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Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir de Tangle 8up6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mithode. 1 2 3 1 2 3 4 5 6 I THE CONSTITUTIONAL HISTORY OF CANADA THE CONSTITUTIONAL HISTORY OF CANADA. BY SAMUEL JAMES WATSON, LIBBAEIAN LEGISLATIVE ASSEMBLY OF ONTARIO. VOLUME I. TORONTO : ADAM, STEVENSON & COMPANY. 1874. W5^ 1 8 3 8 }) 5 /^/? ( ^on^ ^ J M Enured .ecorcllnn lo thn Act of Iho RaMf.monl of Ci.ir«rta, In Iho roar On,. Thoumnd HkM Hundred «nd Sevenlytliree, by SAMUEi, JAME. Wat«ok, fn t;.o offleo of the Mlnhter of Agriculture. y Hunter, rose & Co., Printers aiid Binders, Toronto. TABLE OF CONTENTS. CHAPTER I. PAGE The Capitulation of Canada, 1760— Social condition of the people 9 # CHAPTER 11. Royal Proclamation of 1763— Introduction of the Laws of England jg 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. I i CHAPTER VIII. pxai The Status of the Roman Catholic Church— The Peasants refuse it political obedience nn "' •'• ••• t.. 04 CHAPTER IX. Peril of the Province— American attack on Quebec— Defeat and expulsion of the Invaders ^2 CHAPTER X. Colonial Misgovernment — French Canadian Legislative Councillors oppose ^a6eaa (7orpws 55 t. CHAPTER XI. Revival of the French Laws-Nature of these Laws ... 70 CHAPTER XII. Laws of Inheritance— Detestation of Primogeniture CHAPTER XIII. Feudal Tenure— Peasant Servitudes CHAPTER XIV. The Canadian Reign of Terror 74 77 ... 82 CHAPTER XV. Peace between Great Britain and the United States— Its effects on Canada ... on 0/ CHAPTER XVI. The people entreat for Constitutional Government— Opposi- tion of the Legislative Council— Deplorable condition of Canada „^ ... ... ov CHAPTER XVII. The Nation-Builders of Upper Canada... i 93 it ! CONTENTS. «• vu CHAPTER XVIII. PAUE 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 CHAPTER XXI. The Constitutional Act, 1791 CHAPTER XXII. The defects of the Constitutional Act « • • * t • 107 116 126 CHAPTER XXIII. The First Parliament of Upper Canada— Abolition of Negro Slavery 130 CHAPTER XXIV. The gift of Religious laberty to Canada CHAPTER XXV. Canada Past and Present Index 137 140 145 THE CONSTITUTIONAL HISTORY OF CANADA. CHAPTER I. THE CAPITULATION OF CANADA, 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 Aii-icles of Capitulation.* Of these Articles, the twenty-seventh was, as it were, the anchor by mean, 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, Roman religion." He asked, further, " that the people shall be obliged by the English » "Annual Register," 1760, pp. 230. Great Britain was represented by General Ainherst, Franco by the Marquis of Vaudreuil. "The i>cace of Aix- la-Chapelle (It^ft Oct., 1748) between Enjfland 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 i)ersisted 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. 10 CONSTITUTIONAL HISTOK^ OF CANADA. n h I : Government to pay to the priests the tithes and all the taxes they ware 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 %ct. 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 Quebsc Act (1774). t In 1773, ten years after tho 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 tie laws of England, had succeeded to the military rule. See the " Maseres Papers," p. 113. [Maseres had been Attorney-Genoral of tht provinc* from Septem- ber 1786 to September 1769 ; afcerwarda he was created in England Cursitor- Baron cf faa Exchequer. He stunds, 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 govemment.J CONSTITUTIONAL HISTORY oy CANADA. u 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 Calholic 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 adininister 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. 476-4M \ The nominal military law in Canada ceased with the cou^ummation of the treatj- of peace between Great Britain and France. The continuance of the law waa co-existent with the hostility between the two powers. It seems to have been sanctioned more as a precaution against a possible demonntration by the Canadians on behalf of France while at war with Great Britain, than as an active instnmient of government. During its continuance, the Fronch laws, in all civil cases, were administered by French Canadians. See the "Maseres Papers," page 113. i "Superior, Ordinary and Inferior o.istice." 12 CONSTITUTIONAL HISTORY OF CANADA. 8on.* If they did not, in the French period, exercise their tjrrannous 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, v/hirling 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 loi:g, to come under the ample centre of the shield of the British Constitution. He was no longer liable to be dragged nom 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. 877. t Maseres, p. 162. The expenses of a Seigniorial Court would for the moat 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," dre ./ an income of more than jg-i,000 stg. a year. (This was written in 1775. I Maseres Papers, p, 163 CONSTITUTIONAL HISTORY OF CANADA. 13 1] 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.:}: 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 offGovemor Carleton, pafre 106. He stated before the committee of the House of Commons, " Undar the French the spirit of the government vas military, and conquest was the chief object ; verj' larpe 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 thev have enjoyed peace and tranquillity." I See ' Maseres Papers," page 140, where it is stated the inhabitants of the towns ueemed it a great miHfortune that the peasant was allowed to sell his products at the highest price he could obtain. The Intendant was an officer whose duty it was to manage the matters of finance, pi)lice 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 werb 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. Ir 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. | But there was not found prey for them all. Many of them, elbowed out of France, were djiven into Canada. § Their functions, in its military * " Maseres Papers," pp. 168-169. t 1854. JSee Orowe, "History of France,* vol. 4, p. 157. §Abb6 Saint Pierre, quoted in the "MaseresPaiJcrs," pp. 150,160, and writiag about the year 1740, ustimated the number of noble 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," Ma-seres 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. ii * By the French feudal law, a nobleman who engaged in trade forfeited his patent of nobility. t " Maseres," p. 170, says : " The English Government waa 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 fitres mSprisables). He asks if the colony has not gained immensely in being relieved of all these la/y 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 suflfer 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. rt-v CHAPTER 11. ROYAL PKOCLAMATION, 1763; INTRODUCTION OF TH- LAWS OF ENGLAND. On the 7th 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 houndarj 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 Lalce St. John to the south end of Lake Nipissini ; 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 dcs Chaleurs, and the coast of the Gulf of St. Lawrence to Cap Rosieres, the lino crossed the mouth nf the St. Lawrence by the West t lul of the Isiaiiil of .Vnticosti, luul tenniiiatcd at tlic aioroaid River St. John. CONSTITUTIONAL HISTORY OF CANADA. 17 all persons inhabiting in, or resorting to, our said colony may confide in our Royal protection for the enjoyment of the benefit of the laws of our realm of England." In the commission to Geiieral 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 George 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 itgainst 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 was no authority in the commission of the Governor, which commission was issued under the great seal of Great * "Maseres Papers," page 42. Of these oaths there were two, or at leaat there was one, which no consuientious Roman Catholic could prevail upon him- self to take. This being the ca.se, the French Canatliana 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 i^^cbec was called, but never sat; for the Canadian members, as Roman Catholics, could not take the oaths. Bouchette, " History of Caniida," vol. 1, p. 441. The oaths were abol- ished by the <^,uebec Act of 1774, -V- 18 CONSTITUTIONAL HISTORY OF CANADA. Britain. The instrument directing him to appoint the Council was issued under the King's " Royal Signet and Sign Manual." * The Governor and Council were empowered under the " Royal Signet and Sign Manual" to advance, as it were, a step beyond the threshold of legislation. They 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- 'ng 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 This epoch was one of experiment and tr:*nsition. 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 : sometimes collision threatened : often doubt and fear were the result. The Canadian noblesse were much dissatis- 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 Papore," p. 43. The Baron raises, pp. 44-45, an interesting^ constitutional issue. He doubts " whetlier a power of this kind could be legally communicisd to the Governor by any other instrument than letters patent un- der the Oreav beal of Great firitain, publicly read and notified to the people, to the end that the acts done by \irtue of them may have a just claim to obe- dience." As to private instructions to the Governor, the people were not as- sured whether thpy 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 " Maiieres 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 were 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 wer« engaged in trade a number <^f inferior officers and dis- banded soldiers. The number of French Canadians amounted to about 150,000 souls — all Roman Catholics. The British co- •*r liiii] * " Debates on the Canada Bill," p. 102. (Evidence of Governor Carleton.) He spoke for the noblesse ; not for the rest of the people. See "Maeeres," p. 139. t Attomev-General Thurlow's Report to the King, on the State of Canada, January 22nd, 1773. Quoted in Chrifatie's "Lower Canada," vol. i. pp. 57-68. \ " Maseres," pp. 288-289. 20 CONSTITUTIONAL HISTOR\ OF CANADA. |i 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 Royal 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. t 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.) CONSTITUTION Ali 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 III. ,1* FRENCH AND BRITISH DESIRE A HOUSE OF ASSEMBLV. In tho month of January, 1774, the British colonists in Montreal and Quebec sent to the King a petition, and to the Earl of Dartmouth, Secretaiy 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 c<.'nclusion, 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 «he French were in favoi.v 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 rcpre8entati\'os, the French would not join in the petition. (Ibid, p. 40.) The language of the British petition was verj' far from being straightforward. The truth would seem to be that both races were blamevrarthy. 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 Assembly, is that of Zachary Maoaulay, father of Great Britain's greatest historian. rONSTITUTW)NAI< HISTOUY OK CANADA. 2n stated that the British colonists, encouraged by the Royal 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 rxcomplishment 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 noihing that would contribute more to their obtaining a General As- 24 OONSTITUTIOIVAL HISTORY OF (.'ANADA. I 1 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 matter whatsoever, both of legislation and taxation. Such a previous confession of political faith would greatly tend to remove the prejudices in the n^Inds of many people in England against the erection of new Houses of Assembly in America. Thesn prejudices arose " from the cond net of the Assembly in Boston and in others of the American Provinces, in totally denying the su- preme authority of Parliament."* The Biitish 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 Britisn Islanders would turn away in disgust and in wrathful, ness. About the month of February, 1774, a petition of the French Canadians was presented to the King. Opening ' Maserea Papers," pp. 35, 37, 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. Fxcm 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 05 names, sonie 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 I'annfie 1764, votre Majesty daigna faire cesser le gouvernement militaire dans cette colonic, pour y introduire le gouverne- ment civil. Et d6s Tftpoque de ce changement, nous commenQames k nous appercevoir des .nconvenients qui rSsultoient des loix Britanniques, qui nous Stoient jusqu'alors inconnues." (" Maseres Papers," p. 113.) t The torture of the vack, in the administration of the French criminal law of Canada, was of common occurrence. (See '' Christie's History of Lower Canada," vol. i. p. 11.) The British conquest abolished this diabolical and barbarous practice. But, strange to say, the Engi'sh ministry were oh the point of re-enacting the French criminal law in 1774, and were only prevented by the strong remonstrances of Mr, Hey, Chief Justice of Quebec! (Maseres, p. 231.) In 1774 Governor Carleton believed there were more punish- ments in the law of England than in the law of Canada, but could not pro- nounce. (" Debates on Quebec Bill," p. 117.) He might have safely pronounced in favour of Canada -barring the rack. See note to page 34. i .; • i M B ill , ! 20 CONSTITUTIONAL HISTORY OF CANADA. for the extension of the Province to its former boun- daries : for the bestowal of the Royal favours on all the inhabitants without distinction. But not one word nor hint concerning a House of Assembly. Thj signers of the petition presented a memorial in its support. The most noteworthy feature of the memorial was its prayer for extension of boundary. It entreated that, as under the French Government, Canada was per- mitted to extend over all the upper countries known as Michilimakinac, Detroit, and other adjacent places, as far as the River Mississippi, so the colony night now be enlarged to the same extent. The King was also im- plored to re-annex to the Province the coast of Labrador, which formerly belonged to it, and had been taken from it since the peace. It was represented that the colony was not in a condition to defray the expenses of a Gene- ral Assembly. A council of a larger representation than heretofore, to be composed partly of British and partly of French, was suggested in preference. I ' i CHAPTER IV. - «t -. 1 ! THE BRITISH QOVERNMENT REFUSE CANADA A HOUSE OF ASSEMBLY. CLASS LEGISLATION — THE QUEBEC BILL, 1774. In the House of Lords, on the 2nd of May, 1774, the Earl of Dartmouth introduced a Bill " For making more Effectual Provision for the Government of the Province of Quebec." The measure was founded on the petition of the French noblesse ;* every clause of it showed that the petition of the British colonists had been unjustly and contemptuously rejected. Nor did the Bill recognise the wishes of the majority of the French Canadian people.t Even in that gloomy epoch of the constitutional history of Great Britain — a time when servile majorities, the * " MMieres Papers," p. 181. t Goremor Carleton, in his examination before the Oommittee of the House of Commons, stated that an Assembly composed of the British inhabit- ants would gire (preat offence to the Canadians. He had no doubt they would greatly prefer, to such an Assembly, the rule of a Goremor and Legislative Council. Several of the Canadians had told him that Assemblies had drawn upon the other Colonies so much distress, riot, and confusion, that " they wished never to have one of any kind whatever." ("Deoates on Quebec Bill," pp. 106-106.) On the other hand, M. de Lotbiniere, a native Canadian nobleman, declared before the Committee that the natural inclination of the Canadians would be to be govcnied by a Legislature like that of Great Britain, provided they themselves were allowed to bo part of it. An Assembly war suitable for Canada. The Canadians would certainly desire a freer government than a Governor with a Council, the members of which he was to appoint, and could remove and suspend. He (M. do Lotbiniere) considered cuch a Council in no other light than that of a despotism. He believed the people would wish to choose their own Council, and not leave the choice in the har.ds of the Crown. ("Debates," p. 162.) The weight of belief leans toward M. de Lotbiniere rather than toward the Governor. fr CONSTITUTIONAL HISTORY OF CANADA. ! i i i pampered Praetorians of the Court, rushed daily to the attack on the citadel of English freedom — this Bill stands conspicuous for the criminal ignorance in which it was conceived, and the perilous rashness in which it had its birth. The indecent haste with which the Bill was rushed through the House of Lords, showed that the Prime Min- ister, Lord North, and his colleagues were urged forward by a spur which was then at its sharpest. On the 17th of May the Bill passed the Lords. Tossed, as it were, to the Commons, it came before that House for the second reading on the 26th of May. Here it was op- posed by the outnumbered but undaunted band who did battle for the imperilled constitution. Burke, Fox, Colo- nel Barr6, Chas.Townshendjr., Serjeant Glynn, combatted those enactments which proposed to extinguish the rights which British colonists inherited as members of the Island races.* Lord North, with his Attorney-General Thurlow, and his Soli^ itor-General Wedderburne, defended the Bill in its most iniquitous clauses, t They voted down an amendment by Mr. Mackworth, to establish trial by jury, in civil cases, at the option of either of the disputing parties. I The Government, and its servile horde, next * See " Debates on the Canada Bill," passim. See note, ante p. 16, Forsyth's " Constitutional Opinions." t Bee " Debates Canada Bill," passim. X ' * Debates on Canada Bill," pp. 254, 290. Strange to say, this optional system had been in operation for ten yearsi, and worked well. See Mr. Mansfield's spee«hin " DebateN," p. 91. Mr. Mansflold opposed the Bill on behalf of the mer- chants of London. CONSTITUTinNAl, IllSTOHY OK TAN ADA. 29 trampled down an amoiidmcnt })y 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.* 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 every colonist with British blood in his ^'^eins — was that it denied to him his native right to the sovereign boon of habeas coi'pus. Mr. Dempster moved an amendment to provide that the Bill should enact that "the English laws of habeas coipus, and of bail in cases of commitment/' should prevail in Canada. The amendment was lost. A motion of the same mem- ber, thai 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 20, received its third reading. It was sent back to the House * " Debates," pp. '..90, 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 ■hall be had to the laws of Canada, md not to the laws of England. Hence it must follow that if a man were deprived of his liberty by a lettre de oachet, and application were made to the Chief Justicu 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 impri8on<3d by the King's lettres de cachet. See " Maseres Pajjers, pp. 228-229." M 30 CONSTITUTIONAL HISTORY OF CANADA. of Lords, with a f^w verbal umendments which had been tacked on to it in che Commons. The Earl of Chatham, trembling, at the time, on the verge of the grave, dragged himself down to the House of Lords, to raise a prophetic warning against the Bill. He 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- jects in England and Ireland, and finally lose him the hearts 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 Recorder, 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. ill., iv. CONSTITUTIONAL HISTORY OF CANADA. :M berlain when the King proceeded to the lloust^ of Lords to prorogue Parliament. He assented to the Bill j 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 ppssed a measure which in its far-reaching, tlisas- 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 Billt It is probable that this vicious measure had one object in view. It is certain that it had in view a second, to the 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 tbe grounds the great legist took was, that in a political ,7oiiit 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 persons were injured, and no jury laws in existence, they would have no one to whom to apply but to judges holding oiiflce at the pleasure of the Governor, and certainly at the pleasure of the Crown. a 32 CONSTITUTIONAL HISTORY OF CANADA. tie to the discontented Thirteen Colonies. The second object was proclaimed by the lips of Solicitor-General AVedderburne 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 the situations they hold under (rovernment. 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 memorable Act. The preamble recited the Royal 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 countrv, 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 CANADA. 83 immense territories, especially to the west, should be an- nexed to the Province of Quebec* The Act revoked the Royal Proclamation ; with the revocation was violated the Royal 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 clau^id : ©'""t 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 enactmeut is too long to be reproduced here. Bancroft says on the matter, vol. 6, p. 527 : "It (the Bill) extended the boundaries of the(Quebec) Government to the Ohio and the Mississippi : and over the vast region wh'-'h in- cluded, besides Csnada, 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 one 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 enjojuient of the benefit of the laws of our realm of England." X The dues amounted 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. i"»Ba(« H 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 Qeorge 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 commoa 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." r; no (•ONSTITITTIONAI, HISTORY OF CANADA. ;! tween the first of January and the first of May. In snch 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 Roman 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 o\o7 five immense territories inhabited by twenty thousari-l people of British blood ; this was unjust. It deprived all these people of trial by jury in civil cases ; this was harsh. In their faces it shut the doors of local Parliaments; this was unconstitutional. But, worst of all, the Act robbed the British colonist of Canada, his French Canadian fellow-citizen, and the men of the five incorporated territories, of the sovereign right of Habeas Corpus ; and this was rank tyranny. CHAPTER V. CANADA AND THE THIRTEEN COLONIES PROTEST AGAINST THE QUEBEC BILL. No sooner had the Quebec Act reached Canada, than it was received by the British colonists with a stern dis- satisfaction which found vent in resolute remonstrance. These men at once felt the full force of the statement of Mr. Thomas Townshend, jr., when opposing the Bill in the House of Commons. For that clear-headed friend and defender of the Constitution had told the Ministry : " You have given up to Canada almost all that country which was the subject of dispute, and for which we went to war. We went to war calling it the Province of Vir- ginia. You tell the French it was only a pretext for going to war ; that you knew then, you know now, that it was part of the Provmce of Canada."* The general feeling of alarm t which seized upon the British colonists found expression in earnest public meetings. They prepared, with all speed, a petition to the King ; one to the House of Lords ; a third to the House of Commons. The petition to the King § opened with a reference to the faith of his " Sacred Majesty's Royal Proclaiiiation." Upon that faith * See "Debates on Canada V'll," p. 4. t Maseres Pa^)ers, p. 238. § It was dated "Quebec, 12th Nov., 1774 ;" and presented to tlie Kingf in the month of January, 1775. ft; I. , m 1 i f. ! i 38 CONSTITUTIONAL HISTORY OF CANADA. British colonists made their homes in Canada. In consequence of this fact, " the value of the land and the wealth of its inhabitants were more than doubled." But by a late Act of Parliament the petitioners " found, and, with unutterable grief presumed to say * * that they were deprived of the franchises granted by His Majesty's Eoyal predecessors, and by the petitioners inherited from their ancestors." The evil results of the Act were enumerated. The British colonists had lost the protection of the English laws. In their stead the laws of Canada were to be introduced — " laws to which we are utter strangers, disgraceful to us as Britons, and in their consequences ruinous to our properties, as we thereby lose the invaluable privileges of trial by juries." The writ of habeas corpus was " dis- solved." In consequence, the petitioners were subjected, " to arbitrary fine and imprisonment at the will of the Governor and Council, who may, at pleasure, reu'ler the criminal laws of no effect, by the great power that is granted Lo them of making alterations in the same." In conclusion, the petitioners most humbly implored the King to take their unhappy state into consideration, and to grant them such relief as in his royal wisdom he should think meet. The petition to the House of Lords * was, in substance, similar to the one presented to the King. In the colo- nial innocence of their hearts, the petitioners concluded in this strain : — * The petition bore date, Quebec, Nov. 12. 1774. \ ^f CONSTITUTIONAL HISTORY OF CANADA. 39 " In this cruel state of apprehension and uncertainty, we humbly implore your lordships' favourable interposi- tion, as the hereditary guardians of the rights of the people, that the said Act may be repealed or amended." On the 17th of May, 1775, Lord Camden presented the petition to the House of Lordo.* At the same time he introduced a Bill to repeal the Quebec Act. But the Earl of Dartmouth opposed the Bill, and on his motion it was rejected. I The petition to the House of Commons was from " His Majesty's ancient subjects, the seigneurs, freehold- ers, merchants, traders and others settled in H s Majes- ty's Province of Quebec, "§ The petition opened with the statement that t!.e Royal Proclamation was the main inducement to British settle- ment in Canada. Then came the assertion that the country had flourished chiefly through the industry and enterprising spirit of the British colonists. Through their hards passed four parts out of five of all the imports and exports of the country. Their real and personal property was, excluding the possessions of the religious * •• Parliamentary History," Vol. 18, pp. 6i6— 666. X Ibid. p. 676. The Con ten ta for the Earl of Dartmouth's motion were 88, non-con* ^nts, 28. i Maseres Papers, p. 254. In the "Case of the London Merchants trading to Quebec," which, the previous year, had been presented to members of both Houses of Parliament against the passing of the Bill, it was stated that sixteeri of the Seigniories of the Province, and some of them the most v.^'urtble ones in the country, were in the nands of the British colonists. The same document stated that, in 1773, Canada exported 350,000 bushels of com ; whereas, in the French period, it exported none at all, and produced hardly enough for its own siibaistence. Maseres' Papers, pp. 202—213. I i] - r 1: 40 CONSTITUTIONAL HISTORY OF fJANADA. communities, equal to one-half of the whole real and per- sonal valuation of Canada. The petitioners had observed, with deep concern, that, in a certain examination taken before the House of Com- mons,* the British colonists had been grossly abused and misrepresented as well as to their numbers as in their importance in the Province. The number of French Canadians had been greatly exaggerated, f ?^, 1 the last computation, it was about 75,000. On the otuer hand, an enumeration of the British showed that at this time they amounted to upwards of 3000 souls. t The Act had " already struck a damp upon the credit of the country." It had " alarmed all the petitioners with just apprehensions of arbitrary fines and imprison- ments." If the Act were carried out, it " would oblige the British to quit the Province, or, in the end, it must accomplish their ruin and impoverish or hurt their gener- ous creditors, the mer<3hants of Great Britain." li>^i^ petition ended with a prayer for the repeal or amei^l- ment of the Act ; that the British colonists might have the benefit of the English laws in so far as related to per- sonal property ; and that their liberty might be ascer- tained according to their ancient constitutional rights and privileges. * The allusion is to the examination of Gov. Carleton and others. See " De- bates," pp. 100-169. t See ante, p. 19. Carletun's evidence, as to the number of the Britiah in 1770, seems untrustworthy. But, accepting his figures, the increase to upwards of 3,000 In 1774 is quite comprehensible, if we take into account the disturbed state of the Thirteen Colonies. CONSTITUTIONAL HISTORY OF CANADA. 4] Sir George Savile, who, on the 18tL of May, Biib- mitted the petition to the Commor 3, moved to repeal the Quebec Act.* Lord North, during the debate, made an announcement not calculated to appease the fears to which the Quebec Act had given rise in the Thirteen Col- onies. " He stood up in his place to assert that, if the refractory colonies cannot be reduced to obedience by the present forces, he should think it a necessary mea- sure to arm tho Roman Catholics of Canada, and to em- ploy theiii in that service, "t Charles James Fox charged that Lord North " did not choose to own who was the real planner of the Quebec BiU. 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."^: 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^f But it was not only the British colonists who were grieved and disappointed wiin the BiU. The French • •' Parliamentary History," Vol. 18, p. 676. t Ibid, Vol. 18, p. 681. t Ibid, VoL 18, p. 681. i Ibid, p. 684. The numbers were : For, 86 ; against, 174. m f PW I ;<,•*■ tf } ^ 1 fi- *" ' gjj ^aJHI 1 i^«| 1 inia f".' 1:1 ill HT""" 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 bsen passed. They had been left in ignor- ance of the petition on which the Bill bad 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 with} aid 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 ; but if they remained quiet, they might depend upon it that the English laws would not be changed." :}• * Maaeres, ♦* Additional Papers," p. 101. t Maseres, "Add. Papers," pp. 102, 103. I Maseres Papers, pp. 188, 134. "Zachary Macaulay" in 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 8t te er 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 ip which the measure was unspai'ingly 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 uuring the last session of the L^ltish Parlia- ment three statutes r/ere 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 rs 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 Cauadian inhabitants, who have formerly smarted under the rigour of the French Government, aiid 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 Itnuwledge " * Maseres Papers, p. 286. t American Archives, 4th Series, vol. 1, p. 912. . 44 CONSTITUTIONAL HISTORY OF CANADA. total dissimilarity to the religion, law and government — of the neighhouring 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 | which linked the Empire and its ofispring. 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. 012. t Ibid. p. Oia t 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 oonoeived, but had alarmed all the English .ProTinces in America, and contrib- uted more, pe hapy, than any other measure whatsoever to drive them into re- elliun 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 ceniiury— 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 ? i!ii! I u iji n HAPTER VI. DISSATISFACTION OF THE MAJORITY OF THE FRENCH CANADIANS. — AMERICAN OVERTURES AND INVASION. The British Ministry, in the passing of the Quebec Act, lia and set two continents on fire. It is , 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 ; thoy denied the authority of the French nobility as n>agi8trate8, and reniated 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, fli! ! \n Great Britain and the United States on the 3rd of Hepteuiber, 1783, was the talisman that set the Canadian Htult* priHtuiers free. The jails disgorged the victims of arl»itrai'y arrests, innocent or guilty. But Governor Haldiinand and the Legislative Couivil gave to these suflFerers neither the melancholy 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 wesitern 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 Champlain, 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 c&rpus. 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, gatliering 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 oppre.ss( d 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, the 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 liis last Iwo years of office, 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. T 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, ji raying for constitutional changes, for equal political rights, for a House of Assembly, for the restoration of the ^aw of hubeas cc/rpus. The Legislative Council became sAstitiir In 1784, by a majority of two-thirds, it passed an ss to the King, thanking him for his protection during the Anierican 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 mwoTity of the people of Canada, had the effect, when it reached England, of postponing the day of constitution S/l government Lord Sidney, one of the principal Secretaries of State, was content that the law of habeas cor'pus should be introduced ; but he was of opinion that those who demanded a Legislative Assembly, trial by jury, and the permanence of the seats of the judges, were persons of evil dispositions and of ques- F i ir 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- salaried members, the extension of British jurisprudence to places not yet organized for judicial purposes and trial by jury in civil cases. Counter-petitions from the party of tyranny followed the others to London. The British 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, Freneh Canadians, would be elected by their co-nationalists. The war of petitions and counter-petitions was waged from 1785 to 1783. 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 th^ 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 « Garneau, " E'st. Can,," vol. il. p. 168. CONSTITUTIONAL HISTORY OF CANADA. 91 )r- a len 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 cliaos. The worst of the revelations was, that the fountain of justice 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 ho had been in communication with the litigants. Another judge, in order to nonsuit a party in a case, himself produced a letter from pv iiiUividual interested in the action, which letter, denying certain facts, the judge accepted for evidence. In another case, the same judge stopped the suit, simply observing that he knew the defendant, and that he was a man quite incapable of the act of which he stood charged. Worst 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. The intellectual condition of the people was wretched. An ignorance, like that Egjptian 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 IMAGP EVALUAT80N TEST TARGET (MT-3) /, ^< t/u f/. illll 1.0 ! 1.1 |5o ""■" llnl^S iL25 i i.4 14 1.6 *W S >> (? / Photographic Sciences Corporation 23 WEST MAIN STMEET WEBSTE!t, N.Y. 14580 (716) 872-450? ^% \ F A ^\ <> ^ 6^ '/.A 92 CONSTITUTIONAL HISTORY OF CANADA. Province. Nor, in the matter of the repression of crime, was there any eflfective agency. A court-house did not exist in Canada ; nor was there a serviceable prison nor a house of corre ion 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. n^ 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 HISTORY 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 Div^ine 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 cut 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 jo'xied the Royal standard in America, before the Treaty of Separation, in 1783," the Order in Council commanded * See Lorenzo Sabine's " History of the United Empire Loyalists." 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 theii* race had not become degenerate. It mv.st 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 or reverence hap- pened to be in the ascendant. Parliament, which is as wi ffermrm 96 CONSTITUTIOXAL 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 ariiy to the British ColoDists 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 the V/estern 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 st'^adfast 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 KINO 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 reguladons 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 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. i\ 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 new regulations for the future government of that Pro- vince. The new Bill was intended to put an end to the diflferences 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 Aaierica ; 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 and 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 manaer, 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 cf 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 li 100 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 I*rovince."* 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- selves.* Pitt obtained leave to bring in the Bill. ♦ " Parliamentary History," vol. xxvli!. p. 1379. A CHAPTER XIX. THE BR1TI8II 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 Lymbiirner, 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 v/as 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 invebtigation made b/ 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 perii)d, 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 veiy clear. On behalf of those he represented, Mr. Lymbumer op- posed the intention of the nev; 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 W>)80ern part of the Province; it was not the desire of the people of the Lower or Eastern part. The Loyal- ists, as well as t^ie 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 iht interest, the feelings and desires of Eastern Quebec ought to be consulted. I^efer- 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 situa- m 104 CONSTITUTIONAL HISTORY OF CANADA. tion, and the nat' ral dependence which their country must have on the lower parts of the Province.* As an addi- ciona! 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 redu.ced 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 v as an exp(»dient extiemely dangerous in any infant coxony ; 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 1? ws of inheritance, tliese 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 Province. The French law, in this respect, * Mr. Lymburner was somewhat inconsistent with himself. He hiid just pre- viously stfittid 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, haa infinitely more influence in the country than the seigniors. For it would not be di£xjult 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- presentativei?. 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 arirument had no effect. The Bill established tha here- ditary prioclple. But no Uovemor, in either Pro\'ince, ever ventured to (five it effect. The Goveruor* knew anada better tbao British Miniitten or Par- Bamenti. 106 CONSTITUTIONAL HISTORY OF CANADA. Government. He acknowledged it was the intention of hip constituents that the Province should defray these expenses. But Canada had been vso long oppressed and neglected, and every object of industry and improvement had beeii 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 security for the obedience of the subject ; and that those who did not approve of these |)olitical principles might leave the country." " He hoped, therefore, that the House of Commons would relcMse the Province of the expenses cf the Civil List for a certain number of years.;}: Mr. Lymburnei- asked, on behalf of ijis constituents : Thf 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 Con?nion8 granted the request of Mr. Lynibunier, 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 ncccs' ary exi-cubesof the Civil Government."— Christie, Hist. L. C, .'ol. i., p. 10». 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 rot pass. The petition stated that the Bill would be attended with gi'eat injury tc the Province, and particularly to the trade and commerce of the petitioners. The Speaker having put the question, " that the Report 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 Constiiaticn 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 ' " Pwllamentary History," vol, xxix. p. 105. 108 CONSTITUTIONAL HISTORY OF CANADA. 1 great object in the institution of all popular assemblies was, that the people should be freelj^ 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 eleCvion, 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 countrie3 where they made a part of the ConBtitution, 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 anew Constitution worse than better. If the Council were wholly hereditary, he should equally object to it : it would only 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 wag 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 gi-eater part of these Protestant clergy were not of the Church of England; they v/ere 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 claitSes 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 OP CANADA. Ill desired 1 Was it not rather to be avoided 1 Was it agreeable to general political expediency 'i The moat de- sirable circumstance was, that the French and English in- habitants should unite and coalesce, as it were, into one body, and that the diflferenfc 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 forc"!, 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 91. The amendment of l*itt was in- serted in the Bill.* The King, on the IfJth of August, 1791, gave his assent to the measure. * " rarliameiitary Hiatory," vol. xxix. pp. 42f), 430. : ! CHAPTER XXI. (> THE CONSTITUTIONAL ACT — 1791. The measure known in Canadian History as the " Con- stitutional Act," contained no fewer than fifty sections. Stripped of all technical wordiness, its more important provisions may be followed without wearisomeness. * The Act opens with the confession, that the measure of 1774 was " in many respects inapplicable to the present condition and circumstances " of the Province. It was next declared " that it is expedient and necessary that further provision should now be made for the good gov- ernment and prosperity of the Province." As an advance towards this result, so much of the Act of 1774 as related to the appointment of a Council for the affairs of the Province, or to the powers granted to that Council, wrs repealed. The Act divided Quebec into Upper and Lower Canada. To each Province was given a Legislature, to be composed of a Legislative Council and an Assembly. To constitute the Council, the Governor of each Province was em- powered to summon " a sufficient number of discreet and proper persons" : from XTpper Canada, no fewer than seven ; from Lower Canada, no fewer than fifteen. * The Act is the Slst George 3rd, c. 81, (1791). Its title : " An Act to Repeal certain parts of an Act passed in the 14th year uf His Mnjest>'8 reign, intituled * An Act for making more effectual provision for the govenunent of the Province of Quebec, in North America.' " !>1 ! .1 II \' CONSTITUTION A]. HISTORY OF CANADA. 117 No person under twenty-one years of age was to be summoned to the Council ; nor any one who was not a natural-bora subject of the King, nor naturalized by Act of the British Parliament, or who had not become a subject by the Conquest and Cession of Canada. A seat in the Legislative Council was to be for life. The Act then entered upon an attempt to lay the foun- dation of a future Canadian aristocracy. It was provided that whenever the King should think proper tc confer, by Letters Patent under the Great Seal of either Pro- vince, any hereditary title of honour, descendible accord- ing to any course of descent limited in such Letters Patent, His Majesty might annex thereto, by the said Letters Patent, an hereditary right of being summoned to the Legislative Council of such Province. Every per- son on whom such right should be conferred, or to whom it should descend, was to be entitled to demand from the Governor his writ of summons to such Legislative Council. The Governoi-s were empowered to appoint and remove the Speakers of the Legislative Councils. The whole number of members to be chosen for Upper Canada were not to be less than sixteen ; for Lower Ca. nada, not less than fifty. For districts, or counties, or "circles," the electoral qualification was : That each voter should be possessed of lands held in freehold, or in fief, or in roture, or by certi- ficate of the Governor and Council of the Province of Quebec. The lands were to be of the yearly value of 118 CONSTITUTTONAL HISTORY OF CANADA. forty shillings sterling or upwardc, over and above all rents and charges. The electoral qualification for towns or townships was : That each voter should be possessed of a dwelling-house ar 1 lot, held by the tenure already described. The yearly value of such property was to be five pounds sterling or upwards. Or, these conditions being absent, a person who had been a resident in a town or township for twelve months before the date of the writ of summons for the •election, and who had paid one year's rent for his dwel- ling, at the rate of ten pounds sterling per annum or up- warcis, was entitled to a vote. No person was capable of being elected a member of the Legislative Assemblies, who should be a member of either of the Legislative Councils ; or a minister of the Church of England , or a minister, priest, ecclesiastic or teacher, either according to the rites of the Church of Kome, or any other fcrm or profession of religious faith or worship. No person, unless twenty-one years of age, and a British subject, could vote for a member of the Assembly, or hold a seat in that body. No person could vote for a member, or sit as one, who had been attainted for treason or felony in any court of law within any of the King's domi- nions. The Governors were empowered to prorogue the Legis- latures, and to dissolve the Legislative Assemblies, when- ever they deemed it expedient. The Legislature in eacli Province was to be summoned once at least in every CONSTITUTIONAL HISTORY Oh CANADA. 119 twelve months. Every Assembly was to continue four years from the day of the return of the writs, and no longer : subject, nevertheless, to be sooner prorogued and dissolved bv the Governor. No member of either House was to sit or vote until he took the oath of allegiance. The Governors were to transmit, to the Secretary of State, copies of Bills to which their assent had been given. The King, in Council, might declare his disallowance of such Bills, within two years of receiving them. Bills reserved for the King's pleasure were not to have any force till his assent had been previously communicated to the Legislatures.* The Governor of each Province and the Executive Council were to be constituted a court of civil jurisdic- tion for hearing and determining appeals. But this enactment v/as made subject to the future action of the Legislatures, f Provision was made " for the support of a Protestant clergy in each Province." In the Quebec Act of 1774, there was a« clause which confirmed to the Roman Ca- tholic clergy ot uh at Province "their accustomed dues and rights with respect to such persons only as should profess the said leligion." There was also added the condition, " that it should be lawful for His Majesty to make such provision out of the rest of the said accustomed dues and * All the preceding enactments, with the exception of the first, which relates to the abolition of the Council (created by the Act of 1774), were repealed by the Union Act (3-4 Vic, cap. 36, sec. 2). t other provisions, with regard to appeals, were afterwards made by the Legislatures of both Provinces, under the powers given by thi section. I t ¥ If^O CONSTITUTIONAL HISTORY OF CANADA. rights for the encouragement of the Protestant religion, and for the maintenance and support of a Protestant clergy within the said Province, as he should think neces- sary and expedient." The present Act of 1791 having recited the above clause of the Act of 1774, went on to state : that, on the 3rd of January, 1775, the King, under his " Royal Sign Manual," directed that no incumbent professing the reli- gion of the Church of B-ome, appointed to any parish in the said Province, should be entitled to receive any tithes for lands or possessions occupied by a Protestant ; but that such tithes should be received by such persons as the Governor should appoint. The tithes were to be reserved by the Receiver-General of the Province, for the support of a Protestant clergy to be actually resident within the same, and not otherwise.* All growing rents and profits of a vacant benefice were, during such vacancy, to be re- served and applied to the like uses. The provisions of the Act of 1774, and those contained in the Royal Instructions of 1775, were now, by this Act of 1791, declared to remain and continue in full force and effect in each of the Provinces of Upper and Lower Can- ada. To the Legislatures of both Provinces power was given to vary or repeal the provisions of the Act of 1774, and those of the Royal Instructions. But this power was * " Tithes we; e abolished in Upper Canada by 2 Qeo. iV. cap. 82. and are not paid in Lower Canada by Prolecitants ; so that the section seems unlikely to have any effect, except as maintaininK the Roman Catholic clergy in Lower Canada in their right to tithes froii Roman Catholies."—" Consolidated 8tftt< utw of Canada," p. xvii. {Vib»). .--^ CONSTITUTIONAL HISTORY OF CANADA. 121 only to be exercised under a certain restriction, to be afterwards mentioned. The present Act provided that tlie King might authorize the Governor of each Province to make allotments of land for the support of a Protestant clergy. The allotments were to be made out of the lands of the Crown, and v/ere to " bear a due proportion " to the amount, of lands which had in time past been granted by the Crown. All future grants were to carry with them " a proportionable allotment and appropriation of lands " for clerical purposes. No grant of land was to be " valid or effectual," unless containing a specification of the lands allotted for ecclesiastical uses. These clerical grants were to be, " as nearly as the circumstances and nature of the case would admit, of the like quality " as the secular grants which they accomijanied. Further, they were to be equal in value to the seventh part of the secular lands. The rents arising from these ecclesiastical grants ^vere to be devoted solely to the maintenance and support of a Protestant clergy. It was further provided that the Governor, with the advice of the Executive Council, might erect parsonages, endow them, and present incumbents to them. The incum- bents were to enjoy their benefices as in the case of the incumbents in England. The presentations to parsonages and the enjoyment of them were to be subject to the jurisdiction granted to the Bishop of Nova Scotia.* * The Imperial A«t 8-4 Vic. cap. 78, 8. 11, repeals so much of the enact- ments Just cited as relates to any such clerical land reservations thereafter to be made. The Provincial Act 14-15 Vic. cap. 17ft, repeals th% enactments H 122 CONSTITUTIONAL HISTORY OF CANADA. The Legislative Council and Assembly of each Pro- vince were empowered to vary or repeal the provisions respecting the ecclesiastical lands. But it was provided that before such variation or repeal became law, it was to be laid before both Houses of Parliament in Great Bri- tain. It was not to be lawful for the King to assent to such Act until thirty days after it had been laid before both Houses. Nor was it to be lawful for the King to give his assent in case either House of Parliament, with- in such thirty days, addressed him to withhold his assent.* The same reservation applied to the King's prerogative touching the granting of the waste iands of the Crown within the two Provinces. In future all lands to be granted in Upper Canada were to be in free and common soccage ; and the same privilege was to be extended to Lower Canada if the grantee so desired it. The privilege, however, was sub- ject to such alterations with respect to the nature and consequences of such tenure of free and common soccage, as the Legislature of Lowex' Canada might choose to make. relating to incumbencies, saving past rights if found valid, and directing how the presentation to any incumbency which is found to have been legally estab- lished, shall thereafter be made. The said Provincial Act was passed under the authority given in a section Just cited, of the Act of 1791.— "Con. Stats. Can,," p. xvii. * This taction (the 42nd) of the Act of 1791, requiring that Bills respecting ecclesiastical rights and waste lands of the Crown should be reserved and laid before the Imperial Parliament, before receiving assent, was repealed by the Imperial Act 17-18 Vic. cap. 118, sec. 6. This enactment enables Her Majesty to assent to any Bill of the Canadian Legislature without its being laid before the Imperial Parliament ; and the Governor to assent to any Bill without r«- serving it for the signification of Her Majesty's pleasure.—" Con. Stats. Can.," p. xviil. ( r ^ / ^ r 4 CONSTITUTIONAL HISTORY OF CANADA. 123 The provision was inserted in the interest of the seigniorial tenures. There was a clause which at length emancipated, from the feudal tenures, the settlers in Western Canada. It was enacted that any person in Upper Canada, holdintr his or her lands by virtue of any certificate of occupation derived under the authority of the Governor and Council of the Province of Quebec, and having po>ver to alienate the same, might obtain a re-grant in free and common soccage. The forty-sixth clause of the Act establishes a principle which, h .d it been conceded in season, might have pre- served the Thirteen Colonies for the Empire. The clause was one of high importance to British A merica ; for it pledged the faith of King, Lords and Commons to the renunciation of the taxing power, " except only such duties as it may be expedient to impose for the regulation of commerce." The clause in question recites an Act passed in the 18th year of the King.* In this Act it was declared, " that the King and Parliament of Great Britain will not impose any duty, tax or assessment whatever, payable in any of His Majesty's Colonies, Provinces and Planta- * This Act, intended to win back tlie revolted Thirteen Colonies to their alle- jrianco, was entitled "An Act for removing: ah Joubts and apprehensions con- cerntog taxation by the Parliament of Great Britain in any of the Colonies Provinces and Plantations in North America and the West Indies : and for re- pealing so much of an Act made in the seventh year of the reign of his present Majesty as im'xjses a duty on tea imported from Great Britain into any Colony or Plantation In America, or relates thereto." 124 CONSTITUTIONAL HISTORY OF CANADA. 1 1 tions in North Anier:' a or the West Indies, except only such duties as it may be expedient to impose for the regulation of commerce ; the net produce of such duties to be always paid and applied to and for the use of the Colony, Province or Plantation in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective general Courts or general Assemblies of such Colonies, Provinces and Plantations are ordinarily paid and applied." This Act of 1791 now declares that it is necessary for the general benefit of the British Empire that such power of regulation of commerce should continue to be exercised by His Majesty, and the Parliament of Great Britain ; subject, nevertheless, to the condition hereinbefor reecited with respect to the application of any duties which may be imposed for that purpose. It was then provided that nothing in this Act of 1791 should prevent the operation of any Act of Parliament establishing prohibitions or imposing duties for the regu- lation of navigation and commerce. And, further, that neither of the Provincial Legislatures should have power to vary or repeal any such law or laws, or in any manner to prevent or obstruct their execution. But the Act declared that the net produce of such duties should be applied to the use of the respective Provinces. The Act concluded by providing that its powers should come into force not later than the 31st of December, 1791. Further, that the time for the issuing of the Writs CONSTITUTIONAL HISTORY OF CANADA. 125 of Summons and Election should not be later than the 31st of December, 1792. Pitt stated that the concession of the Habeas Corpus Act of England was to be a principal characteri3tic of the new Constitution. There is nothing in the Constitu- tional Act which, in express and precise language, guaran- tees Habeas Cm-pus. The Act only grants it in the terms of the thirty-second clause, which declares " that all laws, statutes and ordinances which shall be in force on the day to be fixed for the commencement of this Act within the said Provinces . . . shall remain and continue to be of the same authority and effect . . . as if this Act had not been made, and as if the said Pro- vince of Quebec had been divided." The Habeas Corpus Act was put in force by the ordinance of 1785. It was therefore a law when the Constitutional Act came into effect. But the clause gave the Legislature power to repeal or vary the laws, statutes and ordinances in force at the time it came into operation. CHAPTER XXII. THE DEFECTS OF THE CONSTITUTIONAL ACT. The marvellous political prescience of Charles James Fox was never, perhaps, so truly and so sadly exemplified as in the objections which he raised against the Constitu- tional Act. The greatest Liberal of his age seemed to stand, as it were, upon the mountain peak of the Consti- tution, and project his vision, clear wi*h the light of po- litical prophecy, forth like an arrow's flight, right into the far and misty Future. Almost everything to which he took exception proved, in the after years of Canadian history, a source of heartburning to the people, and of imminent peril to the State. He opposed a Legislative Council nominated by the Crown ; the appropriation of the public lands for ecclesiastical purposes ; the division of the Province and the consequent isolation of the in- habitants of both races. The first two of these questions were destined, for over half a century, to be the political plagues of Canada, and the chronic perplexity of Great Britain. The third question is left to Time, the great alchemist who transmutes, in his slow, creative labora- tory, the slements of doubt and danger of to-day into forces of safety in the hereafter. William Pitt, in one respect, was no less a prophet than Fox. He defended his division of Canada on the ground CONSTITUTIONAL HISTORY OF CANADA. 127 that if there were but one Assembly, and parties nearly equal, there would be perpetual faction. The Federal system under which we live, the sixth experiment in gov- ernment which Canada has made in the period between 1760 and 1867, is proof of the keen political foresight of the great Tory statesman.* The Constitutional Act was a sop thrown to Canada : not a full constitutional concession. In all charity, the intent of the British Ministry must be conceive'^ to have been good. But, in matters of government, the practical effect of an intent, good soever as the intent may be, is useless, worthless and wasted, if there be not taken into account the historical traditions, the immediate wants, the aspirations of a people. And, in the matter of aspi- rations, colonies, dependencies, weaker states — every race that has a Past — looks forward to and lives in the Future. The Constitutional Act failed to recognise these facts. It sought to dig round Canada a moat, guarded by the gib- bering spectre of Medisevalism, to frighten back Liberty from her assault on privileges whose claim to pre-emi- nence was Age, not native and inherent excellence and utility. The Constitutional Act failed the most mischievously in this, that under its future operations the people of Canada had no real and beneficial representation. There * Our changes of government were : In 1760, Military Rule ; in 1763, the introduction of the laws of England ; in 1774, the Quebec Bill ; in 1791, the Constitutional Act ; in 1841, Union of Upper and Luwer Canada ; in 1867, tb« Faderal s^'stem, 12« CONSTITUTIONAL HISTORY OF CANADA. was, it is true, in each Province a House of Assembly. But power it hafl none, except to give utterance to the grievances of the people. The Legislative Councils, no- minated by the Crown, held the Legislative Assemblies by the throat, kept them prostrate and paralysed them. The Act endeavoured to establish a Canadian aris- tocracy. But the effort failed. No Governor ever attempted to stand up against the twin-giants, the People and the Age, to do battle for this feudal anachronism. It is only where the bones and sweat of a score of genera- tions of peasant-serfs fructify the soil, that the tree of aris- tocracy ever strikes root and finds nutriment. And here, in Canada, the free soil, unlike that of Europe in the past centuries, was destined for nobler purposes than to en- slave the toiler in his life and forget him in his death. In a word, the Act was a body without a soul. It was a corpse, breathed upon by the breath of Authority, robed in the threadbare and discarded rags of the British Con- stitution, sent to Canada to be erected as an idol, where, after having stirred up hatreds for half a century, it was finally, with few tears and many rejoicings, buried out of sight, as the repulsive mummy of a principle dead for generations in the Mother Land. Earl Russell, glancing at this portion of our history, says :* — "In 1791, Mr. Pitt and Lord Grenville had given to that Province (Canada) an impracticable Constitu- * See his work "On the English Government," Introduction, pp. Ixvi.-lxvii. CONSTITUTIONAL HISTORY OF CANADA. 129 tion. The Province was inhabited by Frenchmen of the age of Louis XIV., with no taint of the Revolution, and no mark of improvement. It should have been the task of the English Government to infuse into the pro- vince English freedom, English industry and English loyalty. " Instead of that sensible course, it was the object of Mr. Pitt and Lord Grenville to separate English energy from Frencn inertnes'3 ; to shut up the industry of the English in the upper part of the colony, and to preserve the lower province as a sort of museum, where a French nohksse, with feudal titles and orders of knighthood, and tithes and seigniorial rights, might be preserved for ever as a memorial of the happiness of France before her Jacobm Revolution. But 'Fancy's fairy frostwork' melted away before the light of human progress. The titles and orders projected never were created ; all fell into confusion." With all deference to such a man as Earl Russell, it must be said that it is hard to see, in the peculiar cir- cumstances of the Cv untry, what other course was open to Pitt except to divide the Provinces. A Whig will admit that a people has a right to choose its own form of government. It would, therefore, have been unjust to deny this right to the French Canadians. CHAPTER XXIII. THE FIRST PARLIAMENT OF UPPER CANADA. — ABOLITION OK NEGRO SLAVERY. In the month of August, 1791, the King, by an Order in Council, defined the division line of the new Provinces of Upper and Lower Canada.* On the 18th of Novem- ber, 1791, Lieutenant-Governor Clarke, at Quebec, issued a Proclamation announcing that, on the 26th of December following, the Constitutional Act should come into opera- tion in the new Provinces of Upp- duction of slaves, and to limit the term of contracts for servitude within this Province." The preamble opens with this honourable and exalted declaration : — " Whereas it is unjust that a people who enjoy freedom by law, should encourage the introduction of slaves ; and whereas it is highly expedient to abolish slavery in this Province, so far as the same may gradu- ally be done without violating private property."* Then follows a series of well-considered enactments to carry out this beneficent legislation, t There was declared to ♦ See "Statutes of Upper Can., 1791-1831," pp. 41, 42. f Here are the names of these philanthropists and Htatesmen of the wilder- ness — the first on the bead-roll of Upper Canadian worthies :— RoBSRT Gray, Solicitor-General, and principal promoter of the /ct of Emancipation. John McDonnbll. Hugh McDoknill. Joshua Booth. Bbnjamin Pawlino. * * * Baby. Nathakikl Pkttit. Albxandbr Campbbu. David Wh. Smith. Pbtbr Van Alstinb. Hazlbton Spbncbr. Jbrbmiah Frbnoh. Isaac Swazt. EpHRAIX JoHBS. ♦ « ♦ YoDKO. William Mocomb. John Whitb. —Dr. CMmlflr, pp. &84-67S. GONStlTUTiONAL HISTORY OP CANADA. l35 be repealed so much of an Imperial Act passed in 1790,* " as may enable the Governor or Lieut.-Goremor of this Province, heretofore parcel of His Majesty's Province of Quebec, to grant a licence for importing into the same any negro or negroes." The Act then proceeded to de- fine the means by which the negro slavery which had been imported into Upper Canada should be for ever extinguished within the territory of the Western Pro- vince. The object of the Imperial Act of 1790, the most repulsive provision of which the Fathers of Upper Ca- nadian liberty nobly and daringly abolished, was to attract immigration from the United States "to the Bahama, or Bermuda, or Somers Islands, or to any part of the Province of Quebec or Nova Scotia, or any of the territories belonging to His Majesty in North America." The Act made it lawful for any person emigrating from the United States to any of the above-mentioned coun- tries — having first obtained a licence from the Governor or Lieut. -Govern or for that purpose — " to import into the same, in British ships owned by His Majesty's sub- jects, and navigated according to law, any negroes, house- hold furniture, . . . free of duty." The Legislature of Lower Canada refused to follow the noble example set by its compeer of the Upper Province in vindication of the natural *ignts of man. But the British Bench came forward to do what the law-makers * This Act, 80th Oeoi^e III. cap. , was entitled " Ai> Act for Enoouraarinff new Settlen in His Majerty's Colonies and Plantations in America." -m-^ 136 CONSTITUTIONAL HISTORY OF CANADA. of Lower Canada ought to have been proud to perform. In Montreal, in 1803, in the city where, at the time, mercantile avarice choked the pleadings of human nature, and struggled to make slavery perpetual, Chief Justice Osgoode declared negro bondf ge to be at variance with the laws of the country. And, in so doing, he gave liberty to the slaves of Lower Canada.* As Upper Canada began, so, as a rule, whenever, in times past, her people were permitted to act through the Legislature, has she continued. In every movement for- ward, Upper Canada has been the Vanguard Province. And now, at the present hour, she is reaping the rich rewards of her principle of action in the Past, which was this— to reverence whatever is noble and valuable in the Old ; to welcome whatever is excellent in the New. * See Dr. Cannifif, pp. 570-578, for a highly interesting account of slavery in Canada. I. u CHAPTER XXIV. THE GIFT OF RELIGIOUS LIBERTY TO CANADA. To the world, to humanity, to a priuciple of subUme import, the British Conquest brought a boon never, until that time, presented to Canada. This boon was the bestowal and establishment of religious liberty. Here- tofore in our history, this momentous event had achieved no recognition. A few years following the last successful attempt of France to coloni/e Caiada, and while the seventeenth century was yet young, the Court of France gave stringent orders that the Huguenots should be prevented from entering the Province.* The historian, cited below, avers that, during the first twenty years of the Colony, it was observed that certain of the Huguenots, who had taken part in the work of foundingNew France, cherished a marked preference for England. In reference to this assertion, it is necessary to observe that the Huguenot side of the story is wanting. There was no one to place on record the counter-statement of these persecuted French Christians, had the charge been made to their faces ; nor, had they made a denial, would it have been accepted by their enemies at the Court and in the Colony. These Huguenots, with all their faults, were the lights, * See Abb* Ferland's " Cours d'Hiatoire du Canada,,^ vol. i. pp. 168, 169. I 138 CONSTITUTIONAL HISTORY OF CANADA. M the thinkers and the workers of France. Might they not have been the same in Canada 1 In the New Eng- land Colonies, where they were welcomed, they left the deep and permanent impress of their moral and civic excellence.* To their mother country, which so cruelly persecuted and banished them, they left only a memory. But this memory, like an incense to liberty, floats up- ward from dungeons, from scaffolds, from blazing homes and houses of prayer : it soars above the poison vapours of the history of Monarchical France : it ascends and purifies, remaining for the after ages a memorial of heroism and suffering for conscience sake, a perpetual protest against religious persecution, t The world owes it to Great Britain that her conquest of Canada opened, through the jungle and wilderness of intolerance, the broad and beneficent pathways of reli- gious liberty. The Conquest is a matter about which the Canadians of the present day may speak without prejudice or bitter- ness. The ancestors of both races share in a common renown. The victory of the one was untarnished ; the defeat of the other was full of more of the elements of * See M. Chas. Weiss' '• History of the French Protestant Refugees," vol. ii. pp. 284-333. t The historian already quoted treats this grand question of religious liberty in a manner which is at once evasive and equivocal. He says : — " Quelles que soient les opinions qu'oii puisse entretcnir sur I'article de la tolerance religieuse, il faut avouer que I'exclusion des Huguenots a eu pour eflet de procurer plus de liaison entre les differents elements de la society Canadienne, et d'empficher de graves divisions ft Tinterieur."— " Cours d'Histoire," vol. i. p. 276. * CONSTITUTIONAL HISTORY OF CANADA. 139 heroism than are to be found in many triumphs. The sudden extinction of the French power in Canada was naturally, for many a year, a subject on which a gallant race could not be expected to dwell with pleasurable remembrance. But this feeling, soothed by the anodynes of time and justice, has long since passed away. It can- not be denied, in the light of experience, that, unwelcome as may have been the rule of Britain at first, that rule was eventually the best for Canada. Montcalm may be accepted as one of the most single- minded and earnest men that ever represented France on the American continent. Yet he could write : — " Let us beware how we allow the establishment of manufactures in Canada ; she would become proud and mutinous like the English (Colonies). So long as France is a nursery to Canada, let not the Canadians be allowed to trade, but kept to their wandering, laborious life with the savages, and to their military exercises. They will be less wealthy, but more brave and more faithful to us. . . England made a great mistake in not taxing these Colonies from the first, even ever so little. If they now attempt it — revolt.* ^ * See Warburton's "Conquest cf Canada," vol. ii. p. 364. CHAPTER XXV. CANADA PAST AND PRESENT. In no other colony of the Empire has the British Con- stitution been subjected to the same strain and tension as in Canada. In no other colony has that Constitution had opportunity to prove so well its marvellous plastic power and universal adaptability. The questions of race and faith entered, at the inception of British rule, into the problem of government ; entangled it and made it difficult of solu- tion. But these troubles have been met and overcome. The Constitutional Act was framed with an honest in- tent. Pitt never contemplated that his measure should be prostituted to the purposes of oppressing the people of Canada. But to these purposes it was debased. Wield- ing the Act for nearly half a century, a bulwark of Olig- archy, made up of the drift wood of the Army and manned by the buccaneers of the Law, beat back the people of Upper Canada from the object of their dearest wishes : the prize and native right of self-government. In Lower Canada a British oligarchy opposed itself to the interests and wishes of the French Canadians, and to those of many of its own people. In that Province, furthermore, the malignant element of race antipathies, drawing sustenance from both populations, intensified and embittered the struggle to a degree unknown in Upper Canada. In the CONSTITUTIONAL HISTORY OF CANADA. 141 two Provinces the Governors sent out from time to time were, for the most part, fascinated by the Official anacon- das, fell into their folds and became their prey. The Governors wore the puppets and servants of the Olig- archies ; they were ministers to the latter ; the latter were not ministers to them. The great principle at stake for nearly half a century, the principle which comprised all the others, was this — which was to rule l the Legislative Assemblies elected by the Commons, or the Legislative and Executive Councils appointed by the Governors ? In all cases these two auxiliaries of the Constitution set themselves, with politi- cal malice aforethought, to thwart the effo'ts of the Assemblies to obtain control of the Provincial i ovenues. In 1837 the contest culminated, in Upper Canada, in the rising of a section of the people ; in Lower Canada, in serious rebellion. The Imperial Parliament suspended the Constitution of Lower Canada. A special Council, nominated by the Governor, assumed the place of Parlia- ment. But in the year 1841, the Union Act brought both Provinces together, conferred on them Responsible Government and the full privileges of a free Constitution. To our Canadian statesmen who represented the wishes of the people, and who, through good report and evil re- port, loaded with obloquy and blackened with calumnious charges of treason and hostility to the British Constitu- tion, knocked at the door of the Empire until those wishes met with favour and compliance, the Mother Country owes much ; but we owe more. To the wise, just and L ' .li_,l- . 142 ( ONSTITUTIONAL IIlSTOllY OK CANADA. sympathetic statesmeo of Great Britain, who lK)re with the importunities of Canada, who overlooked much that was hasty and inconsiderate, and who gave us the boon and privilege of Responsible Government,* Canada and the Empire stand indebted for ever. These far-sighted men refused to be frightened from doing right, by the ravings of those who prophesied that a freer measure of self-government would plunge us into the whirlpool of the Republicanism of the United States. This it has not done, and will not do. Canada knows the abyss ; shrinks back from it ; will resist to the death being driven into it, Canada feels she enjoys a fuller measure of liberty than any country in the world, not even excepting the land in whose Constitutional glories we are proud to be partici- pants. In Ontario, the greatest Province of the Con- federation, a Municipal System, without parallel for the scope it affords for local liberty, brings home the benefits of domestic self-government to every community of 750 individuals. But our people are an educated people. By their intelligence they won their privileges ; with their intelligence they can develop and preserve them. Political ignorance could work no such system as ours, nor handle it with safety or advantage. In the year 1864 was exemplified the truth of the prophecy of Pitt in 1791, that, if the two Provinces were represented in the one Parliament, and parties were equally balanced, legislation miglit become an impossi- * In 1841. CONSTITUTIONAL HISTORY OF CANADA. 143 bility. The Union Act of 1841 gave to Upper and Lower Canada an equal number of representatives. Be- tween this period and 1864, the population of Upper Canada had gained upon and far exceeded that of Lower Canada. To the demand of the Upper Province for increased representation, the Lower Province persistently refused to accede. Parties were in such critical equipoise, that, in 1864, one vote defeated a Conservative Govern- ment. It was now seen that the Constitution would have to undergo an organic change. A Federal system was adopted ; the one under which we now live and thrive, and promise still more to flourish. To bring about the new form of Government, Sir John A. Macdonald, the leader of the Conservative Party, and the Hon. George Brown, the leader of the Liberal Party — the Party which demanded for Upper Canada Parliamentary representa- tion based on the principle of population, magnanimously resolved to sink their political diflPerences ; and, moved by a common patriotic impulse, entered into a union of political peace. The Federal system has been in operation since 1867, and every day adds proof to its excellence. In a country like Canada, peopled by diverse races, a Federal Government is the one under which may best be preserved that healthy national individualism which, in its ennobling rivalry, stimulates to its full extent the action of those vital political and social forces that give to a State vigour, freshness and valiant self-reliance. Our 144 CONSTITUTIONAL HISTORY OF CANADA. past history proves that it would be unjust and impos- sible to endeavour to reduce our nationa elements to a dead and waveless level. And our past history also teaches to those in power this lesson : That, to concede in season and in justice is to disarm discontent and 'danger ; is to satisfy and to retain. f END VOLUME I. f INDEX. A CHAPTER I. Capitulation of Canada ... q Free exercise of Row n Catholic Religion granted. . . 10 Military Rule 1-^ Treaty of Paris. Peace between Great Britain and ^^a^ce IQ French King cedes Canada lO-U English King grants, conditionally, liberty of Ro- man Catholic Religion 11 Canadian Seigniors and Vassals n Feudal prerogatives of the Seigniors n Vassals oppressed by King and Seignior 12 Conquest brings relief to the Vassals ... 12-13 Population: noble and plebeian, at the Conquest ... 13 Antipathy between Vassal and Seignior 13 French Nobility in Canada 14 The Conquest causes emigration of the French No- bility 15 CHAPTER II. Royal Proclamation introduces laws of England ... 16 146 INDEX. PAGE Quebec erected into a Province j boundaries de- Ullt^lX ••• ••• ••» »«• ••• ••• X\l King promises, under conditions, a House of As- sembly 16-17 Royal protection for laws of England ... ... 17 Oaths of Members of future Assembly ... ... 17 A Council appointed .. . ... ... 17 Constitutional question : " Great Seal of Great Bri- tain" V. " Royal Signet and Sign Manual" 17-18 Legislative powers of the Council ... ... ... 18 Canadian Noblesse dislike laws of England... 18-19 Numb*^r of British and French in Canada in 1770... 19 Royal promise as to House of Assembly unfulfilled. Disappointment of British Colonists ... ... 20 Is CHAPTER III. British Colonists petition for House of Assembly ... 22 British Ministry unfavourable to Petition ... ... 23 Sacrifice demanded of British Colonists to gain House of Assembly ... .,. ... ... ... 23 Frf^nch Canadian Seigniorial and Legal classes peti- tion 24 They prefer military government with French laws to civil government with English laws ... ... 25 British Ministers on the point of re-enacting the Criminal Law of France {Note) 26 INDEX. U7 CHAPTER IV. PAOE 27 27 28 28 28 Change of Government for Canada. The Quebec ^^11 Bill founded on French Petition. British Petition disregarded Indecent haste of British Ministry Burke, Fox, Barr^ oppose Bill Lord North and Cabinet refuse concessions to Bri- tish Crlonists Habeas corpus for Canada voted down by Ministers.. 29 Earl of Chatham protests against Bill. It passes ... 30 Lord Mayor of London and Common Council attempt to petition King King assents to BiU. His opinion of measure ... Real intent of Ministers. Solicitor-General Wed- derburne's speech Object of Bill, purposely to discourage British set- tlement Analysis and substance of Bill Injustice to Brithh Colonists within and beyond Canada 30 31 32 32 32 36 CHAPTER V. Canada protests against the Quebec Bill. Petition against Bill sent to the King Evil results of Bill enumerated Petition to Lords 37 37 38 38 us INDfcX. PAGIS Lords disregard Petition and refuse to repeal Bill ... 39 Petition to Commons 39 Repeal of Quebec Bill moved in Commons ... 41 Lord North threatens to arm Roman Catholics of Canada against Thirteen Colonies 41 Charles James Fox's charge against Lord North ... 41 Commons refuse to repeal Bill ... ... ... 41 French Canadian majority displeased with Bill ... 42 They offer to join British in opposition; are with- held by their superiors 42 The Thirteen Colonies incensed against Bill ... 43 Congress address people of Great Britain, complain- ing of Bill 44 CHAPTER VL British Ministry achieve their object ; they gain over clergy and seigniors ... ... ... 46 First taxes imposed by Britain since Conquest .. .46-47 Composition of Legislative Council ... 47 Address of Congress to inhabitants of Quebec ... 48 Serious result of address on Canadian population ... 49 Congress attempt to deceive Canada 50 Martial Law proclaimed ; Militia called out ... 51 Malign influence of Quebec Bill on defence of Pro- vince ... ... ... 51-52 i CHAPTER VIL Hostility of Peasants to Quebec Bill and Seigniors 63 INDEX. 149 Peasants rebel against Seigniors 53^55 Reason of revolt of Peasants 55 Population of the towns detest Quebec BUI .. 56 French Canadian MUitia make Governor promise to use his efforts for its repeal 55 CHAPTER YIII. Status of Roman Catholic Church in Canada ... 57 Penal laws of British Islands do not extend to Colo- nies gy Mgr. Briand elected Bishop of Quebec ... ... 53 King consents that Bishop should be invested by the ^<>P« 58 High-handed proceedings of Bishop towards his flock ... -rt „ 69 He exhorts his people to oppose American invaders 69 Threatens with excommunication those who refuse 59-60 The people disobey and satirize the Bishop. . . 60-61 CHAPTER IX. Perilous situation of Canada 52 The Governor deceived in his Militia 62 French Canadians assist Americans 52 Some of British Colonists sympathise with Ameri- cans .. f,o ••• ••• ••• DO General Montgomery takes possession of Montreal 63 150 INDEX. PAGE The Americans hold all Canada, except Quebec 63-64 Montgomery assaults Quebec. His death. Failure of the invasion ... • • • • • • ... 64 CHAPTER X. Colonial misgovernment ... 66 Responsibility of Colonial authorities for maladmi- nistration. ... ... ... ... ... 66 British Ministers kept in ignorance of Canadian grievances ... ... ... ... ... 67 Canadian Governors deceived by Canadian Oligar- Clll^o ••• ••• ••• ••• ^v* ••• ^1 Quebec Bill based upon partial information ... ... 67 British Ministry desire to mitigate some evils of the JDJLxX ••• ••• ••• ••• ••• ••! vJO Habeas Corpus about to be re-established in Canada 68 French Canadian Legislative Councillors oppose it 68-69 American Invasion assists to postpone Habeas Cor- VUfO ••• ••• ••« ••• ••• ••■ v/t7 CHAPTER XI. Introduction of English laws by Royal Proclamation of 1764 70 Constitutional argument against introduction of English laws 70-71 Nature of the supplanted French laws 71 INDEX. 151 PAGE Judges— sessions of courts— power of appeal— Su preme Council 7i Composition of Supreme Council ; its powers 71-72 Attorneys for the King ; their duties 72 Court of the Intendant ; its jurisdiction 73 CHAPTER XII. The laws of inheritance. No primogeniture Restraints on the Seigniors as to subdivisions of inheritance. Restraints in the case of the Peasants Defect of the French jurisprudence Rfi-establishment of the French civil laws 74 74 75 76 76 1 1 CHAPTER Xni. Feudal tenure ; Peasant servitudes 77 Tenure by which the Seigniors held of the King ... 77 Peasant tenures ; burdens and restraints 78 Redeeming feature of the Seigniorial system ... 79 Immense territorial grants to the Seigniors ... 80 King of England endeavours to perpetuate feudal system m future Province of Upper Canada 80-81 CHAPTER XIV. Canadian Reign of Terror Despotic Character of Legislative Council ... 82 82 I I i i ! I 152 INDEX. PAGE Military Tyranny established by Council 83 Commercial Code of England introduced ; Courts of Oyer and Terminer established 83 Tyranny of Governor Haldimand ... 84 Council vote down introduction of the Laws of Eng- lafUd ••» ••• ••« •• Military arrests ; their injustice Robbery of Mails by Government .. CHAPTER XV. . 85 . 85 86-86 Peace oetween Great Britain and the United States 87 Liberation of Canadian Political prisoners 87 Territorial gluttony of United States ... ... 87 British Ministry wish to revive Habeas Cmyus 87-88 Legislative Coimcil make delays ... 88 Habeas Corpus wrung from the Council 8 CHAPTER XVL British and French petition Home Government for Constitutional changes 89 Legislative Council resist petition 89 Lord Sidney's unjust opinion of petitioners ... 89 British Ministry at length condescend to notice v^^anaQa •.• .. ••> ... ... ... \j\j Mr. Grenville transmits to Canada scheme of a Con- stitution ... ... ... ... ... ... 90 Wretched social condition of the Province ... ... 91 Disgraceful state of the Judiciary ... ... ... 91 INDEX. 153 CHAPTER XVII. The Nation-Builders of Upper Canada The Loyalists of the Thirteen Colonies Persecution of the Loyalists ... They take refuge in Western Canada Imperial favours conferred on the exiles Political opinions of the Loyalists . . . They protest against feudal tenures ... They claim a Parliament of their own CHAPTER XVIII. I'AOE ... 93 • • • t/O ... 94 ... 94 ... 95 ... 95 ... 96 ... 96 Canada in the British Parliament ... ... ... 97 King's Message ; Division of the Province ; A Pro- testant Clergy ... ... ... ... ... 97 William Pitt's motion based on Message ... 97-98 He introduces a Bill to settle future Government of v^anaQa ... ••• .•> ..- ... ... ./o Provisions of the new Bill ... ... .. 98-100 Charles James Fox on the Measure. Favours self- Government for Canada 100 90 90 91 91 CHAPTER XIX. British Merchants of Quebec oppose Constitutional xxCb .. ... .*. ... ... ... kyJii Mr. Lymburner, their agent, heard at bar of the Commons 102 He depicts juridical confusion of Quebec ... ... 103 154 INDEX. PAoe Opposes desire of Western Loyalists for division of Province ... ... ... 103 Protests against aristocratic enactments of the Act 104 Points out defect in representation of American Colonies ... ... ... ... ... 105 Entreats for postponement of payment, of Provincial Civil List ... ... 105-106 Makes certain requests on behalf of his constituents 106 CHAPTER XX. Fox an4 Pitt on the New Constitution 107 Fox opposes the limited representation proposed ... 107 He objects to Septennial Parliaments for Canada ... 108 Disapproves of excessive electoral qualification ... 108 Contends against introduction of hereditary powers and honours in Canada 108-109 Combats reservation of lands for ecclesiastics 109-110 Comments unfavourably on proposed division of Quebec ... 110-111 Shows how Britain may retain Canada Ill Present Act only shadow of British Constitution ... Ill Pitt's doubts as to greater numerical representation 112 He defends Septennial Parliaments 112 Contends for a non-elective Legislative Council ... 113 Upholds ecclesiastical land reserves ; and division of Province ... ... ... ... ... 113 Points out inconvenience of a single House of As- sembly ... .. ... ... ... ... 114 INDEX. 105 107 107 108 108 )-lll 111 111 112 112 113 113 114 Fox moves to abolish hereditary principle. Nega- tived 1 " " loo PAGE 114 Moves for increased representation for Lower Cana- da. Negatived; Bill passed ... ... 114.115 CHAPTER XXI. The Constitutional Act of 1791 •'• ••• ••« Provisions of the Act repealed by Union Act of 1841 Tithes for a Protestant Clergy (abolished in Upper Canada) Lands for a Protestant Clergy (subsequent Imperial and Provincial restrictions) Provincial Legislation prescribed as to ecclesiastical lands (subsequent freedom of Legislation) Free land tenures for Upper Canada British Parliament renounce the right of internal taxation in Canada 123. ffabeas Corpus not guaranteed in the Act. How it became law 116 119 120 121 122 122 124 125 CHAPTER XXH. Defects of the Constitutional Act i on loxs political predictions jgG Pitt's political foresight ... * 126-127 Legislative Assemblies shorn of their power 128 Failure of the Act to establish a Canadian Aristo- cracy ... 128 166 INDEX. PAGE 128-129 ... 129 Eaxl Russell on the Constitutional Act Inconsistency of his position ... ' ... CHAPTER XXIII. First Parliament of Upper Canada 130 They repeal " civil rights " clause of Quebec Bill ... 131 English laws made the rule of decision 131 Poor laws and bankrupt laws of England excluded 131 Trials by Jury established 133 Negro slavery in French Canada 133 Upper Canada, the first member of the Empire to abolish negro slavery ... 133-134 Legislature of Upper Canada repeal Imperial Act of 1790, authorizing importation of negroes ... 135 Lower Canada Legislature refuse to follow i^xamplo of Upper Canada 135-136 Chief Justice Osgoode, in Lower Canada, in 1803, decides against negro slavery 136 CHAPTER XXIV. The Conquest confers religious liberty on Canada ... 137 The Huguenots excluded in the early days of French Colonization ... ... ... ••• ... 137 Charges made against the Huguenots 137 New England welcomes the Huguenots and profits by them... ... ... ... ... ..138 Feelings excited by the Conquest no longer exist 138-139 INDEX. 157 PAOB Montcalm's singular opinions as to the Government of French Canada ... 139 CHAPTER XXV. Canada past and present 140 Strain on the British Constitution in Canada ... 140 Perversion and debasement of the Constitutional A.Cu ••• .«• ••• ••• •«. ••• -l^" Canadian Oligarchies and Canadian Governors 140-141 Principle for which Legislative Assemblies con- tendeci ..» ... ..■ ••• •■• ...x^x Opposition of Legislative Councils — Outbreak of xOtJl ••• ••• ••• •'• ••• •••J.^X Union of Upper and Lower Canada, 1841. Respon- sible Government conceded ... 141 Canadian and British Statesmen : effortr of former ; magnanimity of latter 141-142 False prophets. United States Republicanism spurned in Canada ... 142 Ontario — Comprehensiveness of her local liberties. Her Municipal Institutions 142 Pitt's prediction fulfilled in 1864 ... 142 Failure of the Union Act of 1841 ... ... ... 143 Sir John A. Macdonald and Hon. George Brown, opposing Party leaders .. . ... ... ... 143 They unite to originate a New Constitution ... 143 Our Federal system. Its advantages in a country of diverse races ... ... ... ... 143-144