debates," p. 107), when asked what number of noblesse was in the country, said his memory would not suffer him to tell. He supposed a hundred and fifty ; but he said he spoke at random. Maseres, who puts the number of families at twenty-two, was much more likely to be right in his estimate. CHAPTER II. ROYAL PEOCLAMATION, 1763; INTRODUCTION OF TE- LA WS OF ENGLAND. On the 7 th of October, 1763, the year of the Treaty of Paris, the King of Great Britain put forth a Royal Proclamation.^ It announced that he had granted letters patent, under the great seal, to erect Quebec into a Gov- ernment. It also defined the boundaries of that Pro- vince, t The proclamation asserted that the King had given " express power and direction" to the Governor, "that, so soon as the state and circumstance of the colony would admit thereof, * * * the Governor should summon and call a General Assembly." It was, furthermore, solemnly promised that, " until such Assembly can be called, * * * * See "Annual Register, 1763," pp. 208, 213. t As the next definition of the boundary of Quebec, in 1774, played a momentous part in the disputes between Great Britain and her thirteen colo- nies, it may be interesting in this place to give the boundary as laid down by the proclamation :— Quebec was to be bounded on the Labrador Coast by the River St. John (Saguenay) ; thence by a line drawn from the head of that river through Lake St. John to the south end of Lake Nipissim ; v hence the line, crossing the St. Lawrence and Lake Champlain in 45 degrees of N. latitude, passed along the High Lands which divide the rivers that empty themselves into the St, Lawrence from those that fall into the sea ; thence sweeping along the North coast of the Bale des Chaleurs, and the coast of the Gulf of St. Lawrence to Cap Rosieres, the line crossed the mouth of the St. Lawrence by the West end of the Island of Anticosti, and terminated at the aforesaid River St. John. CONSTITUTIONAL HISTORY OF CANADA. 17 all persons inhabiting in, or resorting to, our said colony may confide in our Eoyal protection for the enjoyment of the benefit of the laws of our realm of England." In the commission to General Murray, appointing him Captain- General and Governor-in-chief of Quebec, and in the com- mission of his successor, General Carleton, the King repeated the promise of the proclamation. In the commissions to the Governors Murray and Carle- ton, the King directed that the members of the future Assembly should take the oaths appointed by the statute of 1st G«orge the First. These oaths presented a strange commixture of secular obligation and religious dogma. There was the oath of allegiance ; the oath of abjuration of the Pope's authority ; the oath of abjuration of the Pretender's right to the crown. In addition, the mem" ber of the future Assembly was required " to make and subscribe the declaration against transubstantiation."* / The King, in his instructions to the Governors, declared that until an Assembly should be summoned, a Council /was to be appointed to assist in certain of the lesser duties / of legislation. For the appointment of this Council there I was no authority in the commission of the Governor, Which commission was issued under the great seal of Grea V " Maseres Papers," page 42. Of these oaths there were two, or at Ic there was one, which no conscientious Roman Catholic could prevail upon hi self to take. This being the case, the French Canadians could hope for no re- presentation in the promised Assembly by men of their own faith. In 1764, an Assembly of delegates from all the parishes except Quebec was called, but never sat ; for the Canadian members, as Roman Catholics, could not take the oaths. Bouchette, " History of Canada," vol. 1, p. 441. Tlie oaths were abol- ished by the Quebec Act of 1774, 18 CONSTITUTIONAL HISTORY OF CANADA. Britain. The instrument directing him to appoint the Council was issued under the King's " Koyal Signet and Sign Manual." * The Governor and Council were empowered under the " Eoyal Signet and Sign Manual" to advance, as it ^were, a step beyond the threshold of legislation. Theyi were invested with *'an authority to make such rules and regulations as should appear to be necessary for the , peace, order and good government of the province : tak Vng care that nothing be passed or done that shall any Ways tend to affect the life, limb or liberty of the sub- ject, or to the imposing any duties or taxes." t I This epoch was one of experiment and transition. Two different systems of language, religion and social order /were revolving round a common centre — the King of / Great Britain. The orbits of these systems intercrossed : I sometimes collision threatened : often doubt and fear were I the result. The Canadian noblesse were much dissatis- I fied with the British mode of trial ; not with the dealing \ out of justice. The expenses of the new laws frightened them. ; They detested juries. They could not under- * "Maseres Papers," p. 43. The Baron raises, pp. 44-45, an interesting constitutional issue. He doubts " whether a power of this kind could be legally communicated to the Governor by any other instrument than letters patent un- der the Great Seal of Great Britain, publicly read and notified to the people, to the end that the acts done by virtue of them may have a just claim to obe- dience." As to private instructions to the Governor, the people were not as- sured whether they had been received or not. In such case the people " can- not presume that he (the Governor) acts by his Majesty's authority, and there- fore are not bound to obey him." t " Maseres Papers," page 43. CONSTITUTIONAL HISTORY OF CANADA. 19 stand why the British in Canada would rather have matters of law decided by tailors and shoemakers, than by a judge alone.* A Canadian gentleman would have chosen the torture of the rack sooner than be tried by his tradesmen, t The French Canadians detested the inhumanity and injustice of the English law of primo- geniture ; in this respect they and the British colonists vwere in harmony. J In the month of April, 1770, there was prepared, by order of Governor Carleton, a statement as to the num- bers of the British colonists in the Province of Quebec. He believed the return " included everybody who called himself a Protestant." According to this statement, there were in the whole colony between three hundred and sixty and four hundred men, besides women and children. In 1774 that number had become smaller : the circumstances of the British colonists had been so reduced as to force the people to leave the Province. Of the number of colonists in 1770, there were some who had purchased lands — officers, or reduced officers. There were some respectable merchants. There were engaged in trade a number of inferior officers and dis- banded soldiers. The number of French Canadians amounted to about 150,000 souls — all Roman Catholics. The British co- * "Debates on the Canada Bill," p. 102, (Evidence of Governor Carleton.) He spoke for the noblesse ; not for the rest of the people. See "Maseres," p. 189. t Attorney-General Thurlow's Report to the King, on the State of Canada, January 22nd, 1773. Quoted in Christie's "Lower Canada," vol. i. pp. 57-58. t " Maseres," pp. 288-289. 20 CONSTITUTIONAL HISTORY OF CANADA. lonists and the French Canadians were almost strangers to each other.* A distrust, common to both, infected with its poisoned leaven the whole body politic. The hard, irresistible wedge of race clove and kept them asunder. The British colonists in Canada, at the end of the year 1773, when looking back on the position they had been made to occupy since 1763, were forced to complain of the treatment they had received from the mother country. From 1763, the year of the Eoyal Proclama- tion, they had been trusting, in loyal patience, to the fulfilment of its promise. This promise was that the Governor, as soon as the circumstances of the Colony would permit, should call a General Assembly. Now it was the year 1773, and the Royal promise had not been kept. The result was that the British colonists found themselves, for ten long years, robbed of the pro- tection of their own Constitution, t They were outlaws, without being infamous. They were the subjects, not of the Empire, but of a Governor and Council. For the acts of either, were those acts secretly mischievous or openly tyrannical, the British resident of Canada, unlike the inhabitant of any of the Thirteen Colonies, had no redress. It was no wonder, then, that high-spirited * "Debates on the Canada Bill," pp. 103, 109. + So long before, as 1720, Mr. West, Counsel to the Board of Trade, and after- wards Lord Chancellor of Ireland, declared that the Common Law of England was the Common Law of the Colonies. " Let an Englishman go where he will, he carries as much law and liberty with him as the nature of things will bear.' (See Forsyth's "Cases and Opinions of Constitutional Law," p. 1.) CONSTITUTIONAL HISTORY OF CANADA. 21 emigrants from the British Islands turned away from Canada, over which Irresponsible Government brooded, blighting like a plague, and set their faces toward the harbours of the freer Thirteen Colonies. There has now been explored the social quarry, so to speak, out of which were to be raised and fashioned into shape the materials for future Parliaments — diverse materials, destined, perhaps, to rise up, under the workmanship of Time, into a harmonious edifice of free government, upholding a noble and hospitable roof of empire, whose eaves overhang the two oceans. CHAPTER HI. FRENCH AND BRITISH DESIRE A HOUSE OF ASSEMBLY. In the month of January, 1774, the British colonists in Montreal and Quebec sent to the King a petition, and to the Earl of Dartmouth, Secretary of State for America, a memorial, entreating for a House of Assembly. * In the month of March, 1774, Baron Maseres pre- sented to the King the petition of the British colonists, and to the Earl of Dartmouth their memorial. t The petition recited the promise of the Royal Proclamation of 1763. Then it asserted that a General Assembly would very much contribute to encourage and promote industry, agriculture and commerce, and, as the petition- ers hoped, to create harmony and a good understanding between French and British. In conclusion, the petition left the constitution and form of the General Assembly to the Royal wisdom. The memorial was in somewhat different terms. It "* The majority of the French were in favour of a House of Assembly. ("Ma- seres Papers," p. 30.) But, because the British would not petition to throw open the Assembly to Roman Catholic representatives, the French would not join in the petition. (Ibid, p. 40.) The lan^age of the British petition was very far from being straightforward. The truth would seem to be that both races were blameworthy. The British were narrow-minded ; the French short-sighted. t The petition bore 148 names. (" Maseres Papers," p. 131 .) The name which occurs oftenest in all the proceedings to obtain a House of Assemblj', is that of Zachary Macaulay, father of Great Britain's greatest historian. CONSTITUTIONAL HISTORY OF CANADA. 23 stated that the British colonists, encouraged by the Koyal Proclamation of 1763, purchased lands, planted, settled, and carried on trade and commerce to a very considerable amount, and to the manifest advantage of Great Britain. These things were done in confident ex- pectation of the early accomplishment of the promise of the Proclamation. The memorialists now prayed the King to relieve them from their fears as to their pro- perty being endangered, and as to losing the fruits of their labour. They were afraid of these evils, because they were exposed to the ordinances of a Governor and Council. These ordinances, which were repugnant to the laws of England, were put in force before the King's pleasure was known. And these same ordinances were not only contrary to the King's commission and private instructions to the Governor, but were equally grievous to French and English. The Ministers of the King of England looked with no friendly eye on the object of the British colonists. Still, there was open to the latter a narrow and miry path by which they might have marched to success. But they refused to tread it. In a letter from Baron Maseres to the committee of the British colonists, dated March 19, 1774, he informed them that he had presented their petitions. In the same letter he warned them that he knew of nothing that would contribute more to their obtaining a General As- 24 CONSTITUTIONAL HISTORY OF CANADA. sembly than the making of a previous declaration. This\ declaration was, that every member of such future As- semby, before being permitted to take his seat, should be \ required to recognize, in the plainest and strongest terms, | the supreme authority of the British Parliament in every 1 matter whatsoever, both of legislation and taxation. ' Such a previous confession of political faith would greatly tend to remove the prejudices in the minds of many people in England against the erection of new Houses of Assembly in America. These prejudices arose "from the^conductofthfiAgs^mblj in Boston and in others of the American Provinces, in totally denying the su- preme authority of Parliament."* The British colonists, national narrow-mindedness apart, were true to their own old constitution, to Canada and to themselves. They longed for an Assembly ; but they chose rather to keep company with that ** hope de- ferred that maketh the heart sick," than to sacrifice on the altar of expediency the principles which were the life, pith and marrow of the British constitution. They felt that a legislative body bound hand and foot in such chains of obligation would be nothing but a crippled changeling, from which the eye and reason of British Islanders would turn away in disgust and in wrathful. About the month of February, 1774, a petition of the French Canadians was presented to the King. Opening * " Maseres Papers," pp. 35, 87, 88, CONSTITUTIONAL HISTORY OF CANADA. 25 with a warm outpour of devotion to the person of His Majesty, the petition proceeded to bear hearty witness to the clemency which followed upon the conquest.* One proof of this clemency was, that the former countrymen of the petitioners were made judges in disputes concern- ing civil matters. But now the petition turned into the channel of complaint. In 1774, His Majesty thought fit to put an end to the Military Government of the Province, and to establish a Civil Government in its stead. From the moment of this change, the petitioners began to feel the inconveniences that came in with the laws of Eng- land, with which, until that time, the French Canadian inhabitants had no acquaintance, t The petition con- cluded with a most fervent prayer for the restoration of the ancient laws, privileges, and customs of the country :t * The petition, which represented the aristocratic and legal French Canadian classes, bore 65 names ; the British petition 148. To make up the 65 names, some of the French i)etitioners caused their children to sign it. The Roman Catholic Bishop and his clergy took "infinite pains to procure the signatures." (" Maseres Papers," pp. 131, 132.) t The words are — " Dans l'ann6e 1764, votre Majesty daigna faire cesser le gouvernement militaire dans cette colonic, pour y introduire le gouverne- ment civil. Et dfis I'fipoque de ce changemeut, nous commenosed the Bill on behalf of the mer- chants of London. CONSTITUTION AT. HISTORY OF CANADA. 29 trampled down an amendment by Mr, Thos. Townshend, jr., proposing to make temporary that part of the Bill relating to the existence of the Legislative Council, about to be established by the measure.* v The great grievance of this Bill — the one which, in its\ very nature, was sure to make continuous and calamitous » war upon the instincts of eveiy colonist with British blood in- his veins — was that it denied to him his native right to the sovereign boon pf ^^frr° '''^f"'^ Mr. , Dempster moved an amendment to provide that the Bim should enact that " the English laws of habeas coiyus^ \ and of bail in cases of commitment," should prevail in I Canada. '' The amendment was lost. A motion of the same mem ber, that the proposed Legislative Council should carry on its proceedings in public, was also negatived. On the 13th of June, the Bill, by a vote of 56 to 2 received its third reading. It was sent back to the House * " Debates," pp. 290, 291. Mr. Townshend was prepared to move that the term of the existence of the proposed Council should be seven^ years. Then to establish a Legislative Assembly. t The opponents of the Bill raised an important constitutional issue as to the proposal to revive the French laws concerning matters of property and civil rights. Mr. Dunning put the matter in this shape : Personal liberty is a civil right ; the Bill says that in all matters of property and civil rights, resort shall be had to the laws of Canada, and not to the laws of England. Hence it must follow that if a man were deprived of his liberty by a lettre de cachet, and application were made to the Chief Justice of Canada for his discharge, the Chief Justice would be bound to answer that, as this was a matter concerning a civil right, he must proceed by the laws of Canada, which afforded a man no relief when he was imprisoned by the King's lettres de cachet. See " Maseres Papers, pp. 228-229." 30 CONSTITUTIONAL HISTORY OF CANADA. of Lords, with a few verbal amendments which had been tacked on to it in the Commons. /The Earl of Chatham, trembling, at the time, on the Verge of the grave, dragged himself down to the House if Lords, to raise a prophetic warning against the Bill. jHe proclaimed that " it was a most cruel, oppressive and (odious measure, tearing up justice and every good prin- ciple by the roots ; that the whole of it appeared to him to be destructive of that liberty which ought to be the ground-work of every constitution : and that it would shake the affections and confidence of His Majesty's sub- nects in England and Ireland, and finally lose him the Uiearts of all the Americans."* The Earl had only the ear of the Lords ; in the case of the majority of that House, the Court had every other faculty they possessed. They passed the Bill : contents, 26 ; non-contents, 7. On the 22nd of June, the Lord Mayor of London, accompanied by several Aldermen, the Kecorder, and upwards of one hundred and fifty of the Common Coun- cil, went up with an address and petition to the King. The object was to pray him to refuse his assent to the Bill. The Lord Chamberlain, by order of the King, in- formed the deputation, that " as the petition related to a Bill agreed on by the two Houses of Parliament, of which His Majesty could not take notice until it was presented for his Royal assent, they were not to expect an answer." The reply had scarcely left the lips of the Lord Cham- * " Debates," Editor's Preface, pp. iii., iv. CONSTITUTIONAL HISTORY <.>F CANADA. HI berlain when the King proceeded to the House of Lords to prorogue Parliament. He assented to the Bill ; ob- serving that " it was founded on the clearest principles of justice and humanity ; and would, he doubted not, have the best effect in quieting the minds and promoting the happiness of his Canadian subjects."* Thus passed a measure which in its far-reaching, disas- trous results was — not even excepting the Stamp Act of 1765, which began to goad the Thirteen Colonies to revol- ution — the worst Act the British Parliament ever im- posed on an American colony. Not to speak of the feeling on this side the Atlantic, the opinions of the more intelligent portion of the Brit- ish people were strongly against the measure. The mer- chants of London appointed Mr. Mansfield to appear before the committee of the Commons to combat the BULt It is probable that this vicious measure had one object view. It is certain that it had in view a second, to fhe full as reprehensible as the other. The first seems to have been to throw down the gage of embittered bat- Debates," Editor's Preface, p. iv. t "Debates," p. 99. One of the grounds the great legist took was, that *in a political point of view, as a defence of liberty, it was material that civil as well as criminal causes should be decided by juries. For one of the great checks to arbitrary power was this, that every undue exertion of it to the injury of an individual might be brought to the tribunal of a jury. If Canada were to be enslaved under a Legislative Council, the main- tenance of the British jury laws was the more imperatively necessary. For if persona were injured, and no jury laws in existence, they would have no one to whom to apply but to judges holding office at the pleasure of the Governor, and certainly at the pleasure of the Crown. 32 CONSTITUTIONAL HISTORY OF CANADA. tie to the discontented Thirteen Colonies. The second object was proclaimed by the lips of Solicitor-General Wedderburne in the debate on the Bill. His words were — " Now, I confess that the situation of the British settler is not the principal object of my attention. I do not wish to see Canada draw from this country any con- siderable number of her inhabitants. I think there ought to be no temptation held out to the subjects of England to quit their native soil to increase the colonies at the expense of this country. * * With regard to the \ English who have settled there, their number is very \ few. They are attached to the country either in point \ of commercial interest, or they are attached to it from I the situations they hold under Grovernment. It is one \ object of this measure that these persons should not settle in Canada."* \ It is now time to show the nature and essence of this mfemorable Act. The preamble recited the Eoyal Proclamation of the 7th of October, 1763; then it declared that in the ar- rangements made by the Proclamation, " a very large ex- tent of country, within which there were several colo- nies of the subjects of France, who claimed to remain therein under the faith of the Treaty of Paris, was left without any provision being made for the administra- tion of civil government." The preamble next proceeded to enact that certain * " Debates," pp. 57, 68. CONSTITUTIONAL HISTORY OF CANAI^A. 33 immense territories, especially to the west, should be an- nexed to the Province of Quebec* The Act revoked the Koyal Proclamation ; with the revocation was violated the Koyal promise to the Brit- ish colonists, t The measure then began the work of concession. To the Roman Catholics was granted the free exercise of their religion, subject to the King's su- premacy as declared in the first year of Queen Elizabeth. To the Roman Catholic clergy liberty was given "to hold, receive and enjoy their accustomed dues and rights, with respect to such persons only as should pro- fess the said religion.''^ A qualification was appended to this clause : Out of the said " accustomed dues and rights," the King might make such provision, as he might deem expedient, for the support of a Protestant clergy. To persons professing the Roman Catholic religion, * The enactment is too long to be reproduced here, Bancroft says on the matter, vol. 6, p. 527: "It (the Bill) extended the botindaries of the (Quebec) Government to the Ohio and the Mississippi : and over the vast region which in- cluded, besides Canada, the area of the present States of Ohio, Michigan, Indiana, Illinois and Wisconsin, it extended an arbitrary rule. The Quebec Bill, which quickly passed the House of Lords, and was borne through the Commons by the zeal of the Ministry and the influence of the King, left the people who were to colonize the most fruitful territory in the world without the writ of habeas corpus to protect the rights of persons, and without a share in any •ne branch of the government." t See ante, pp. 12-13 " And until such an Assembly can be called, all persons inhabiting in, or resorting to, our said colony may confide in our Royal protection for the enjojiuent of the benefit of the laws of our realm of England." t The dues amoimted to one twenty-six part of all grain produced on the farms ; and to occasional assessments for building and repairing churches and parsonage-houses, etc. Bouchette, "Hist. Can.," Vol. 1. p. 378. The tithe of the Church of England at the time, was one-tenth. 34 CONSTITUTIONAL HISTORY OF CANADA. relief was given in the matter of the oath of 1st Elizabeth.* There was substituted an oath which was simply one of allegiance to the King's person. The refusal to take this modified oath carried with it the penalties of 1st Eliza- beth. To the King's French Canadian subjects, reli- gious orders excepted, was extended the right to hold all their possessions in full security, t In all questions as to property and civil rights, the iivil laws of Canada were to decide. But from these laws were exempted lands granted by the King in com- mon soccage. 'he criminal law of the Province was to be the code (f England. According to the words of the Act, " the ^certainty and lenity" of the code had been sensibly felt by the inhabitants from an experience of more than nine years. J * The object of modifying the oath was to enable Roman Catholics to hold office under the Crown. The oath of let. Elizabeth cap. 1st. declared the Queen's ecclesiastical and temporal supremacy. Ecclesiastical and secular office- bearers were compelled t6 take this oath. The penalties of refusal were depri- vation of office ; and permanent disqualification. t To the credit of the British Government, this provision as to religious orders, except with regard to the Jesuits, remained a dead letter. (" Christie's History of Lower Canada," vol. 1, p. 10.) Not until the last of the Jesuits, Father Casot, died in 1800, were their possessions taken by the Government, and applied to educational purposes. (Ibid. p. 39.) The order of the Jesuits was suppressed hi 1773 by Pope Clement XIV., "with their functions, houses and institutions." (Knight, ** Hist. Eng.," vol. 6, p. 327.) "In 1764, the Jesuits, or those who persisted in remaining so, were finally banished from France. All the Bourbon courts followed the example." Crowe, " Hist. France," vol. 4, p. 302. X To point out the giant strides which the mother country has taken within the last century, it may be stated that, at the period of the passing of this Act, every line of the English criminal law dripped with blood. May, in his " Con- stitutional History of England," vol. 3, pp. 393-896, says of the English erimi- CONSTITUTIONAL HISTORY OF CANADA. 35 The Act, after having declared " that it is at present inexpedient to call an Assembly," proceeded to authorize the appointment of a Council. This body was to consist of not more than twenty- three, and not less than seventeen members. It was to have power " to make ordinances for the peace, welfare, and good government of the Province." Butjijacas-aoL authorized to imp^sft fii^yp" ^^ ^fifiA,g wJtihlTI tJTf^ f r^-^rinPA ^Cept f^r. pnl^i;^ r>r.aAa ^^^ ]l]lildinga. / Every ordinance of the Council was, within six months / after its passing, to be transmitted to the King for his approbation. The King retained the power to disallow every such ordinance. No ordinance touching religion, or by which any pun- ishment might be inflicted greater than fine, or imprison- ment for three months, was to be of effect until it had received the King's approval. No ordinance was to be passed where less than a ma- jority of the whole Council was present. No ordinances, except on urgent occasions, were to be passed except be" nal law of this period—" The lives of men were sacrificed with a reckless barbarity worthier of an Eastern despot or an African chief than of a Chris- tian State. From the Restoration to the reign of George the Third, a period of 160 years, no less than 187 capital offences were added to the criminal code. In the reign of George II. thirty-three Acts were passed creating capital offences : in the first fifty years of George III. no less than sixty-three. Murder became, in the eye of the law, no greater crime than picking a pocket. Such law-makers were as ignorant as they were cruel. Obstinately blind to the evil of their blood-stained laws, they persisted in maintaining them long after they had been condemned by jurists, and by the common sense and humanity of the people. Crime was not checked ; but, in the words of Horace Walpole, the country became * one great shambles :' and the people were brutalized by the hideous spectacle of public executions." 36 CONSTITUTIONAL HISTORY OF CANADA. tween the first of January and the first of May. In such case every member at, or within fifty miles of Quebec, was to be personally summoned. The King reserved the right, whenever he thought it necessary, to constitute courts of criminal, civil and ecclesiastical jurisdiction within the Province. The Bill, in its last clause, provided that nothing which it contained should be held to repeal, within the Province, any previous Acts of the British Parliament " for prohibit- ing, restraining, or regulating the trade and commerce of His Majesty's colonies and plantations in America." All such Acts were declared to be in force in every part ,of the Province of Quebec. The spirit of the Act may be thus pourtrayed : It con- firmed to the French Canadian Eoman Catholics the fullest religious liberty ; this was most praiseworthy. It restored the old civil laws of the Province ; this was liberal. But it extended these laws over the British in Canada, and over five immense territories inhabited by twenty thousand people of British blood ; this was unjust. It d.^ tfiy.ftft ftU th^y. in thftT||irt.^f^p,Ool- nnif^s. " He stood "p j^ his pi jir.fl to assert that, if the refractory p-nlnr^ji^a os^nnnt hrt rfldnpftd \ o obedience by the present forces, he should think it a necess i^rv mei--^ sure to arm the Koman Cathol ics of Canada, and to em- ploy them in that service, "t Charles James Fox charged that Lord North " did not choose to own who was the real planner of the Quebec Bill. In withholding from the Canadians an Assembly, and in putting arms in their hands, he (Lord North) showed that he was more afraid of their tongues than of their swords. After Lord North's shameful neglect and procrastination, he (Fox) was convinced that if the dis- putes had not arisen with our American colonies, the Act of last year would never have been thought of, but the colony left without law or any political regulation what- ever."t The fate of Lord Camden's motion in the House of Lords the day before, was the fate of Sir George Savile's — it was lost by a large majority. § But it was not only the British colonists who were grieved and disappointed with the Bill. The French I* " Parliamentary History," Vol. 18, p. 676. y t Ibid. Vol. 18, p. 681. X IMd, Vol. 18, p. 681. § Ibid, p. 684. The numbers were : For, 86 ; against, 174. 42 CONSTITUTIONAL HISTORY OF CANADA. Canadians in general were displeased with it.* They declared that it was not at their desire or solicitation that it had been passed. They had been left in ignor- ance of the petition on which the Bill had been founded. The persons who signed that petition " consisted princi- pally of their ancient oppressors, their noblesse, who wanted nothing more than, as formerly, to domineer over them ; and they exclaimed against them bitterly on that account, but intimated that they had better take care of themselves, and not be too forward to put their inten- tions into execution, "t After the Bill reached the Province great numbers of the French Canadians offered to join the British colo- nists in petitioning for the continuance of the English laws. In deference to the wishes of their fellow-citizens of French origin, the committee appointed by the British colonists to prepare petitions to the King, Lords and Commons, for the repeal or amendment of the Act, drew up a petition for the French Canadians to sign. But, at the last moment, the French Canadians stated that " they were withheld by their superiors, and com- manded not to join in the English representations ; for if they did they would infallibly be deprived of their reli- gion j but if they remained quiet, they might depend upon it that the English laws would not be changed." :|" * Maseres, " Additional Papers," p. 101. t Maseres, "Add. Papers," pp. 102, 103. X Maseres Papers, pp. 133, 134. "Zachary Macaulay" is one name amongst the nine fortifying this statement, which is contained in a letter bearing date •' Quebec, Nov. 12, 1774," and is addressed to Baron Maseres. The letter CONSTITUTIONAL HISTORY OF CANADA. 43 In opposition to the Quebec Act, the British colonists and the French Canadians did not stand apart from the rest of the empire. The people of the British Islands pronounced against it. For more than two months the newspapers teemed with letters in which the measure was unsparingly criticised and sternly denounced.* But if the opposition elsewhere were a breeze, the op position in the Thirteen Colonies was a tempest which shook to its foundations the fabric of British supremacy on this continent. On the 14th of October, 1774, Con- gress passed a number of resolutions, setting forth their grievances and defining their rights. One resolution de- clared that during the last session of the British Parlia- ment three statutes were passed. One of them was for " Making more effectual provision for the Government of the Province of Quebec." All of these statutes were pronounced "impolitic, unjust and cruel, as well as unconstitutional, and most danger- ous and destructive of American rights. "t The Quebec Act was described as one " for establishing the Roman Catholic religion in the Province of Quebec, abolishing the equitable system of English laws, and erecting a tyranny there, to the great danger — from its says further: "In justice to the bulk of the Canadian inhabitants, who have formerly smarted under the rigour of the French Government, and the caprice of petty tyrants of those days, we must confess that they prefer in- finitely English law, which secures their liberty and property, and gives a free scope to their industry, and dread falling again under the laws and cus- toms of Canada. This we declare upon our own certain knowledge " * Maseres Papers, p. 236. t American Archives, 4th Series, vol. 1, p. 912. 44 CONSTITUTIONAL HISTORY OF CANADA. total dissimilarity to the religion, law and government — of the neighbouring British Colonies, by the assistance of whose blood and treasure the said Colony was con- quered from France."* The Congress, on the 20th of October, 1774, drew up an address to the people of Great Britain, in which ad- dress was enumerated a list of grievances. "Several cruel and oppressive Acts have been passed. * * Also an Act for extending the Province of Quebec, so as to border on the western frontiers of these Colonies, es- tablish an arbitrary Government therein, and discourage the settlement of British subjects in that wide-extended country ; thus, by the influence of civil principles and an- cient prejudices, to dispose the inhabitants to act with hostility against the free Protestant Colonies, whenever a wicked Ministry shall choose so to direct them."t In the half -alienated Colonies this Quebec Act was as a crushing weight falling from the summit of British power on the straining and weakening bond of kinship f which linked the Empire and its offspring. The Bill was framed to retain Canada. It had but faint and falla- cious influence in accomplishing that result. But this it did accomplish : it helped to cut adrift from Great * Ibid, p. 912. t Ibid. p. 913. X Baron Maseres, in 1779, said that the Act " had not only offended the inhabitants of the Province (Quebec) itself, in a degree that could hardly be conceived, but had alarmed all the English ;Provinces in America, and contrib- uted more, perhaps, than any other measure whatsoever to drive them into re- ellion against their Sovereign."— Preface to ** Debates on Quebec Bill," p. v. CONSTITUTIONAL HISTORY OF CANADA. 45 Britain the noblest appendages of sovereignty that ever promised to lend power and splendour to a Parent State. The Mother-land was the loser. We who now behold these things through the calm and settled medium of a century — a medium in which the giants of a hundred years ago are the pigmies of to-day — in which the lines of Providential events are no longer dim and distorted, but clear and straight, — we are forced to ask ourselves and history, if the Empire were the loser, was not Humanity the gainer ? CHAPTER VI. DISSATISFACTION OF THE MAJORITY OF THE FRENCH CANADIANS. — AMERICAN OVERTURES AND INVASION. The British Ministry, in the passing of the Quebec Act, had achieved two objects. They had gained over the clergy and the seigniors; and had induced the French Canadian people to recognize the supreme autho- rity of the House of Commons in the matter of taxa- tion.* This race, for generations, was obliged to pay taxes without open murmur or chance of relief. It was unacquainted with the constitutional machinery by which the men of Great Britain could restrain the undue exer- cise of the taxing power. To the French Canadians, therefore, this power was one they could but too well understand, knowing not how to modify or resist it. For this reason the French Canadians offered no opposi- tion to a Bill which followed the Quebec Act.t The measure was memorable in this — that it was the first tax bill Great Britain ever passed with respect to Canada ; and that it abolished the French customs duties, which had been allowed, since the Conquest, to remain un- changed. The preamble recited that certain duties were * Ganieau's '• Historj' of Canada," vol. 2, p. 119. t The title was— ."An Act to establish a Fund towards further defraying the charge of the Administration of Justice, and th« Support of Civil Government, within the Province of Quebec," CONSTITUTIONAL HISTORY OF CANADA. 47 imposed by the authority of His Most Christian Majesty the King of France. These duties were declared to be abolished, and others substituted, after the 5th of April, 1775.* The composition of the Council was amongst the first grievances of which the French Canadians made com- plaint. In the year of the passing of the Quebec Act, 1774, Governor Carleton, who had been created a Major- General while in England, returned to Canada, to put the new measure into effect. He appointed a Legislative Council. Tf pnTYiKArP^ fyor.fj-fl.T.n.i moTn>.oi-aj dfrht of thftTTp w^ \^( B<;/ i;^^n Cflthn lica. But the lawyers, notaries, and others, men who had been afraid to refuse their signatures to the petition, almost unanimously declared their dislike to the Act when they saw how the Council was constituted. Jor a seat had been given to none excep t to the nob lesse or to thyg e whn wn^ 'e the cross of ^t. Louis, ine commercial element amongst the French * The French duties were upon wine, rum, brandy, and eau de vie de liqueur^ imported into the Province ; also, a duty of three pounds per centum, ad valorem, upon all dry goods imported into and exported from the Pro- vince. The British duties were— on every gallon of brandy, or other spirits, manufactured in Great Britain, threepence; on every gallon of rum, or other spirits, imported from any of His Majesty's sugar colonies in the West Indies, sixpence ; on the same articles imported from any other of His Ma- jesty's colonies in America, ninepence ; on every gallon of foreign brandy, or other spirits, foreign manufactured, imported from Great Britain, one shil- ling ; on every gallon of rum, or spirits, produce or manufacture of American colonies, not British, imported from any other place except Great Britain, one shilling ; on every gallon of molasses, or syrups, imported into Canada in British, Irish, and Canadian vessels, threepence ; on the same articles im- ported into Canada in foreign vessels, sixpence. [It will be seen that vessels belonging to the Thirteen Colonies are not included. J 48 CONSTITUTIONAL HISTORY OF CANADA. In the latter part of the year 1774, the Americans, feeling that their hour of trial was at hand, and their raw and immature power about to engage in deadly grapple with the strength of a firm and time-tried Empire, began to turn their eyes Canada-ward. From the Canadians, their enemies for generations, they sought aid and com- fort in the rapidly nearing struggle with the mother country. In the " Address of the General Congress to the Inhabitants of the Province of Quebec," dated October 26th, 1774, and signed by Henry Middleton, President, the theory of Constitutional Government was developed at considerable length. Then there was pointed out the instances in which this theory was violated by the Quebec Act. The address concluded thus — " In this present Con- gress * * it has been with universal pleasure, and a unanimous vote, resolved — That we should consider the violation of your rights, by the Act for altering the go- vernment of your Province, as a violation of our own ; and that you should be invited to accede to our Confede- ration, which has no other objects than the perfect secu- rity of the natural and civil rights of all the constituent members, according to their respective circumstances, and the preservation of a happy and lasting connection with Great Britain, on the salutary and constitutional princi- ples hereinbefore mentioned." On the 1st day of May, * Maseres, Adcl.|Papers, p. 102. CONSTITUTIONAL HISTORY OF CANADA. 49 1775, the Quebec Act went into effect. On the 29th of the same month, the American Congress addressed the Canadians : " We most sincerely condole with you on the arrival of that day, in the course of which the sun could not shine on a single freeman, in all your extensive domi- nions. By the introduction of your present form of government, or rather present form of tyranny, you and your wives and your children are made slaves."* The address was not barren of serious results. Trans- lated into the French language, it was sent for distribu- tion to Messrs. Walker and Cazeau, influential British \ and French merchant of Montreal, who made no secret \ of having received it. The address had reached Canada \through American newspapers. It had also been handed l^bout the country by the French Canadians themselves, t ' The peasants in the rural districts felt its influence. Not a few of the British colonists in the towns were swayed by the constitutional sympathies to which it gave expression. J In all great popular movements a wave of * Bancroft, vol. 7, pp. 381, 382. He adds— "No adequate motive for rising was set before them. * * A union for independence, with a promise of institutions of their own, might have awakened their enthusiasm." t Maseres, Add. Pap. p. 85, For over the century and a half —1608-1 760— during which France ruled Canada, a printing press never entered the country. lu 1764, an English newspaper, the Quebec Gazette, was established. This pioneer of the grand array of journals that now do duty for Canada, its liber- ties and its colonial pre-eminence, still flourishes. { See Bancroft, vol. 8, p. 177. " The French nobility, of whom many, under the Quebec Act, were received into the Council or appointed to Executive offices, and the Catholic clergy who were restored to the possession of their estates and their tithes, acquiesced in the new form of government, but by a large part of the British residents it was detested, as at war with English liberties, and subjecting them to arbitrary power. The instincts of the Canadian pea- 50 CONSTITUTIONAL HISTORY OF CANADA. human feeling goes out, which overflows the barriers of place, race and faith, and, with a mysterious influence, sucks into the whirl and vortex of the struggle every one who, having a grievance that bows him down, stands hoping on the marge of the Future, holding out his hands to welcome a coming change. In such case was the majority of the French Canadians and British colonists of Canada, in relation to the approaching strife between England and her colonies. On the 19th of April, 1775, at Lexington, blood had flowed out upon the quarrel ; had burned hatred into the hearts of the opposing kinsmen, and set two continents on fire. It is not within the scope and purport of this work to narrate the incidents of this most lamentable war, except in so far as those incidents may relate to the social and political condition of Canada. On the 1st of June, 1775, Congress passed a resolution : " That, as this Congress has nothing more in view than the defence of these colonies, no expedition or incursion ought to be undertaken or made by any colony, or body of colonists, against or into Canada."* The resolution was translated into French, and distributed throughout Canada. In the light of the subsequent action of Con- gress, this resolution must be regarded as an attempt to cheat either the Government or people of Canada into a santry inclined them to take part with the United Colonies ; they denied the authority of the French nobility as magistrates, and resisted their claim of a right as seigniors to command their military services. Without the hardihood to rise of themselves, they were willing to welcome invasion." * Lord Mahon's "History of England," vol. 6, p. 92. CONSTITUTIONAL HISTORY OF CANADA. 51 sense of security, the better to overrun and overwhelm them. For, on the 27th of June Congress passed ano- ther resolution, instructing General Schuyler to proceed without delay to Ticonderoga, and, if he found it prac- ticable, " immediately to take possession of St. John's and Montreal, and pursue any other measure in Canada which might have a tendency to promote the peace and security of these Colonies."* These things did not escape the notice of Governor Carleton, one of the most praiseworthy military men that ever governed a British dependency ; the man who pre- served Canada to the Empire ; the only English General who extorted from the Americans an honourable reputa- tion for generosity and humanity. t Carleton, on the 9th of June, 1775, proclaimed that he had put the Pro- vince under martial law ; at the same time he called out its militia. The malign influence of the Quebec Act, now that the fate of Canada was about to be placed in the balance of war, was everywhere felt in disastrous dis- * Lord Mahou's " Hist. Eng.," vol. 6, pp. 114, 116. In a note on this resolu- tion, Lord Maiion remarks— " This last resolution being kept secret or not printed in the journals, it is a hard task to vindicate, on this occasion, either the good faith or the consistency of the American rulers." The last observa- tion might, with safety, be applied to almost every case, from 1775 to 1873, in which the rights of Canada came into conflict with the interests of the United States. The Maine and Oregon Boundaries, and the Island of San Juan, rise up in accusation against the United States' contempt of the higher law of Inter- national Equity. Bancroft's defence of the action of Congress is, that on the 9th of June Governor Carleton "proclaimed the American borderers to be a rebel- lious baud of traitors, established martial law," etc. (See vol. 8, p. 176.) Most unprejudiced minds will refuse to see in this defence a successful exoneration of the double-dealing of Congress. t Bancroft, vol. 8, p. 186. 52 CONSTITUTIONAL HISTORY OF CANADA. appointment. Now was seen by the perplexed Governor of Canada, the fatuous folly of the measure that gave bread, power and privilege to a church and a noblesse, and to the people stones and serpents. The noblesse were hated ; the clergy were powerless, if not absolutely despised ; and the bosom of the Province was left open to the blows of the American invader. CHAPTER VII. ANTAGONISM OF SEIGNIOR AND PEASANT. — THE PEA- SANTS REFUSE MILITARY SERVICE TO THE SEIGNIORS. The peasants believed that the Quebec Act revived those powers of Crown and noble which had been their scourge and their horror in the French period.* An opinion prevailed in the Province, that the seigniors, by the tenure of their lands, owed military service to the King of England. Further, that it was part of the same tenure, that they should engage for the personal service of all their vassals. It was also believed that, as the Que- bec Act revived the laws and customs of Canada, the seigniors had a legal right, whenever the King or his re- presentative called on them, to command the personal service of all their tenants, t It was soon seen that the times were changed. In the fourteen years of British rule, the French Canadian pea- sant had made brave progress up the ascent of personal liberty, whence he stood and gazed back in fear across the slough of servitude over which his ancestors had toiled and panted for over a century and a half. The seignior of Terrebonne, M. La Corne, was deputed by General Carle, ton to enrol his tenants. La Corne took high ground * Maseres, Add. Pap. p. 69. t Maseres, Add. Pap. pp. 71, 72. 54 CONSTITUTIONAL HISTORY OF CANADA. with the peasants. He told them that, by the tenure of their lands, he had a right to command their military services. Their answer was the most pregnant commen. tary on the Conquest : " They were now become subjects of England, and did not look on themselves as Frenchmen in any respect whatever."* Then followed uproar. t A Mr. Deschambaud, son of a seignior, went to his father's estate on the Eiver Richelieu, to raise the tenants. He harangued them in an arbitrary strain. They replied defiantly. He then drew his sword; whereupon the people surrounded him, and beat him severely. The re- sult of this incident might have been fraught with the very worst consequences, had it not been for the admir- able tact of Carleton.{ Mr. Cuthbert, an Englishman, seignior of Berthier, made a peremptory demand on the military service of his tenants. They told him not a man of them would follow him ; and made an oath on the publi^ cross, at the place of meeting, that they would never take • Maseres, Add. Pap. p. 73. t M. La Come struck some of those who spoke loudest ; this maddened the people. He was forced to fly to Montreal, threateuing to bring back two hun- dred soldiers. The people armed themselves for reeistanoe, determined to die rather than submit to the seignior. But the {Hndenoe of Carleton soothed them. He would not give La Come soldiers ; but sent with him an EInglish ofBcer, a Ciq)t. Hamilton. In reply to Hamilton the people said: "If Gen. Carleton requires our services, let him give us Rn gliwb officers to command us ; * * or if not, common soldiers, rather than those people" (the seigniors). The peasants only dispersed when Hamilton promised that La Come should come no more among them.— Maseres, Add. Pap. p. 74. I The peasants, fearing that it might go ill with them, assembled to the number of three thousand at Fort Chambly, and began to march to Fort St. Jdkm% to faoe two r^jments of regidars there, whom they suspected the Gov- ernor would viae against them. Carleton promised to forgive them if they diqiersed ; they did so, and he k^ his word.— Maseres, Add. Pwp. p. 76. CONSTITUTIONAL HISTORY OF CANADA. 55 up arms against the Americans j that if any one of them offered to join the Government, they would burn his house and barn, and destroy hisjcattle ; and that, if Carle- ton attempted to compel them into the service, they would repel force by force.* M. Lanaudiere, seignior of St. Anne's, went to Berthier to make the attempt in which Cuthbert failed. The people seized him, with seventeen of his companions, and held warm debates as to whether they should send him to the American camp at St. John's. Finally, on his promise to obtain for them the Governor's pardon, and never again to come amongst them on a like errand, he and his friends were set at liberty, t The main reason why the peasants — when aroused, a determined and warlike race — refused to do military ser- vice was, not that they disliked their new rulers, but that they detested the new Bill. The men of Berthier declared that if Governor Carleton would promise, and affix the promise to the church door, that he would do his best for the repeal of the Quebec Bill, they were ready to defend the Province. They said " that on a sudden, without any provocation on theii' part, they had been reduced to their former state of slavery. They were told to regard the invaders as enemies. But then the invaders said that they were not enemies, but their best friends. The invaders were now in arms for the defence of the peasants from their oppressors ; and made the repeal of the Quebec Bill one of the conditions for laying down their arms. * Maseres, Add. Pap. pp. 76, 77. t MaseroH, Add. Pap. 77, 78. 56 CONSTITUTIONAL HISTORY OF CANADA. The peasants, then, ought certainly to assist those who were fighting to restore to them that liberty of which they had been wantonly and most cruelly deprived.'' This language, however, was not that of the men of Ber- thier alone. "The same is in the mouths of the most ignorant peasants all over the Province."* But it was not the peasants only to whom the Quebec Act was a menace and a grievance. The men of the towns held the measure in detestation. In Montreal, the captain of the French Canadian Militia declared to Carle- ton "that his compatriots would not take arms as a militia unless His Excellency would assure them, on his honour, that he would use his utmost endeavours to get the Quebec Bill repealed." The Governor thereupon gave the promise, t The Government of Canada felt that it had, in all jus- tice and generosity, an irresistible claim on the Roman Catholic Church in the Province. It invoked the aid of the Church to influence the peasants. But the children closed their ears against the advice of their Mother, and steeled their hearts against her entreaties. * Maseres, Add. Pap. pp. 78, 79. The couduct of the peasants drew out hints from the Government, that their refusal to obey the seigniors had jus- tified the forfeiture of their lands, and that suits at law would be taken to dispossess them. The peasants admitted that they had incurred forfeiture, but were determined to hold possession of their lauds by force. — Maseres, Add. Pap. p. 72. Happily for Canada and Great Britain, the soldier-statesman who tjoverned the Province did not allow any actions for forfeiture to be taken. t Maseres, Add. Pap. p. 106. CHAPTER VIII. THE STATUS OF THE ROMAN CATHOLIC CHURCH. — THE PEASANTS REFUSE IT POLITICAL OBEDIENCE. Inasmuch as before the Conquest, since that epoch, and at the present time, the Eoman Catholic Church in Lower Canada must be regarded as one of the chief elements in the social and political life of that Province, it becomes necessary to devote a portion of space to a sketch of the fortunes of the establishment. After the Conquest, the Grand Vicar and Clergy of Quebec, the see being vacant by the death of its former occupant, Mgr. Pontbriant, applied to the Governor, General Murray, asking that their right to elect should be recognised. The Governor transmitted the matter to the Home authorities, and recommended the granting of the demand. In 1763 the Law Oflficers of the Crown decided that the Penal Laws against the Eoman Catholics in the British Islands did not extend to the Colonies. Accordingly, the Chapter of Quebec elected as their Bishop, M. de Montgolfier, Superior of the Seminary of St. Sulpice, Montreal. The Government took exception to the nomination.* M. . de Montgolfier, in 1764, declined the charge. At tlae same time he designated M. Briand, a Breton by birth, * " Perhaps because the nominee was too French at heart."— Oameau," Hist. Can.," vol. 2, p. 89. 68 CONSTITUTIONAL HISTORY OF CANADA. one of the Canons and Grand Vicar of Quebec, for the vacant Episcopate. M. Briand was chosen. In the same year, 1764, he visited London, and received, with the consent of the King, his bulls of investiture from Pope Clement XIII. ; and then repairing to Paris, was there consecrated. To the Province of Quebec, which had been without a Bishop from 1760 to 1766, Mgr. Briand re- turned in the latter year, a stipendiary of the King of England to the extent of £200 sterling annually.* His acceptance of the yearly pension, and his subsequent administration, contributed to his unpopularity and less- ened his influence, t It seemed, on his return to Canada, that he would exercise only the milder and more benefi- cent duties of his high office. In his reply to those who welcomed his arrival he deprecated pomp and ceremony. He told them that " he did not come into the Province to be a Bishop on the same high footing as his predeces- sors in the time of the French Government ; * * * that he was un simple faiseur de pretres — a mere ordainer of priests." J But power ultimately became too strong for sobriety of ecclesiastical demeanour. § The Bishop, in a manner unknown to Canadian ecclesiastical history, before or since, launched forward on a career of pre- * Maseres, Add. Pap. p. 137. Bancroft, vol, 8, p. 177, alludes to Bishop Briand as " a stipendiary of the British King." t Maseres, Add. Pap. p. 137. t Ibid, 138. § See "Anecdotes sur la conduite de MoHsieur Briand, Evfique de Quebec. Extrait d'une lettre de Quebec de la fin de Septembre, 1775, a un ami h Loii- dres. Maseres, Add. Pap. pp. 120-126. CONSTITUTIONAL HISTORY OF CANADA. 59 rogative. He suspended and deprived priests; he cut off members of his faith from their sacraments ; he inter- dicted divine worship in churches and chapels.* The Bishop may have resorted to these measures in his loyalty to the British Government. But in any community, whether made up of one or of many faiths, no matter whether a Government or the people are the first to begin dispute, ecclesiastical aid, come from whatever creed it may, is a dangerous and exacting auxiliary. The defeated party perpetuates the quarrel by the bitter hatred which they are sure to cherish against their spiritual antagonists. For the natural instincts of men tell them that the glory of the Christian faith is to make peace, to mediate, to fly from strife as from a plague. The politician who wields a spiritual weapon makes wounds that centuries will not heal ; nor can he return the sword to the scab- bard until its owners have secured for the use of it powers and privileges which, in unscrupulous hands, may, in her time of need, coerce and confront the very majesty of the State which surrendered them. Mgr. Briand, Roman Catholic Bishop of Quebec, issued in the summer of 1775, at the instance of the Govern- ment, an encyclical letter to the French Canadian people. In this epistle the Bishop exhorted them to take up arms for the Crown against the American invaders. To those who obeyed, he promised indulgences. Over the heads of those who should refuse, he suspended the thunders of * Maseres, Adti. Pap. pp. 138, 139. 60 CONSTITUTIONAL HISTORY OF CANADA. excommunication. The reception accorded to the letter was another instance of a phenomenon sometimes wit- nessed in history — that when the political passions of men begin to boil, the elements of religious kinship and obligation begin to evaporate. The very quarrel then in progress between Great Britain and her colonies was proof to the point. The people not only turned deaf ears to the injunc- tions of the Bishop, but expressed the opinion that his action in the dispute was quite unsuitable to the cha- racter of a Christian prelate, who ought to have no con" cern in anything that involved the shedding of blood. They even went further than this. They assumed that Bishop Briand's conduct had been influenced by the pen" sion of £200 a year he received from the King of Eng- land, and by the expectation he had formed of a larger gratuity.* The French Canadians not only disobeyed their Bishop, but went so far as to lampoon him in more than thirty songs, which were circulated during the sum- mer of I775.t Fifty placards, affixed to public places, testified to the sentiments which the prelate had excited in his people. " He had been issuing forth throughout every part of the Province one excommunication after another. It was no longer the King who was disobeyed, but the Church, of which the Bishop was the head. His * Maseres, Add. Pap. p. 112. (Bishop Briand was probably the first Roman Cathohc Bishop, since the time of Queen Mary, who received an annual stipend from a British monarch.) t Maseres, Add. Pap. pp. 117, 118. CONSTITUTIONAL HISTORY OF CANADA. 61 violent conduct, which only exasperated the people," had lasted from the 20th of May until the early part of No- vember (1775), when he became quiet, " even threatening to leave the Province and go to France." A devout wish was expressed that he would carry out the threat. *'But it was only the fear of the Americans, who had mvaded the country, which had caused him to make it." if In one of the lampoons the people were made, in sarcasm, to say to themselves — " In disregard of true glory, they ought to march forward, though they would earn but a sorry niche in the Temple of Memory. However, by their heroic deeds in battle, they would deserve this — that the pension of the Bishop should be largely aug- mented." § } The above facts are contained in a French letter in the " Maseres' Add. Pa- pers," pp. 117-18. It is in part as follows :—" On dit que plus de 30 chansons et 60 placards, oil la cupidity * * * n (the Bishop) envoye, en haut et en has du pais excommunications sur excommunications, Ce n'est plus au roi qu'on desobfiit ; c'est h I'figlise, dont il est le chef. Sa folic (qui ne fait qu'u-riter les peuples), dure depuis le 20 de May. Cependant depuis le 3me de ce mois (No- vembre) il se tait :— menace m6me le pais de s'en aller en France. Pliit a Dieu qu' il ex6cutat sa menace ! Mais ce n'est que la peur qu'il a des Bostonnois qui la lui fait faire." § The first eight verses of the song it would be oflfeusive to reproduce. The words of the last two verses, 9 and 10, w ere :— " En d6pit de la vraie gloire Partons nos pas en avant, Dans le Temple de M6moire Nous serons mis tristement. Et, par nos braves proUesses Dana les combats, mgritons Qu'on augmente avec largesse Du prglat la pension." Maseres, Add. Pap. pp. 112, 113, 114. CHAPTER IX. PERIL OF THE PROVINCE. — AMERICAN ATTACK ON QUE- BEC. — DEFEAT AND EXPULSION OF THE INVADERS. The situation of the Province was one of extreme peril. The position of Governor Carleton was that of a ruler weighed down by perplexity, and rendered powerless by being deserted by those on whom he had relied. Turn to whatever quarter he might, he saw no chance of being enabled to cope successfully with the invaders. In the month of October, 1775, he succeeded in assembling 900 men at Montreal, to operate against the Americans who were engaged in besieging one or two wretched places on the Eastern Frontier, before they marched on that city. But the force melted away. The French Canadians, in the same month, actually turned the scale for the invaders in capturing the Fort of Chambly.* The Governor, with 800 Indians, French Canadians and regulars he had enrolled "with desperate exertions," endeavoured to effect a junction with Col. Maclean, in order to raise the siege of St. Johns. Carleton met with a reverse ; then the French Canadians deserted Maclean, t St. Johns, on Nov. the 3rd, after a gallant defence of 50 days, surrendered to the Americans. Its garrison, 500 * Bancroft, vol. 8, p. 186. t Bancroft, vol. 8, p. 187. o CONSTITUTIONAL HISTORY OF CANADA. 63 regulars and 100 French Canadians, many of whom were of the seigniorial class, marched out with the honours of war. * The road to Montreal was now open. In the matter of apathy in the defence of the country, and as far as re- garded sympathy with the invaders, a portion of the British colonists were of the same frame of mind as the majority of the French Canadians. If blame is to be awarded, some of the British colonists must bear their share. Neither race can be much praised at the expense of the other. It ought to be remarked, however, that sev- eral English gentlemen in Montreal, men of experience in military matters, offered their services to lead the Canadians. But, for some unaccountable reason, the Governor refused them, t General Montgomery, on the 12th of November, 1775, took unopposed possession of the City of Montreal. J The Thirteen Colonies were now masters of all Canada, *Ibid. vol. 8, p. 188. + Maseres, Add. Papers, p. 79, In|page 80 it^is stated " that the English in- habitants, though they felt for their treatment from Governor Carleton, yet did not think it would justify their countenancing, in any degree, those who were in arms against their sovereign. Accordingly they have been active in the .defence of the Province; those few Canadians who have taken part with the Government have been influenced entirely by their persuasion and example." t Governor Carleton, utterly powerless, was obliged, on the ere of the en- trance of the invaders into Montreal, to leave the city by stealth, and, accom- panied by a handful of men, to try to reach Quebec by the St. Lawrence, elud- ing the guard boats of the Americans, stationed at various points along the river. Part of the way he had to disguise himself as a peasant. After many hair-breadth escapes from capture, fortunately for British rule in Canada, he reached Quebec on the 17th November. 6if CONSTITUTIONAL HISTORY OF CANADA. with the exception of the City of Quebec. This, the key of the Province, was still held by the smitten but firm-closed hand of Great Britain. * On the last day of the old year, 1775, in the ghastly light of a winter dawn, the raw and marrow-piercing air choked with the rush of stinging snow-flakes, an icy acclivity beneath his feet, a mountain fortress above his head, death staring him in front, and despondency threatening him behiad, Gen- eral Eichard Montgomery rushed forward to the su- preme struggle with Great Britain for her Canadian Em- pire. He failed and fell, t The Province was saved. Carleton, an enemy no less generous than Montgomery himself, gave to the clay of his old comrade in arms under Wolfe, the honours of a soldier's sepulture. In a few months more Canada expelled from her violated soil the last American invader. The moral of this eventful year is easy to understand. The politicians, not the statesmen of Great Britain, af- ter having lashed the Thirteen Colonies into revolt, fancied they might oppose to the Democratic wave, now in angry and vehement flow, the cobweb barrier of class legislation. The act was akin to that of the Persian * " On Dec, the 22nd, Carleton ordered all who would not join in the defence of the city, to leave it within four days. After their departure he found him- self supported by more than 300 regulars, 330 Anglo-Canadian militia, 543 French Canadians, 485 seamen and marines, 120 artificers capable of bearing arms." In all 1,778 men. " On the 6th December, the invading army was com- posed of less than 1,000 American troops, and a volunteer regiment of about 200 Canadians."— Bancroft, vol. 8, pp. 200, 201. As Canadians, we can af- ford to say that the advantages were on the side of our own countrymen. tBancroft, vol.8, p. 208, says, that, with Montgomery, "the soul of the expe- dition fled." CONSTITLTTIONAL HISTORY OF CANADA. 65 despot scourging the rebellious billows of the Helles- pont, which mocked him still the more with their defiant thunders. The Quebec Bill spurned the rights of the people of Canada; it raised thrones for prelates and aristocrats. In the day of danger the prelates were weak, and the aristocrats were as stubble. But it was many a sorrowful year ere British Ministers would learn or acknowledge that if they unshackled the arms of the men of Canada, these men would know how to hold for Great Britain, as against all who would attempt to seize it, the sovereignty of the North American Empire. CHAPTER X. COLONIAL MISGOVERNMENT. — FRENCH CANADIAN LEGIS- LATIVE COUNCILLORS OPPOSE HABEAS CORPUS. In the history of Great Britain and her Golonies, many- have been the instances in which the latter have experi- enced refusals when they looked for concessions. Now, when the Colonies march step for step with the Mother Land on the road which leads to a future of brighter social and political life, the offspring of Great Britain, separated from her by oceans never so wide, can judge of her past acts, not with feelings of bitterness, but with feelings of leniency and allowance. It is plain to the student of our colonial history, that in almost every case, in times past, in which the relations between Great Britain and Canada were those of au- thority rather than affection, the fault, as a rule, lay not so much at the door of the British Ministers of the day, as to the charge of those who occupied high places of trust in our Provincial Administrations. There is little doubt that British Ministers made effort to do their best, or what they thought was best. There is less doubt that the Provincial officers in whom they trusted for a full and accurate recital of those social facts and popular aspira- tions without which legislation is as brick without straw, were recreant to the confidence which had been reposed in CONSTITUTIONAL HISTORY OF CANADA. 67 them. The British Minister felt himself bound to believe the information transmitted to him by the Governor. The Governor received his information from the members of a colonial oligarchy, who stood like an impassable rampart between the people and the representative of Great Britain. No sounds but the scented echo of artificial praise, and the grateful breezes of fictitious popular de- light, were ever permitted to steal upon the ear of the British Governor. The people's discontent might sweep over the land in gusts whose force and frequency were the forerunners of a terrible tempest, but the Governors were never allowed to hear the mutterings without. In the official atmosphere everything was bathed in bright- ness, and all was repose. To change a figure in the simile of the Roman poet, doomed to be the flatterer of a Court, not the celebrant of a free people, the Canadian Governor, surrounded by that mockery of feudalism, a Canadian oligarchy, shone above them in the treacher- ously peaceful firmament of the official universe, while they rejoiced in being the smaller stars.* In the matter of the unfortunate Quebec Bill, there can be no doubt that it was founded upon partial infor- mation. Ministers, it is to be assumed in charity, en- deavoured to do what they considered right and just. But they acted in ignorance of the needs and wishes of the majority of the people of both races. And to at- tempt to do right in ignorance is almost as mischievous as * "Nox erat, et luna in caelo sereiio fulgebat, Inter minora siden,."— Horace. 68 CONSTITUTIONAL HISTORY OF CANADA. to do wrong with full knowledge. For their ignorance the advisers of the Crown were only partially to blame. The burden of the blame must rest with their Canadian officials. To give the British Ministry justice, they showed signs of being desirous to mitigate some of the more oppressive results which flowed from the Quebec Bill. They had evidently been moved by the petitions of the British colonists, and were prepared to make con- cessions. The facts now about to be related have been kept from the knowledge of the people of Canada. But the time has come to let the light of truth shine in upon the dark places of our history, and to apply the caustic of criticism to the unwholesome growths of national pretence and self-adulation. The Quebec Bill had not long become law when the Earl of Dartmouth, Secretary of State for America, directed Mr. Hey, Chief Justice of the Province of Quebec, to prepare the draft of a Provincial ordinance. This, the Chief Justice was to carry over to Canada, in order to lay it before the Governor and the new Legis- lative Council, so that they might make it into a law. The draft provided for the re-establishment of the English laws relating to habeas corpus; to commerce; and, with certain restrictions, to trial by jury in civil In the month of September, 1775, the draft was ubmitted to the Legislative Council of Canada and e the subject of debate. The new French-Canadian I members opposed it, " but without (as it is said) alleging f. CONSTITUTIONAL HISTORY OF CANADA. 69 any reasons for their opposition."* The British members of the Council seemed disposed to adopt the ordinance. It would probably have become law, but for the fact that General Montgomery's invasion compelled Governor Carleton to break up the meetings of the Council before the discussion of the subject came to a conclusion. In this instance was shown what, in the after history of the country, was the bitter experience of its inhabitants, that a non-elective Legislative Body was the natural enemy of popular liberty. The opposition made by the French- Canadian members to the re-establishment of trial by jury and the English commercial code, was nothing but what might have been expected. Their antagonism to the revival of habeas corjpus was, as they well knew, in direct hostility to the earnest wishes of the British colonists, as also to the desires of the great majority of the French. But the chevaliers of the Cross of St. Louis did after their kind. Unfortunately for many a Canadian, French and British, the action of these seigniors, in baffling the wishes of the people for security for personal liberty, was destined to work wide evil and bitter suffering in the days that were about to come. * The words within commas are those of the document on which the above statement is based.— Maseres, Add. Pap., pp. 447, 448. CHAPTER XI. REVIVAL OF THE FRENCH LAWS. — NATURE OF THEBE LAWS. National prepossession should never be allowed to sup- press truth or to cloak fact. And it is both truth and fact to say that the administration of justice was the one bright and laudable characteristic of the French rule in Canada. The Great Ordinance of the 17th of September, 1764, introduced at once into Canada all the civil and criminal laws of England. In the wording of the Ordinance it was assumed that, " in the Supreme Court sitting at Quebec, his Britannic Majesty was present in the person of his Chief Justice, having full power to determine all civil and criminal cases, agreeably to the laws of England and to the ordinances of this Province." But there were British legists, even in those days, who contended, with the weapons of constitutional precedent, that this " sudden and violent act of legislation " was void and illegal, and that, of right, the French laws should have remained in force in Canada.* The arguments may be thus stated : — The change of laws had not been made by the Parliament of Great Britain, which was the only proper Legislature • For an able argument on this subject see pp. 35-47 of a paper in the first vol. of the " Lower Canada Jurist," entitled "A View of the Civil Government and Administration of Justicein the Province of Canada, while it was Subject to the Crown of France." CONSTITUTIONAL HISTORY OF CANADA. 71 of Canada. The change had not been made by virtue of any legislative authority legally communicated by the King to the Governor and Council of Canada. For the commission, under the great seal to the Governor, commu- nicated no such authority to the Governor and Council, but to the Governor, Council and A.ssembly. The King's private instructions were not a legal method of communi- cating such an authority. Further, the change had been made without a promulgation of the new laws. The supplanted law of Canada was a body of juris- prudence known as the " Custom of Paris." The Province was divided into three judicial districts, each of which took its name from its principal town — Quebec, Three Rivers and Montreal. In each of these districts a judge, appointed by the King, had full jurisdiction in all cases, criminal and civil. These judges sat twice a week throughout the year. The exceptions were about six weeks of vacation in September and October, and a fort- night at Easter. If litigants so desired it, the judges, upon being allowed a certain moderate allowance for their extra labour, would sit oftener than once a week. In Quebec and Montreal each judge had an assistant, to take his place in case of sickness or absence. The judges had no option in the modification of the laws, but from all decisions there lay an appeal to the Supreme Council, From the Supreme Council there lay a further appeal to the King of France himself, in his Council of State. The Supreme Council, numbering fifteen inembei-s, was 72 CONSTITUTIONAL HISTORY OF CANADA. composed of the principal officials of the civil government, and of men of eminence in the Province. The Governor, the Intendant and the Bishop of Quebec were of the Council ; they had a right to sit and vote, but seldom attended. The Council was solely a Court of Appeal for all matters civil and criminal ; no suit could be originally instituted in it. The Council could relax penalties in criminal and civil offences, and often exercised this power. It sat once a week throughout the year, except in the Autumn vacation and during the Easter solemni- ties. At the urgent demand of suitors the Court would sit oftener than once a week. To each of the jurisdictions of Quebec, Three Rivers and Montreal, there was attached a " Procureur du Roi," or Attorney for the King. In this officer was vested the power of a Grand Jury ; it was his duty to inform the Court of the commission of a crime, and to indict the offender. The mode of procedure of the Attorney was very cautious. A person who knew of the commission of a crime called on him voluntarily, was examined, and the evidence taken down in writing. If the Attorney suspected that others besides the voluntary witness knew anything of the crime, such persons he had a right to summon and examine. The witnesses were always ques- tioned separately. If, after the private examinations, the officer considered that he ought to proceed further by way of public trial, he prayed the Court for power of aiTcst. But if the Attorney thought that the private CONSTITUTIONAL HISTORY OF CANADA. 73 examinations were not of such a nature as to warrant a prosecution, the person privately accused was never molested. If this oflScer allowed, in his district, an offence to pass unexamined, he was held guilty of a mis- demeanor. It was also the duty of the Attorney to sue for the King's civil rights : such as taxes, fines upon the alienation of land, escheats of lands on the commission of Certain great crimes, or the breach of the conditions of tenure. He was obliged, as well, to sue for the rights of all persons and corporations that were under the protection of the Crown : such as orphans, absentees and churches. Further, it was his duty to cause the King's Ordinances, and those of the Supreme Council, to be entered in the Court Registers of his district, and to be duly published. There was an officer known as the King's Attorney- Greneral. His duty was to transact the King's business in the Supreme Council or Court of Appeal, and to super- vise the three Attorneys. Such were the King's regular law courts. But there was another court of a peculiar jurisdiction : this was the Court of the Intendant. It had power to determine civil matters in a summary manner. The jurisdiction was sel- dom exercised except in such causes as would not bear the cost of litigation in the King's Courts. The people found the Intendant's Court of great advantage, and frequently sought its interference. The Intendant had deputies; their jurisdiction, but not his, was limited to suits not exceed- ing fifty French livres, or about forty shillings sterling. CHAPTER XII. LAWS OF INHERITANCE. — DETESTATION OF PRIMOGENITURE. It was the abolition of their own system of civil laws, and the substitution of that of England, which weighed the most heavily on the French Canadians. In almost every aspect the two legal systems, British and French, were antagonistic. The unnatural custom of primogeniture had no place in the laws of Canada, nor in the hearts of its people.* In respect to the law of in- heritanoe amongst the seigniors, the custom was not to give all to the eldest son. In every case where there were more than two children, the eldest son received only the half of the estate. If there were only two children — that is to say, the eldest son and another — the two-thirds of the estate went to the eldest. As to the law of inheri- tance in the lands of the peasants, all the children received an equal portion. A restraint, however, was imposed in the case of both seignior and peasant, in order to prevent the evils that might flow from too minute subdivision amongst the co-heirs of the last possessor. If the eldest son of the eldest branch of the original seignior's family had no more of the seigniory remaining to him than the manor-house, and the ground close adjoining it and be- * The British colonists were willing to have the law of primogeniture ex- pressly excluded, and the French law on that subject expressly revived.— Maseres, Add. Pap. pp. 323, 324. CONSTITUTIONAL HISTORY OF CANADA. 75 longing to it — called the vol du chapon, or capon's range — subdivision ceased. If such an eldest son had a dozen children, his eldest would inherit the whole of this rem- nant of the seigniory. In the peasant's case, it was a law that no one should settle and build upon a less quantity of land than sixty superficial arjpents, or about fifty Eng- lish acres. A peasant who possessed such a piece of land, dying and leaving several children, it was not divided amongst them, but was to be sold, and the price was to be equally divided amongst all the children. If the elder brother were able, it was usual for him to buy out the rights of the others. If he were unable to do this, it was optional with the second, third or fourth brother to pur- chase. It was only when any one of all the brothers was unable or unwilling to satisfy the rights of the rest, that the land was sold out of the family. The character of the criminal and civil jurisprudence of French Canada has now been fairly and fully delineated. It was a code well suited to the genius of the people, for it was the natural outcome of their social life and their political institutions. The great defect of the system was, that it was not strong enough to interpose itself between the people and the tyranny of King and noble. This shortcoming, however, may be fairly charged to the timidity and the time-serving of the Parliaments of Old France, rather than to the inherent fault of the juris- prudence itself. To abolish, in particular, the French civil code was the greatest grievance of the Conquest, 76 CONSTITUTIONAL HISTORY OF CANADA. The British civil code was not better for French Canada than the one it had supplanted. The man would justly win the crown of folly who would pretend that every custom and ordinance of England is good for every race, under all circumstances. The French civil laws were best for Canada a century ago. Recast, a few years since, the same laws now regulate the civil interests of the Province of Quebec. The re-establishment of these laws was an equitable concession made to the French Canadians by the Quebec Act of 1774. . CHAPTER XIII. FEUDAL TENURE : PEASANT SERVITUDES. The title of " Seignior " meant, in Canada, the lord and owner of an estate which he held directly from the King of France, "en fief or en roture." * The tracts of land thus granted to the seigniors were seldom less than six English miles square, and were often more.t If the seigniory were sold, the purchaser was obliged to pay to the King what was known as the " quint," or a fifth part of the whole purchase money. One of the conditions on which the King granted the lands was, that the seigniors, as soon as possible, should cause them to be settled. For this purpose the seigniors were compelled to make grants of lands to those who applied for them. The grantees and their heirs were entitled to hold their lands for ever, under the grantor and his heirs. Tenure in " franc aleu " w£is a freehold tenure ; lands so held were exempt from all seigniorial rights and dues, the occupants acknowledging the King alone. But there were in all the Province only two fiefs so held. J Lands * '* Fiefy" in feudal law, meant an estate in land held of a superior under the charge of fealty, homage and military service. " Roture " meant, in old BVench and Canadian law, a free tenure without the privilege of nobility. ■f- The Seigniory of Lauzon, near Quebec, on the opposite side of the St. Lawrence, usually known as the Seigniory of Point Levis, and which belonged to General Murray, was eighteen miles square, and contained 324 square miles. X These were Charlesboiu-g, near Quebec ; and 600 " arpents" near Three Rivers, held by the Jesuits. 78 CONSTITUTIONAL HISTORY OF CANADA. were occasionally held by " bail emphit^otique," whicli •was equivalent to a long lease of fifty or more years, the lease carrying a small annual rent. There was also a feudal tenure known as the censive ; it created a moderate annual rent, paid in money or produce. The peasant tenure was charged with many oppressive burdens. If the peasant sold his land, the buyer, after paying its price to the seller, was obliged to give to the seignior, over and above that price, the twelfth part of the amount of the purchase money. This seigniorial right was known as " lods et ventes." In case of the prompt payment of the *' lods et ventes," it was usual to reduce them by a fourth. The seignior, in the matter of a sale, possessed the " droit de retrait." This was the privilege of pre-emption, within forty days after the sale, at the highest price that had been obtained. This right, however, was not often exercised. The seignior received a tithe of all the fish caught within his domain, or an equivalent sum. It was his right to fell timber anywhere within his seigniory, for the purpose of erecting mills, repairing roads or making new ones. The peasant was compelled to grind his grain at the '' mo\ilin banal," or his lord's mill ', one-fourteenth part was taken as pay- ment. He was also obliged to perform " corvee," or enforced labour, on the highways and byways. For his rent, he paid every year to the seignior between two shillings and sixpence and five shillings for every ''arpent" which his farm extended in front. To this was added some article of food, as a bushel of wheat. From the CONSTITUTIONAL HISTORY OF CANADA. 79 fines paid in the seigniorial courts, by persons convicted of petty ofiences, the seigniors derived, in addition to their other revenues, some pecuniary advantages. In their own courts, also, the seigniors sued their tenants for the quit rents and other dues. In the case of tenants who died without heirs, and intestate, the seignior was entitled to the escheat of their lands and goods. If this right, however, were not conferred in the seignior's origi- nal grant of jurisdiction, the escheats reverted to the King. The peasants could not make grants of their lands to be holden of themselves. They were obliged to sell outright, and the buyer took the seller's place, and assumed his feudal obligations in respect to the seignior. The one redeeming feature in the seigniorial system was this, that the peasant was, in spite of the feudal obligations, the absolute owner of his farm. His lord could not dispossess him ; nor, after the fashion of the majority of the Irish and Highland Scotch landlords, drive him and his wife and little ones out to die on the highways and in the ditches, of cold and hunger. The French Canadian peasant was, with his lord, a co -pro- prietor of the soil. In comparison with the tenant-serfs of Ireland and the Scottish Highlands, the French Cana- dian farmer was independent. From the land which his fathers and himself had reclaimed and made valuable, he could not be barbarously uprooted by his lord. The Canadian seignior was a man of a more equitable type than the average Irish and Highland landlord. He was also of the same race and faith as his nominal tenant. 80 CONSTITUTIONAL HISTORY OF CANADA. But even if he were all these, the State did not leave him to himself, for it threw its shield between him and the peasant. Much of the happiness and prosperity of our country is owing to the fact that we have never been, and never will be, cursed with a land system which, until the humane and far-sighted statesman who now wields the destinies of Great Britain struck it down a few years ago, was at once the blot upon our civilization and the chronic danger of the Empire. The total quantity of land in Lower Canada granted to the seigniors exceeded twelve million superficial " ar- pents," or about 15,390 miles.* There is nothing more remarkable in our past political history than the fact that the King of England, at one time, desired to extend over and perpetuate in Canada this seigniorial system, with all its manifold burdens and effective impediments to immigration and the development of the country. In the year 1775, the King, in the 38th Article of his Instruc- tions to Governor Carleton, commanded as follows :— " It is, therefore, our will and pleasure that all the lands which now are or hereafter will be subjected to our dis- posal, be granted in fief or seigneurie in like manner as was practised antecedent to the Conquest." Later still, in 1786, in the 40th Article of the Eoyal Instructions to Carleton — by this time created Lord Dorchester — the King again pronounces in favour of the feudal tenures. His Majesty, after directing that the exiled Loyalists from the United States, and the disbanded troops, should re- * Bouchette, "Hist. Can." (1832), vol. i. p. 380. CONSTITUTIONAL HISTORY OF CANADA. 81 ceive grants of the waste lands of the Crown, ordered that these lands should be held en seigneurie. These same men, all this time, were making every possible exertion to obtain from the Mother Country the abolition of the feudal, and the establishment of freehold, tenures. But it was not until the year 1789 that the tenure of free and common soccage was effectually introduced. A French Canadian historian says — " Notwithstanding these re- peated and powerful manifestations of the Crown to perpetuate the tenure of fief and seigniory in Lower Canada, ... no fresh grants in fief were made after the Conquest, if we except those of Shoolbred and Mur- ray Bay ; and the whole of the lands of the Colony not previously granted under the feudal system are now con- sidered as soccage lands."* It is well in this place to bear in mind that at this period, and until the passing of the Constitutional Act of 1791, the Province of Quebec comprised the territory which by that Act was set apart as Upper Canada. It was in this western portion of Quebec, afterwards the Province of Upper Canada, that the Loyalists who were expelled from the United States by the men in arms against the King, chose to seek new homes, and to found a new Britain. To these men, who had suffered and lost so much for the unity of the Empire, the feudal tenure was a grievance to the full as galling as some of those to avoid which they had turned their backs upon civilization, and set their faces toward the wilderness. * Bouchette, vol. i. p. 376, CHAPTER XTV. THE CANADIAN REIGN OF TERROR. In the tempest and turmoil of the American Invasion, the doors of the Legislative Council were shut against the appeals of the people of Canada. But the footprint of the last fljdng enemy had scarcely been effaced from our soil, when the jaws of the prisons opened for the eternal prey of tyranny — the bolder spirits of the land. It was not until 1777, the second year after the American Invasion, that the Legislative Council reas- sembled. But the popular voice found no kindly echo within its walls. The functions of this body were of a double nature : they were self-seeking as regarded itself, despotic in respect to the people. There was little dif- ference, in this respect, between the British and the French Canadian Councillors. The former numbered fif- teen, and the latter eight ; and all were salaried. The British clamoured for advantageous grants of land : the French members demanded, " as men of noble rank, all sorts of aristocratic privileges. . . . They were always in opposition to the people's interests, when these interfered in any way with their own immunities."* They believed only in military government. They wor- shipped Power, and were its unreasoning slaves, except * Garneau, "Hist. Can.," vol. ii. p. 166. CONSTITUTIONAL HISTORY OF CANADA. 83 when it put forth its hand against their order or their nationality.* . When the Council met, it was not to seek remedies for the healing of the country, but to forge fetters for its limbs, as yet bleeding and paralyzed. An ordinance was passed, creating a military despotism. All the inhabit- ants were compelled to submit to the unquestioning tyranny of the sword. They were to bear arms beyond the Canadian frontiers for an unlimited period, and were not even to receive the scanty pittance of the soldier. For those absent on military service, they who chanced to be at home were obliged to undertake agricultural labour, and this without any manner of reward. For neglect or refusal of the commands of this ordinance, the people were subjected to the most severe penalties. The Council, in addition to the military code, passed other ordinances. They introduced the commercial code of England and established a Court of Probate. They constituted themselves a Court of Appeal, but left a final power of appeal to the Privy Council in England : they authorized the opening of Courts of Oyer and Terminer. The labours of the Council engendered social and political chaos. The tribunals administered law, some- times according to the French, at other times accord- ing to the English code. But the militia law was the greatest calamity ; it weighed down to the very earth * Gameau, " Hist. Can.," vol. ii. p. 166. 84 CONSTITUTIONAL HISTOKY OF CANADA. the miserable peasantry. The British colonists were the spokesmen for their oppressed fellow- citizens as well as for themselves ; but just as they had taken the first step to compel the Legislative Council to listen to the complaints of the Province, a new and hostile influence brought itself to bear on Canada. Tn 1777, General Haldimand, by birth a Swiss, by profession a soldier in the British army, replaced Carleton in the Governorship of the Province. Under his sway, the natural antagonism between liberty and the rule of the sword displayed itself in all of its unrelenting and repul- sive phases. Haldimand acted as if the people of Canada were the rank and file of a mutinous regiment. The spectre of Eepublicanism haunted him by day and terrified him by night. Imprisonment — reckless, needless, cruel — was his sole exorcism. The enforced military service, and the enforced statute labour, wore out the bodies and the patience of the peasantry. They could do nothing but complain. But to tyrants, in troublous times, com- plaint is held to be akin to treason. Haldimand fancied that these lamentations were the outpourings of the spirit of revolt, excited by republican emissaries. He tried to stifle them in the dumbness of the dungeon. Acting on mere suspicion, he filled the prisons with mul- titudes, indifferent as to whether they were innocent or guilty.* ' The Council looked upon these outrages with pitiless * Garneau, "Hist. Can,," vol. ii. p. 170. CONSTITUTIONAL HISTORY OF CANADA. 85 eyes and callous hearts. In 1779 it met, sat for a few days : renewed some ordinances about to expire : ad- journed. In 1780 it again assembled. One of its mem- bers, named Allsopp, moved that the Governor should be asked for a copy of his Instructions respecting the administration of the Province. The proposition was voted down. The outcry of the people was not, how- ever, to be altogether silenced, even in the Council. Again Mr. Allsopp, who was in opposition to the despotism of the time, demanded the introduction of the free laws of Great Britain. But once more he was doomed to fail. A rumour had gone abroad that the Americans were preparing for another invasion. The Government became more tyrannical. That cruelty which is the sure sign of weakness and of rottenness in a state, was again put forth in military arrests. The rich and the poor alike, on the mere suspicion of treason, on charges for lesser offences, and no accusation whatever, were swept before a wave of bayonets into the filled and festering prisons, or into the noisome holds of war-vessels in the St. Lawrence. No information was vouchsafed to these miserable men as to the cause for which they had been robbed of their liberty. Many suffered not only loss of liberty, but of fortune.* The Government of Canada reached the shameful summit of its tyranny in respect to its treatment of private correspondence. Matters of a private nature, * Gameau, •* Hist. Can.," vol. U. pp. 178, 174. 86 CONSTITUTIONAL HISTORY OF CANADA. which, on account of their very privacy, assume, by the general consent of men and moralists, a character almost sacred, were violated by the polluted fingers of the rob- ber-spy. On several occasions the European mail-bags were found lying opened at the Governor's, and the con- tents scattered about the floor.* The distrust in which Governor Haldimand held letter-writers was encouraged by the seigniorial members of the Council, who feared that Republicanism, if it succeeded in Canada, would trample their privileges in the dust.t The principal pretexts for these multiplied outrages were mere suspicion of being in communication with the Americans, and disobedience to the new militia law. As a rule, the French Canadians, in greater numbers than the British, were made to feel the tyranny of Governor Haldimand and his Legislative Council. * Gameau, " Hist. Can.," vol. ii. p. 173. + Ibid. CHAPTER XV. PEACE BETWEEN GREAT BRITAIN AND THE UNITED STATES : ITS EFFECTS ON CANADA. The treaty of peace concluded between Great Britain and the United States on the 3rd of September, 1783, was the talisman that set the Canadian state prisoners free. ^ The jails disgorged the victims of arbitrary arrests, innocent or guilty. But Governor Haldimand and the Legislative Council gave to these sufferers neither the m'elancholy satisfaction of knowing wherefore they had been deprived of their liberty, nor indemnity for the deprivation. The treaty of peace stripped Canada of the five western countries which had been added to it by the Quebec Act. The United States, characterized even then by the territorial gluttony which they have ever since displayed for the possessions of their neighbours, clamoured for and closed upon Lake Cham plain, an important adjunct and defence of Eastern or Lower > Canada. If the treaty narrowed the boundaries of Canada, it brought her peace. With peace came the dawn of per- sonal liberty. In 1785, the British Ministry chose to indicate to the rulers of Canada that it was now time to Revive the slumbering writ of habeas corpus. But the Legislative Council must needs debate the matter. This \ 88 CONSTITUTIONAL HISTORY OF CANADA. body, which was swift of deed when the rights of the men of Canada were to be violated, was slow of deed, even when called upon by the Ministers of the Empire, to make atonement. The Council, however, dared not long resist the behests of the Mother Country and the pressure of Provincial popular opinion, which, gathering strength in Canada, was rolling up like a wave against the barricaded doors of the Legislative conclave. The Council were obliged to pass an ordinance introducing the law of habeas corpus. Governor Haldimand signed the instrument. It was his last official act. He left Canada, pursued by the hot indignation of the vast majority of the inhabitants of both races.* The people could not believe that they had been oppressed by' the will and wish of the Mother Country. Upon Haldimand, therefore, who, in reality, was no more to blame than the Legislative Council, if indeed he were to blame as much, ^e people of Canada joined in pouring out the vial of national hatred, a stream which keeps fresh, for ever, the tainted memory of him on whom it has once descended. It must be said, however, in justice to Haldimand, that his despotism had but one object in view : to prevent Canada from falling into the jaws of the United States. * Aware that he was detested by the people, Haldimand, during his last two years of oflSce, repeatedly solicited his recall.— Garneau, "Hist, Can.," vol. ii. p. 180. CHAPTER XVI. THE PEOPLE ENTREAT FOR CONSTITUTIONAL GOVERN- MENT. — OPPOSITION OF THE LEGISLATIVE COUNCIL. DEPLORABLE CONDITION OF CANADA. As soon as the weight of military despotism was re- moved from the Province, there followed the natural rebound. The British and French Canadians, in 1783, united themselves in petitions to the Home Government, praying for constitutional changes, for equal political rights, for a House of Assembly, for the restoration of the law of habeas corpus. The Legislative Council became alarmed. In 1784, by a majority of two-thirds, it passed an address to the King, thanking him for his protection during the American war, and praying that he would permit no change in the mode of government established by the Quebec Bill. This address, which was merely the echo of a paltry minority of the people of Canada, had the eJBfect, when it reached England, of postponing tl^e, day of constitutional government. Lord Sidney, onesN of the principal Secretaries of State, was content that \ the law of habeas corpus should be introduced ; but he \ was of opinion that those who demanded a Legislative \ Assembly, trial by jury, and the permanence of the seats 1 of the judges, were persons of evil dispositions and of ques- I 90 CONSTITUTIONAL HISTORY OF CANADA. tionable loyalty.* The people of Canada, however, were not thus to be silenced. Montreal and Quebec, in 1784^, petitioned for an elective Assembly, a Council of un-l salaried members, the extension of British jurisprudence to places not yet organized for judicial purposes, and trial l>y jury in civil cases. Counter-petitions from the partj^ of tyranny followed the others to London. The Britist Ministry were perplexed. Some of the propositions be longed to that class of which the novelty obscures, for the moment, the underlying absurdity. One petition, for example, prayed that the British inhabitants should be represented in the House of Commons, stating that] this would be much better than to establish a Colonial ) Assembly, whose members, French Canadians, would be elected by their co-nationalists. O/^ The war of petitions and counter-petitions was waged from 1785 to 1788. The British House of Commons gave them passing notice, but not practical consideration; for the affairs of Europe were filling, to the exclusion of all else, every sphere of legislation. In 1789, Mr. Grenville, successor to Lord Sidney, transmitted to Lord Dor- chester, Governor-General of Canada, the scheme of a constitution. Mr. Grenville further requested the Governor to send home to England the views which, after mature consideration, he might form concerning the whole matter. The social condition of Canada, in the period between * Gameau, " Hist. Can,," vol. ii. p. 168. CONSTITUTIONAL HISTORY OF CANADA. 91 the American Invasion and 1787, was deplorable. Society- seemed to be in danger of dissolving into its primitive barbaric elements. Liberty, justice, security, there were none. An inquiry, carried out in 1787 by Lord Dorchester, at the command of the British Government, threw some gleams of light on the seething social chaos. The worst of the revelations was, that the fountain of j ustice was polluted at its source. One judge had been seen, when drunk, to ascend the bench, and disgrace the administration of the law. The same judge had often refused to hear evidence, stating that outside of the Court he had been in communication with the litigants. Another judge, in order to nonsuit a party in a case, himself produced a letter from an individual interested in the action, which letter, denying certain facts, the judge accepted for evidence, ^n an othnr piwn thr nniTTin judge sto pppH t]]p. snit^- simply observing t| ]^||f |]f[ ^mo-nr ^^'^ 'jff*'""^"^^ T"^"^ ^^^^ ^^ "^^s a man quite incapable of the act o f which he stood charp^ed. AVorst of all, per- haps, it was ascertained that Governor Haldimand, him- self, on one occasion took his seat on the bench, and, by influencing the judges, had caused M. du Calvet, a politi- cal prisoner, to be despoiled of the sum of £6,000. f The intellectual condition of the people was wretched. An ignorance, like that Egyptian darkness which could be felt, was spread over the whole land, making the minds of men barren, sluggish and unwholesome. No system of elementary education had been provided for the people. There was not a public school-house in the 92 CONSTITUTIONAL HISTORY OF CANADA. Province. Nor, in the matter of the repression of crime, was there any effective agency. A court-house did not exist in Canada ; nor was there a serviceable prison nor a house of correction in the country. Such was the condi- tion of things when the British Parliament reached forth its hand to Canada, to lead her up the steep and hazard- ous way that ascends to Constitutional Government. CHAPTER XVII. THE NATION-BUILDERS OF UPPER CANADA. In the period previous to the rupture between Great Britain and her Colonies, and during the progress of the struggle, there were those in the disaffected Provinces who sympathised with the Mother Country. These men were, as a rule, amongst the most estimable of the popu- lation. To their revolted fellow-citizens, the feelings which actuated these Loyalists ought to have been a guarantee for respect, or, at least, ought to have pleaded for a generous forbearance. For these friends of Brit- ish connection were no unreasoning lovers of tyranny. But they believed, in all honesty of heart, that there was no cause why the Thirteen Colonies should break away from Great Britain. They chose an heroic part; they would not let the self-interest of the moment bear down, and bury out of sight for ever, the warm and well-earned remembrance of all the past kindnesses which the Mother Land had heaped upon her offspring. The present un- reasonable demands of the Parent could not extinguish the kindly flame of gratitude which fed itself on the hearts of the American Loyalists. These men were in a minority, the invariable fate of moderation in any great political problem. The majority of their countrymen rose up against them. To the tiger- passions of the mob, thirst for blood, and cruelty for the 94 CONSTITUTIONAL HISTOEY OF CANADA. sake of cruelty, were added, in the case of the outnum- bered Loyalists, lust for their possessions, with that un- reasoning hatred which is the certain outcome of civil war, and sure to be engendered between brethren of the aforetime. Some of the Loyalists took up arms in de- fence of King, Parliament and a United Empire. In the case of the aged and the non-combatants ; in the case of that denomination of Christian men whose glory it is to walk the world searching for the blessing pronounced by the Divine lips two thousand years ago on the peace- makers — in the case of all these, the outrages of civil war were unleashed like so many blood-hounds. * These Loyalists, like wild beasts, were hunted out of their native land. They fled to Canada, they and their wives and their little ones. The savage wilderness gave them shelter from their more savage brethren. They chose the Western portion of Canada as the place where they would hew out for themselves a rude and wretched resemblance of that home from which they had been driven. The Mother Country did not forget those who, for her sake, had become exiles. Lands were granted to them ; they were taken under the special protection of the Empire. And, in 1789, an Order in Council testi- fied to their worthiness of Imperial favour and perma- nent recognition. " To put a mark of honour upon the families who had adhered to the unity of the Empire, and joined the Eoyal standard in America, before the Treaty of Separation, in 1783," the Order in Council commanded * See Lorenzo Sabine's « History of the United Empire LoytdiBts." CONSTITUTIONAL HISTORY OF CANADA. 95 that a list of these men should be prepared. This was to be done in order that "their posterity might be dis- criminated from the then future settlers." The initials in the words of the Order in Council, " Unity of the Em- pire," gave to this roll of honour the appellation of the " U. E." List. The immediate offspring of those whose names were thus inscribed, reaped advantage from the circumstance. And, in the war of 1812, they proved to the world that these favours had been well bestowed, and that the ancestral valour of their race had not become degenerate. It must not be supposed that these expatriated colonists were the blind champions of arbitrary rule. They were the very opposite. They would have repudiated, with indignation, the slavish doctrine that the Monarch alone should make laws for Great Britain or the Colonies. They believed in the Constitution as then interpreted — namely, that the King, Lords and Commons of right had, and ought to have, supreme legislative sovereignty over all colonies of English-speaking men. The idea which fed the conflict of Great Britain with her Colonies was not so much that the King should have domination, as that this domination should belong to Parliament. The annals of our British Parliaments are an anomalous and a conflicting record. In respect to our whole legislative history, the feelings of the Nation have oscillated between two extremes — superstitious reverence and loud-spoken contempt. At this period, the feeling of reverence hap- pened to be in the ascendant. Parliament, which is as 96 CONSTITUTIONAL HISTORY OF CANADA. the brain of the body politic, and occasionally in magnetic sympathy with the moods and passions of the hour, chanced, at this epoch, to be thrilled and influenced by the national impulse towards war. The Loyalists in the Colonies were in unison with the majority of their fellow- citizens at Home, but in discord with the majority of their fellow-citizens in America. The settlement of the Loyalists in Canada was worth more than an army to the British Colonists in the Eastern part of the Province, praying for a House of Assembly. The U. E Loyalists did not suffer for Great Britain with the intention of yielding up their hereditary right to Representative Government, and their privileges as British citizens. They were not long in Canada until they pro- tested against the feudal tenures.* And, thinking they recognised social barriers that might, in the future, separate them, in many respects, from Eastern Canada, the U. E. Loyalists of tjie Western section were desirous of having a Legislature of their own, moulded, as nearly as possible, after the similitude of the Parliament of the Mother Land. Such were the men who were the Nation-' Builders of Upper Canada ; who laid, in heroism, self- sacrifice, loyalty and steadfast labour, the foundation of a social and political system which, of all the social and political systems in this New World, most nearly re- sembles that of Great Britain. From such beginning rose Ontario, the Pillar Province of the British North American Confederation. * See ante, p, 8. CHAPTER XVIIT. CANADA IN THE BRITISH PARLIAMENT. THE KING's MESSAGE. On the 25th of February, 1791, in the House of Com- mons, William Pitt presented a message from His Majesty respecting the government of Quebec. The King ac- quainted the House that it appeared to him it would be for the benefit of his subjects in his Province of Quebec to divide it into two separate Provinces, the one to be called Upper, and the other Lower, Canada. Therefore, it was his intention so to divide Quebec, whenever he should be enabled, by Act of Parliament, to establish the necessary regulations for the government of the two Pro- vinces. His Majesty, accordingly, recommended this object to the consideration of the House. He also recom- mended the consideration of such provisions as might be necessary to make a permanent appropriation of lands in the two Provinces for the support and maintenance of a Protestant clergy, the appropriation to be in proportion to such lands as he had already granted within the Pro- vinces.* On the 4th of March, the order of the day being read I for taking into consideration His Majesty's message rela- \tive to the government of Quebec, William Pitt made a "Parliamentary History," vol. xxviii. p. 1271. 98 CONSTITUTIONAL HISTORY OF CANADA. motion founded upon the message. The object of his mo- tion was to repeal part of the Quebec Bill, and to enact lew regulations for the future government of that Pro- . The new Bill was intended to put an end to the (differences of opinion and growing competition for some years existing in Canada, on several important points, be- tween the ancient inhabitants and the new settlers from England and from America • and to bring the government of the Province as near to the British Constitution as cir- cumstances would admit. The first great object of the new Bill was to divide the Province into two parts : one to be named Upper, the other Lower, Canada. The Upper Province was to be for the English and American settlers ; the Lower, for the Canadians. The division, it was hoped, could be made in such a manner as to give to each race a great majority in its own particular territory. In each Province were to be established a House of Assembly arid Legislative Council, which would give all the advantages of the British Con- stitution. Members of the Council would hold their seats, not during pleasure, but for life. Further, the descend- ants of such members as should be honoured with heredi- tary titles were to have an hereditary right of sitting in the Council. It was also proposed to annex the dignity of a member of Council to every title of honour that might be conferred. The Canadians were in possession, in many respects, of the English civil law. But this law did not extend to landed property. It was therefore intended that landed / CONSTITUTIONAL HISTORY OF CANADA. 99 property should rest on soccage tenures. A specific point in the Bill was the extension of the Habeas Corpus Act to both Provinces ; the Act was at present in operation in Canada, under the authority of a Provincial ordinance : and an ordinance had the force of law. The laws in operation would be continued until the Assembly of each Province chose to alter them. In this manner, the complaints of the petitions now before the House would be remedied, as the inhabitants of Quebec would have an Assembly, with the power of enacting what laws they pleased. The Bill contained another important enactment. It made provision for the maintenance of the Protestant clergy in both Provinces. For this purpose there was to be a permanent appropriation of certain portions of land ; and such provisions for future grants of land within each Province, in proportion to the increase of their population and cultivation, as might best conduce to the same object. But, as in one of the Provinces the majority of the in- habitants would be Roman Catholics, it was meant to provide that it should not be lawful for His Majesty, in future, to assent to grants of land for this purpose, under the sanction of the Council and Assembly of either Pro- vince, without first submitting them to the consideration of the British Parliament. In regard to taxation : — To avoid the occasion of a mis- understanding similar to that which had formerly taken place in respect to the Thirteen Colonies, no taxes were foo CONSTITUTIONAL HISTORY OF CANADA. meant to be imposed by the British Parliament on Cana- da, saving only such as might be necessary for the pur- poses of commercial regulation. But in this case, so as to avoid even the possibility of a cavil, the levying and disposal of such taxes should be left entirely to the wisdom of the Provincial Legislatures. By dividing the Province into two, Pitt conceived that the existing causes of controversy would be removed. " In the Lower Canada, as the residents would be chiefly Canadians, their Assembly would be adapted to their habits and prejudices. The Upper Canada, being almost entirely peopled by emigrants from Great Britain, or from America, the Protestant religion would be the Establish- ment, and they would have the benefit of the English tenure law." He moved for leave to bring in a Bill " to repeal certain parts of the Act 14 George 3rd, and to make further provision for the government of the said Province."* Charles James Fox found it impossible to concur in any plan like the one proposed until the Bill was before the House. But he was willing to declare that the giving to a country so far distant from England a Legislature, and the power of governing for itself, would exceedingly pre- possess him in favour of every part of the plan. He did not hesitate to say, that if a Local Legislature were liber- ally formed, that circumstance would incline him much to overlook defects in the other regulations. For he was * " Parliamentary History," vol. xxviii. pp. 1376-1379. CONSTITUTIONAL HISTORY OF CANADA. 101 convinced that the only means of retaining distant colo- nies with advantage was to enable them to govern them- * Pitt obtained leave to bring in the Bill. " Parliameutary History," vol. xxviii, p. 1379. CHAPTER XIX. THE BRITISH MERCHANTS IN EASTERN CANADA OPPOSE THE BILL. The British merchants in Eastern Canada took exception to several propositions in the Bill. On the 23rd of March, 1791, Mr. Adam Lymburner, a Quebec colonist, and their agent, was heard on their behalf at the bar of the House of Commons. The House of Commons heard from the Canadian agent some of the grievances of the Quebec Bill. The people had severely felt and suffered under the confusion which that Bill had introduced. They had been exposed to the pernicious effects of uncertain and undefined laws, and to the arbitrary judgments of Courts guided by no fixed principles and certain rules. What was called in the Quebec Bill " the Laws of Canada " had not yet been defined. Sixteen years had now elapsed since that Bill came into effect ; but it was not determined what or how many of the laws of France composed the system of Cana- dian jurisprudence previous to the Conquest ; or even if there were any positive system, particularly for commer- cial transactions. He stood before the House as the agent of a number of the most respectable and intelligent of the French Canadians, to solicit the total repeal of the Quebec Bill. CONSTITUTIONAL HISTORY OF CANADA. 103 The investigation made by order of Lord Dorchester, in 1787, into the past administration of justice in the Province, as well as the disputes between the Upper and Lower Courts since that period, showed that neither the judges, the lawyers nor the people understood what were the laws of Canada previous to the Conquest. There had been no certainty on any object of litigation except in such matters as regarded the possession, transmission or alienation of landed property where the Custom of Paris was very clear. On behalf of those he represented, Mr. Lymbumer op- posed the intention of the new Act to divide Quebec into two Provinces. He had not heard this had been the general wish of the Loyalists who had settled in the Up- per or Western part of the Province; it was not the desire of the people of the Lower or Eastern part. The Loyal- ists, as well as the inhabitants of Eastern Quebec, had had reason to complain of the present system of Civil Govern- ment But, even supposing the Loyalists had wished for a division of the Province, he hoped the House would consider that, in a matter of such vast importance as the separation for ever of the interests and connections of those who, from local situation, were certainly designed by na- ture to remain united, that the interest, the feelings and desires of Eastern Quebec ought to be consulted. Defer- ence in this respect was as much owing to Eastern Quebec as to the wild project of a small body of people who were thinly scattered over the upper parts of the Province, and who had not had time to examine into their relative situar 104 CONSTITUTIONAL HISTORY OF CANADA. tion, and the natural dependence which their country must have on the lower parts of the Province.* As an addi- tional argument against separation, he stated that, in peti- tions then on the table of the House, the people of Eastern Quebec had complained that already the Province had been greatly mutilated, and that its resources would be greatly reduced by the operation of the Treaty of Peace of 1783. To that portion of the Bill which provided for a Cana- dian hereditary peerage or aristocracy, Mr. Lymburner offered a determined opposition. The people, as would be seen from the petitions on the table, had only requested that the Legislative Councillors should hold their offices during life. The hereditary principle was an expedient extremely dangerous in any infant colony ; but it must appear absolutely ridiculous in the Province of Quebec, where there were so few landed estates of any considerable value ; and where, by the laws of inheritance, these estates must, at every succession, be reduced to one-half, and in two generations inevitably sink into insignificance. Thus, the hereditary Councillors, from their poverty, would be- come objects of contempt to the public. It might be said that the families of Legislative Councillors might be sup- ported in an independent situation by introducing the laws of primogeniture. But this would be extremely in- jurious to the Prbvince._The.Fjrench law, in this respect, * Mr. Lyrnburner was somewhat inconsistent with himself. He had just pre- viously stated that he had not heard that separation " had been the general wish of the Loyalists." CONSTITUTIONAL HISTORY OF CANADA. 105 was much better calculated for a young country, where it was of great advantage to cultivation and population that landed property should be divided, fluctuate and change owners. He informed the House that, poor as the coun- try really was, on account of the oppressive system of laws under which it had suffered, there were, amongst its merchants, those whose moveable fortunes were, perhaps, equal, if not superior, to any of the seigniorial estates. These men, from the employment and support they gave to thousands of the people, had infinitely more influence in the country than the seigniors. For it would not be difficult to prove that the seigniors were almost universally disliked by their tenants. From these facts he hoped the House would see the impropriety and the danger of ren- dering the office of Councillor hereditary.* Mr. Lymburner pointed out what he considered had been a radical defect in the representation of all our American Colonies. There were but few towns in the Colonies. These towns had only their proportion of re- presentatives. The result was, that the landed interest had always been too prevalent, and had, at times, greatly oppressed the commerce of the Colonies, and impeded the operations of government. He entreated that the Province should not, for some time, be called upon to defray the expenses of its civil * Mr. Lymbumer's aixximent had no effect. The Bill established the here- ditary principle. But no Governor, in either Province, ever ventured to give it effect. The Governors knew anada better than British Ministers or Par- liaments. 106 CONSTITUTIONAL HISTORY OF CANADA. Government. He acknowledged it was the intention of his constituents that the Province should defray these expenses. But Canada had been so long oppressed and neglected, and every object of industry and improvement had been so apparently discouraged, that the country was now reduced to such a state of languor and depression, that it was unable to provide for the expenses of its Civil Government. This present financial inability ought to be excused in those who had been told " that ignorance and poverty were the best secuiity for the obedience of the subject ; and that those who did not approve of these political principles might leave the country." He hoped, therefore, that the House of Commons would release the Province of the expenses of the Civil List for a certain number of years.;}: Mr. Lymburner asked, on behalf of his constituents : The total repeal of the Quebec Act : that optional juries might be granted in civil cases, nine jurors out of twelve being sufficient to return a verdict. That the judges might not be subject to suspension or removal by the Governor. Amongst the objections Mr. Lymburner made to the Bill were the claiming of tithes from the distant Protestant settlers, and not fixing the rate. The House refused to concede the requests, or to entertain the objection. t The House of Commons granted the request of Mr. Lymburner, and dealt " most liberally, at least, with respect to Lower Canada. It was not until 1818 that the Assembly of this Province was called upon, pursuant to their voluntary offer in 1810, to vote the necessary expenses of the Civil Government." — Christie, Hist. L. C, vol. i., p. 103. CHAPTER XX. FOX AND PITT ON THE NEW CONSTITUTION. In the House of Commons, on the 8th of April, Mr. Hussey presented a petition from several merchants con- cerned in the trade to Quebec, praying that the Quebec Government Bill might not pass. The petition stated that the Bill would be attended with great injury to the Province, and particularly to the trade and commerce of the petitioners. The Speaker having put the question, " that the Beport of the Committee on the Bill be now taken into further consideration," Mr. Hussey moved that the Bill be re-committed.* Charles James Fox then rose in his place to second the motion. He thought that a Constitution should be framed for Canada as consistent as possible with the prin- ciples of freedom. This Bill would not establish such a Government, and that was his chief reason for opposing it. He approved of a House of Assembly for each Province ; but the number of members deserved par- ticular attention. Although it might be perfectly true that a country three or four times as large as Great Britain ought to have representatives three or four times as numerous, yet it was not fit to say that a small country should have an Assembly proportionally small. The ' " Parliamentary History," vol. xxix. p. 105. 108 CONSTITUTIONAL HISTORY OF CANADA. great object in the institution of all popular assemblies was, that the people should be freely and fully repre- sented, and that the representative body should have all the virtues and the vices incidental to such assemblies. But when they made an assembly to consist of sixteen or thirty persons, they gave a free Constitution in appear- ance, when, in fact, they withheld it. He opposed the proposition of the Bill to make the Canadian Legislatures septennial ; and thought that, from the situation of Canada, annual or triennial Parliaments would be much preferable. He disapproved of the elec- toral qualification. In England, a freehold of forty shillings was sufficient ; in Canada, five pounds were necessary. This might be said to make no material dif- ference. But, granting that it did not ; when the House was giving to the world, by this Bill, its notions of the principles of election, it should not hold out that the qualifications in Great Britain were lower than they ought to be. The qualification on a house in Canada was to be ten pounds. In fact, he thought that the whole of this Constitution was an attempt to undermine and con- tradict the professed purport of the Bill — namely, the introduction of a Popular Government into Canada. He pointed out this anomaly : that although the Legis- lative Assemblies were to consist of so inconsiderable a representation, the Legislative Councils were unlimited as to numbers. He saw nothing so good in hereditary powers and honours as to incline the House to introduce them into a country where they were unknown, and CONSTITUTIONAL HISTORY OF CANADA. 109 by such means distinguish Canada from all the Colonies on the other side of the Atlantic, In countries where they made a part of the Constitution, he did not think it wise to destroy them ; but to give birth and life to such principles in countries where they did not exist, appeared to him to be exceedingly unwise. Nor could he account for it, unless it was that Canada having been for- merly a French colony, there might be an opportunity of reviving those titles of honour, the extinction of which some gentlemen so much deplored.* It seemed to him peculiarly absurd to introduce hereditary honours in America, where those artificial distinctions stunk in the nostrils of the natives. He thought these powers and honours wholly unnecessary, and tending rather to make a new Constitution worse than better. If the Council were wholly hereditary, he should equally object to it : it would ouly add to the power of the King and Governor. For a Council so constituted would only be the tool of the Governor, as the Governor himself would only be the tool and engine of the King. The enactment respecting the reservation of lands for ecclesiastical purposes, next provoked the criticism of Fox. He totally disapproved of the clause which provided, "that whenever the King shall make grants of lands, one-seventh part of those lands shall be appropriated to the Protestant clergy." He had two objections to these regulations. In all grants of lands made in that country * The allusion was to the overthrow of the aristocracy of France by the recent Revolution. 110 CONSTITUTIONAL HISTORY OF CANADA. to Catholics — and a majority of the inhabitants were of that persuasion — one-seventh part of those grants was to be appropriated to the Protestant clergy, although they might not have any cure of souls, or any congregation to instruct. One-tenth part of the produce of this country was assigned, and this, perhaps, was more than one-seventh part of the land. He wished to deprive no clergyman of his just rights ; but in settling a new constitution, to enact that the clergy should have one-seventh of all grants appeared to him an absurd doctrine. If they were all of the Church of England, this would not reconcile him to the measure. The greater part of these Protestant clergy were not of the Church of England; they were chiefly Protestant Dis- senters. The House was therefore going to give Dissenters one-seventh of all the lands in the Province. This was not the proportion either in Scotland or in any other country where those religious principles were professed. This provision would rather tend to corrupt than to bene- fit the clergy. Fox complained that, with all its variety of clauses and regulations, there had not yet been a word said in explana- tion of the Bill. It went through the House silently, without one observation ; it also went through the Com- mittee, only in form, but not in substance. He proceeded to discuss that enactment of the Bill which struck him the most forcibly. This was the divi- sion of the Province of Canada. It had been urged that, by such means, the House could separate the English and French inhabitants of the Province. But was this to be CONSTITUTIONAL HISTORY OF CANADA. Ill desired 1 Was it not rather to be avoided 1 Was it agreeable to general political expediency 1 The most de- sirable circumstance was, that the French and English in- habitants should unite and coalesce, as it were, into one body, and that the different distinctions of the people might be extinguished for ever. If this had been the ob- ject in view, the English laws might soon have prevailed universally throughout Canada, not from force, but from choice and conviction of their superiority. The inhabit- ants of Canada had not the laws of France. The Com- mercial Code was not established there ; they stood upon the exceedingly inconvenient Custom of Paris. He wished the people of the country to adopt the English laws from choice, and not from force; and he did not think the division of the Province the most likely thing to bring about this desirable end. Canada was a country as capa- ble of enjoying political freedom as any other country on the face of the globe. It was material that the inhabit- ants should have nothing to look to among their neigh- bours to excite their envy. Canada must be preserved to Great Britain by the choice of its inhabitants. But it should be felt by the inhabitants that their situation was not worse than that of their neighbours. This, however, would never be the case under a Bill which held out to them something like the shadow of the British Constitu- tion, but denied them the substance. He held that the Legislative Councils ought to be totally free, and repeat- edly chosen ; in a manner as much independent of the Governor as the nature of the Colony would admit. But 112 CONSTITUTIONAL HISTORY OF CANADA. if not, they should have their seats for life ; be appointed by the King ; consist of a limite ) y \ l^\^ \ \ ' / \ - ■ N ' S \-' i I'-